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Legally Explained: What BCCI, Katju, Lodha & Trump could have in common

Did Katju take one from the Trump playbook?
Did Katju take one from the Trump playbook?

So, after some time out, ex-Supreme Court judge Justice Markandey Katju (Retd.) is in the news again, seemingly putting a spanner in a variety of works.

Why this time?

He heads a one-man commission, having been appointed by the Board of Control for Cricket in India (BCCI) to do so on 2 August 2016.

He is supposed to advise the BCCI - mostly the old guard - about matters relating to the Supreme Court orders to reform the BCCI

He also has to interact with the Lodha Committee, which has suggested to him a slew of recommendations to that purpose.

And then?

Within only a few days of the Commission’s functioning, Justice Katju kicked up a storm.

That didn’t take long. What was the occasion (and hurry)?

On 6 August, he submitted his first report to the BCCI, and on 9 August, he was scheduled to interact with the Lodha Committee, saying:

I thought it pointless to interact with the Lodha Committee...

It seems like Katju wanted to avoid interacting with the Lodha Committee by raising what he called “grave constitutional issues”, though some would consider those issues to be unrelated to the matter at hand.

So, who ended up interacting with the Lodha committee on 9 August, if Justice Katju shirked his role?

BCCI secretary Ajay Shirke went instead of Katju, and was given until 15 October to implement reforms.

What if it doesn’t?

Well, contempt of court proceedings could be initiated against the BCCI

How long was Justice Katju’s first report?

43 pages. But he makes it clear, in bold and underline at the end of the report, that:

NB:- This is only my first report. More reports to follow.

For part 1, that’s pretty impressive - in only 4 days, he produced a 43-page report? What did he say in that report?

He said that the Supreme Court judgment in BCCI v Cricket Association of Bihar, delivered less than a month ago on 18 July, had ignored several earlier decisions of larger and coordinate benches of the SC, which were binding on it.

What did the SC say in that judgment?

The SC directed that most of the recommendations of the Lodha Committee be implemented within six months.

Remind me, what were the Lodha Committee’s six most salient recommendations?

  • First and foremost, it fixed an age cap of 70 years on BCCI and state cricket association office bearers.
  • Second, it held that BCCI members were not eligible for third terms.
  • Third, it imposed a bar on an elected office-bearer holding any office or post in a sports or athletic association or federation (other than cricket).
  • Fourth, it recommended only one vote for every state, and derecognition of other existing full members.
  • Fifth, it fixed a three-year tenure for office-bearers, with a maximum of three such terms, regardless of the post held.
  • And last, it said that there should be a cooling off period after each such term.

Sounds very sensible and much needed to reform Indian cricket. So why is Justice Katju complaining?

He has no substantive disagreement with those six points.

But he says that it is for the BCCI itself, or the state legislature or Parliament to impose such restrictions on the functioning of an autonomous private society like the BCCI, and not for the SC to say so.

He says that if the Supreme Court can do this kind of thing, it would be major judicial overreach.

So, according to Katju, the judiciary can’t attempt any reform of an institution, even if the legislature and the executive don’t take up that baton?

In his report, Katju has given a long list of case laws to show that judicial restraint, not activism, was the answer to institutional crises.

According to him, most judicial interventions are aberrations, and he conveniently ignored several instances of judicial activism where the judges have filled voids left by legislature or executive:

I am repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In my opinion this is clearly unconstitutional, and it is time now for the judiciary to learn self-restraint. In the name of judicial activism, Judges cannot cross their limits and try to take over functions which belong to another organ of the State.

And, according to Katju, since the BCCI is registered as a society under the Tamil Nadu Societies Registration Act, 1975, a society registered under that Act has to frame its own rules, and it can amend its rules by following the prescribed procedure.

The court, says Katju, cannot amend its rules.

Who, according to him, can reform the BCCI then? Nobody?

Well, he says that only the Registrar of Societies can pass orders as he or she deems fit, if at all complaints are received from any aam aadmi regarding any possible irregularities at the BCCI, and if he finds substance to them, after an enquiry.

Neither the court nor the Lodha Committee (appointed by the court) can take over the function of the Registrar, argued Katju.

But what if the Registrar does not do his job? Should the courts not intervene then?

Well, Justice Katju is not very clear on this and appears to evade this issue slightly.

What were the specific orders by the SC regarding BCCI affairs?

There are two main orders.

One was delivered on 22 January 2015, in which it set up the Lodha Committee to give its recommendations.

The second was on 18 July this year (mentioned above), in which it directed the BCCI to implement the recommendations.

So what is Justice Katju’s grievance about these two orders?

Like any good lawyer’s potential first argument, Justice Katju said that the SC had no jurisdiction to interfere in the BCCI’s affairs.

Then, he said, since the first SC order did not envisage the Lodha Committee to make any binding recommendations, the second order could not have done so either, of its own accord (suo moto).

But he did not make it clear why the SC could not have done so.

Doesn’t the SC usually do what it wants anyway and pass many suo moto orders?

Actually, it may be incorrect in this case to even say that the SC gave the order suo moto.

The SC intervened and heard the parties again, only after receiving numerous representations for and against the Lodha report.

The bench, comprising Chief Justice of India (CJI) TS Thakur and Justice Fakkir Mohamed Ibrahim Kalifulla, heard and disposed of three civil appeals on 18 July.

In that disposal, the bench did kind of justify the first order, but Katju did not really go into that in his report either.

Does Justice Katju address the SC’s other significant argument?

The SC in its judgment restricted Article 19(1)(c) (guaranteeing the right to form associations or unions to citizens alone) and held that BCCI was a juristic person, not a citizen.

Unfortunately, Justice Katju’s report was silent on this.

He also doesn’t address the SC’s reformist directions in its 18 July judgment, which are based on the reasoning that the BCCI is discharging public functions, and is, therefore, subject to the rigours of ‘public law’, and must therefore adhere to the principles of reasonableness, fairness, accountability and transparency.

Well, you can’t have it all. But knowing Katju, the report must surely be colourful and fun, no?

Unlike his blog posts or public outbursts, his report reads mostly like a judgment, with a long list of case laws.

But occasionally, one can discern the typical literary / biting flourishes that we’re used to from him.

I love literary Katju. Examples please.

Well, the Bible for one:

There is a malaise in the judiciary too. A section of the judiciary has become corrupt and populist, and there is often inordinate delay in deciding cases etc., because of which the litigants suffer great hardship. Who then would regulate and control the judiciary? Who will guard the Praetorian guards? If the salt has lost its flavour, wherewith shall it be salted? [Bible: New Testament: Matthew: 5:13]. The judgment of the Supreme Court will open up a Pandora?s Box, and there will be no end to this trend.

More please!

There is Alice too:

In Lewis Carroll’s “Alice in Wonderland” there was a character called the Queen of Hearts. Whenever she sees anybody, she shouts “off with his head”. When someone said what about first issuing a charge sheet, holding a trial and giving a verdict, she replied “all that can come later, first off with his head.” I regret to say that the Supreme Court bench as well as the Lodha Committee have behaved like the Queen of Hearts.

Hah. Seriously though, does Katju recommend what should happen now, if he won’t speak to Lodha?

Justice Katju ended his report by saying that the BCCI should file a review petition against the 18 July judgment of the Supreme Court.

Was he not a SC judge himself? Doesn’t he know that the SC dismisses nearly all review petitions routinely?

Probably.

And that is probably why he suggests the BCCI should make a strong pitch for hearing of the review petition, not in judges’ chambers, but in open court.

Though it’s unlikely it would change the outcome in this case greatly. The Supreme Court judges seemed rather sure of their decision.

And since many believe that the BCCI, being the richest cricketing body in the world, has to be accountable for its omissions and commissions, the SC’s actions were lauded for having finally tried to solve the mess.

Isn’t there some other Katju matter also going on in the Supreme Court?

Yes, there is one.

The SC is expected to soon deliver its judgment in the case of Katju’s legal challenge against Parliament’s censure of him, after he denounced Mahatma Gandhi and Subhash Chandra Bose as foreign agents.

In the hearing of that case, the bench’s observations did not really seem to favour him or be disposed positively towards him.

Is this related?

Who knows.

If it is, it could be a smart strategy: many experienced lawyers would tell you that attack can often be the best defence.

Hard to say whether his former brother judges in the Supreme Court will appreciate his 45-page study / diatribe on the jurisprudence of judicial overreach, trying to teach them that “it is time now for the judiciary to learn self-restraint” (to quote the report).

Have you considered that this is all part of a deliberate and sophisticated defence strategy by Katju?

What do you mean?

Well, rather than talking about the BCCI, Katju has managed to make everyone talk about him instead. It’s almost Trump-like in its genius, wouldn’t you agree?

Hmm.

He’s certainly managed to distract from the issues that everyone thought were settled already, and possibly derail the entire process.

On the other hand, Katju upsetting the Supreme Court could end up backfiring horribly.

On the other hand, what does the BCCI have left to lose at this point?

I think Katju would make a great lawyer for his clients. He should go back to the bar!

If he did, I’d be first in line to buy tickets: watching him clash with his former colleagues would surely be fireworks.

Unfortunately, the rules governing retired Supreme Court judges prohibit them from practising before any Indian courts.

Well, there’s always the one-man committees...

And thank God for that!

Markandey Katju BCCI report (PDF)

Photo by Nikhil Kanekal.

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