Ju­di­cial Ac­tivism or Ju­di­cial Over­reach

Libertatem Magazine - - Content - By Shreyan Acharya

IN­TRO­DUC­TION

The game of the colo­nial rulers has made path-break­ing achieve­ments in modern In­dia. Yes, it is di­rected to­wards the grow­ing in­flu­ence of cricket in In­dia; the coun­try lives and breathes cricket since times im­memo­rial. The 2011 ICC Cricket World Cup made a huge im­pact, and further boosted the pop­u­lar­ity of the game. Cricket, un­like any other sport, has gained vast pop­u­lar­ity in In­dia, but it is not yet safe from the in­flu­ence of money and pol­i­tics. The is­sue of po­lit­i­cal in­ter­ven­tion in the sport­ing ac­tiv­i­ties has hin­dered the growth of sports in the coun­try, and has made it un­com­pet­i­tive at the in­ter­na­tional level.

The al­le­ga­tions of fix­ing, spot-fix­ing, match-fix­ing and cor­rup­tion have made the youth of the coun­try scep­ti­cal to opt for it as a pro­fes­sion. The gentle­men’s sport has been con­tam­i­nated due to the on­go­ing cor­rupt and un­scrupu­lous ac­tiv­i­ties and in­flu­en­tial peo­ple have used it as a means to find lu­cra­tive busi­ness op­por­tu­ni­ties. The grow­ing po­lit­i­cal in­flu­ence has been chal­lenged on var­i­ous spheres, but in the fore­front, ju­di­cial ac­tivism chal­lenged this po­lit­i­cal in­ter­ven­tion. The story be­gan with the ad­vent of the In­dian Premier League, which was widely pro­moted, and brought the elite classes un­der one spec­trum. The flow of money was un­cal­cu­lated, and this was the ma­jor busi­ness op­por­tu­nity in the field of sports. The sta­di­ums flooded with the pres­ence of spec­ta­tors, big en­dorse­ments were in­volved, young tal­ents were pro­moted, but all this glam­our hid the con­spir­acy. The prac­tices of spot-fix­ing started to be un­der­taken, al­le­ga­tions of money laun­der­ing were of­ten raised. This led to the ju­di­cial ac­tivism to re­form the game. The Bi­har Cricket As­so­ci­a­tion fil­ing the case against the prac­tice of spot-fix­ing was a ma­jor break­through. The ab­scond­ing of Lalit Modi and var­i­ous al­le­ga­tions cleared the pic­ture, and led to the con­sti­tu­tion of the three mem­ber com­mit­tee un­der the chair­man­ship of for­mer Chief Jus­tice of In­dia, R. M. Lodha, fa­mously known as the Lodha Com­mit­tee.

OVER­VIEW OF THE REC­OM­MEN­DA­TIONS

The Hon’ble Supreme Court of In­dia con­sti­tuted the com­mit­tee to pro­vide rec­om­men­da­tions for the re­for­ma­tion of the game. The sole pur­pose of the

com­mit­tee was to ex­am­ine the is­sues of spot-fix­ing and other un­scrupu­lous ac­tiv­i­ties, and pro­vide valu­able rec­om­men­da­tions so that an ef­fi­cient mech­a­nism could be es­tab­lished to tackle the me­nace. The com­mit­tee was headed by for­mer CJI R. M. Lodha, along with two other mem­bers, Jus­tice Ashok Bhan and R. V. Raveen­dran. The com­mit­tee con­ducted ex­ten­sive re­search to en­sure the pu­rity of the game, and laid down some rec­om­men­da­tions. One of the prime rec­om­men­da­tions was to re­duce the po­lit­i­cal in­flu­ence, and re­struc­ture the func­tion­ing of the BCCI. The Com­mit­tee pri­mar­ily rec­om­mended to bring the Board within the am­bit of Right to In­for­ma­tion, to make it more cit­i­zen friendly, and the ap­point­ment of au­di­tors to make the ac­counts of the BCCI known to the gen­eral pub­lic. The Com­mit­tee also stressed upon the estab­lish­ment of One State One Vote, which would bring the non-crick­et­ing states of the coun­try in the frame­work of the de­ci­sion mak­ing, and would also lead to the pro­mo­tion of the sport.

The ma­jor rec­om­men­da­tion was re­lated to the me­nace of Spot­fix­ing, and reg­u­la­tion of the af­fairs of the In­dian Premier League. Per­tain­ing to the first as­pect, the Com­mit­tee em­pha­sised upon the pro­mul­ga­tion of the leg­is­la­tion to reg­u­late such ac­tiv­i­ties, and also pro­vided a for­ward-look­ing rec­om­men­da­tion to le­galise bet­ting. With re­spect to the In­dian Premier League, the Com­mit­tee rec­om­mended for the estab­lish­ment of the In­dian Premier League Coun­cil, and sep­a­rate the bod­ies to en­sure its in­de­pen­dence. The Hon’ble Apex Court whole­heart­edly wel­comed the rec­om­men­da­tions, as these were also widely ap­plauded by the pub­lic. The at­tempt was to re­ju­ve­nate the crick­et­ing spirit in the coun­try by pro­vid­ing it with the sanc­tity it ear­lier had. The rec­om­men­da­tion changed the wind, and it was a step for­ward to re­form the game. But, this led to an­other con­tro­versy be­tween the po­lit­i­cal camps on one hand and the ju­di­ciary on the other. Some con­sid­ered it to be ju­di­cial over­reach. It was very ev­i­dent that the de­ci­sion of the Hon’ble Supreme Court of In­dia to im­ple­ment the rec­om­men­da­tions of the Lodha Com­mit­tee was not ap­pre­ci­ated by the Board, and this led to the emer­gence of a chain of events widen­ing the gap be­tween the Board and the Court.

BCCI V COURT

The judg­ment of the Hon’ble Court was seen as a new dawn for cricket in In­dia. But, the po­lit­i­cal spec­trum in­dulged into dila­tory prac­tices to de­lay the process. The rich­est board of the world didn’t want to lose the grip upon the af­fairs, and filed re­view against the judg­ment of the court. But, the Bench headed by Chief Jus­tice T. S. Thakur, re­jected the pe­ti­tion by stat­ing that no er­ror ap­par­ent was found in its judg­ment. The Board there­after wel­comed ma­jor­ity of the rec­om­men­da­tions, but dis­puted upon some points such as One State One Vote, Cool­ing off pe­riod for three years, age limit of 70 years etc. The mat­ter was further heard, but the Court, adamant in its opin­ion, warned the BCCI to “fall in line oth­er­wise we will make you fall in line”. The state­ment re­ceived mixed re­ac­tions. As the sup­port­ers of the judg­ment called it the de­ter­mined and in­de­pen­dent ju­di­ciary, oth­ers stated it as ju­di­cial over­reach. But, in the pub­lic opin­ion, the ju­di­ciary is sim­ply try­ing to bring out the clean im­age of the game. The at­tempt to rev­o­lu­tionise the game can of­ten be re­lated to the ideas of the rev­o­lu­tion­ar­ies like ‘peo­ple talk about change, but they are ac­cus­tomed to the sys­tem, and if any change comes they start to trem­ble’. Such is the state of the present day sys­tem. The in­de­pen­dence of the game from po­lit­i­cal in­ter­ven­tion was al­ways talked about, but an at­tempt at the same is la­belled as ju­di­cial over­reach.

But the Apex Court seems to be de­ter­mined and has not al­lowed any de­lay. It has taken se­ri­ous cog­nizance of the non-com­pli­ance. The Lodha Panel also rec­om­mended banks to stop dis­burs­ing funds to the Board and start sack­ing of­fice­bear­ers ow­ing to con­tin­u­ous non-com­pli­ance. The Apex Court had warned of per­jury and con­tempt pro­ceed­ings against Anurag Thakur for non-com­pli­ance of the or­der of the court. The Hon’ble Judge cau­tioned that any at­tempt to mis­lead the court and de­lay the process would be con­sid­ered con­tempt of court. The Hon’ble Judge further stated that free­dom does not mean to wil­fully non-com­ply with the or­der of the court. But, the long-stand­ing dis­pute took the dras­tic turn on Jan 2, 2017, when the Hon’ble Court fi­nally took a step hav­ing far-reach­ing ef­fect by or­der­ing the re­moval of Anurag Thakur for be­ing de­fi­ant and stalling on the re­forms rec­om­mended by the Panel.

CON­CLU­SION

The is­sue has not been re­solved yet, but the dras­tic and bold steps of the Court have surely raised many eye­brows. The Court has pre­sented its de­ter­mined will and au­thor­ity, and has clearly in­di­cated that any ob­struc­tion to dis­obey the law of the land would not be tol­er­ated and strict mea­sures will be taken. There are mur­murs that if the Court is willing to in­ter­fere in the af­fairs of the Board, then the Court must reg­u­late it by breach­ing the au­ton­omy of the Board. But, the ac­tual fact is not about ju­di­cial ac­tivism or ju­di­cial over­reach, but the core crux lies upon the re­for­ma­tion of the game in a bid to up­hold its sanc­tity.

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