Time has come for ministers to not poke their nose in cricket: Justice Lodha

The former Chief Justice of India talks about cricket, the collegium system, and the constant need for the judiciary to protect itself from executive overreach

March 01, 2017 12:15 am | Updated 01:20 pm IST

Justice B.M. Lodha: “On the BCCI, we did our best. That is for people to decide. We have put forward a structure which I believe would be a template for other sports bodies.”

Justice B.M. Lodha: “On the BCCI, we did our best. That is for people to decide. We have put forward a structure which I believe would be a template for other sports bodies.”

Former Chief Justice of India Rajendra Mal Lodha speaks at length about the issues he has been preoccupied with lately — cleaning up cricket administration and the medical education mess — and on the judiciary, its relations with the executive, and recent judicial pronouncements. He defends what he calls the institutional effort of the judiciary to ring-fence itself from executive overreach, but expresses dismay at the national anthem controversy, hinting that the court might revisit its judgment.

You have been critical of the National Judicial Appointments Commission (NJAC), which sought to give politicians and civil society a say in the appointment of judges to the highest courts. Justice T.S. Thakur had blamed the executive for dragging its feet on judicial appointments. In October 2015, a Bench led by the current Chief Justice J.S. Khehar struck down the NJAC. All of you seem to be on the warpath with the executive.

I don’t think the use of the word warpath is appropriate. Look, my effort had been to ensure that independence of the judiciary is not affected in any manner. That was very important because when I took oath of office as Chief Justice of India, the UPA (United Progressive Alliance) was in power and then after a few months, the NDA (National Democratic Alliance) came to power with one party having absolute majority. With the change of government, well, I had to ensure that the independence of judiciary [was] not affected, particularly because some controversy had erupted on the appointment of one of my recommendees. So far as Justice Thakur and Justice Khehar are concerned, the effort of every CJI is that all the three organs of the state act within their sphere, and the judiciary remains insulated from executive interference. So, I think that has been an institutional approach and not an individual approach.

What do you mean when you say that you had to take care to ensure independence of the judiciary? Are you saying the government was trying to hobble the judiciary with the NJAC?

The system of appointment of judges to superior judiciary has always been a bone of contention between the executive and the judiciary. Right from First Judges Case, which is 35 years now, the collegium has the authority to virtually finalise the names for superior judiciary. The executive has its role but that is limited. Obviously, with the change in government in 2014, they might have thought that it was high time that changes were made in appointments, and the NJAC was brought in. But unfortunately, that was not in accord with constitutional norms, and ultimately when it was tested by the Supreme Court, it was struck down. One thing is good, that the government has accepted the verdict and the collegium system continues.

Isn’t the Supreme Court overreaching? From making the playing of the national anthem mandatory in theatres as well as standing up for the anthem, to regulating the BCCI, to the Medical Council of India?

If you are talking about the national anthem matter, this was avoidable because this is not something that the court should be doing. This is only an interim order and the court will take a final call. I wouldn’t have touched on the subject at all. I always believed that on matters such as these, unless an important constitutional issue is involved, the SC should not deal with that. If an important constitutional issue is involved, then it should be considered threadbare and constitutional propositions must be expounded and based on that, verdict given. If you look at the order which appointed our committee (on cricket), it was tasked to give punishment to the delinquents, Rajasthan Royals and Chennai Super Kings, and [to effect] structural reforms in the cricket administration. Most of the times, when you want a quality report or consideration, judges are actually invited to spend their time, use their skill and come out with a product which is beneficial. This is how committees are constituted. As far as the BCCI is concerned, cricket is a passion in the country.

You have spoken about conducting the matters of judiciary in a transparent manner, and in the context of the BCCI you have also said it is desirable that the body should come under the Right to Information Act (RTI). Has the time come for the Supreme Court to come under the ambit of the RTI?

As far as transparency is considered, I am of the view that the lack of transparency would not continue for long. It is for this reason, if you recall, the Constitution Bench which decided the NJAC case, they themselves directed reframing the memorandum of procedure with transparency as one of the elements. Obviously transparency has to be brought in the working of superior judiciary, particularly in the appointments. It is high time that the memorandum of procedure is now framed by the collegium as directed in the judgment and further appointments proceed accordingly.

There are multiple ways in which transparency can be achieved. One is, in the names considered for judges to the SC, if reasons are recorded for accepting or rejecting them, that would be a step forward in making things transparent. There are multiple ways the collegium could usher in transparency, and this is one of them. It is very important that transparency is brought. People from within and those outside will have more faith in the system. There is a grievance that candidates who are in the zone of consideration, not selected, did not know why they were not chosen when there was no problem with their candidature.

How do you explain the lack of women in higher judiciary? Are men keeping the women out?

I always believed that gender diversity must find place in the superior judiciary. Of the appointments I made in the SC, I got Justice [R.] Banumathi. But the problem is the sufficient pool is not available from which the women can be brought in. This problem is in many countries. In England I met Lord Chief Justice [David] Neuberger who said they were trying. If you want 30% women in the Supreme Court and High Courts, that will take years. But the way in which women are entering the lower judicial services, it will be 15 years or so when you will have large number of women judges in HCs and the SC. They are doing very well. In a good number of States, every year 40% of the selected candidates in the judicial services are women. Even in Jammu and Kashmir, they were 30%. It is only a matter of time. But yes, we have to wait for a decade and half before we achieve a target of 30% of women in the SC and High Courts.

You seem to be working 365 days a year and it was also one of your pet dreams to see the Supreme Court work round the year. Yet your proposal did not find takers.

I wanted the SC to work 365 days a year and this was one of my pet projects. I thought with the number of cases piling up in courts all over, working round-the-clock was one way of addressing the issue of backlog. I found that there are many essential services like water, hospital, electricity that work round-the-clock.

This can be achieved. It was also felt that by working 365 days a year, many young lawyers would be able to get good work when seniors go on vacation. The time has gone for a six-week vacation. From January to March you have Holi holidays, from April to June you have summer vacation, [then] Christmas vacation and so on. Add Saturdays and Sundays to the list. We have all the facilities now. This can be done.

It could have been planned. But unfortunately, despite my best efforts, the leaders of the Bar Association shot it down. I still feel it is high time that the CJI and concerned judges take this forward and find out ways and means to ensure we are able to work 365 days a year.

Regarding BCCI, a four-member panel has been appointed by the Supreme Court to run the sports body, but wasn’t the matter settled by the court that BCCI is not a public body?

It is very clear that the SC has held that BCCI, though a society registered under the Societies Registration Act, discharges public functions. It selects the national team. It does everything concerning cricket in the country. Once it discharges a public function, it is amenable to judicial supervision. That’s how the court viewed the matter and passed the order.

Have you left the BCCI more vulnerable to state intervention now? With greater role for the state with one State, one vote…

[This is] only a misconception created by a few interested individuals who lost their position in the cricket administration. India is a vast country. Cricket is a passion of the country and integrates the people. You cannot have many States remaining unrepresented in a body which selects a national team which is the national representative of cricket. That’s why the system of one State, one vote was articulated by us. Similarly, one man holding several positions… that’s why we got one person, one post. These are broad features which make people accountable and demolish monopoly. We have 29 States and about 10 States have no votes. Can one-third of the States remain unrepresented in the BCCI? Maharashtra has three, Gujarat has three, then there is the Cricket Club of India, then there’s Services; 10 of these are actually occupying major chunks in the body.

But these are also bodies that have nurtured cricket?

True. So, we have not said they should be thrown out. They are relegated from full members to associate members. But they cannot vote. They participate in discussion. All States must have participation by vote in the affairs of BCCI.

You have attempted to break the politician-bureaucrat nexus. You have kept ministers and bureaucrats out, but politicians are in. How do you explain that?

Politicians by class just cannot be excluded [if] they do not occupy positions in the government. There are two reasons for that. In government, whether you are a bureaucrat or a minister, [it] requires full-time attention. BCCI also requires a large amount of your time. I read it somewhere in one of the materials given to us — N.K.P. Salve, a minister in [Indira] Gandhi’s Cabinet, was also president of the BCCI. It was brought to the notice of the Prime Minister that Mr. Salve was not able to give sufficient time to the Ministry. She asked him whether this was the case. He said any day I would like to work with BCCI. The time has come for ministers and bureaucrats to handle their own work and not poke their nose. Politicians are not a class you cannot identify. Therefore the idea of cooling-off period for three years.

How do you deal with criticism about what do judges know about cricket and its administration?

I love watching cricket; I have been, you know. I have seen quite a few matches. In my student days, my uncle used to live in Calcutta. That was in 1972-73, England’s India tour. I distinctly remember Salim Durani hitting sixes on demand. I have been chosen as the person of the year by Wisden 2017. On the BCCI, we did our best. That is for people to decide. We have put forward a structure which I believe would be a template for other sports bodies. These are well-known principles of good governance. Transparency, accountability, no nepotism, no fiefdom.

Yet, how do you explain that the judiciary has insulated itself from practising what it preaches?

I would not say these things are not there at all, or that they do not exist in judiciary. In comparison to other institutions, it is quite less. If somebody says there is no corruption in judiciary, then I will say he is not being honest. If somebody says there is no nepotism in judiciary, he is not being honest. But it is much, much less than in other institutions.

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