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SC ruling on Lodha panel unconstitutional, says Katju

Former Supreme Court judge Markandeya Katju.

Former Supreme Court judge Markandeya Katju.  

Says a review petition by the BCCI is the way forward.

The former Supreme Court judge, Justice Markandey Katju, has lashed out at the Supreme Court and its committee led by the former Chief Justice of India R.M. Lodha, saying their intention to clean up cricket may be good, but it cannot be done by “throwing the law to the winds.”

“They [the court] want to clean up the world of cricket, there is also a lot of cleaning up to do in the world of judiciary. By having just good intentions, can you say I do not need to follow the law...?” Justice Katju said in a phone interview to The Hindu on Sunday.

Justice Katju, appointed by the BCCI to head a four-member panel to “advise and guide” it on the July 18 Supreme Court verdict, asking the BCCI to implement the Lodha Committee’s recommendations in six months to overhaul the cricket body to usher in accountability, declared that the judgment itself was unconstitutional. “If the parent [the judgment] is illegal, the Justice Lodha Committee’s recommendations also goes. The judgment has not only violated the Tamil Nadu Societies Registration Act but also the Constitution,” Justice Katju said, asked whether the BCCI has any choice left now as the verdict makes it bound to implement the reforms. Earlier at a press conference, he recommended filing a review petition against the July 18 order.

The BCCI made the panel headed by Justice Katju the “single point interface” to interact with the Lodha Committee on August 2. Justice Katju, who submitted his first report to BCCI secretary Ajay Shirke here on Sunday afternoon, held the view that the BCCI should not meet Lodha Committee members.

More than once during the press conference, Mr. Katju made personal observations on Justice Lodha and said: “I was a Supreme Court judge when Lodha was a High Court judge.” He maintained: “The Supreme Court had over-reached itself and indulged in judicial legislation unmindful of the fact that there are several larger Bench decisions prohibiting the same.”

He said: “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.”

He also pointed out that the Lodha Committee was only mandated to examine and make suitable recommendations to the BCCI for such reforms in its practices and procedures and such amendments to the memorandum of association, rules and regulations as may be considered necessary. “Instead, the Lodha Committee sent its recommendations to the Supreme Court,” he said.

‘Apex court over-reached itself’

“The Supreme Court had over-reached itself and indulged in judicial legislation unmindful of the fact that there are several larger Bench decisions prohibiting the same,” he said in a phone interview to The Hindu. He said: “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.”

He also pointed out that the Lodha Committee was only mandated to examine and make suitable recommendations to the BCCI for such reforms in its practices and procedures and such amendments to the memorandum of association, rules and regulations as may be considered necessary. “Instead, the Lodha Committee sent its recommendations to the Supreme Court,” he said.

Mr. Shirke, asked whether he and president Anurag Thakur would meet the Lodha Committee on August 9, said: “I am here to receive the report from Justice Katju. We will study the report and then decide.”

Speaking to The Hindu, Justice Katju said the Supreme Court plainly ignored the law that any change in the rules of the BCCI should have been made through a special resolution initiated under the Tamil Nadu Societies Registration Act. Complaints against the BCCI should have been filed before the Registrar of Societies, the competent authority under the Act.

“Here, the Supreme Court has not only usurped the powers of the Registrar of Societies, but also outsourced the power of punishment to a committee of retired judges. All this was done under a PIL [petition]. This is nothing but a violation of the Constitution and the relevant statute... It is time the judiciary learnt self-restraint,” Justice Katju said.

He cited the past case laws when the Supreme Court itself had stood up for the Principle of Separation of Powers when High Courts had gone overboard and ignored the prevalent statutes.

Usurping powers

“Under the Motor Vehicles Act, the Regional Transport Authority is the competent authority to give licences. The Supreme Court had held that no other body can usurp its powers provided under a statute... Likewise, a District Collector grants licences to cinemas, no other body can assign to itself that function,” Justice Katju said, referring to the court’s own precedents. Asked the way forward for the BCCI and the possibility of moving the Supreme Court for a review, Justice Katju said the court should have referred the case to a five-judge Constitution Bench.

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Printable version | Feb 22, 2020 3:13:54 PM | https://www.thehindu.com/news/national/SC-ruling-on-Lodha-panel-unconstitutional-says-Katju/article14557340.ece

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