Some Fundamental Legal Issues

I have been accused by some people of supporting an allegedly 'corrupt' body, the BCCI.

It is true that there are some defects in the BCCI, just as there are some defects in the judiciary, the media, bollywood, the medical profession, etc. But the issues I have raised in my report to the BCCI, which can be seen in the website bcci.tv, raises some very basic questions.

Does the judiciary have power to legislate ?

The order of the Supreme Court dated 18.7.2016 is legislative in nature, as it directs the BCCI to implement most of the recommendations of the Lodha Committee. For instance, an age cap of 70 years has been fixed for BCCI office bearers and a maximum tenure of 9 years for them. Now the Supreme Court has itself ruled in T.P. George vs. State of Kerala, 1992 Supp 3 S.C.C.191 ( para 6 ) that the age of superannuation cannot be fixed by the judiciary, but only by the legislature or executive. How then can the age cap be fixed for BCCI office bearers? If that is permissible, then the judiciary can also fix an age cap for Ministers, M.P.s, film stars, editors, etc.

There is separation of powers between the three organs of the state and it is not permissible for one organ to encroach into the domain of another. There are numerous judgments of the Supreme Court to the effect that judges cannot legislate as that is the function of the legislature, and I have quoted about 40 such decisions in my report. These were binding precedents on the two judge bench of Justices Thakur and Khalifulla, but they have all been overlooked.

Thus, in Divisional Manager, Aravali Golf Course vs. Chander Hass, 2007 the Supreme Court observed: " Judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the state, the legislature, the executive and the judiciary must have respect for the others and must not encroach into each other's domains. "

If there is a law judges can certainly enforce it, but judges cannot create a law and then seek its enforcement. The order of 18.7.2016 creates law, which was not in the domain of the judiciary.

Can the judiciary usurp the powers of a statutory authority ?

The BCCI is registered as a society under the Tamilnadu Societies Registration Act. Section 36 of that Act states that if there is a complaint against the functioning, composition, etc of a society the Registrar of Societies can inquire into the complaint and pass suitable orders, which can even go the extent of cancelling the certificate of registration of the society (vide sections 37 and 38 ). Thus, it is only the Registrar of societies who can inquire into complaints against the BCCI. How can the judiciary usurp this power ?

In G. Veerappa Pillai vs. Raman&Raman Ltd. AIR 1952 S.C.192 the Supreme Court said that the High Court cannot direct the Regional Transport Authority ( RTA ) to grant a bus permit, because the power to grant a bus permit is with the RTA, and by passing such order the High Court itself will be acting as the permit granting authority. Similarly, in State of U.P. vs. Raja Ram Jaiswal, 1985 (2) S.C.C. 131 the Supreme Court held that under the relevant statute the power of granting a cinema licence is with the district magistrate, and hence the High Court cannot the district magistrate to grant the licence. There are many other decisions of the Supreme Court on this point.

How then can the Lodha Committee inquire into complaints against the BCCI ?

As Justice Cardozo, the celebrated Judge of the U.S. Supreme Court, said in his book The Nature of the Judicial Process , " A Judge is not a Knight Errant roaming at will in pursuit of his own ideal of beauty and goodness ". A Judge has to decide in accordance with law, not on his own notions.

Can the Court pass orders contrary to a statute ?

Under section 12 of the Tamilnadu Societies Registration Act, a society by special resolution can amend its memorandum of association and bye laws. How can the Lodha Committee or Court do this ? It is well settled in law that when the procedure of doing something is prescribed by the statute, then only that procedure has to be followed, and no other. The constitution of the society, rights of membership, election of office bearers, right to vote, etc are all fixed in the memorandum of association and bye laws of BCCI. The Lodha Committee recommendations, which have been ordered to be implemented, have drastically changed most of them. The Lodha Committee has prepared a draft Memorandum of Association which must be implemented by BCCI. Thus, for instance, while the BCCI had 5 Vice Presidents, the Lodha Committed has said there will be only one. There were 14 members in the Working Committee of the BCCI, but the Lodha Committee has reduced them to 9, and has even gone further to state from which categories these will come.

Thus the Lodha Committee has made a new constitution of the BCCI from definition to dissolution, and directed the state cricket associations ( which are societies registered under the state Acts ) also to follow the same. This was clearly in violation of section 12 of the Tamilnadu Societies Registration Act.

If a judge is allowed to pass orders contrary to law there will be chaos. Suppose the maximum punishment of a certain crime is 10 years imprisonment under the IPC. Can a judge say that in view of the horrendous and exceptionally brutal nature of a particular crime covered by that provision, he will ignore the statute and impose death sentence ? This would be clearly illegal.

Can the judiciary outsource its power to impose punishment ?

The Supreme Court has permitted the Lodha Committee not only to change the constitution and rules of the BCCI, it has also empowered the Lodha Committee to impose punishment. The power to impose punishment is only with the Court, and it cannot be outsourced. For instance, can the Court outsource its power to impose punishment for crimes under the Indian Penal Code to the Munsif, or a Municipality or a private body? This would clearly be illegal.

Can a bench of a Court ignore and brush aside binding decisions ?

In India we have followed the Anglo-Saxon doctrine of precedents. Judgments of larger, and even coordinate benches are binding on a subsequent bench, though if the subsequent bench disagrees it can refer the matter to a larger bench giving its reasons. A decision given ignoring binding precedents is known as a judgment per incuriam, and is not binding on anyone.

The order of the 2 judge bench of the Supreme Court dated 18.7.2016 is in my opinion an order per incuriam as it has ignored earlier decisions of the Court, many of which were of larger benches, holding that judges cannot legislate.

One can understand the zeal of the judges to clean up the system, but that has to be done in accordance with the Constitution and the law, and not by overlooking them.

In my view the order dated 18.7.2016 needs to be reviewed.