Judicial propriety in an age of scandal

 

Judicial propriety in an age of scandal

Judicial propriety in an age of scandal

ARGHYA SENGUPTA IN THE HINDU

Why Justice Dalveer Bhandari‘s election to the International Court of Justice while serving as a judge of the Supreme Court of India is an unhealthy development

Justice Dalveer Bhandari, a judge of the Supreme Court of India, was elected a fortnight ago by the United Nations General Assembly and Security Council, to serve as a Member of the International Court of Justice (ICJ). He defeated the Filipino nominee, Justice Florentino Feliciano, by a handsome margin and now has a six-year first term at the World Court. Justice Bhandari is undoubtedly a fine judge with considerable expertise in international law. His legal acumen, keen intellect and a sense of justice, especially for the poor and homeless that shines through in his domestic judgments, are qualities that make him an ideal representative of India, itself a beacon of democracy and human rights in the developing world. That India has made a good choice is not in doubt; whether it could have made a better choice, as some have suggested, is contestable though ultimately a moot point. The key issue that arises in this context relates to the fact that Justice Bhandari’s nomination by the Government of India and eventual election to the ICJ took place while he continued to serve as a judge of the Supreme Court of India. This raises grave and disturbing issues regarding the independence of the judiciary in India and points to the lowered standards of propriety in the highest echelons of governance.

Judiciary & government

The independence of the judiciary is a significant legal principle in India, ever since it was held to be part of the basic structure of the Constitution. Since then it has been used on several occasions by the Supreme Court most notably to judicially lay down norms regarding the appointment of judges, transfer of judges between High Courts and administratively with regard to claiming exemption for the office of the Chief Justice of India from the purview of the Right to Information Act and formulating an internal code of conduct for appropriate judicial behaviour. The extensive (and sometimes unwarranted) usage of judicial independence as a legal principle has however blighted its primary status as a normative principle of good governance which promotes impartiality, a key facet of fair adjudication. The judiciary must not only be independent of the co-ordinate wings of government as well as the parties before the case, but must also be seen to be so. The slightest doubt in the public mind of excessive proximity between the judiciary and the government, which is the largest litigant before it, may lead to significant apprehensions of a lack of impartiality thereby questioning the legitimacy of the entire adjudicatory setup. As the Supreme Court of India itself likes repeating in its judgments, “Judges, like Caesar’s wife, must be above suspicion.”

It is this test of judicial independence as a normative principle that Justice Bhandari’s actions fail to satisfy. From available records, Justice Bhandari’s candidacy was accepted by the Ministry of External Affairs after a recommendation to this effect in January 2012 by the Indian Chapter of the Permanent Council of Arbitration, whose advice in this matter, the government has traditionally honoured. From that time, up to the election at the United Nations in April, Justice Bhandari continued as a serving Supreme Court judge, hearing cases (from the Supreme Court causelist record, he heard cases till the 9th of April) and being party to delivered judgments (the last recorded judgment thus far being delivered on the 27th of April, authored by Justice Dipak Misra, his brother Judge on the Bench).

Though his resignation is not a matter of public record yet (the website of the Supreme Court continues to show him as a serving judge at the time of writing of this piece), it is believed that it became effective only on his election to the ICJ. During the same time, as the Ministry of External Affairs’ response to a RTI petition on 8th February 2012 shows, the government was actively lobbying for his candidature in the United Nations, speaking on his behalf to various member states. Even if it is assumed that Justice Bhandari had little or no contact with the government in this process, the very fact that the government, a regular litigant in Justice Bhandari’s courtroom was actively espousing his cause outside it, is gravely problematic in terms of judicial independence conceptualised as a principle of good governance leading to impartiality.

Unheeded lessons from the past

It is not however the case that Justice Bhandari’s failure to resign as a judge of the Supreme Court prior to the government making him its official nominee for election to the ICJ is an isolated incident of judicial independence being imperilled at the altar of individual ambition. Justice Subba Rao’s acceptance of his candidature for President of India by the opposition parties when he was Chief Justice of India is the most egregious example of the independence of the judiciary being threatened by a single individual. Equally pertinently in the present context, the election of the last Indian to serve on the ICJ, the then Chief Justice of India, R.S. Pathak (who incidentally relinquished office as Chief Justice only subsequent to his election to the ICJ), was marred by strong claims that Justice Pathak’s appointment was part of a quid pro quo involving Union Carbide Corporation, the Government of India and the Supreme Court with the Pathak Court endorsing a deeply flawed settlement in the aftermath of the Bhopal gas tragedy. It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India.

What is equally disappointing is the lack of public outcry regarding this issue. When Justice Subba Rao accepted the candidature for President made to him by the opposition parties while still in office, a man no less than Motilal Setalvad, India’s first Attorney General, issued a statement to the press strongly condemning the Chief Justice’s decision, saying that “he has set at naught traditions which have governed the judiciary in our country for over a century.” Justice Pathak’s nomination to the ICJ was the subject of several scathing indictments, including by former Supreme Court judge, Justice Krishna Iyer who wrote of “the beholdenness of the candidate [Pathak] to the litigant government for getting the great office for him.” As far as Justice Bhandari’s nomination is concerned, except a public interest petition challenging it as a violation of judicial independence, there has been a seemingly all-pervading public silence. Even the petition itself, though well-intentioned, was misguided, seeking redress from the Supreme Court in a matter which was characterised by impropriety rather than illegality of a type a judicial order could rectify. Justifiably, the Court refused to entertain it.

Importance of propriety

In an age of multi-billion rupee scandals, endemic corruption and food shortages caused by governmental apathy and inaction, the impropriety of a judge failing to resign at an appropriate time may intuitively seem trivial. But as with most questions of impropriety, though its effects may not be immediately apparent, they are the portents of an insidious decline in the standards and values that define institutions.

For the Supreme Court of India, judicial independence has been the cornerstone of its functioning from the time of its inception. Despite a few challenging periods, the Court, the Bar and the conscientious members of the political classes have always striven to fiercely guard the independence of the judiciary from any potential threats. The Bhandari episode is however a bellwether of a possibly developing relationship of cosiness between government and the judiciary, accompanied by a general public indifference, bordering on acquiescence, of such a relationship.

The government’s decision to nominate a sitting judge before whom it continued to appear as a litigant, Justice Bhandari’s decision to not resign when the government was lobbying for him, and most crucially public acceptance of such an unholy nexus are warning signs that ought to be heeded. While the return of an Indian to the World Court after an absence of two decades rightfully gives cause for celebration, it provides an equally significant opportunity for introspection, that the cherished principle of judicial independence, responsible in the first place for the high esteem in which the Indian judiciary and its judges are held on the world stage, does not itself fall into desuetude in the process.

(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and the founder of the think-tank, The Pre-Legislative Briefing Service.)

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Amendments of the Registration of Births and Deaths Act, 1969 to include Registration of Marriages

NATIONAL LEGAL RESEARCH DESK

The Union Cabinet today approved the introduction of a Bill in the Budget Session of Parliament to amend the Registration of Births and Deaths Act, 1969 to include registration of marriages as well, so that the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.

The Cabinet also approved introducing a Bill in Parliament to further amend the Anand Marriage Act, 1909 to provide for registration of marriages under the Act.

The proposed Bills will be beneficial for the women from unnecessary harassment in matrimonial and maintenance cases. It will also provide evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of the parties to the marriage.

The Hon`ble Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective States where such marriages are solemnized and inter alia directing that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.

The Committee on Empowerment of Women (2006-2007) in its Twelfth Report (Fourteenth Lok Sabha) on “Plight of Indian Women deserted by Indian husbands” has viewed that all marriages, irrespective of religion should be compulsorily registered and desired that the Government to make registration of all marriages mandatory, making the procedure simpler, affordable and accessible.

The 18th Law Commission of India in its 205th Report titled” Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws” vide paragraph (iv) recommending that “registration of marriages within a stipulated period, of all the communities, viz. Hindu, Muslim, Christians, etc. should be made mandatory by the Government”.

The 18th Law Commission of India further in its 211th Report titled “Laws on Registration of Marriage and Divorce- A proposal for consolidation and Reform”, recommending for a Parliamentary Legislation on Compulsory Registration of Marriages by enacting of a “Marriage and Divorce Registration Act” which may be made applicable to the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions”.

The Registration of Births and Deaths Act, 1969 (18 of 1969) is an Act to provide for the regulation of registration of births and deaths and for the matters connected therewith. Accordingly, provisions have already been provided in the said Act for Registration establishment consisting of Registrar-General, Chief Registrar and Registration Division, District Registrars and Registrars. Further, procedures for registration of births and death and for maintenance of records and statistics are provided for in the said Act. Also, by virtue of the powers conferred under section 30 thereof, rules for compulsory registration of births and deaths have been framed by all the State Governments and Union territory Administrations. Therefore, if the said Act is suitably amended to include registration of marriages as well, then the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.

The registration of marriages of the parties under the proposed amendment would not affect any right recognized or acquired by any party to marriage under any law, custom or usage.

Revised SOP issued for Lawful Interception of Communication

The Central Government, with regard to Central Intelligence and Security Agencies, keeps updating the internal SOPs/instructions for processing, executing and conducting oversight of interceptions of telephones. The Government constituted an Inter-Ministerial Group headed by Home Secretary to consider issues relating to institutional frame work of Government for interception of messages/tapping of telephones, e-mail etc. As a result, on 19th May 2011, revised/updated SOPs to deal both with changing technology and ensuring a strict compliance of Rule 419-A were issued. The procedure to be followed for lawful interception of telephones permissible under Section 5(2) of the Indian Telegraph Act 1885 is governed by Rule 419-A of the Indian Telegraph (Amendment) Rules, 2007.

Section 5(2) of the Indian Telegraph Act, 1885 provides for lawful interception in the interests of the sovereignty, and integrity of India, the security of the State, friendly relations with Foreign States or public order or for preventing incitement to the commission of an offence. This Section read with Rule 419(A) of the Indian Telegraph (Amendment) Rules, 2007 imply statutory requirement that specific order/authorization of the Government is required for any lawful interception of communications.

Therefore, the Agencies have to statutorily obtain specific authorization from the Competent Authority (Union Home Secretary in the Central Government and the State Home Secretary for the States) for each case of lawful interception in accordance with provisions of Section 5(2) of the Indian Telegraph Act 1885 and Rule 419(A) of the Indian Telegraph (Amendment) Rules, 2007. Accordingly, it would be inaccurate to state that any Agency of the Centre or State Government, per se, is given a general authorization to undertake Lawful Interception. However, the Central Government from time to time lists some agencies which may make such requests for authorization in specific cases. The issue of listing NTRO can be considered & decided as per the national security imperatives, whenever required.

National Law Day: Two Constitutional Scholars who upheld the values of our Constitution

Supreme Court of India

PUBLISHED IN THE BAR AND BENCH 

The Constitution of India was adopted by the Constituent Assembly on “November 26”, 1949. Thirty years after, under the leadership of Dr. L. M. Singhvi, the Supreme Court Bar Association declared November 26th as the National Law Day. Thereafter, every year, this day is celebrated as the Law Day, all over India, especially by members of the legal fraternity. This day is celebrated to honour the 207 eminent members of the Constituent Assembly who are considered the founding fathers of the Constitution of India.

 Shri M. N. Krishnamani, President, Supreme Court Bar Association, on a Law Day address said that the main objective of celebrating Law Day is, “We want to be a coherent democracy governed by the rule of law. In fact, true democracy and the rule of law always go together. It is the rule of law which guards the democratic polity. Therefore, the real purpose of celebrating Law Day is to rededicate ourselves to the following cardinal principles which formed the solid foundation on which this grand constitutional edifice is erected: (i) the rule of law, (ii) independence of the Judiciary, and (iii) the independence of legal profession. These three principles are intimately interconnected. The main purpose of independent judiciary and an independent bar is only to ensure that there is the rule of law.”

 Law Day is an important day for the members of legal profession in India and also for the people of India. Lawyers and the Indian judiciary have time and again been the last resort of protecting rights and liberties of individuals. It is a special day we all should celebrate and recognize those who have played active role in upholding the rule of law and protected our rights and liberties.

On this day we would like to recognize two legal luminaries who have played an important role in promoting the spirit of our Constitution through their judgments, Justice B. Sudershan Reddy and Justice G. S. Singhvi. While the former retired recently on July 7, 2011, the latter continues to serve  and is scheduled to retire on December 12, 2013. The Indian Supreme Court recently pronounced some path breaking decisions. It is interesting to note that at least one of the two above mentioned judges have been a part of the bench which has delivered such eye-opening judgments.

In Ram Jethmalani & Ors vs. Union of India & Ors, Justice Reddy criticised the Union government, strongly, for loosening its strings when it came to investigation of black money related cases and asked the government to tighten its grip over perpetrators of such crimes. He reiterated his point by constituting a Special Investigation Team (SIT) to monitor the investigation and the steps being taken to bring back black money stashed away in foreign banks. Also, Pune-based businessman Hasan Ali Khan’s bail plea was stayed and he was made available for custodial interrogation only because of the earlier directions issued by Justice Reddy .

 In the Salwa Judum case, Justice Reddy came down heavily on the Chattisgarh government and the Centre for appointing tribals as Special Police Officers (SPOs) and training them to counter Maoists and held the action to be “unconstitutional” by highlighting the importance of human rights.

In 2008, he was also a part of the bench which laid down the guidelines for dealing with Public Interest Litigation, based on which the government is, presently considering a Bill. He reiterated that the High Court judges could not order suo motu investigation merely by treating anonymous letters and petitions listing allegations against individuals or institutions as PILs.

The fight for relevance of PILs has gained momentum again this year, due to Justice Singhvi’s judgment in Delhi Jal Board Appellant v/s National Campaign for Dignity and Rights of Sewerage and Allied Workers & others. The bench, in the above mentioned case, stated that it would be denial of justice if the courts denied addressing the genuine petitions filed by individuals, social workers and NGOs. The Court reminded that it is the duty of the judicial constituents of the State like its political and executive constituents to protect the rights of every citizen and every individual and ensure that everyone is able to live with dignity.

While dealing with Justice Dinakaran’s petition, the Apex Court, comprising of a bench of which Justice Singhvi was a part of, refused to be bogged down by the delay tactics used by Justice Dinakaran. It ruled that former Sikkim High Court Chief Justice, Justice Dinakaran’s known silence with regard to P. P. Rao’s appointment to the Rajya Sabha Committee for a period of almost ten months, militates against the bona fides of his objection to the appointment of P. P. Rao as member of the Committee. As a result of this decision Justice Dinakaran had to resign to save his face from an impeachment proceeding.

Further, it was Justice Singhvi’s(pictured) order in the 2G case which asked the Central Bureau of Investigation to conduct investigation without being influenced by politicians or other influential persons, which finally led to the numerous charges, arrests and trials against the elite class of influential people who were involved in the scam. If not for his order, trial of this scam may have gone on for years without any ultimate result due to overreaching hands of corruption. This shows that Justice Singhvi is unperturbed by who is the government in the Centre and believes in only doing his job and upholding the values and goals of our Constitution.

 While hearing a public suit by the All India Drug Action Network of several NGOs which challenged the government’s proposed policy on drug pricing, a bench comprising of Justice Singhvi and Justice S. J. Mukhopadhaya communicated to the central government that the prices of medicine should not shoot up further as the prices of medicine and ordinary lab tests were already too high.

On last Wednesday, a division bench of the Supreme Court, comprising of Justices Singhvi and H. L. Dattu granted bail to seven corporate accused in the 2G scam case, who had been in jail even after the charge sheet was filed and the investigation was complete. Justice Singhvi has played a balanced role here. This decision brings an end to the present trend of keeping under-trials in custody for prolonged period of time without any rational justification. While his initial order in the 2G scam paved way for the arrests and a proper investigation, the present order upheld the rights of the accused envisaged under our Constitution and other laws.

The aforementioned judgments of Justice Reddy and Justice Singhvi evidence the fact that the sacrosanct principles which have been envisaged in our diverse and elaborate Constitution by our founders are in the hands of sound judges. Their judgments have acted as eye-openers for not only the state and central government but also for the citizens of India. In an era, where the Judiciary is embroiled in controversies, these two eminent judges have continuously delivered such judgments which have upheld the values imbibed in the Constitution. On this special day, we salute you.

http://www.barandbench.com/brief/2/1867/national-law-day-two-constitutional-scholars-who-upheld-the-values-of-our-constitution

Draft Real Estate (Regulation & Development) Bill, 2011, Draft Model Property Rights to Slum Dwellers Act, 2011 and Central Legislation for Street Vendors

Draft Real Estate (Regulation & Development) Bill, 2011, Draft Model Property Rights to Slum Dwellers Act, 2011 and Central Legislation for Street Vendors

Ministry of Housing & Urban Poverty Alleviation notified the `Draft Real Estate (Regulation & Development) Bill, 2011`, The Draft Model Property Rights to Slum Dwellers Act, 2011` and Central Legislation for Street Vendors at a Press Conference in New Delhi.

I.  Draft Real Estate (Regulation & Development) Bill, 2011

 The Draft Real Estate (Regulation & Development) Bill, 2011 seeks to establish a regulatory oversight mechanism to enforce disclosure, fair practice and accountability norms in the real estate sector, and to provide adjudication machinery for speedy dispute redressal. This Act is in pursuance of the powers of Parliament to make laws on matters enumerated in the Concurrent List namely, transfer of property other than agricultural land; registration of deeds and documents, and contracts including partnerships, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land.  The Bill aims at restoring confidence of the general public in the real estate sector; by instituting transparency and accountability in real estate and housing transactions.  Currently, the real estate and housing sector is largely unregulated and opaque, with consumers often unable to procure complete information, or enforce accountability against builders and developers in the absence of effective regulation.  The sector, in recent years, has also emerged as a source of black money and corruptions in the economy. The Bill is expected to ensure greater accountability towards consumers, bring transparency and fairness in transactions and reduce frauds and delays significantly. All of these factors would make sizable dent in the corruption in this sector.

 The Bill is also expected to promote regulated and orderly growth through efficiency, professionalism and standardization. It seeks to ensure consumer protection, without adding another stage in the procedure for sanctions.

 The salient features of the Draft Real Estate (Regulation & Development) Bill are:

  1. Establishment of a ‘Real Estate Regulatory Authority’ in each State by the Appropriate Government (Centre for the UTs and State Governments in the case of the States), with specified functions, powers, and responsibilities to facilitate the orderly and planned  growth of the sector;
  2. Mandatory registration of developers / builders, who intend to sell any immovable property, with the Real Estate Regulatory Authority as a system of accreditation;
  3. Mandatory public disclosure norms for all registered developers, including details of developer, project, land status , statutory approvals and contractual obligations;
  4. Obligations of promoters to adhere to approved plans and project specifications, and to refund moneys in cases of default;
  5. Obligation of allottee to make necessary payments and other charges agreed to under the agreement and payment of interest in case of any delay;
  6. Provision to compulsorily deposit a portion of funds received from the allottees in a separate bank account, to be used for that real estate project only;
  7. The Authority to act as the nodal agency to co-ordinate efforts regarding development of the real estate sector and render necessary advice to the appropriate Government to ensure the growth and promotion of a transparent, efficient and competitive real estate sector; as also establish dispute resolution mechanisms for settling disputes between promoters and allottees/ buyers;
  8. Authorities to comprise of one Chairperson and not less than two members having adequate knowledge and experience of the sector;
  9. Establishment of a ‘Real Estate Appellate Tribunal’ by the Central Government to hear appeals from the orders of the Authority and to adjudicate on disputes.  Tribunal  to be headed by a sitting or retired Judge of Supreme Court or Chief Justice of High Court with 4 judicial and at-least 4 administrative/technical members;
  10. Chairperson of the Tribunal to have powers to constitute Benches, for exercising powers of the Tribunal;
  11. Establishment of a Central Advisory Council to advise the Central Government on matters concerning implementation of the Act.
  12. Council to make recommendations on major questions of policy, protection of consumer interest and to foster growth and development of the real estate sector;
  13. Penal provisions to ensure compliance with orders of the Authority and Tribunal;
  14. Jurisdiction of Civil Courts barred on matters which the Authority or the Tribunal is empowered to determine;
  15. Both Centre and States to have  powers to make rules over subjects specified in the Bill, and the Regulatory Authority to have powers to make regulations;
  16. Powers to Central Government to issue directions to States on matters specified in the Act have also been specified.

 II.  Draft Model Property Rights to Slum Dwellers Act, 2011

The Ministry of HUPA proposed the strengthening of its Slum redevelopment strategy by working towards a slum free India, and assigning property rights to Slum Dwellers, under the Rajiv Awas Yojana (RAY). RAY proposes decisive action for inclusive urban development that acknowledges the presence of the poor in cities, recognizes their contribution as essential to the city`s functioning, and redresses the fundamental reasons for inequity that ties them down to poverty.

 The conferment of property title is a new direction for national policy that aligns national approach to the global practice. It sees ownership of property as the best investment in democracy, by creating for the household due space within the formal system, and thereby a vested interest in peace and legal order.

 The Model law is aimed at bringing within the formal system, those who are forced to live in extra-formal spaces and in denial of right to services and amenities available to those with legal title to city spaces, and at correcting the deficiencies of the formal system of urban development and town planning that have failed to create conditions of inclusiveness and equity, so that, henceforth, new urban families, whether by way of migration or natural growth of population, have recourse to housing with civic amenities, and are not forced from lack of options to create encroachments and slums and live extralegal lives in conditions of deprivation of rights and amenities.

 The Model law intends to enable the household to access the formal channels of credit; it draws the entire extralegal economy of slums out of the informal market; it enriches the slum dweller by giving him access to mortgageable rights for housing construction, and the formal economy by enabling a quarter of its population to participate in its growth. The importance that Central Government gives to this measure for inclusion and equity may be gauged from the decision to link central support for slum redevelopment with the empowering of the slum household with property rights.

The salient features of the Draft Model Property Rights to Slum Dwellers Act, 2011 are:

  1. Facilitation of inclusive growth and slum-free cities, to provide assured security of tenure, basic amenities and affordable housing to the slum-dwellers.
  2. Every landless person living in a slum area in any city or urban area on 4th June, 2009 shall be entitled to a dwelling space at an affordable cost.
  3. Every Slum dweller or the Collective of the Slum Dwellers shall be given a legal entitlement, which shall be in the name of the female head of the household or in the joint name of the male head of the household and his wife.
  4. Every slum dweller eligible shall be provided with basic civic services until the site for the dwelling space has been developed.
  5. The dwelling space so provided shall not be transferable but allowed to be mortgageable for raising housing loan, or in need to sell- but only to the Government or the Collective as the case may be.
  6. The dwelling space may be provided in-situ as far as possible, provided in cases on public interest they shall be resettled elsewhere.
  7. Constitution of a Grievance Redressal Committee for the purposes of resolving disputes in relation to matters about identification of slum dwellers.
  8. State Government shall prescribe and notify participative and transparent procedures for identification and periodic survey of slum dwellers for purpose of granting legal entitlement to slum dwellers.
  9. Establishment of City / Urban Area Slum Redevelopment Committee for implementing the provisions of the Act namely- to survey and make a list of slum dwellers, make an inventory of existing position regarding slum areas, formulate schemes for slum redevelopment/up-gradation/resettlement and for rental housing (including dormitories and night shelters) for the urban poor and slum-dwellers in-eligible etc.
  10. Establishment of a State Slum Redevelopment Authority (to be headed by the Chief Minister) to continuously monitor implementation of the Act and to recommend corrective measures wherever necessary.
  11. Emphasis on Community Participation by providing for establishment of Slum Development Committee for each slum area comprising of members for plan preparation, implementation, monitoring & evaluation, and post project maintenance.
  12. Power to acquire land for redevelopment/up-gradation and for resettlement under the Land Acquisition Act, 1894 as amended from time to time.
  13. Responsibility of the Government to prevent encroachment or of construction of illegal structures towards which necessary amendment to the Municipal and other Acts need to be undertaken.
  14. Civil courts not to have jurisdiction on matters for which the City/Urban Area Slum Redevelopment Committee, State Slum Redevelopment Committee, Grievance Redressal Committee, or the Tribunal is empowered.
  15. Power of the State Government to make rules on matters specified in the Act.

  III.  Credit Risk Guarantee Fund

 To address the issue of credit enablement of EWS and LIG households, the Ministry proposes to create a Credit Risk Guarantee Fund Scheme (CGFS) under Rajiv Awas Yojana. The salient features of the proposed fund are as follows:

Under the Credit Guarantee Fund Scheme (CGFS) the Government of India will provide credit guarantee support to collateral-free / third-party-guarantee-free housing loans up to Rs. 5 lakh extended by lending institutions for Low Income Housing. The CGFS will cover the housing loans to EWS/ LIG borrowers for the purposes of repairs, home improvement, construction, acquisition, and purchase of new or second hand dwelling units, involving an amount not exceeding Rs. 5 lakh per loan. The guarantee cover available under the scheme is proposed to be to the extent of 90% of the sanctioned housing loan amount for a loan amount of upto Rs.2 lakh. And 85% for loan amounts above Rs.2 lakh and upto Rs. 5 lakh. To administer and oversee the operations of the Scheme, provision has been made for establishment of a Credit Risk Guarantee Fund Trust for low income housing (CGFT). Rs.1000 crores has been earmarked as an initial Corpus for CGFS.

  IV.  Central Legislation for Street Vendors

The Ministry of Housing & urban Poverty Alleviation had come up with a new National Policy on Urban Street Vendors in 2009 after a comprehensive review of the previous policy. The Policy underscores the need for a legislative framework to enable street vendors to pursue an honest living without harassment from any quarter. We had drafted a Model Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2009 and circulated to all States/UTs, requesting them to take a cue while legislating on the subject. The progress on state legislation has not been encouraging.  We are receiving continuous representations from the individual street vendors and their organisations to bring a central legislation which would be uniformly and mandatorily applicable to all the states and UTs. We are working to evolve and effective and practical central legislation for protection of livelihood rights and social security of street vendors in consultation with all concerned stakeholders including State Government.

 The bill would be based on the following basic principles:

  1. Legitimate street vendors are protected from harassment by police and civic authorities.
  2. Vending zones/spaces are demarcated for the street vendors. While demarcating the concept of traditional natural markets to be kept in mind.
  3. Adequate representation to street vendors and women in particular, is provided in the institutional structures created for ensuring proper implementation of the proposed law.
  4. A robust, effective and quick grievance redressal and dispute resolution mechanism is established.

 

REAL ESTATE BILL 2011   

NewReservationofLand-FAR

Draft-prop-rights

Citizens Right to Grievance Redress Bill, 2011

A representation of the Lion Capital of Ashoka...

Image via Wikipedia

Department of Administrative Reforms and Public Grievances has prepared a Draft Bill called “Citizens Right to Grievance Redress Bill, 2011”. This is a comprehensive rights based bill for the citizens of the country, providing statutory backing for getting timely services and goods specified in citizens charters of public authorities from Gram Panchayat, Block, District, State up to Central Level. Any violation of the citizens charter will be dealt as a grievance and institutional mechanism has been provided for time-bound grievance redressal and malafide action on the part of responsible officers will lead to penalty / disciplinary action.

Key recommendations in the Draft Bill are:

  1. There will be a Citizens Charter, and a protocol will be put in place.
  2. Bill can be enacted as a central legislation under the concurrent list Item 8 (actionable wrongs) and can cover:
  3. Central Schemes and Central Government Departments
  4. Provide a Platform to States to make this a Grievance Redressal Mechanism for State Schemes and Departments
  5. Bill will incorporate the institution of Information and Facilitation Centre in all public authorities to ensure that Citizens can be facilitated and grievances are systematically recorded and tracked using telephone, sms, web etc.
  6. First level Redress should be within concerned department as proposed. This should be done through a Grievance Redress Officer in each department
  7. The second level redress/ appeal will be at the level of Head of the Department of the public authority.
  8. State Grievance Commissions should be set up as second level appellate authorities.

These documents are placed in the public domain for inviting comments and suggestions which can be forwarded at the following email address by 23.11.2011:

 pk.jha@nic.in

satish@arpg.nic.in

THE DRAFT OVERVIEW AND THE BILL

Citizens Right to Grievance Redress Bill, 2011

Overview Draft bill – Citizens Right to Grievance Redress Bill, 2011

Wail of zamindars

Parliament building in New Delhi (Sansad Bhava...

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A.G. NOORANI in FRONTLINE

 Ministers involved in sports bodies oppose the Sports Development Bill. Sharad Pawar sees it as an attempt to bring the BCCI under the RTI.

THE organised wails and breast-beating of members of the Union Cabinet holding high offices in sports bodies, at the Cabinet meeting on August 30, reminds one of a similar spectacle enacted by Zamindars over half a century ago, when Bills for abolition of the Zamindari system were introduced in State legislatures. This time the tamasha was over the National Sports Development Bill, 2011, which Minister for Sports and Youth Affairs Ajay Maken tabled for discussion in the Cabinet.

The strongest opposition came from Agriculture Minister Sharad Pawar, who threatened to take up the matter with the United Progressive Alliance (UPA) chairperson Sonia Gandhi and ask her to discuss it in the UPA coordination committee: “[T]ell [ sic] her to allow me to follow my party’s decision during the voting on the Bill” ( The Times of India, August 31). The confidence with which he anticipated the decision of his party, the Nationalist Congress Party (NCP), says a lot for that party and for him.

The shrillest of the mourners was Farooq Abdullah. As has been pointed out earlier in this journal, citing authoritative dicta by constitutional authorities, Ministers who are affected personally by a proposed measure have absolutely no right to be present at the Cabinet meeting that is to discuss the measure. The vice is not cured one bit by “disclosure of interest”, quite apart from the fact that the interest was only too well known. (“A flawed waiver”, Frontline, May 6, 2011). Rule 255 of the Rules of Procedure of the Lok Sabha provides that if a member of a committee of Parliament has a “personal” or “direct interest” on a matter to be discussed, he shall, on the Speaker’s finding to that effect, “ cease to be member thereof forthwith”.

In 1937, Sir John Simon reiterated the rules on behalf of the Prime Minister:

“In the first place, it is plain that in no circumstances must a man who holds the position of a Minister ever allow himself to be in such a situation that his public duty will conflict with his private interests…. The second principle is that no man should allow himself to occupy any portion of the time which he is bound to devote to his public duties in a disregard of his public duties, and pursuing any private interest whatever, whether it is in playing golf or in the nature of business.

“The third principle is that inasmuch as the secrets of the government are specially in charge of Cabinet Ministers, no Minister, and particularly no Cabinet Minister, must in any circumstances put himself in a position where he is not able to be the complete guardian of those secrets in that there is any possibility of any private interests being served through a knowledge of those secrets” (324-C. Debates Ss., 1220).

What is the lure of power over sports bodies that drives politicians to seek that power while grasping simultaneously at state power? In this category fall also Praful Patel, Vilasrao Deshmukh, C.P. Joshi, Farooq Abdullah and Arun Jaitley.

Regardless of their protests, the Bill must be considered objectively. Control of sports bodies by politicians is offensive; more so is state Control. Involved are two distinct issues. One is the application of the Right to Information (RTI) Act, 2005, to the Board of Control for Cricket in India (BCCI). The other comprises regulatory measures over all national sports federations, including the BCCI. They are: a 70-year age bar and a 12-year tenure limit on office-bearers of the federations and the BCCI, a 25 per cent reservation of seats on their executive boards for sportsmen of the same game, anti-doping norms, provision for “recognition” of the federations (BCCI included) by the Government of India and the publication of audited accounts. Clause 6(1) of the Bill reads thus: “Every national sports federation shall, in collaboration with the Sports Authority of India (SAI) and with the approval of the Central Government, develop a long-term development plan for a period of four years.”

Heavy Industries Minister Praful Patel’s objection is valid: “If such a Bill is passed, bureaucrats like a Joint Secretary will be soon running the sports federation. What is their competence in sports administration? The Sports Ministry should rather address the issue of free and fair elections in sports bodies.”

The Sports Minister replies: “Section 6(1) Clause only relates to those federations which are funded by the government. After all, the Ministry has a right to see how its funds are utilised. But the provision is not applicable for bodies like the BCCI, which does not take grant-in-aid from the government” ( Indian Express, September 1).

For all the furore, there is considerable common ground between the rival viewpoints and, therefore, ample ground for compromise. Note these pronouncements. Sports Minister Ajay Maken said: “Whichever provision that sports federations find intrusive, we are willing to look into it. Our intention is not to control the national sports federations but to regulate them. We do not intend to be intrusive.”

Praful Patel said he did not have any issue with opening the BCCI to RTI scrutiny, adding that this was his personal view. Patel, who heads the All India Football Federation (AIFF), however, said he had objections to only specific provisions and not to the entire draft Bill per se. “Personally, I don’t have any issues with RTI [for BCCI]. But I do not agree with the clauses relating to age bar, tenure limitation and control of sporting bodies by the government.”

A provision of the draft Bill says: “Every national sports federation (this includes the BCCI) shall every year before December 21 publish on its website audited annual financial statements, comprehensive report of its activities and achievements.” What objection can any sports federation possibly have to such a provision? Sports federations, the BCCI included, select national teams for participation in matches abroad.

In the very nature of things, there has to be a certain liaison between the state and the federations. The BCCI is accepted internationally only because it is seen internationally to enjoy a measure of official backing and support. Without these its clout would dissipate. We have to steer between the Scylla of politicians’ corrupting control and the Charybdis of state control, which will cripple sports.

Some legislation is overdue. One must consider first the legal status of the BCCI and, relatedly, its behaviour. There are four rulings on its status. One is by the Delhi High Court. The other three are by the Supreme Court: (1) BCCI vs Netaji Cricket Club and Ors. (2005) 4 Supreme Court Case 741 decided by Justices N. Santosh Hegde and S.B. Sinha on January 10, 2005. Only a few days later, on February 2, 2005, they split; each pronouncing for the differing judges (3-2), a narrow majority, in (2) Zee.Telefilms Ltd & Anr vs Union India & Ors. (2005) 4 SCC 649, and, lastly, (3) A.C. Muthiah vs BCCI & Anr (2011) 6 SCC 617 decided on April 28, 2011, by Justices J.M. Panchal and Gyan Sudha Misra. They differed and referred the matter to the Chief Justice of India “for being assigned to an appropriate Bench”. Thus, despite the three cases, the issue of the BCCI’s status remains to be decided finally, one hopes by a larger Bench. The final result is unlikely to please the zamindars of the BCCI, judging by the reasoning of the eminent judges who ruled on the issue. It is best to quote their words at some length.

BCCI’s status

Part III of the Constitution, embodying the Fundamental Rights, applies only to “the state”, not to private individuals or associations. Article 12 defines what “the state” means in this context. It covers the Central and State governments and legislatures and “all local or other authorities within the territory of India or under the control of the Government of India”. The Supreme Court interpreted Article 12 to cover a host of bodies so that the citizen can enforce his fundamental rights against them. Is the BCCI a state so defined? The BCCI was formed in 1928, as an unregistered association of persons. It was registered in 1940 under the Societies Registration Act, 1860, a Central statute. It was later registered under the Tamil Nadu Societies Registration Act, 1975, which came into effect on April 22, 1978.

The first case ( BCCI vs Netaji Cricket Club) concerned elections for the post of the BCCI’s president. Netaji Club was a member of the Tamil Nadu Cricket Association (TNCA), which, in turn, was a member of the BCCI. The judgment was delivered by Justice S.B. Sinha of the two-judge Bench. Justice Santosh Hegde was party to it. It said:

“The Board is a society registered under the Tamil Nadu Societies Registration Act. It enjoys a monopoly status as regards regulation of the sport of cricket in terms of its Memorandum of Association and Articles of Association. It controls the sport of cricket and lays down the law therefor. It inter alia enjoys benefits by way of tax exemption and right to use stadia at nominal annual rent. It earns a huge revenue not only by selling tickets to viewers but also selling right to exhibit films live on TV and broadcasting the same. Ordinarily, its full members are the State associations except Association of Indian Universities, Railway Sports Control Board and Services Sports Control Board. As a member of ICC [International Cricket Council], it represents the country in the international fora. It exercises enormous public functions. It has the authority to select players, umpires and other officers. The Rules of the Board clearly demonstrate that without its recognition no competitive cricket can be hosted either within or outside the country. Its control over the sport of competitive cricket is deeply pervasive and complete.

“In law, there cannot be any dispute that having regard to the enormity of power exercised by it the Board is bound to follow the doctrine of ‘fairness’ and ‘good faith’ in all its activities. Having regard to the fact that it has to fulfil the hopes and aspirations of millions, it has a duty to act reasonably. It cannot act arbitrarily, whimsically or capriciously. As the Board controls the profession of cricket, its actions are required to be judged and viewed by higher standards.”

Zee Telefilms Ltd vs Union of India was decided by a Bench of five judges. It squarely concerned the issue whether the BCCI fell within the definition of “the state” in Article 12. The Bench split narrowly. Justice Santosh Hegde delivered the judgment for himself and Justices B. Singh and H.K. Sema, while Justice S.B. Sinha delivered the dissent on his own behalf and on behalf of Justice S.N. Variava.

Admittedly, the BCCI is neither controlled by the government nor does it receive financial assistance from it. The majority ruled that it was not an instrumentality of the state. The government’s plea that it enjoyed it “ de facto recognition” was rejected. But the majority qualified this:

“However, it is true that the Union of India has been exercising certain control over the activities of the Board in regard to organising cricket matches and travel of the Indian team abroad as also granting of permission to allow the foreign teams to come to India. But this control over the activities of the Board cannot be construed as an administrative control. At best this is purely regulatory in nature and the same according to this court in [the] Pradeep Kumar Biswas case is not a factor indicating a pervasive state control of the Board.

“Be that as it may, 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 she is not a state. Under the Indian jurisprudence there is always a just remedy for the 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.” The gap between this view and the minority view is not wide.

Article 226 confers on High Courts power to issue “to any person or authority” and “any government” writs for the enforcement of the fundamental rights “and for any other purpose”. Article 32 empowers only the Supreme Court to issue writs for the enforcements of the fundamental rights. The majority very well knew that the Supreme Court has driven a coach-and-four through Article 32. It has issued writs for all manner of purposes. It would be unsafe for the BCCI to bank on the majority view with its explicit recognition that the BCCI does exercise “ public duties or state functions”. How then can it object to Central legislation?

Justice Sinha’s dissent focuses on this very point, the BCCI’s Achilles’ heel. He said: “Its actions of promoting the sport, making laws for cricket for the entire country, representing the country in international forums, appointing India’s representatives, and the all-pervasive control over players, managers and umpires are state actions.” He cited an English ruling that said: “The reason why a club is not subject to judicial review is not just because it is self-regulating. The panel wields enormous power. It has a giant’s strength. The fact that it is self-regulating, which means, presumably, that it is not subject to regulation by others, and in particular the Department of Trade and Industry, makes it not less but more appropriate that it should be subject to judicial review by the courts.”

Justice Sinha observed: “The Board [BCCI] while enjoying monopoly in cricket exercises enormous power, which is neither in doubt nor in dispute. Its action may disable a person from pursuing his vocation and in that process subject a citizen to hostile discrimination or impose an embargo which would make or mar a player’s career. The right to pursue an occupation or the right of equality are embedded in our Constitution, whereby citizens of India are granted much higher right as compared to the common law right in England. A body although self-regulating, if it performs a public duty by way of exercise of regulatory machinery a judicial review would lie against it. The question has since been considered from a slightly different angle, viz., when such action affects the human right of the person concerned holding that the same would be public function. If the action of the Board impinges upon the fundamental or other constitutional rights of a citizen or if the same is ultra vires or by reason thereof an injury or material prejudice is caused to its member or a person connected with cricket, judicial review would lie. Such functions on the part of the Board being public functions, any violation of or departure or deviation from abiding by the Rules and Regulations framed by it would be subject to judicial review. Time is not far off when having regard to globalisation and privatisation the rules of administrative law have to be extended to private bodies whose functions affect the fundamental rights of a citizen and who wield a great deal of influence in public life.” The logic is unanswerable.

Justice Sinha pointed out: “The traditional tests of a body controlled financially, functionally and administratively by the government as laid down in Pradeep Kumar Biswas would have application only when a body is created by the state itself for different purposes but incorporated under the Indian Companies Act or the Societies Registration Act. Those tests may not be applicable in a case where the body like the Board was established as a private body long time back. It was allowed by the state to represent the state or the country in international fora. It became a representative body of the international organisations as representing the country. The nature of function of such a body becomes such that having regard to the enormity thereof it acquires the status of monopoly for all practical purposes; regulates and controls the fundamental rights of a citizen as regards his right of speech or right of occupation, becomes representative of the country either overtly or covertly and has a final say in the matter of registration of players, umpires and others connected with a very popular sport. The organisers of competitive Test cricket between one association and another or representing different states or different organisations having the status of state are allowed to make laws on the subject, which is essentially a state function in terms of Entry 33 List II of the Seventh Schedule of the Constitution. In such a case, different tests have to be applied.”

Recognised body

The BCCI selects India’s Team, not the BCCI’s team. “As per ICC Rules and Guidelines for Classification of Official Cricket, the definition of a Test match in clause 1(a)(i) is as follows: ‘Any cricket match of not more than five days scheduled duration played between two teams selected by full members as representatives of their member countries and accorded the status of Test match by the Council.’ Indisputably, the Union of India had issued guidelines, which had been reviewed from time to time. The Ministry of Youth Affairs and Sports issued the revised guidelines and forwarded the same to the presidents/ Secretary General, Indian Olympic Association, and presidents/ hon. general secretaries of all recognised sports federations, incorporating therein the amended provisions. Cricket is included in annexure I within the category.”

Justice Sinha proceeded to analyse the government’s guidelines. “Annexure II appended to the guidelines provides for recognition of national sports federations, inter alia, by laying down the eligibility therefor and the necessity of filling of applications in that behalf. Clause 3, 12, reads as under: ‘There would be only one recognised federation for each discipline of sport, irrespective of the fact that the particular sport caters to youngsters, men, women or veterans.

‘However, this condition shall not apply to federations already recognised by the Department.’ Clause 5 provides for grant of recognition. Annexure III appended to the said guidelines provides for the procedure for suspension/withdrawal of recognition and consequences thereof. The guidelines also prescribe forms required to be used by the federations for different purposes.

“The Board for all intent and purport was a recognised body. Probably in that view of the matter, the Board did not think it necessary to apply for grant of such recognition by the Union of India, asking it for passing a formal order. However, the Board had all along been obtaining the requisite permission for sending an Indian team abroad or for inviting a foreign team to India in the prescribed form. …a number of documents have been annexed, which clearly go to show that from the very beginning the Board had been asking for the permission of the Ministry of Human Resource Development either to go abroad or to play or participate in other countries or for inviting the others to play in India. Such permission had been sought for in the form prescribed in terms of the said Regulations. The said documents leave no manner of doubt that the Board had asked for and the Union of India had granted de facto recognition.” So much for the objection to the government’s power of “recognition”.

“It is not disputed that the Union of India has not recognised any other national sports body for regulating the game of cricket in India. It is the categorical stand of the Union of India that only by such recognition granted by the Union of India is the team selected by the Board the Indian cricket team, which it could not do in the absence thereof. We cannot accept the submission of Mr Venugopal to the effect that even while playing abroad, the Board sends its own team. It is evident from the records, which fact has also been noticed by the Delhi High Court in its judgment in Rahul Mehra, that the Board fields its team as the Indian team and not as Board Eleven, which without having any authority from the Union of India it will not be able to do. The stand that the cricket team selected by the Board only represents it and not the country is incorrect. Having regard to the Rules of the ICC, its own Rules as also various documents placed before this court by the Union of India, the conduct of both the Board and the Union of India clearly goes to show that sub silentio both the parties had been acting on the premise that the Board is recognised as the only recognised national federation for the purpose of regulating the game of cricket in India.”

Read this: “A body which carries on the monopolistic function of selecting a team to represent the nation and whose core function is to promote a sport that has become a symbol of national identity and the medium of expression of national pride, must be held to be carrying out governmental functions. A highly arbitrary or capricious action on the part of such a powerful body would attract the wrath of Article 14 of the Constitution. The Board itself acted as a representative of the Government of India before the international community. It makes representations to the effect that it was entitled to select a team which represents the nation as a cricket-playing country, and, thus, the same would, without anything more, make its action a state action. For the said purpose, actual control of the Board or issuing any direction in that behalf by the Government of India is not of much significance, but the question as to whether the government, considering the facts and circumstances, should control the actions of the Board as long as it purports to select a team to represent India would be a matter of great significance.

“The guidelines issued by the Union of India clearly demonstrate its concern with the fall in standard of Indian teams in sports in important international sports events. It would not be correct to draw a comparison between an event of international sport as significant as cricket with beauty pageants and other such events as the test necessary to be evolved in this behalf is the qualitative test and not the quantitative test. The quality and character of a sport recognised as a measure of education and nation-building (as a facet of human resource development) cannot be confused with an event that may be a form of entertainment. Cricket, as noticed hereinbefore, has a special place in the hearts of citizens of India.

“The monopoly status of the Board is undisputed. The monopoly enjoyed by the Board need not be a statutory one so as to conform to the tests contained in Clause (6) of Article 19 of the Constitution. It can be a de facto monopoly which has overtly or covertly received the blessings of the Union of India. The de facto monopoly of the Board is manifest as it, as a member of ICC (even if it is technically possible to float any other association), can send an Indian team abroad or invite a foreign team to India. In the absence of recognition from the ICC, it would not be possible for any other body, including the Union of India, to represent India in the international cricket events featuring competitive cricket….

“The Board which represents a nation with or without a statutory flavour has duties to perform towards the players, coaches, umpires, administrators and other team officials. They have a duty to create safe rules for the sport, if by reason thereof a physical injury to the player is to be avoided and to keep safety aspect under ongoing review. A body may be autonomous but with autonomy comes responsibility. Sport is a ‘good thing’ wherefor a societal end is to be provided. Sport must receive encouragement from the state and the general public or at least not be discouraged. Health, sociability and play are considered to be important values to be recognised in a human.

“Having regard to the nature of activities, viz., the Board represents a sovereign country while selecting and fielding a team for the country with another sovereign country, promoting and aiming at good relations with the said country as also peace and prosperity for the people, even at the domestic level the citizens of the said country may be held to be entitled to the right to invoke the writ jurisdiction of this court even if hereby no personal fundamental right is directly infringed.

“With the opening up of the economy and globalisation, more and more governmental functions are being performed and showed to be performed by private bodies. When the functions of a body are identifiable with the state functions, they would be state actors only in relation thereto… What is necessary is to find out as to whether by reason of its nature of activities, the functions of the Board are public functions. It regulates and controls the field of cricket to the exclusion of others; its activities impinge upon the fundamental rights of the players and other persons as also the rights, hopes and aspirations of the cricket-loving public. The right to see the game of cricket live or on television also forms an important facet of the Board. A body which makes a law for sports in India (which otherwise is the function of the state), conferring upon itself not only enormous powers but also final say in disciplinary matters and, thus, being responsible for making or marring a citizen’s sports career, would be an authority which answers the description of ‘other authorities’.”

The third case arose out of a suit filed by A.C Muthiah, a former president of the BCCI, against the BCCI. It had invited Indian Cements Ltd., based at Chennai and represented by its managing director N. Srinivasan (respondent 2), to participate in the auction conducted by the Indian Premier League (IPL). Srinivasan was also the hon. treasurer of the BCCI and president of the TNCA. He was awarded the franchised IPL rights for ownership of Chennai Super Kings team by the BCCI. Muthiah alleged conflict of interest and filed a suit in the Madras High Court for various reliefs. Srinivasan participated in the Annual General Meeting of the BCCI held in Mumbai on September 27, 2008, since the court had not granted a temporary injunction. More, he was also elected secretary of the BCCI. On the same day, Clause 6.2.4 of the Regulations for Players, Team Officials, Managers, etc., was amended with immediate effect to cover the plea of conflict of interest. It now read: “No administrator shall have directly or indirectly any commercial interest in the matches or events conducted by [the] BCCI excluding events like IPL or Champion League Twenty 20” (emphasis added, throughout).

Muthiah sued again to have the amendment declared void as being made mala fide. The matter eventually reached the Supreme Court. Justice Panchal not only held that the BCCI was not “the state” but opined in the teeth of the record that the Netaji Club case was “no longer good law” in view of the ruling in the Zee Telefilms case. There was nothing to prevent the Bench in the latter case from saying so. It had not. Indeed, Santosh Hegde’s remarks quoted above came very close to Justice Sinha’s.

Questionable amendment

Justice Gyan Sudha Misra disagreed with Justice Panchal completely, observing: “Just after a few days of filling of the suit by the plaintiff-appellant herein Shri Muthiah, wherein he sought to enforce the policy in Clause 6.2.4 against the second respondent Shri N. Srinivasan, BCCI met on 27-9-2008 and introduced an amendment to Clause 6.2.4 carving out an exception therein, which reads as follows: ‘No administrator shall have directly or indirectly any commercial interest in any of the events of BCCI excluding IPL, Champions League and Twenty 20.’ Thus, by one stroke of an amendment, which was introduced with racing speed, without any deliberation by BCCI, and without notice of 21 days to the members on this agenda, which was required under the Regulation, the most commercial event of BCCI, namely, IPL, Champions League and Twenty 20 matches, were excluded from Clause 6.2.4, diluting the entire effect of Clause 6.2.4, reducing this salutary clause into a dead letter.”

Two observations by Justice Misra deserve particular attention. “I also find sufficient force and substance in the contention of the learned counsel for the appellant that as BCCI discharges important public functions such as the selection of Indian Team and the control on the players and has to discharge important public functions, it cannot be expected to act arbitrarily, whimsically and capriciously so as to hold that the two suits are not maintainable at the instance of the appellant, who, although admittedly is the past president of BCCI and hence an administrator, had no locus standi to file even a civil suit and seek order of injunction for suspending the effect of amendment on the plea that as he was not a member of the subcommittee he was not competent to challenge the amendment introduced in the BCCI Regulations.”

The judge added. “It is essential to highlight that the BCCI Regulation itself acknowledges this position when it lays down in Clause 6.2.4 that ‘no administrator shall have direct or indirect commercial interest in any events of BCCI’, but dilutes its effect by amending it and making IPL, Champions League and Twenty 20 matches as an exception which is the most lucrative and revenue generating event. If the administrator is clearly barred as per the Regulations from having any commercial interest in the events of BCCI, it is beyond my comprehension as to how only one class of matches, which was IPL, Twenty 20 and Champions League, could be treated as an exception by allowing an office-bearer to participate in the bid but preventing him from other matches including Test matches.”

More to the main point: “It would be difficult to overlook that multiple loyalties can create commercial interest with the activities of BCCI, thus resulting in conflict of interest since the financial or personal interest of the Board would clearly be inconsistent with the commercial and personal interest of the administrator of the Board. In addition, the rule of equity and fairness provides that no one who stands in a position of trust towards another can in matters affected by that position, advance his own interests, for example, by trading and making a profit at that other’s expense as the rule of legal prudence mandates that once a fiduciary is shown to be in breach of his duty of loyalty, he must disgorge any benefit gained even though he might have acted honestly and in his principal’s best interest. In the instant matter, when BCCI held auction for owning IPL team and an administrator, respondent 2, participated in the bid, variety of real and/or perceived conflict of interest cannot be ruled out. These included access to insider information, possible undue influence on the decision-makers who held the auction, and the like.” The BCCI was clearly guilty of gauche manoeuvre. This is not the conduct of one as pure as driven snow. The BCCI’s status and its conduct cry for legislation. The former’s uncertainty must be removed. Excesses like the latter must be curbed. The Jagmohan Dalmiya and Lalit Modi power struggles in the BCCI tell their own tale.

First the definition of “public authority” in Section 2 (h) of the Right to Information Act, 2005 must be widened to include “any body which receives aid and assistance from the government whether by user of government-owned land for services, of a government agency”. To put the matter beyond doubt, the BCCI can be mentioned explicitly in this amendment – or in the proposed Bill.

Some genius in the Sports Ministry prepared an 81-page note for the Cabinet claiming that Parliament can legislate by invoking entries 10 and 13 of the Union List ( DNA, August 31). This is utterly false. These entries relate, respectively, to “foreign affairs” and “participation in international” fora. “Sports” is a State subject exclusively under Entry 33 of the State List. Equally wrong would it be to invoke Entry 25 in the Concurrent List on “education”, stretching it to cover sports despite its explicit mention in the State List. However Entry 63 of the Union List empowers Parliament to legislate in respect of any “institution declared by Parliament by law to be an institution of national importance”. The BCCI fits the Bill even more than the Indian Council of World Affairs for which it was invoked.

Even in the U.S., the haven of private enterprise, its Supreme Court propounded the doctrine that when “one devotes his property to a use in the public interest which the public has an interest, he, in effect, grants to the public an interest in that use and must submit to be controlled by the public for the common good” ( Munn vs Illinois 94 U.S. 113, 126 (1877). This is the doctrine of private utility affected by public interest. Legislative competence is beyond challenge. It is only right that the power should be exercised in a conciliatory spirit. There is and can be no issue as to the RTI. On the other points – age bar, tenure, etc. – the government must engage in quiet and earnest talks with the BCCI, other sports bodies, sportsmen of note and, indeed, the public at large.

The Times of India of September 7 carried this report by K. Shrinivas Rao:

“BCCI secretary N. Srinivasan has admitted before Parliament’s standing committee on finance that the Indian board needed to own up for financial irregularities in the Indian Premier League. Srinivasan said the BCCI could not cleaim exoneration simply by claiming that suspendd IPL chairman Lalit Modi was running the show. The BCCI had previously put the onus on Modi when it came to explaining lapses in expenditure during the first three editions of the IPL…. Maintaining that other senior officials had no idea of wrongdoings since Modi was given a free hand. The change in the BCCI’s stance is revealed in a recent report of the standing committee.”

N. Srinivasan is quoted in direct quotes: “I know we can’t plead before you that we did not know all this was happening. Your question would be, were you not vigilant? I am sorry, sir, there is no defence for me.”

In the face of all this, it would be a betrayal of the public interest to leave this rogue elephant at large.

Source: http://www.frontline.in/stories/20111007282004600.htm