The BCCI Resistance turns one

Today, July 18, marks a year since the Supreme Court of India asked for the Lodha Committee's recommendations to be implemented by the BCCI - within six months.

When the order was announced, by a bench headed by the Chief Justice of India, no less, it was understood that the six-month timeline was far too ambitious and that the BCCI would staunchly resist. The removal, five months later, of the BCCI president then, Anurag Thakur, and secretary Ajay Shirke, did nothing to stem the desire of the remaining office-bearers to seek every possible opportunity, any option, to dilute, stall or block the recommendations from going through.

Seven months down the line, they are still at it. Disqualified officials like N Srinivasan and Niranjan Shah are wriggling their ways into the headlines and meetings again, even while their brothers-in-power leak details of this self-serving and rather faux BCCI Resistance Movement.

As significant - and an almost visible flexing of muscle - is the fact that a vital arm of the government, the Attorney General of India, has been admitted to the case, arguing for the voting rights of the government's arms in the BCCI: the Railways, the Services, and the Universities. Of all the cases, in all the courtrooms of the country, the Attorney General - the government's chief legal advisor - had to turn up to speak for three member associations of the BCCI, after the court had already heard their arguments and passed an order by the head of India's judiciary. What was the Attorney General doing there? It is akin to the country's chief financial advisor heading a committee to arrive at the best colour for currency notes to boost GDP growth rates. Or, maybe, leading an all-party study into national bubblegum consumption. That's about how central the Railways, Services and University cricket is to other legal issues that plague the government.

The BCCI case is currently being heard by Justices Dipak Misra - in line to become the next Chief Justice - DY Chandrachud and AM Khanwilkar. In the last hearing, the court served notice to Shah and Srinivasan, asking them to explain their roles in stalling the implementation of the recommendations - or, as it was described in the hearing, "hijacking" the BCCI's meetings. From the outside, maybe the Supreme Court is merely doing what it must do: follow procedure and tick all boxes while doing so, so that whenever the hammer comes down, the court has all legal bases covered and loopholes filled. But from the inside, within the legal community, the view is that the endless runarounds have been frustrating and counterproductive.

On Saturday, at a symposium of young sports lawyers, organised by the Sports Law and Policy Centre in Bangalore, Rahul Mehra, a speaker familiar with the BCCI's legal tactics took the podium to talk on the topic "Sports Lawyering as Activism". At the turn of the century, Mehra, then just six months into his practice, challenged the opacity of the BCCI and its functioning in a public interest litigation filed in the Delhi High Court. He argued that the BCCI was open to writ legislation as it was a private body carrying out a public function.

That case had similarities with how the BCCI has tried to tackle the Lodha recommendations. First, it became an identity issue, concerning the BCCI's constitutional right as a private body under the Tamil Nadu Society Registration Act, the resulting autonomy against legal action, and so on and so forth. Fighting on the BCCI's behalf was a platoon of powerful lawyers, lined up against a legal rookie. The case was transferred, Mehra reckons, to something like 17 different benches until it arrived before the Delhi High Court Chief Justice BA Patel and Justice Badar Durrez Ahmed, who pronounced judgement on October 4, 2004, in Mehra's favour.

As his case ping-ponged around Delhi High Court, Mehra revealed in his talk, the BCCI offered a gamut of responses: they first swatted him away, then had several petitions filed against him, then threatened him, then sought collusion, and finally dismissed him - he laughs - as a "mad man".

For years he said, journalists had asked, "Who is the guy behind this guy?" They looked for a political godfather, and therefore a weak link, but they ran into nothing other than Mehra's intrinsic stubbornness. Now, that October 2004 order is the basis on which every court must allow any litigation against the BCCI to at least be heard at the outset.

In the Supreme Court-Lodha-BCCI case, as far as information available suggests, no one has been threatened nor has collusion been attempted, because the order has come from the highest echelons of the Indian judiciary. Yet the case has gone through the same hoops: legal heavyweights who represent political parties on all sides of the debate; the identity issue - "private body"; article 19 of the Constitution, aka freedom to form associations; autonomy - political daddies and so on.

Going by the timeline of Mehra's case, if five years is what it takes, then so be it. However, in that case it was five years for an order to arrive. In the Lodha case, an order has already been passed, but strangely, the clock has been kept running with the government's No. 1 legal man turning up seven months after the order was passed. Mehra is not amused and told his audience that the Supreme Court should "value its own judgement", one given by a Chief Justice who had been "rock solid".

He believes the saga should have ended when the order was passed, a year ago. The current scenario is the BCCI's "legal power" coming into play, and Mehra told the young lawyers in the room he felt "saddened when a Chief Justice of India's judgement is being treated like this". He said: "I'm thoroughly disappointed as an activist and a lawyer who has followed this for so long. The Supreme Court is the highest court of the country, right? Why can't we just bring an end to this litigation? And why is it we are entertaining all sorts of petitions from [the BCCI's] member associations, from governmental bodies?"

Let us, for a minute, remove the BCCI and the government's official legal advisors from this case. What if an individual citizen - of whom Mehra says only 5% or fewer have genuine access to the courts - had approached the Supreme Court after an order had been issued against them and reviews elapsed? "Had it been anybody else, probably the petitions could have been thrown out."

Now, after the July 2016 order and other petitions, he asks, "What is it that still the BCCI and its other bodies are able to show to the court, and what is it that the court is hearing currently, and why is it that [the case] is not getting dismissed?" Nothing but the transparent desire by non-professional officials to once again regain lost territory and reclaim authority in the BCCI.

The young audience in Bangalore, startled by Mehra's bluntness, sat up in their chairs when he said "the Supreme court should act" in the BCCI's case and added a rider: "if they hold me in contempt for this, I am ready to go to jail". A palpable frisson was felt and nervous giggling heard every time he mentioned the many famous political names heading many sports federations. Then he offered his solution for the current BCCI logjam: "I think somebody in the BCCI should be sent to Tihar [a prison in Delhi] and there are many in the BCCI who deserve to be in jail."

Mehra is not being facetious or outlandish when he says this, nor is he suggesting widespread Game of Thrones-style beheadings. The BCCI's response to the Lodha recommendations fits in with what is defined as "civil contempt" in India's Contempt of Court Act, 1971: the "wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court". Punishment is set at either a simple imprisonment for a term that may extend to six months, or a fine that may extend to Rs 2000, or both.

A jail term will set, Mehra believes, "a very good precedent. Their arrogance, for one, will be tamed… Eventually it will set a tone for a lot of people who are sitting on the fringes and for people who are now saying that we won't follow the Lodha recommendations."

Only the venerable Supreme Court judges have the power to decide whether anyone in Indian cricket administration needs to go to jail or not. But it has been a year since their colleagues issued a landmark order, and to the average outsider, the BCCI has been disobedient, disrespectful and contemptuous of the judgement. Visibly, verbally and legally.