Has the Supreme Court erred in compelling BCCI to implement the Lodha committee report?
In January 2016, I had noted in a piece on Scroll that the recommendations of the Lodha committee might be well intentioned and useful reading material, but they are unlikely to be implemented by the BCCI.
The BCCI did accept some recommendations of the Lodha committee without any prodding, such as uploading its memorandum and bye-laws on its website, conducting limited due diligence of its audited accounts, putting in place an independent ombudsman to deal with situations of conflict of interest and indiscipline, framing rules to avoid conflict of interest in future etc.
However, the BCCI objected to several key recommendations of the Lodha committee including putting an age limit of 70 years on BCCI office-bearers, capping the maximum number of years and office-bearer can serve to nine years, bringing BCCI within the ambit of the Right to Information (RTI) Act etc.
Surprisingly however, the Supreme Court not only accepted a bulk of the Lodha committee recommendations such as imposition of age limit and cap on the tenure of office bearers, allowing only one association from one state to vote in BCCI, having a nominee of the CAG on the Governing Council etc. but also directed Mr. Lodha to ensure that the recommendations are implemented in true spirit, in a time bound manner (which the Supreme Court feels would at best take six months).
As I had written earlier, I do not have any objection to the substance of the recommendations of the Lodha committee.
However, the fact that the Supreme Court has passed a voluminous 143-page order against BCCI, a private body and compelled the cricketing body to make changes in its constitution and memorandum can be questioned on two counts.
The first question that begs attention and unfortunately has been lost in the din of heralding the clean-up of BCCI, is whether it is appropriate for the judiciary to venture into the complicated territory of policymaking, especially at a time when it's burdened with a huge backlog of important cases.
The Indian constitution, swears by the principle of separation of powers between the three arms of the state- judiciary, executive and legislature.
Many of the suggestions of the Lodha committee are captured in the draft National Sports Development Bill of 2013 and are already being deliberated by the central government (although the Bill has been put in cold storage as of now due to lack of consensus).
Formulating the policy for management of the BCCI is a complicated question and falls in the domain of the legislature. If and when the Parliament decides to enact a National Sports Development Bill, the question arises- what would happen if there is a conflict between the new law and the order of the Supreme Court?
Would the legislation be struck down if some of the conditions prescribed therein do not comply with the Lodha committee recommendations adopted by the Supreme Court?
The Supreme Court has not answered these questions in its order. At the very least, the Supreme Court should have clarified, like it did in the Vishaka case on prevention of sexual harassment in workplaces that the recommendations of the Lodha committee will only apply until the Parliament frames a law on the issue.
Interesting, the Supreme Court declined to order implementation of two important Lodha committee recommendations, legalisation of sports betting and bringing BCCI within the ambit of RTI on the grounds that the legislature was competent to decide on such policy matters. If so, why could the same yardstick not be applied to the other recommendations?
My second objection to the Supreme Court order is that, out of all other sporting bodies, BCCI has been singled out and has been compelled to change its working style by the Supreme Court. Why should the recommendations of the Lodha committee relating to the retirement age of office-bearers, bar on the participation of civil servants and ministers in the management etc. not apply equally to all national sporting federations?
In any case, the original scope of the matter was only pertaining to allegations of spot-fixing in the IPL. The Supreme Court expanded the scope and took unto itself to cleanse the cricketing body.
If the Supreme Court had decided to go ahead and fix the mismanagement of BCCI, why should it not have made its order applicable to all recognised national sporting federations (until such time that the legislature does not act on the issue)?
Thus, while the order is well-intentioned, the Supreme Court is increasingly seen to be playing a hyper-activist role and usurping the legislature’s prerogative to decide on policy issues. The apex court is supreme, but not infallible.