Post-Retirement Jobs for the Judges: Incongruous to Article 124 (7)

 

The present issue goes to the root of the independence of the Judiciarythough the Indian Constitution provides the ‘Separation of Powers’ still attempts have been made by the executive to influence the Judiciary, by offering post-retirement engagements to the Judges. The main objective of this blog is to provide a holistic analysis as to how the re-employment of theretired Judges to the Statutory, Constitutional and Government Jobs are violative of Article 124 (7).

ANALYSIS OF ARTICLE 124 (7)

Article 124 (7) of the Indian Constitution states “No person who has held the office of a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India”.

In order to decide whether these post-retirement jobs are violative of Article 124 (7), it is pertinent to examine what is the meaning and purport of the expressions “plead oract” and “authority” occurring in Article 124 (7) of the Indian Constitution.

The articulation 'authority' according to Black’s Law is wide enough to incorporate each authority made by a statute and working within the territory of India, or under the control of the Government of India undoubtedly makes Parliament an authorityand the meaning of the word ‘act’ as given in Black’s Law, which reads, “performance, exercise of power, exercise of individual’s power and something done by an individual as a Legislator”. In this light duties imposed specifically on the Members of Parliament to render service in the Parliament, and rendering service amounts to acting in or before the Parliament.

When a retired Judge is appointed as the member of the Tribunal or a member of any Commissionit can be said that such appointment tends to place the Judges in a position where the Executive or Legislature may have authority over theme.g. Section 5 (1) of the National Green Tribunal Act states “A person shall not be qualified for appointment as the Chairperson or Judicial Member unless he is, or has been, a Judge of the Supreme Court of India or Chief Justice of a High Court”.

Now it is the discretion of the Executive to appoint any retired Judge of the Supreme Court or retired Chief Justice of a High Court as the chairperson in altogether it can be said the Executive is free to do ‘cherry-picking’ and obviously, the one who’s Judgmentsappears to be favouring the Central Government will get the job e.g. the recent nomination of Justice Rajan Gogoi to the post of Rajya Sabha can be said as a reward to those pre-retirement which appeared to be ruled in the favour of Central Government e.g. Ayodhya Verdict (M. Siddiq (D) through Lrs v. Mahant Suresh Das and Others)[1]and Rafael Verdict (Yashwant Sinha and Others v. Central Bureau of Investigation)[2].

This particular nomination becomes more interesting because he himself once stated that “Firm viewpoints are there that why these Post-Retirement jobs are a scar on the independence of the Judiciary”.Then what is the reason for him to accept this job? In an interview, he stated that “this post is not a job but a duty for him and once President nominated him, it was a call of duty for him to accept this post”.The author is of the firm opinion that such nomination cannot be said as a discharge of debt towards the nation.

The founding fathers of our Constitution being conscious of such enactments incorporated Article 124 (7) creating a bar for the retired Judges of the Supreme Court to become Members of the Parliament as it was highlighted by Dr. Ambedkar that “in India, Judges are intended to be non-political and free from political pressure”. It is submitted that what is intended by Article 124 (7) is to insulate Judge against political pressure, political/Executive influence, allurement, and temptation and to remain above reproach. It also aims at checking the internal corrosion of Judiciary.

Therefore the author is of the firm opinion that these post-retirement jobs for the Judges are an indirect interference by the Executive in the independence of Judiciary and has a great tendency to undermine this noble concept.

Revisiting the Judgment of Ananga Udaya Singh Deo v. Ranga Nath Mishra and Others

The Orissa High Court once had an opportunity to interpret Article 124 (7) the author shall provide his reasoning that why this judgment needs to be revisited. In the case of Ananga Udaya Singh Deo v. Ranga Nath Mishra and Others[3]the acceptance of the nomination of a retired Judge of the Supreme Court as a Member of Parliament was challenged on the grounds that such nomination or appointment is ultra vires to the Constitution under Article 124 (7).

The Court, in this case, rejected this contention and held that the “asseveration "plead or act" used in Article 124(7) can only be explicated to be a bar for practice before any authority and it does not refer to the functioning or performance of a Member of the House of People or Council of States, i.e. Parliament[4]. The court in further held that the phrase ‘plead or act’ should be given the same meaning which is given under Article 220 which states “Restriction on practice after being a permanent Judge, the word ‘act’ or ‘plead’ must be construed in that context i.e. restriction on practice” 

The author finds it difficult to agree with this particular reasoning of the court because it does not bring out the real intention of the Legislature. The very intention of the Legislature was to keep the Judges away from any ‘temptation’ and these post-retirement engagements on prima facie acts as a temptation.

The word ‘authority’ under Article 124 (7) has to be given the same effect which is given to the phrase “other authority” under Article 12 of the Indian Constitution.  Article 12 of the Constitution defines 'State' which includes the Parliament and other authorities.[5]

InRajasthan State Electricity Board v. Mohan Lal[6]the court regarding the meaning of ‘other authorities’ held that"The significance of the word 'authority' given in Webster's Third New International Dictionary, which can be material is a public authoritative office or corporation having quasi-governmental powers and approved to administer a revenue-delivering public enterprise”. This dictionary meaning of the word ‘authority’ is quite clearly wide enough to include all bodies created by a Statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression ‘other authorities’ is wide enough to include within it every authority created by a Statute and functioning within the territory of India, or under the control of the Government of India.

The Deliberate use of the expression ‘the State’ in Article 12 and also in Article 36would have normally shown that this expression was used to denote the State in its ordinary and Constitutional sense of an independent or sovereign State and the inclusive clause in Article 12 would have extended this meaning to include within its scope whatever has been expressly set out in Article 12.

The definition of ‘other authorities’ under the expression 'the State' under Article 12 is, however, for the purpose of parts III and IV of the Constitution, the contents of these two parts clearly show that the expression 'the State' in Article 12 and also under Article 36 is not confined to its ordinary and Constitutional sense as extended by the inclusive portion of Article 12 but is used in the concept of the State in relation to the Fundamental Rights guaranteed under Part III of the Constitution and the Directive Principles of State Policy under Part IV of the Constitution whose principles are declared by Article 37 to be fundamental to the governance of the country and enjoins upon the State to apply in making laws. And under Article 50 it is the duty of the ‘State’ to separate the Judiciary from the Executive. Therefore according to the author the Upper House is an authority under Article 124(7) is a positive bar for the retired Judges to accept such posts where the Executive has direct control over such authority.

Though it is a sound rule of construction to give the same meaning to the same word occurring in different parts of an Act of Parliament, unless the words have been used in a different context or in a different sensethe interpretation of the phrase “plead or act” under Article 124 (7) is not limited to restriction in practice butis of much wider connotation, by taking into the account the intention of the framers of our Constitution it can be easily inferred that the framers of our Constitution intended that the Judges of the superior Judiciary should not be re-employed after their retirement.

Constituent Assembly Debates

During the meeting of the Constituent Assembly, a motion was proposed by Professor KT Shah which, if adopted, would have prohibited Judges of the Supreme Court or any High Court, who had served for five consecutive years on the bench, to be appointed to any Executive office, including the office of an ambassador, a minister, a plenipotentiary or a high commissioner, as well as a minister of India or under the government of the Union or a State.

This motion was even backed by Professor Shibban Lal Saksena, who explained the need for such a prohibition thus: “If the temptation of being appointed to other high positions after retirement is not removed, it will also be liable to be abused by the Executive or by any party in power and they may hold out such temptations which might affect the independence of the Judiciary. I personally feel that the amendment is very salutary and healthy……… I hope that somewhere in our Constitution the principle enunciated here will be embodied so that the Judiciary may be above temptation and nobody may be able to influence it”.

The fourteenth Law Commission Report which was led by Mr. Setalvad advocated that Judges should not shoulder the Post-Retirement jobs from the Government. Eloquently, several Judges of the Apex Court have in past averred not to take any Post-Retirement jobs, including Justice Jasti Chelameshwar, Justice JS Khehar, Justice Kurien Joseph, Justice RM Lodha and Justice SH Kapadia even Justice Gogoi himself stated that there are “Firm viewpoints are there that why Post-Retirement jobs are a scar on the independence of the Judiciary”then what was the reason from him to accept this nomination?

Post-Retirement Jobs for the Judges: An “office under Government”

An uncovered perusing of Article 80(3) of the Indian Constitution only envisages the President to nominate “persons having special knowledge… in the field of literature, science, art and social service” as members to the Rajya Sabha. It is difficult to envision that the drafters of the Constitution had in mind a retired CJI while framing this particular provision.

The power of President under Article 80(3) is not discretionary the President has to act under the aid and advice of Council of Ministers i.e. under Article 74(1) therefore it can be said that such appointments are made solely by the Executive e.g. in India all the Statutory posts are filled by the appointments made by the Executive so when a retired Judge is appointed to such posts then such appointment becomes an Executive appointment indirectly such appointments can also be called as “office under Government”

The author would like to like to lay down certain tests which could make such appointments as an “office under Government”(a) whether Government makes the appointment to the office, (b) whether Government has the right to remove or dismiss the holder of the office, (c) whether Government pays the remuneration, (d) What are the functions which the holder of the office performs and does he perform them for the Government; and (5) and does Government exercise any control over the performance of those functions.

Where the power to appoint, the power to dismiss, the power to control and give directions as to how the duties of the office are to be performed and the power to determine the question of remuneration are all present in a given case, then the officer in question holds that office under the authority so empowered[7]. Therefore the author is of the firm opinion that these post-retirement engagements are “office under Government”.

CONCLUSION

In India though the Judges of the Supreme Court and the High Courts are appointed by the Government, still this appointment does not make them “government servants”, but by accepting these post-retirement jobs Judges are becoming “government servants”. The appointment of a Judge is not akin to the appointment of a Civil servant. Like the more felicitous practitioners in some profession “He owns no man master”. “The only servitude which he knows in his solemn capacity is that which he owes to the existing body of legal doctrine, promulgated by his brethren, past and present, on the bench and the legislative enactments of the King in Parliament”[8].

These post-retirement jobs appears to guide or influence the Judges and it is an indispensable principle of an independent Judiciary that a Judge should be guided or influenced by nobody but his own conscience. He should imbibe a habit of independent thinking and uprightness. His motto should be “Fiat Justitia Ruat Caelum- Le Justice be done even if the heavens fall”. Therefore the author is of the firm opinion that these post-retirement jobs are violative of Article 124 (7).

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[1](2020) 1 SCC 1.

[2](2020) 2 SCC 338.

[3] AIR 2001 Ori 24.

[4]Id.

[5] Central Inland Water Transport Corporation Ltd. v. BrojoNath, (1986) 3 SCC 156.

[6]AIR 1967 SC 1857.

[7]Guru Gobinda Basu v. Shankari Prasad Ghosal, AIR 1964 SC 254.

[8]William A Robson, Justice and Administrative Law 44 (3^rd ed. 1933)

                                            (Shreshth Srivastava is a student from UPES)

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Accessibility of Court Records under Right to Information in view of Copyright Law in India: Does a logistical Impediment hinder justice?

                                     

The Journey of Right to Information [“RTI”] traces struggle, due to the dichotomy between the foundational differentiation of private right and public interest. Imperatively, Public Interest lies in the freedom of discussion, which necessitates that the members of a democratic society are sufficiently informed about the things which affect their lives. Interestingly, RTI is a preambular right which emanates from liberty of thought and expression to all the citizens under the Constitution of India and is read under Art. 19(1)(a).

The recent decision of the Supreme Court in Chief Information Commissioner v. High Court of Gujarat, restrained the citizens from obtaining Court records under the RTI Act and undergirded the applicability of the Gujarat High Court Rules over RTI. Generally, a person has two mechanisms to avail judgments and orders from the court; one under RTI and other under the respective High Courts [“HCs”] or Supreme Court [“SC”] rules. RTI Act allows any citizen to acquire information pertaining to case records and judgments subject to the provision of the Act.^[1] Conversely, the HC rules requiring the satisfaction of competent authority mandates people to disclose the reasons for accessing such records.[2] Interestingly, the records are only furnished when the authority perusing the reasons is satisfied. Thus, both RTI and HCs/SC Rules lay down different and contrary (as explained in the following paragraphs) procedures for obtaining the orders and judgments.After this case, people only have one mechanism to obtain judgments and court records (by adhering to HC and SC rules) because as per the SC the rule of precedence would only apply in case of ‘contravention’. However, the Court found no contravention between procedures of RTI Act and HC and SC rules.

The present article argues that such a narrow interpretation of ‘contravention between a general law and a special law’ logistically (by endorsing a complex procedure) impedes citizens from claiming information and operates in derogation to the objective of RTI. It also argues that the court obfuscates the legislative intention of giving unfettered access to judgments and other court orders as envisaged under Section 52(q) of the Copyright Act, 1957, which allows any person to access judgments with no satisfaction as additional requirements (unless barred by the court itself). It highlights the intention of the legislature to make the judgment available without any hindrance. The present article is an attempt to Constitutionally analyze the case in light of the government work under Copyright law. Further, the authors have shown how the reasoning of the court problematizes the objectives behind RTI Act and Copyright law.

Special Law vs General Law: Absence of Inconsistency?

In the present case, the issue arose when an applicant filed an RTI to avail the copy of information from the Court. The Public Information officer of Gujarat High Court rejected the application on the ground that the applicant should have approached the Court under Rule 151 of High Court Rules which prescribe some extra criteria (discussed in the following paragraphs) for obtaining information. Hence, the issue arose whether procurement of orders and judgments through the applicability of RTI Act would have an overriding effect by virtue of Section 22 over the rules formulated by the HCs and SC respectively. Section 22 is reproduced hereunder:

“Act to have an overriding effect.—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

The court pondered upon Section 22 of RTI Act, a non-obstante clause and inconceivably negated the existence of any inconsistency between the procedures contemplated under the RTI Act and rules of the HCs. The court ruled that in the absence of inconsistency (between HCs/SC rules and RTI) the orders and judgments are to be mandatorily obtained under rules of HCs and SC. However, such interpretation appears problematic on the rule of interpretation in case of conflict between general and special law.

Notably, purport of RTI Act is to facilitate an effective and efficient mechanism for the accessibility of information from the Public Authority, thus it particularly caters to the need to informed citizenry. Whereas, the rules of HCs and SC concern a broad theme of the functioning and administration of courts, of which access to copy of documents is an offshoot.Hence, in line of the dicta of the court inR.S. Raghunath v. State of Karnataka,the procedure laid under RTI (a special law) would prevail over the rules (i.e. a general law). In this way, the court’s narrow interpretation of inconsistency restricts the applicability of RTI Act and undermines the intent of the legislators for incorporatingthe non-obstante clauseunderSection 22.

Moreover, relying on the Register, Supreme Court of India v. R.S. Misra, the court casually equated ‘transparency’ with the availability of alternative mechanisms and held that the presence of an alternate mechanism (Rules of HCs and SC) ipso facto confirms transparency, thereby denying the need of invoking RTI. In simple words, the Court has assumed that mere presence of an alternative mechanism for obtaining information is sufficient and RTI is of no use in that case. However, such assumption of the Court regarding two statutes dealing with the similar subject matter not only overlooks the ‘convenience’ aspect while obtaining information, which should be deciphered from the view point of the ‘applicant’, but also sidesteps the primary objective of RTI,i.e. is to ensure an expedient procedure of obtaining information. The Court has failed to appreciate that the availability of alternate mechanisms does not necessarily imply transparency, however, the methods of acquiring information are equally relevant to evaluate transparency.

Pertinently, under Section 6 Clause 1, the RTI Act delineates a simple mechanism for obtaining information by writing either through post or electronic medium requesting the Public Information Officer about the particulars of the information annexed with the payable fee. Such applications can only be rejected by the Public Information Officer on the grounds mentioned under Sections 8 and 9 of the Act. However, the rules of the HCs and SC necessitate the third party to manually submit an application along with the affidavit showcasing ‘good cause’ for acquiring the copy of orders and judgments. Notably, ‘good cause’ is nowhere defined in the Act, and the authority is not mandated to provide any reason for rejecting the request due to want of the good cause. Thus, subjective satisfaction of the authority becomes the sole reason for rejection. Further, the RTI Act allows ‘any person’ to seek information in accordance with the Act, whereas the rules of the HCs and SC allow ‘only parties to the case’ to such unimpeded access to judgments and creates extra filters for any other person outside the case.

Therefore, shutting the application of RTI on the judicial side not only makes the process of procurement of judgments and orders through HCs and SC more complex, but also creates further procedural and logistical constraints for the applicants. The stand point of evaluation as to whether the mechanism is effective or not must be from the perspective of an information seeker. This clearly warrants for a fairly simple and non-technical method as contemplated under the RTI Act. Such interpretation of the court overlooks the spirit of RTI which has been regarded as a facet of Article 21 of the Constitution. Further, India being a democratic nation where informed citizenry gains paramount importance, such pedantic interpretation problematizes the citizen’s fundamental right to know (a derivative of freedom of expression), to avail the best means of acquiring imparting and receiving information.The same can be understood from the Secretary, Ministry of Information and Broadcasting v. Cricket Assn. of Bengal, where the Court, while defining the right to impart and receive information as a specie of right of freedom of speech and expression, held that every citizen has a right to use the best means available for the purpose. Therefore, the Court ought to have considered the ‘best means available' while restricting the applicability of RTI Act.

 

Access to Government Work under Copyright Law: A way towards Informed Citizenry?

Copyright is a right given by the State over the intellectual creations of the authors and artists which provides certain economic and moral rights to the authors. In this way, it adds value to society in the form of a creative corpus which further enables people by unlocking new ideas. Interestingly, Section 2(k) defines Government Work as -

“a work which is made or published by or under the direction or control

(i) Xxx

(ii) Xxx

(iii) any court, tribunal or other judicial authority in India.”

Therefore, judgments, legislative acts, reports etc. are de jure government work and owned by the government. Conceptually, judgments are literary works for which the rights are mentioned inSection 14(a). However, unlike other works, judgments cannot be economically exploited by the government as they form a part of fair dealing provision as enumerated Section 52(q). In simple words, any person can use the judgment without any permission (unless it is explicitly barred by the court). Evidently, the legislature has deliberately made them subject to ‘no permission’ from the government and left them out for the public to use because they constitute an essential part of public discourse.

This can be analogized by Immanuel Kant’s argument of means-end, wherein both means and end are equally important. The Rationale behind not giving the exclusive rights on the government works especially on judgments can be emblematically called ‘means’ to achieve an ‘end’ i.e. an informed citizenry. It is to be noted that Section 52 is a crucial provision inserted in Copyright Act, 1957 to strike a balance between the public’s right to information/work and private right of owning intellectual property. Logistical hindrances as created in the present case obstructs the implementation of this provision (which creates a de facto right of the public because Section 52(q) secures the interest of public against private rights of copyright holders i.e. government in this case.) and creates an unnecessary impediment for people to access government work (i.e judgments and orders), thereby defying the ultimate objective of Section 52(1)(q)(iv).

In S. Khushboo v. Kanniammal&Anr., while epitomizing the significance of informed citizenry, the court observed that “the free flow of opinions and ideas is essential to sustain the collective life of the citizenry”. Further, India, being a country which follows a common law system, where judgments are christened as the binding source of law. This is called the principle of stare decisis, a rule of abiding by decisions or  following recent adjudications. Therefore, it becomes more of an obligation on the courts that the judgments so rendered are widely published to secure compliance of the laws. Recently, in the case of KantaruRajeevaru v. Indian Young Lawyers Association, the court ordered the State to widely publish the judgment through television, newspaper etc., thus, highlighting the essence of making judgments accessible to the public. Similarly, in Union of India v. VanshSharad Gupta, the Delhi High Court held that the “public could be expected to follow the law only if the law is easily accessible ‘at the click of a button’ Also, in Sanjeev M. Gorwadkar&Anr. v. State of Maharashtra &Ors., the court remarked that it is quintessential for the citizen to know the set of laws, rules and regulations which govern his conduct. Given these cases and the significance of ‘informed’in Right to informtion, it becomes very important for the court to be cautious while interpreting and constructing the objective of RTI.

Conclusion

Access to information is an important aspect of a modern nation and becomes even more important when this information is the law. Given the litany of judgments showcasing the significance of access to law and information, the instant judgment of the court seems a little incognizant of the objective of Right to Information. In cases such as this where the fundamental right i.e. right to information of the citizens is at stake, the court is expected to adopt a more inclusive and thoughtful yardstick before limiting the right. The objective of incorporation of Section 52(1)(q) under the Copyright Act, 1957 highlights the importance of unimpeded access to judgments by the people and ensures the objective of having an informed citizenry. The present case should be viewed from the lens of accessibility of justice, the Constitutional Courts in India have been identified as Courts of Record, whereby the judgments delivered by them are binding on all lower courts in the form of precedents. Therefore, it becomes of paramount importance that the citizens affected by the ruling of the court ought to be made privy to the orders and Judgments of the Court.

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[1] The Right to Information Act, 2005, No. 22, Acts of Parliament, 2005, §3.

[2]Supreme Court Rules, 2013, Gazette of India, pt. II sec. 3 R. (i), Order XIII rule 2; Gujarat High Court Rules, 1991 rule 151.

(Lokesh Vyas and Chitransh Sharma are fifth year students from the Institute of Law Nirma University.)

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Disparities in the Legal position of the BCCI

 

The Board of Control for Cricket in India (BCCI) is the only governing entity for controlling activities pertaining to cricket in India and enjoys a de facto monopoly.[i] It was founded in 1928 under the Tamil Nadu Societies Act with the help of social elites from the pre-independence period who had an affinity for cricket. It is now registered in Mumbai and, among other things, performs the function of selecting the national team to represent India in international tournaments, a task traditionally performed by the National Sports Federation (NSF). While in early 2019 there were reports that BCCI has signed to be an NSF, there is still no clear and conclusive documentation that consolidates it. On the other hand, in a compilation of all the recognized NSFs assembled by the Minister of Youth Affairs and Sports in December 2019 in India, BCCI appears to be unaccounted for.

This means that apart from cricket, all other sports in the country are handled by an NSF, which is a bizarre inconsistency.In India, there is no other sport of such magnitude that produces so much money, attraction and audience as cricket, and the body that governs it, regulates it and makes laws around it conveniently, is private.The need for regulation is urgent and immediate, but there are judicial and constitutional obstacles that obstruct the smooth inclusion of the BCCI as a State, which have served as barriers to date.

The Zee Telefilms Case and the importance of its Dissenting Judgement

BCCI performs multi-fold functions, which are considerably elaborate, and enormous for a private entity. Despite this, over the years, the BCCI has still managed to retain its private status. In 2005, in Zee Telefilms v. Union of India, BCCI took the stand of not being a state body before a 5-judge bench. The Union of India (UOI) opposed this by stressing that its roles were public in nature. The UOI noted that BCCI assumes the position of a representative for India when it sends players from India to international tournaments.Additionally, for playing international matches, government permission is required. The BCCI must have government approval, which is subject to foreign policy and global affairs, for any instance of an international match or tournament. Despite these arguments, the judgement given by a 3:2 majority stated that the BCCI was not functionally, technically, financially or administratively related to the government. Therefore, it could not be regarded as the state, and whatever government power and control it had was not ‘deep and pervasive.’[ii] This judgement also dismissed the argument that the BCCI performed ‘State-like’ role and functions in its service.

In the Zee Telefilms case, the dissenting judgment given by Sinha J. is significant to understand why BCCI can be considered a state entity. He opined that a different test is required to decide whether BCCI comes under Article 12 as the general view of financial, functional and administrative control given in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology would apply only when a body is formulated by the State itself for different purposes, but, incorporated under the Companies Act or registered under the Societies Registration Act. Clearly, the BCCI has been a private entity since 1928 and was deliberately permitted by the Indian government to be the archetypal entity regulating cricket. This dissent highlighted the implicit monopoly bestowed by the State upon the BCCI.

BCCI implicitly discharges public functions, but with minimal accountability

The most up-to-date stance of the Hon’ble Supreme Court in Board of Control for Cricket in India v. Cricket Association of Bihar states that the BCCI discharges a public role and even though BCCI is not a State agency, it is entitled to writ jurisdiction of the High Court under Article 226 of the Constitution. The law is currently in flux as the SC has stated that the BCCI performs a public function, but, inevitably fails to categorize it in accordance with Article 12. In paragraph 69 of this case, the court explains that, because of its public role, a non-statutory, non-governmental entity such as the BCCI is equally subject to the same degree of judicial review as any governmental body. Moreover, the court uses this argument to justify a study of the internal regulation of the BCCI, Rule 6.2.4.

In reviewing the legal status of the BCCI, Gautam Bhatia has concisely clarified that when this paragraph is read in accordance with the courts’ examination of Rule 6.2.4 of BCCI’s controversial internal regulation, which entitles administrators to have commercial interests in the IPL, Champions League and other T20 tournaments, it can be reasonably interpreted that the Court held that private bodies carrying out public functions are specifically subject to Part III of the Constitution. It treated the internal regulation of the BCCI as a statute (which would normally go beyond judicial review because of the precedent established in Zoroastrian Co-Operative v. District Registrar Co-Operative), and then applied Article 14 to it. The very fact that the court applied the Constitution to the BCCI’s internal working implies the move to hold it accountable under Part III of the Constitution. This would suggest that the court reintroduced the principle of BCCI performing 'state-like' functions previously enforced by the Zee Telefilms judgement, supplementing it with the requirement that, pursuant to Article 32, one may not go directly to the Supreme Court, but only to the High Court under Article 226.[iii] Thus, we can view that the judiciary is moving closer and closer for inclusion and transparency of the BCCI to the State, but does not want to take the leap yet.

The Significance of Cricket as a Cultural Good

In recognising the need for legislation and inclusion under Article 12, the point about cricket being a cultural good can be useful. With huge revenue streams for the country, Cricket has given birth to generations of fans and viewers alike.It has evolved into an essential government resource, enhancing global cooperation and soft power.Therefore, it seems very plausible to suggest that entities serving as gatekeepers of access to cultural goods must be viewed as performing public functions.[iv] It is also wise to conclude that cricket, since the figures are consistent with this claim, is an important cultural good. Cricket accounts for 85% of India's sporting economy, with billions of spectators. Citing an instance where ex-Finance Minister Jaswant Singh cut Cricketers’ income tax in a 2003 quarter-final match against Pakistan,among other events, that highlight cricket’s cultural importance and effect on the masses. Emily Crick, while examining the impact of cricket on Indian national consciousness has stressed the political, social and cultural relevance of the sport.[v]All sports that serve a public good for a society can and should be funded and supported by the state and taken over as a social expense with a positive return. In other words, in the medium to long term, they must be understood as public investments. Objective standards for sport as public interest must be laid down and means to determine the outcomes of this 'investment', must be developed. The state should also play a role in promoting, funding and, above all, controlling such a sport.[vi]

The Abortive Inclusion of BCCI under RTI Act.

In 2018, the Central Information Commission classified BCCI to be "virtually" an NSF. In its 275th report, the Central Information Commission, citing the points listed by the Law Commission of India, claimed that the BCCI may not be allowed to escape the governmental overview because it keeps the fundamental rights of current and future players, umpires, spectators, and various organisers hostage. The report highlighted the use of tri-colours on the uniform of the squad, Ashok Chakra on the helmet and nomination of players for Arjuna Awards as markers of state functions performed by BCCI. In addition, the lack of regulations and legislation on cricket and the de-facto monopoly of the BCCI have also been taken into account. Currently, BCCI is responsible for a large amount of money, almost equal to Rs. 11,900 crores, in relation to the IPL and other undertakings. As per the report, land grants and tax exemptions granted by the government are common. Land grants and tax exemptions granted by the government are normal, according to the report. Since there is a lack of accountability, BCCI is also vulnerable to corruption and money laundering.

There have been concernsthat have stopped the smooth inclusion of the BCCI under RTI. For instance, after an RTI application was filed against the Ministry of Youth Affairs and Sports in 2018, an order was passed by the Central Information Commission specifically categorising BCCI as an NSF making it accountable under section 2(h) of the RTI. The BCCI declined to agree with the classification and did not recognise it. It responded with a stay order issued by Madras HC in 2013, in which BCCI had already lodged a plea challenging its inclusion under the RTI Act. This reply should not have been entertained as the SC has reiterated that, unless a "speaking order" extending a stay was issued in the interim period, any stay order would expire after a period of six months from that day. Also, the extension should solely be granted under “exceptional circumstances wherefore the continuation of the stay order is validated more than instant final disposal of the trial.” If BCCI falls within the scope of the RTI Act, all its decisions – whether about team selection, team trainings or sending teams for competitions, organisation of events can be the subject of RTI enquiries. Records, minutes of board meeting, documents, opinions, emails, contracts etc. would be subject to such enquiry. The result could be greater accountability. Thus, the expeditious disposal of this case carries significance as it directly affects public interest. The stay order has long expired and should not be used as a weapon to advance the agenda of the BCCI in the name of justice. Furthermore, the government should officiallyrecognize the existence of BCCI as an NSF by an updated list released by the Ministry of Youth Affairs and Sports in order to remove any inconsistencies.

Conclusion

The need to tackle judicial and procedural problems and to include the BCCI within the framework of Article 12 is feasible and necessary by all means. Cricket is a billion-dollar industry in India. The privilege of withdrawing from the government's overview cannot be granted to an undertaking of this magnitude when we know that its consequences are bound to affect the human rights, tax money and welfare of people. A change of perspective is needed in order to give priority to equity, justice and fairness over the interests of the few elite who are at the forefront of a wealthy conglomerate that benefits from the audience and cultural significance of a sport enjoyed by billions.

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[i]Zee telefilms Ltd. v. Union of India, (2005) 4 SCC 649 (per S.B. Sinha, J., dissenting)

[ii]ibid, para 23.

[iii]Gautam Bhatia, The BCCI Controversy, Public Functions and Cultural Goods, and the Return (?) of the Functional Test, Indian Constitutional Law and Philosophy (Aug. 25, 2016), https://indconlawphil.wordpress.com/2016/08/25/the-bcci-controversy-public-functions-and-cultural-goods-and-the-return-of-the-functional-test/.

[iv]ibid.

[v] Emily Crick, Institute of Peace and Conflict Studies, New Delhi, India, Cricket and Indian National Consciousness, IPCS(2007), http://www.ipcs.org/issue_briefs/issue_brief_pdf/560458831IPCSResearchPaper9-EmilyCrick.pdf.

[vi] Jorge Pereira et al., Universidade da Madeira, Funchal, Portugal, The public interest of sports at non-profit sports organizations that are supported by the government, SciELO (July/Sept. 2016), http://www.scielo.br/scielo.php?pid=S1807-55092016000300675&script=sci_arttext&tlng=en.

(Shruti Chaudhary is 4th Year Law Student of Dr. Ram Manohar Lohiya National Law University, Lucknow)

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