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Why now, ye Six Wise Men?

Cricket, as we once knew it, is dead. Neo-cricket is studded with various terms like organisers, policy-makers and sponsors.

india Updated: Jan 23, 2003 14:17 IST
Sushil Salwan
Sushil Salwan

Cricket, as we once knew it, is dead. Neo-cricket is studded with various terms like organisers, policy-makers, sponsors and this avatar of the game has also coincided with the decline of other sports in India.

Even as other sports struggle to survive and even as this is being written, cricket is enmeshed in a rather sordid drama over a huge $550 million with the World Cup barely over a fortnight away.

At the core of all the upheaval are the sponsorship rights for the game’s mega-event and a split between the Indian cricket Board (BCCI) and cricket’s governing body, the ICC, over the interpretation of these rights. The battle has now entered Indian courtrooms.

A petition has been put forward by six respectable and eminent Indian citizens, who, just about three weeks before the commencement of the Cup, suddenly wake up. They attempt to shake the conscience of the Court of Law, plead intervention and demand justice, making Public Interest the foundation of their case. Surprisingly, in a matter pertaining to private contracts.

The court is yet to determine how strong the foundation is but what is baffling is the manner in which the case is being fought — in the name of the public but espousing other causes.

Cricket is being espoused as the “national game” and India’s large population, has been given due importance (some achievement) by the petitioners as it provides the largest viewership for the game. Therefore, according to the Six Wise Men, the Indian organisers and players should get a larger or proportionate share of the total booty.

Where were these six wise persons when the agreements were being discussed and finalised?

Where were these Six Wise Men when the game of cricket and the BCCI were being tainted with scams of match-fixing, betting, the awarding of contracts, the problems over selection etc etc? It is curious that they choose such a time to suddenly cry for justice and file a Public Interest Litigation when the matter primarily pertains to contractual obligations and rights of other, private parties.

What is most surprising perhaps, is that the BCCI, which is making tall claims of injustice, is not only supporting the petitioners but is also expressing its grievances against the ICC and GCC (Global Cricket Corporation, the sponsors) in court. In that case, shouldn’t the BCCI be the petitioner itself?

Not one Indian player has come forward and voiced a grievance, alleged or not, about the entire commercial transaction. The petitioners claim that the Indian players will suffer, as the terms agreed among the organisers are unfair, unjust and unconscionable. This feeling has neither been expressed by the players, nor their newly-formed Association.

Why did the BCCI not discuss the matter with the Six Wise Men from Day One? Why is the BCCI not coming out with the truth about the agreements with the ICC and GCC? Have the players and their individual sponsors been left in the lurch and therefore, in order to wriggle out of the situation, has someone cleverly thought about this PIL?

Whoever that person was, unfortunately, he failed to realise the law is well settled on this issue. The court will first have to address the locus standi of these Six Wise Men. Second, can the petitioners, in matters falling within the domain of private contracts, actually invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India?

Third, has any action of the government violated the Fundamental Rights of a person? If not, can the court issue a writ of mandamus? Fourth, the actual allegedly aggrieved people are not expressing any grievance, so would it be proper for the Court to entertain such a petition?

Fifth, and perhaps the most important, is this petition really a cover for a proxy litigation? Sixth, would the Court express any opinion of breaches by the private parties involved, especially as this litigation is being done under the umbrella of a PIL? And lastly, would the Delhi High Court have jurisdiction over agreements not entered into in Delhi, even if this is a PIL?

L et us understand what Public Interest Litigation is exactly. Commonly known as a PIL, it entered the judicial process in 1970. It was an innovation of judges, who felt the need of the hour was to protect the fundamental and other rights of socially and economically deprived sections of society and of those ignorant of or unable to seek legal redress.

The PIL was to Vindicate Public Interest, it was not intended to be adversarial in nature. There was an element and effort of cooperation and collaboration of the parties and the courts, so as to secure justice for the poor. Justice BN Kirpal, former Chief Justice of India, has elaborated on the definition of a PIL in the BALCO case. According to the judgement, a PIL, in recent years, has tended to become ‘Publicity Interest Litigation’ or Private Interest Litigation’ and counterproductive.

The court must not allow its process to be abused. In a PIL, this cause would be taken up for the public at large and not for 34 people (18 parties in the proceedings and 16 players). It is a cause taken up when government agencies are found to be lacking in performing statutory duties.

A PIL or writ petition cannot be used as a tool for recovery proceedings or to amend contracts, entered into validly by private parties. PILs are also, not normally filed on the basis of reports in the media. The Apex Court has discouraged such a practice.

No doubt, PILs have been initiated not only by filing petitions in court but also through letters and telegrams addressed to the court. PILs have been entertained only when statutory bodies are found to be in breach of public duty or there is a violation of some provision of the law. The courts have held that a mere busybody who has no interest, cannot invoke the jurisdiction of the courts under the garb of a PIL.

The observations of Justice Bhagwati in the SP Gupta case would be of relevance in the present context. He observed that there is a vital difference between locus standi and justifiability.

A member of the public having sufficient interest can certainly maintain an action challenging the legality of an act or omission of the state of public authority, which causes specific injury to an individual or to a class or group of individuals.

However, if the person or the group specifically injured do not want to claim any relief and accept the act or omission, then relief cannot be foisted on them.

In the present case, neither the BCCI nor the players have come forward directly, though the BCCI is vehemently supporting the Six Wise Men. Why is the BCCI playing an “out-standing” captain’s role and making others play ball?

The court, in all its wisdom, will examine all the issues before it. It can possibly direct the government to examine all records and ensure there is no breach or violation of law that would prejudice national interest or cause severe loss to the exchequer, by private parties.

It could also call upon the parties to the contracts to settle the issue in the best interests of the game. Cricket after all, was once a gentleman’s game.

(Sushil Salwan is a practicing lawyer in the Delhi High Court with an interest in sports. He was also the one-man independent panel, whose investigations helped clear Sunita Rani of dope charges).

First Published: Jan 21, 2003 22:29 IST