ESPN: National: Wednesday, August
10, 2016.
There is a
certain irony about BCCI reviewing a decision. But like in the case of the
Decision Review System that it opposes, filing a review petition against the
reforms recommended by the Lodha Committee, and mandated by the Supreme Court,
this can be seen as a desperate late review to waste minutes while trying to
save a Test in dying light. Or perhaps there is a bigger gambit.
On the face
of it, a review petition is the only legal recourse available to the BCCI.
However, for it to have a chance to succeed, its legal team will have to
persuade the same set of judges - in this case the Chief Justice of India TS
Thakur and a judge he nominates because his partner in this case, Ibrahim
Kalifullah, has retired - of an apparent error in their judgment. And if they
choose to admit the petition, it will be heard in private.
The BCCI, it
is said, has been emboldened by the legal advice it has received from former
Supreme Court judge Markandey Katju, who, in an extraordinary offensive, has
called the Supreme Court's decision "unconstitutional and illegal".
He has accused the Supreme Court of setting a bad precedent by assuming
legislative powers in this case, or practising in "judicial activism"
as it is known in legal circles.
Legal
experts, however, point out this is not the first time the judiciary has
ventured into drafting legislation, more popularly with the drafting of
Visakha, a set of guidelines in cases of sexual harassment in India because at
that time there was no such law in India.
As matters
stand, the BCCI is poised to take Katju's advice and miss the August 9 meeting
with the Lodha Committee. That, and hiring Katju is being seen in legal circles
as tantamount to waving the red rag to the judiciary for there is history
between him and Justice RM Lodha. Katju has been in recent times an outspoken
critic of the Indian judiciary. After taking over the chairmanship of the press
council, he had public issues with Lodha, who recommended a two-year
cooling-off period for retired judges before they took up government
assignments.
If this is a
delaying tactic - Kalifullah has already retired, and Thakur is due to depart
in January 2017 - legal experts believe there is far too much time left to
delay through this final review. This review petition will have to be filed by
August 18 or thereabouts, and the BCCI will still have to kill another five
months if they are hoping for a change of heart from the new chief justice
after Thakur.
Justics JS
Khehar is in line to succeed Thakur and he was part of the two-man bench
before whom the BCCI had challenged the decision of the Bombay High Court about
the fact that due legal processes had not been followed in investigating the
IPL 2013 corruption case.
However, seen
from another angle, it can be argued that there is little to lose from taking
the matter further for the current BCCI dispensation because a majority of them
stand to lose positions either immediately or after the current term is over if
two major recommendations - taking out administrators who are over 70 and those
who have already served nine years - come in to effect. They may as well give
it every desperate shot.
Yet there is
another school of thought that gives the BCCI more credit than just gambling
desperately. The board, with a member of parliament from the ruling party (the
BJP) as its head and the union finance minister widely believed to be its
godfather, enjoys loyalties in the parliament that cuts across party lines,
which is believed to be the BCCI's trump card.
It is believed
that powers higher than the BCCI office bearers are calling the shots now; in
fact some BCCI members have anonymously questioned the wisdom of pitting a
former Supreme Court judge against the Chief Justice of India. However, there
is possibility of cold logic and an elaborate game plan behind this. Filing the
review petition, even if it is not likely to be entertained as Katju has
himself written in his blog, is to follow the formalities and also buy time. In
Katju they have a man who will publicly say what they want to say but with the
authority of a former Supreme Court judge. Also, during the process there will
be unnamed BCCI sources telling the media how the legal tussle is hurting the
organisation of cricket matches in order to gain more sympathy.
While all
this serves as a distraction, the parliament could move to clear the
long-pending Sports Bill which was originally brought in as a means to rein in
errant sports federations, offer regulations regarding age (60) and tenure of
officials much like the Lodha regulations. The Sports Bill was being held up
due to political opposition for the last four years, but the Lodha report may
give it life again, even if in a slightly diluted form, reducing age and tenure
limitations and making it an overarching piece of legislation which the BCCI
can adhere to and extricate themselves out of the Lodha report's far tougher
regulations.
On paper,
political will should be easy to garner because the BCCI has members across
political parties, but if this is the BCCI plan, it will not be as rosy as it
sounds. For starters it might have to agree to fall under the Right to
Information Act (RTI), an integral part of the Sports Bill that the BCCI has
avoided. Moreover, legal experts believe that while the parliament can pass a
bill that overrules the Supreme Court judgement, there has to be a sound legal
foundation for it; the only purpose of the bill cannot be to counter a recent
Supreme Court judgement.
If this is
indeed the plan, the BCCI will have to execute it to perfection to get over all
possible objections and public outrage against it, but even if such a bill does
get cleared to counter the Lodha Committee, all it will take is a Public
Interest Litigation (PIL) from any Indian citizen to take the matter back to the
judiciary. Either way it is safe to say that we are some way from hearing the
last of this case.
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