A Butterfly Flutters by in Kerala and a Tornado Hits the BCCI

Written by  //  February 1, 2011  //  Law & The Judiciary  //  27 Comments

(Apologies to Sreesanth fans. This post is not about him.)

Waiting for one’s matter to be called on a Miscellaneous Day usually involves a lot of waiting in crowded courtrooms with boredom and other people’s elbows in one’s ribs for company. Whereas not much can be done about the latter (at least, not in a manner that will attract a certain international convention), the former can be addressed once in a while by listening to arguments in the cases listed prior to one’s own. Mostly they are dull-as-ditchwater property disputes, rent or tax matters, with the monotony broken by the odd matrimonial dispute, death penalty case or Justice Markandeya Katju. Even rarer, there are actually momentous cases involving erudite eminent counsel arguing matters of grave public importance before inquisitive and intelligent judges. When such cases are taken up for hearing, one is instantly hooked.

Sometimes, the outcomes of these cases, even on a miscellaneous day, shifts the tectonic plates under your feet and you realize that the shockwaves from this ponderous pronouncement will be felt in far away places.

This was one such case Sports administrators can now be prosecuted under the Prevention of Corruption Act, 1988. .

Firstly, to clarify, the Supreme Court itself did not actually make such a pronouncement. All it did was refuse to exercise its discretion under Article 136 to take up the matter for consideration and therefore, let the Kerala High Court judgement itself stand.

Secondly, it was the barely noticed Kerala High Court judgement that actually set off the tremors which reached all the way to Delhi. The judgement itself is totally worth a read.

By sheer dumb luck, I was actually in Court No. 8 when counsel for the Kerala Cricket Association office bearers, Uday U Lalit tried his best to convince a skeptical bench comprising Justices VS Sirpurkar and TS Thakur that the Kerala High Court judgment was wrong. Lasting much longer than your average Miscellaneous Day hearing, the duel between Mr. Lalit and the Bench was a fascinating one, not only for what was said, but what was unsaid and implied. Much of it hinged on how Mr. Lalit wanted the Court to view the majority judgment of the Constitution Bench decision in Zee Telefilms v Union of India (2005) 4 SCC 649, and a careful nitpicking of the Kerala High Court judgement that had held KCA office bearers to be “public servants” and therefore liable to be prosecuted under the Prevention of Corruption Act, 1994 for misappropriation of funds.

The Bench was having little of it.

Justice Sirpurkar (presiding), with his perennial smile that is almost, but not quite, a sarcastic sneer, never seemed even close to being convinced by Mr. Lalit’s arguments. When he called the Kerala High Court judgment a “beautifully crafted judgment“, Mr. Lalit’s shoulders seemed to drop and he sensed the mood of the Court and realized the battle was over. As bravely as he was trying to piece together his arguments that were being so carefully and meticulously being picked apart and cast to the winds by Justice Thakur, Mr. Lalit seemed to sense where this was going. The final order, laconic and brief (as it usually is on admission days) captures nothing of the actual drama of the arguments.

The implications though, are clear and stunning. While the majority in Zee Telefilms had held that the Board of Cricket Control in India was not “State” for the purposes of Article 12 of the Constitution of India, and therefore its actions were not subject to judicial review under Article 32. While the BCCI and its lawyers (and a good many constitutional law experts) sighed in relief, what went almost unnoticed was this:

..it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.

Like the proverbial side door of the castle left unlocked that resulted in the city’s fall (the source), this little passage left open a small opening in the almost complete immunity that BCCI (and its affiliate associations) seemed to enjoy from any sort of legal scrutiny of their maladministration.

A clever lawyer in Kerala found it, and made a foray. So far, successfully.

The trial has, of course, only just begun, and like with everything else about the Indian criminal justice system, will be long delayed and will involve many appeals until the matter is brought to finality.

That, of course, is irrelevant for the actual implications of this short order of dismissal of an SLP.

Sports administrators in India have had a happy time these last few years raking in the money (ours by the way) with no accountability or even the slightest pretence of competence or awareness of the sports’ fans concern. They have brooked no interference either by the State or by the judiciary all the while hiding behind the “but we are a private body” defence. The latest embarrassment is no surprise, but rather all too typical, and one would have expected that at least some of them would have had the decency to fall on their swords because of this. From the looks of this, they are shameless enough to pretend that nothing’s wrong, it’s all someone else’s fault, and they would like another go at trying to squeeze more money out of fans.

Maybe not all of them will face criminal charges. Maybe not even all of them who face charges will even be convicted.

But I like the idea that from today, they will sleep a little less easy knowing that they are one intrepid lawyer and a complaint away from spending the rest of their lives scurrying around and trying to avoid jail.

UPDATE: 18.04.2011 Just as I predicted, another cricket association comes under the scanner for corruption, relying on the Kerala High Court judgment. Sales of sleeping pills and headache pills to cricket administrators across India rise.

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A Supreme Court/Delhi High Court lawyer who writes a bit with a potentially fatal weakness for hyperlinks, tags, and the reader's approval. Follow @alokpi

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27 Comments on "A Butterfly Flutters by in Kerala and a Tornado Hits the BCCI"

  1. Balaji Iyengar February 1, 2011 at 8:50 pm ·

    Have rarely come across such beautiful commentary,it gives me great pleasure that people are now sitting up and taking note of the developments(or the lack of it) in sports.I believe that for our gallop for economic emancipation, sports is the quintessential tool, for the all round progress and impact on the economy.And to this end, weeding out corruption from sports is the first step, and the first step in that direction has been made by the Hon Justices act of dismissal of SLP.I do take solace in being the petitioner before the Vigilance court, which ultimately led to the matter being considered by the SC. Thanks for your comment sir,

    Balaji Iyengar

  2. Vatsala February 15, 2011 at 10:32 am ·

    Hello,

    Nice post! Although I was wondering – the SC’s dismissal of the SLP can only mean that another SLP can’t be filed – it doesn’t mean it’s the law under Article 142 does it? Even though it is a speaking order, they’ve just said, “we see no reasons to interfere” etc, without mentioning why. So maybe, it means, we don’t think one needs to file an SLP for this, an appeal would suffice?

    Vatsala

  3. Alok February 15, 2011 at 10:38 am ·

    Thanks Balaji and Vatsala

    Vatsala
    Where leave has not been granted, the Court does not declare law under Article 142. The present order is not a speaking order as it does not indicate any reasons why the Court dismissed the SLP. Article 136 is in exercise of discretionary jurisdiction, and all this means is that the Court will not exercise its discretion to hear an appeal against the Kerala High Court final order. An appeal will also not be maintainable against the Kerala High Court order in view of the fact that the SLP has been dismissed.

    However, the proceedings are at an interim stage and once order of conviction/acquittal is passed, that may also be appealed.

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