Lodha panel can’t run Indian cricket

In the context of the ongoing efforts of the Supreme Court to make the Board of Control for Cricket in India drink the prescribed water, I recall another cricketing episode that passed through the nation’s highest court. Somewhere around September-October 1989, six leading cricketers of India, including Kapil Dev, Ravi Shastri, Arun Lal and Mohammad Azharuddin, were banned by the BCCI from playing any form of cricket for six years by way of punishment. Their offence was that on their way back from an official tour of the West Indies, they played a couple of festival matches against a team in New York — without taking permission from the BCCI. The India-Pakistan community of New York handsomely rewarded the players from both sides — for the entire month-long tour of West Indies, every Indian player received only $1,600 while two days of matches in New York reportedly fetched them $10,000 or more individually.

Retired Chief Justice Mukul Mudgal, then a young lawyer, and I — not on instructions, but purely as cricket lovers — moved the Supreme Court not knowing what the legal course would be nor what relief to seek. Such a PIL was unknown then. Senior advocate Soli Sorabjee, who kindly consented to lead us, had no additional advice to offer either. All that we knew was that the then Chief Justice of India, E.S. Venkataramiah, was an ardent cricket lover.

At the very first hearing, without going into the technicalities, the CJI observed: “Let us hear the BCCI.” A day or two later, the BCCI appeared and without waiting for any formal order lifted the ban order unconditionally. Thus ended the misery of the six players and a “would have been” sad chapter in the cricketing history of India. Kapil Dev’s autobiography records this incident, so does Justice Mudgal’s book on “sports law”.

A few noted sports writers screamed next day, “The court had no business to interfere with the autonomy of a sporting body.” The controversy ended there and during the years that followed every one of those cricketers continued to earn kudos that they richly deserved.

“How can the Supreme Court devote so much of energy and time to restructure the BCCI — a society registered under a Tamil Nadu law — in the face of mounting arrears What law gives them the power to do this ” This question by a couple of retired senior civil servants was thrown at me at a social meet. Facing such questions has become routine to me.

Yes, there are plenty of arrears and, therefore, the judges have enough and more work to do. The BCCI, according to the decision of a Constitution Bench of the Supreme Court (five judges) in the Zee Telefilms case (2005), is not a “state” — hence outside the purview of public law. But the court thinks the BCCI performs functions of a public nature, like selecting the Indian team. The court, therefore, has jurisdiction to scrutinise the BCCI’s acts and omissions of a public nature.

The question, however, is that correcting an erroneous order made in the sphere of public functions is one thing but issuing orders in the nature of mandamus or to specifically perform certain things to a private body may not be permitted except while enforcing a contract. In the public law field, such a remedy may be available if a public entity refuses to obey a statutory obligation. That the BCCI is not a “state” or a public body is no longer open to debate and there is no law that compels the BCCI to conduct their affairs in the manner suggested by the Lodha Committee.

That is my view, which is wholly irrelevant in the face of the Supreme Court’s verdict, which is binding. The case is still pending before the Supreme Court and may keep hitting the media headlines for some time to come. But the main issue dealt by me is about the court’s jurisdiction that was decided way back in January 2015 by a bench of Justice T.S. Thakur and Ibrahim Kalifulla (since retired).

It is a matter of public knowledge that persons running the BCCI, while helping themselves generously, have considerably helped the cause of cricket in India — minnows of the 1950s have become the world-beaters. But when illegal betting and match-fixing scandals in cricket surfaced, the court rightly cracked the whip. Perhaps, that was the right occasion for the court to pause.

I am concerned only about the possible repercussions to the reputation of the judiciary by this activism by a couple of undoubtedly well-meaning judges of a court having the strength of 31. The events that unfolded subsequent to the July 18 judgment of the Supreme Court have made it amply clear that the BCCI is in no mood to surrender and they have shown all the signs of resisting the Supreme Court’s effort to reform their society. They appear to have adopted a “work to rule” attitude. And consider this in the context of our cricket calendar.

From November, the English cricket team is to officially tour India and from early next year, the Australians will play several official matches. All these require meticulous planning well ahead and expert handling continuously. If the BCCI pleads helpless on account of the orders of the court, matches could become a casualty and the blame will solely be on the courts. India will suffer internationally. With all due respect to the members of the Lodha Committee and without fear of contempt, I can say that this committee cannot run cricket in India, and no one else can.

One of the fundamental lessons that all law students learn is that courts would not pass orders, the compliance of which requires continuous supervision by the courts. The case at hand is a classic example where except through constant supervision of the court or its nominee, the Lodha Committee, compliance of the directions given by the Supreme Court in 2015 and 2016 cannot be ensured. Despite spending hundreds of precious hours of the court’s time in supervising the matter, even substantial compliance may not be possible through threats and coercions.

The second fundamental legal lesson is that where the issue relates to the personal service of individuals, the court would not direct specific performance. The classic example is that of a singer who breaches a contract to give a performance. The court in such cases can only award damages but would not pass an order directing the erring artist to sing. This is because the singer may pretend to sing serving no purpose.

It is true that both these principles are from the field of the law of contract, but apposite to the public law arena as well.

The public often asks: Is there nothing that the government can do to control patently excessive directions by courts Perhaps Article 142 provides the answer. That article apparently gives an omnibus power to the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. However, such decree or order passed shall be enforceable as may be prescribed “by or under any law made by Parliament” and until provision in that behalf is so made, in such manner as the President may by order prescribe. The President of India made such an order in 1954, which is still in force. The President, namely the Union Cabinet, can suitably amend that order anytime. Forcing such a situation will be undesirable.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com