Justice delivered after three years may have little relevance, writes K.P. Mohan

The recent set of decisions of the National Anti-Doping Appeal Panel (NADAP) has helped us focus on one of the most important aspects of disciplinary proceedings against dope offenders — timely hearing.

The NADAP, headed by Justice (retd.) M.L. Varma has reduced suspension periods in the case of three wrestlers by over 300 days on the argument that the delays in the disciplinary panel proceedings were not the athletes’ fault.

The wrestlers — Rahul Mann, Rajeev Tomar and Mausam Khatri — were among a batch of 11 methylhexaneamine cases reported prior to the 2010 CWG in New Delhi. All of them were given two-year suspensions in proceedings that dragged on for more than two years. The suspensions were from Nov. 5, 2012.

Their results from 2010 were also annulled. The possible argument for a case of double jeopardy must have weighed on the minds of the appeal panel members as they set out to calculate the number of days delayed due to various reasons.

There were long delays in the 11 cases, all heard together. The delays listed by the Varma panel ranged from NADA counsel and panel member being not available to delay in summoning of witnesses.

In the recent cases, Justice Varma rejected a request by the NADA to submit a late reply, keeping in mind the time lost and the gap of more than a year that was at the disposal of the NADA lawyers before the appeals were taken up.

Defence counsels do often try to stall proceedings by seeking adjournments on some pretext or the other. Calling witnesses mid-stream, absence of senior lawyers on the scheduled date, long-winding cross-examination of witnesses etc. then become part of the game.

 More than a dozen witnesses were called from the National Dope Testing Laboratory and NADA in the 11 MHA cases.

The proceedings before an Indian disciplinary panel often get stalled at the outset because of the practice of making written submissions when the case opens. Invariably one party fails to give a copy of the submission to the other in time. Adjournments then become the order of the day.

A simple way to ensure that athletes get a fair deal but at the same time the process itself is not hijacked by defence lawyers or delayed by the prosecuting agency is by laying down procedures for any hearing process.

The Court of Arbitration for Sports (CAS), Lausanne, has a clear pre-hearing procedure by which parties in an appeal are requested to file their written submissions including the list of witnesses in advance, a timeline prescribed for the exchange of submissions, and then a date fixed for hearing if necessary. Normally, a case is disposed of in one day’s hearing. In exceptional cases it could get extended to a second day or beyond.

The CAS procedure normally does not exceed three months. As per NADA rules, the decision of a disciplinary panel should be given within 20 days of an anti-doping rule violation notification to the athlete.

In practice, it often takes anything from three months to eight months routinely. In exceptional cases, it can go beyond one year or even two years, as it happened with the 11 MHA cases.

CAS has a procedural rule which says: “The panel may limit or disallow the appearance of any witness or expert, or any part of their testimony, on the grounds of irrelevance.”

It is high time such a clause is brought into the procedural guidelines for the Indian panels to deal effectively with ‘irrelevant witnesses and testimony’ and to stop delaying tactics.

In sports, justice delivered after three years may have little relevance.

But then the NADA will need to take the initiative in formulating procedures. For starters, it could fill up the long-standing vacancy of a legal officer. It could also do with a Governing Board meeting that has not been held since March, 2012.

K.P. Mohan is a former Athletics Correspondent of The Hindu

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