The Board of Control for Cricket in India’s review petition against the Supreme Court’s landmark July 18 order, which effectively overhauls India’s top cricketing body, stands on slippery legal ground
In the battle between the virus and the host, either the virus kills the host or the host manages to overcome the virus. When a virus infects a person (host), it invades the cells of its host in order to survive and replicate. Once inside, the cells of the immune system cannot ‘see’ the virus and therefore do not know that the host cell is infected. The zamindars who inhabit the Board of Control for Cricket in India are like the virus which refuses to give up as it continues to locate cells to infect.
The uncoiling of history will tell you that it is like a limpet gastropod which refuses to give up; sticking and staying glued. Wearing multiple hats, appropriating authority and influence, abusing dominance, even turning the right to govern hereditary, they have simply refused to go away. At every twist and turn in this war to rip the heart out of the megalomanic BCCI, the board has fought a rearguard with great tenacity. Control in the acronym BCCI can be used inter-changeably, synonymously and indelibly for power drunk officials who have had a garrotte-like grip on the institution.
Just when one thought that the lodha panel will implement its stringent recommendations altering the very character of the board forever, there comes yet another attempt to repel the marauder at the gate. First Justice Katju was roped in with his uber gyan on separation of powers and how the Supreme Court had got it completely wrong: The SC has over-reached itself and indulged in judicial legislation unmindful of the fact that there are several larger Bench decisions prohibiting the same. “This order is legislative in nature and could not have been passed validly by the Court. The Supreme Court could have no doubt forwarded the lodha Committee’s recommendations to Parliament with their own recommendation that they be enacted as a law by Parliament, but to direct itself that the recommendations be implemented is clearly a legislative act not within the court’s domain.”
Now the BCCI has chosen to file a review petition against the Supreme Court’s July 18 order, seeking Chief Justice TS Thakur’s recusal from the case. This strategy is predicated on the fact that the CJI has a ‘prejudicial approach’ towards the BCCI.
Taking the same tack as Katju, it has described the SC order as unconstitutional: SC enacted legislation which it can’t do as the supreme law-making body is with Parliament. The judgement has usurped the power of the Registrar who has exclusive jurisdiction to enquire into the affairs. The imperative being that since the BCCI is registered under the Tamil Nadu Societies Registration Act, complaints against the BCCI should have been filed before the Registrar of Societies, the competent authority.
I wonder how this argument of separation of powers between the judiciary and the executive impacts some recent landmark judgements. On February 2, 2012, the apex court struck down 122 telecom licenses. Following the principle of stare decisis (to stand by a decision), courts generally do not overturn a decision. Even in the 2G spectrum case, on March 2, 2012, the Government of India filed a review petition in the SC seeking partial review of the court’s earlier order which had quashed 122 licenses. The Government questioned the SC’s authority over ruling against the first-come first-served policy but stayed away from challenging the cancellation of 122 licences.
In its review petition, the Centre said the apex court had entered the executive’s domain by suggesting that auctions, instead of First Come First Served, should be the preferred route for allocation of natural resources such as spectrum and mining and coal rights.
A Bench of Justices GS Singhvi and KS Radhakrishnan observed on April 4, 2012 while turfing out the review petition, “We have carefully perused the review petition and the record of the case and are convinced that the judgment of which review has been sought does not suffer from any error apparent warranting its reconsideration.” Did the Government ask for the decision to be reviewed by Parliament, after all the executive took the flawed decisionIJ No.
In the Hutch-Vodafone case, on February 17, 2012, the Government moved the SC seeking a review of its verdict holding that the Income Tax Department did not have jurisdiction to impose Rs 11,000 crore as tax on the overseas deal between Vodafone and Hutchison. SC had earlier said that it was a “bonafide structured foreign direct investment into India which fell outside India’s territorial tax jurisdiction, hence not taxable.”
On March 20, 2012, the SC dismissed the review petition during an in-chamber proceeding saying the petition has no merit. The dismissal by a bench of Chief Justice of India SH Kapadia and Justices KS Radhakrishnan and Swatanter Kumar followed a Government proposal in the Union Budget providing for a “clarificatory retrospective amendment” in the Income Tax Act, with effect from 1962, to “restate the legislative intent” that overseas deals which derive their value substantially from domestic assets can be taxed.
On February 17, the Government had contended in its review petition that the court failed to appreciate that the deal did not involve FDI inflow into India. The review had criticised the SC verdict, saying it had the effect of legitimising transactions routed through tax havens and thus binding the hands of IT authorities.
Now let us come to another high profile case — SC scrapped the allocation of 214 coal blocks in September 2015, opting for cancellation as the “natural consequence” as they were arbitrary and illegal. Did the newly elected BJP Government challenge the verdictIJ No. Instead, Attorney General Mukul Rohatgi was quick to state that the, “Government would now decide which of the blocks will be auctioned and which not to”. So, in these specific cases, twice the review petitions were dismissed summarily, while the third did not even warrant a challenge. Nowhere was the dismissal sent back to Parliament, so one wonders whether the BCCI and Justice Katju are on the right track viz. separation of powers.
However, there is one telling review petition verdict which needs to be reprised. On October 4, 2003, based on a review petition filed by Kamlesh Verma, the Supreme Court decided to review its earlier verdict in open court in a Disproportionate Assets case against BSP supremo Mayawati. The assets case was finally quashed on July 6, 2012 — nine years later-by the Supreme Court; the court found that the case was unwarranted.
Writing the judgement, Justice P Sathasivam said: “The method adopted by the CBI is unwarranted and without jurisdiction. We are also satisfied that the CBI has proceeded without a proper understanding of various orders passed by this court.” The CBI decided not to file an appeal. But the case is completely different from the aforementioned examples. Here it was held that the impugned FIR was without jurisdiction and any investigation pursuant thereto was illegal.