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No caped crusaders

People are increasingly looking at the judiciary for solutions. But the courts can’t supplant the executive, writes Ashok Malik.

india Updated: Sep 01, 2011 10:35 IST

As cricket’s World Cup begins in right earnest, it is sobering to note the initial weeks will have fairly lacklustre fixtures. This will be even more so when the matches don’t involve host teams. For instance, the West Indies plays Ireland on March 11 in Mohali. It is going to be a tough game to sells ads for or to gather TRPs.

In such a situation, how does one ensure a decent spectator turnout? Across the world, tournament organisers both sell tickets and distribute them to various sections of society — from students to former sportspersons to, inevitably, VIPs. It is no different in India, except here the juxtaposition of VIP and freebie cultures, particularly in places like New Delhi, gives the process a bad name.

This year, local cricket associations — affiliates of the Board of Control for Cricket in India (BCCI) — have been turning away requests for complimentary tickets. They fear violating a judicial ruling. Recently the Supreme Court decreed officials of sports bodies are public servants and liable to be prosecuted under the Prevention of Corruption Act.

The immediate implication of this is state and city cricket associations are snubbing politicians and schoolchildren alike. Nobody wants to be prosecuted for giving away a free ticket and ‘causing a loss to public funds’. The sports official concerned would have to establish the tickets could not be sold at any price and in any circumstances and that the schoolchild or VIP selected for invitation qualified for a free ticket using objective criteria that disqualified any other schoolchild or VIP.

That may sound comic. Perhaps it would be justified as comeuppance for sports and cricket officials, widely disparaged in this country. Yet, consider other possible consequences. Two young spinners play league cricket in Mumbai. X takes 43 wickets in inter-club games in one season; Y takes 37 wickets. The Mumbai Ranji Trophy selectors pick Y and not X. Their subjective assessment is Y may have taken fewer wickets but is a better bowler. Besides, he is a handy batsman down the order.

The parents of X take the Mumbai selectors to court. They charge them with corruption and dereliction of duties as public servants, with ignoring facts and figures and not choosing the spinner who has taken more wickets. To take this to its logical absurdity, cricket selectors, like public servants buying a commodity for the government, would need to stick to the L1 principle: pick the lowest bidder for a contract, or the highest wicket taker.

No doubt those examples sound alarmist and silly. Nevertheless, they cannot be completely discounted in a country where going to court and dashing off a public interest petition are almost a bad habit. The Supreme Court intended to make sports bodies, especially those that sit on vast sums of money, more accountable. That desire is unexceptionable. However, to believe it can be achieved by declaring sports officials are public servants is stretching things. To prosecute a public servant above the rank of joint secretary, one needs to take permission from his appointing authority. Officials of, say, the Cricket Association of Bengal (CAB) are elected by representatives of constituent clubs. Will these clubs be asked to vote on a resolution that sanctions prosecution of, say, the CAB general secretary?

There is a larger issue to consider. What is the judiciary’s mandate? The higher judiciary is among the most respected and cherished national institutions. Other than the odd aberration, the integrity of its leading members has been beyond reproach. It was in the mid-1990s that the judiciary’s public standing rose far above that of the legislature and the executive. There were three reasons for this.

First, the Supreme Court threw up a series of brilliant judges. Second, India came to be governed by a succession of fractious governments that would often be unable to take decisions. They willingly ceded the executive’s policy-making authority to courts. Third, corruption scandals caused disgust with the political class and led to the judiciary gaining the moral upper ground. Popular (and sometimes populist) this phenomenon — ‘judicial activism’, as it came to be called — also altered the balance between the three fundamental arms of the state.

Today, history is repeating itself. India is again ruled by a coalition in policy freeze, seemingly unable to decide on anything. A flood of scandals has weakened the political establishment. Once more, people are looking to the courts for salvation, in day-to-day monitoring of corruption cases or otherwise.

This is not ideal but it is a hard reality. In practice, there is no restriction or check on judicial reach or overreach at this point. As such, it is for the courts to self-regulate. Delivering justice and upholding the law is one thing, but are triggering conundrums that convert cricket officials to public servants worth it?

There are other examples. This week the Delhi High Court will hear a petition to ‘quash the introduction’ of certain new vaccines in India’s universal immunisation programme even if government and public health bodies have approved these. It argues that none of these bodies is free of conflict of interest. Is it the judiciary’s job to decide on which vaccines a child should get, and here, as in other places, supplant the executive? The good judges may want to ponder.

(Ashok Malik is a Delhi-based political commentator)

*The views expressed by the author are personal