Hot Off The PressNews

The Law Commission of India’s (hereinafter ‘Commission’) 275th report, titled ‘Legal Framework: BCCI vis-à-vis Right to Information Act, 2005’, was recently submitted by the Commission to the Ministry of Law and Justice. The report was prepared in pursuance of compliance with the directions of the Supreme Court in the case of Board of Control for Cricket v. Cricket Association of Bihar, (2015) 3 SCC 251. The Commission’s objective was to examine the issue as to whether the Board for Control of Cricket in India (hereinafter ‘BCCI’) would be covered under the ambit of the Right to Information Act, 2005, and if so, then make appropriate recommendations to the Government of India.

The Commission concluded that the BCCI should indeed be classified as ‘State’ within the meaning of Article 12 of the Constitution. The minority view in Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649 played an instrumental role in establishing state functions to BCCI. Sinha J., on behalf of S.N. Variava J. had opined that interpretation of Article 12 with regard to exclusive control and management of the game needs to be looked at with a new approach. Keeping in mind, the minority view, the Commission went on to identify state functions the BCCI performs, opposing the previous judgments of Chander Mohan Khanna v. NCERT, (1991) 4 SCC 578 : AIR 1992 SC 76 and Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449 : AIR 1981 SC 212. The identified points were;

(i) BCCI is an entity permitted, de facto, by the State to represent the Country on the international stage;

(ii) ICC recognizes BCCI as the official body representing India;

(iii) Absence of any challenge by the BCCI or the Government to the aforesaid status;

(iv) BCCI enjoys a monopolistic status in controlling and regulating the game of cricket in India by controlling policy formulation and implementation affecting the country at large;

(v) BCCI and it’s actions/activities, directly and indirectly, affect the fundamental rights of citizens, players, and other functionaries.

Further, it was concluded that owing to the monopolistic character of BCCI coupled with it’s functions and ‘substantial financing’ from appropriate governments over the years, it can, within the existing legal framework, be termed to be a ‘public authority’ and be brought within the purview of the RTI Act.

Recommendations:

(1) Non-consideration of the role played by BCCI as monopolistic in regulation of the game of cricket has resulted in the Board flying under the radar of public scrutiny, encouraged an environment of opacity and non-accountability. In the past, this has probably given an impression in the minds of the general public that corruption and other forms of malpractices are adversely affecting one of the most popular sports played in India. BCCI exercises ‘State-like’ powers affecting the fundamental rights of the stakeholders, guaranteed under Part III of the Constitution. It is hereby recommended that BCCI be viewed as an agency or instrumentality of State, under Article 12 of the Constitution, thereby making it amenable to the writ jurisdiction of the Supreme Court under Article 32.

(2) Human rights are sacrosanct and innately associated with the human personality. These rights are continually evolving, are to be respected by, and can be enforced against not only the ‘State’ but also private bodies/entities. Therefore, the BCCI should be held accountable, under all circumstances, for any violations of basic human rights of the stakeholders.

(3) BCCI virtually acts as a National Sports Federation (NSF). Its own Memorandum of Association states that the Board’s objects and purposes are to control, improve quality, lay down policies pertaining to the game of cricket in India as well as select teams to represent India at international fora. Moreover, as per the statement made in the Lok Sabha, the Central Government has already been regarding BCCI as a National Sports Federation and hence, it is recommended that, for the removal of any doubt, the same be explicitly mentioned in the list of NSFs available on the ministry’s website. This express mention would automatically bring BCCI within the purview of RTI Act. Other sports bodies listed as NSFs’ in Annual Report 2016-17,177 of the Ministry of Youth Affairs and Sports available on its website do attract the provisions of the RTI Act. This website also contains information regarding (Chief Public Information Officer) CPIOs and Appellate Authorities catering to RTI requests addressed to specific NSFs.178 In light of the above stated facts, since all other sports bodies which are listed as NSFs are covered under the RTI Act, it is inconceivable as to why BCCI should be an exception.

(4) Additionally, it is recommended that RTI Act be made applicable to BCCI along with all of it’s constituent member cricketing associations, provided they fulfil the criteria applicable to BCCI.

 

Hot Off The PressNews

The Law Commission of India in its 274th report to the Ministry of Law and Justice has suggested that it is not necessary to make any amendment, to the Contempt of Court Act, 1971, after a reference from the Government confined only to Section 2(c) of the Act 1971. In the report titled “Review Of Contempt Of Court Act 1971 (Limited To Section 2 Of The Act)”, the commission to reach the conclusion, has taken into account — Articles 129 and 215 of the Constitution, stating that with respect to the power of contempt under the Constitution, the said Articles vest the Superior Courts with power to punish for their contempt, and hence, the Supreme Court and High Courts are empowered to investigate and punish the contemnor even in absence of any legislation outlining their procedural powers. Further, in addition, Article 142(2) of the Constitution also enables Supreme Court to investigate and punish for its contempt. Hence, the Commission stated that the suggestion to delete the provision relating to ‘criminal contempt’ inter alia ‘scandalising of courts’ will have no impact on power of Superior Courts to punish for contempt, as these powers are independent of statutory provisions.

Background —

The said Act has been amended twice, once in the year 1976 and then in 2006 as per the need of the hour. In England and Wales, the offence of ‘scandalising the court’ had almost been disused, before its abolition and therefore, by virtue of doctrine of desuetude and with its long and continued non-use, it stood to be insignificant. However, the Indian scenario, with the number of criminal contempt cases, paint a different picture. Furthermore, amendment in deleting the words ‘scandalising the court’ did not change the situation vis-à-vis such offences, in the United Kingdom, and they continue to be punishable under other existing statutes, i.e., the Public Order Act, 1986, and the Communications Act, 2003 [which is not the case in India where deletion of ‘criminal contempt’ from Act 1971 will leave a perceptible legislative gap].

Analysis —

Entry 77 of Union List of the Seventh Schedule enables Parliament to inter alia legislate on “jurisdiction and powers of the Supreme Court, (including contempt of such Court)”. Circling back to the legislation itself, the Act 1971 was enacted with the objective of regulating the power and procedure for contempt cases, and it does exactly that by placing limits, and prescribing procedures, and also contains adequate safeguards to exclude instances not amounting to criminal contempt, thereby restricting instances of misapplication.

Recommendations —

  • The Act 1971 is not the source of ‘power to punish for contempt’ but a procedural statute that guides the enforcement and regulation of such power, since, prior to the commencement of Act 1926 these inherent powers were exercised by the Superior Courts.
  • The powers of the Supreme Court and High Courts are independent of the Act 1971, and by making any amendment, the power to punish for contempt under the Constitution cannot be rescinded.
  • The suggested amendment to Section 2(c) of the Act 1971, would not be a meaningful exercise and would not be in the larger public interest.
  • In the interest of consistency and coherency, the commission has suggested to continue with the existing definition, which has stood the test of judicial scrutiny.
  • Any amendment to the Act 1971, will lead to ambiguity because it will give rise to more spontaneous and multiple definitions and interpretations of “contempt”.
  • Such a change in the law of contempt could potentially lessen the respect for/fear of courts and their authority and functioning.
  • Further, viewed from the angle of the frequent indulgence of unscrupulous litigants and lawyers alike with administration of justice, it would not be in the interest of litigants and the public at large to minimise the effect of the exercise of powers of contempt as and when the need arises.
  • It may lead to an undesired increase in the instances of deliberate denial and profanity of the courts.

Therefore, the Commission does not consider it necessary to make any amendment.

Case BriefsSupreme Court

Supreme Court: In the matter where it was brought to the Court’s notice that an advocate had demanded 16% of the amount received by the client in a Motor Vehicle accident claim as fee, the bench of AK Goel and UU Lalit, JJ asked the Government to take cognizance of the issue of introducing requisite legislative changes for an effective regulatory mechanism to check violation of professional ethics and also to ensure access to legal services which is major component of access to justice mandated under Article 39A of the Constitution.

The Court referred to the 131st Report of the Law Commission of India, wherein it was recommended that maintenance of irreducible minimum standards of the profession was a must for ensuring accountability of the legal profession. While considering the mounting cost of litigation, it was observed in the report that fee charged by some senior advocates were astronomical in character and that it was the duty of the Parliament to prescribe fee for services rendered by members of the legal profession. It suggested that first step should be taken to prescribe floor and ceiling in fees.

Noticing that though the 131st Report was submitted in the year 1988, no effective law has been enacted to regularize the fee or for providing the public-sector services to utmost needy litigants without any fee or at standardized fee, the Court said:

“Mandate for the Bench and the bar is to provide speedy and inexpensive justice to the victim of justice and to protect their rights. The legal system must continue to serve the victims of injustice.”

The Court also took note of the 266th Report submitted in the light of the decision in Mahipal Singh Rana v. State of Uttar Pradesh, (2016) 8 SCC 335, which observed that the conduct of members of the legal profession who do not follow ethics contributes to the pendency of cases owing to the dilatory tactics such as unjustified strikes, seeking adjournments on unjustified grounds, etc. The Report said that there was dire necessity of reviewing regulatory mechanism not only in the matter of discipline and misconduct but also in other areas. It was suggested that constitution of the Bar Council required a change for which an Amendment Bill was also recommended. [B. Sunitha v. State of Telengana, 2017 SCC OnLine SC 1412, decided on 05.12.2017]

Hot Off The PressNews

The Department of Legal Affairs forwarded a request received from the Legislative Department, asking the Law Commission to examine and submit a report with regard to various issues relating to compulsory registration of marriages. This Report proposes to amend the Registration of Births and Deaths Act, 1969 to include compulsory registration of marriage within its purview.

The Commission highlights that the recommendation is neither aimed at eliminating diversity of personal laws nor it aims to nullify the existing provisions for registration of marriages under different state laws. The Commission notes that in different parts of the country marriage registration is regulated by one of the three central laws – the Births, Deaths and Marriages Registration Act, 1886, the Registration Act, 1908 and Registration of Births and Deaths Act, 1969, this creates lot of confusion with registration officials as well as people.

The Commission suggested that “the Births, Deaths and Marriages Registration Act, 1886 be repealed and Births and Deaths Registration Act, 1969 be re-named as ‘Births, Deaths and Marriages Registration Act’ with a provision that officials working and records maintained under the former Act shall be deemed to be working and maintained under the latter Act”. The idea of these recommendations is not to lay down a procedure recognised for solemnisation of marriage but only for registration of marriages.

The Commission also recommends making registration of marriage online as far as possible and also to link registration of marriage to the unique identification number (UID). Here are some other important recommendations:

i. Separate standalone legislation may not be required so long as an amendment is made to the Births, Deaths Registration Act to include Marriages.

ii. The recommended bill would only serve as a guiding principle which would apply across the country but specific amendments to the scheme can be added by the States.

iii. The Registrar who is responsible for the registration of births and deaths shall be responsible for the registration of marriages as well.

iv. if the Birth or Marriage or Death is not registered within the specified time limit, then the Registrar shall on the payment of a late fee, register the death or birth (a) within a period of 30 days (b) within one year, only with the written permission of the prescribed authority; and (c) after one year, only on an order of a First Class Magistrate. It provides for a penalty of Rs. 5 per day in case of delay in registration of ‘marriage without a reasonable cause’.

v. Village Panchayats, local civil bodies and municipalities should create awareness with regard to marriage registration.

To read the Report, click HERE

Case BriefsSupreme Court

Supreme Court: In the case where death penalty was sought for a man who allegedly set his 7-month pregnant wife on fire by pouring kerosene oil and also threw their 3-year-old son on the burning body of the deceased, the bench of P.C. Ghose and R.F. Nariman, JJ refused to award death penalty and held that confinement till natural life of the accused shall fulfill the requisite criteria of punishment in peculiar facts and circumstances of the case.

In the present case, the medical evidence had proved that the deceased met an unnatural death. Considering the fact that there is no other eye-witness to the incident as the accused and the deceased were alone at the house at the time of commission of offence, the Court noticed that the failure on the part of the accused to explain how his pregnant wife and their minor child met with unnatural death due to burn injuries sustained at their house leads to an inference which goes against the accused. The Court also took note of the the dying declarations of the deceased with consistent allegations about demand of dowry and modus operandi of the offence which resulted into the death of the declarant and her minor child and held that it is evident that each of the circumstances had been established, the cumulative effect whereof would show that all the links in the chain are complete and the conclusion of the guilt is fully established.

However, based on the recommendation of the Law Commission of India in the Report Number 262 where the abolition of death penalty for all the crimes other than terrorism related offences and waging war (offences affecting National Security) was recommended, the Court said that capital punishment has become a distinctive feature of death penalty apparatus in India which somehow breaches the reformative theory of punishment under criminal law and hence, refused to award the same in the peculiar facts and circumstances of the present case. [State of Maharashtra v. Nisar Ramzan Sayyed, 2017 SCC OnLine SC 356, decided on 07.04.2017]