The tenure guidelines-Part II

The Evolution of the National Sports Code

The 1975 Government guidelines were aimed at disciplining the NSFs in the wake of criticism in Parliament and media. Primarily, these guidelines attempted to restrict the terms of the office-bearers so that there was no monopoly. These guidelines were amended in 1988, 1997 and 2001 before the ministry under M. S. Gill further amended them again in 2010. Eventually, under Ajay Maken, the ministry incorporated them in the National Sports Development Code of India, 2011.

The Sports Code is a collection of administrative orders, notifications and circulars including the guidelines of 1975 amended from time to time. Its legal validity was questioned by the IOA in the Delhi High Court even as the IOA, the NSFs, the Government and the IOC were engaged in resolving the issues that arose following the IOA’s suspension by the IOC. The court dismissed the IOA petition on the 9th of this month and held that the Sports Code was valid.

Delhi High Court ruling

“The Central Government can insist upon adherence to these provisions, without the aid of legislation. It is also held that the Sports Code does not violate the freedom under Article 19(1)(c) of the Constitution. Neither are its provisions arbitrary. The tenure restrictions impugned in this case can and are insisted upon as a part of the public interest in efficient and fair administration of such NSFs,” the bench comprising Justice S. Ravindra Bhatt and  Justice Najmi Waziri said in its order.

The court also ruled that the Union Government can legislate on sports. There had been a debate through the past four decades or so whether the Centre could legislate on sports, a State subject.

Intervening in the case, lawyer Rahul Mehra, a bitter critic of the IOA and the NSFs, now also a member of the AAP, argued that the IOA and the NSFs did perform ‘public functions’ and thus “ought to be accountable”.

Mehra argued that Indian teams’ participation in international competitions came within the domain of the Union Government, that the IOA and the NSFs were “substantially funded” by the Government, that as long as these bodies continued to perform public functions they were bound to be accountable.

The 1975 guidelines, imposed during the period of Emergency, were followed by and large by the IOA and the NSFs, till the late V. C. Shukla took over as president of the IOA in 1984. He helped IOA and the federations get rid of them.

Uma Bharti's noting

Despite attempts to implement the guidelines, the federations largely ignored the tenure clause once Shukla gave them the political backing that was needed.

During the BJP Government’s time, there was at least one instance when the Sports Minister, Uma Bharti, reportedly advised that the tenure guidelines be “kept in abeyance”.

A noting made by her on a report submitted by the then IOA president, Suresh Kalmadi, in August 2002, stated that“(i) From our experience, the clause limiting the tenure of office bearers two terms for four years each as mentioned in the 1975 guidelines appears to be impractical and it should be scrapped.

(ii) Conformity to the code of conduct should be made a condition for giving financial assistance to the N.S.Fs and IOA.”

Justice Gita Mittal of the Delhi High Court, hearing the Narinder Batra v Union of India and others case, however, noted, in 2009, that there was no decision of the ministry to keep the guidelines in abeyance and no order by the ministry to the effect that the guidelines were scrapped, though the above noting was on record.

Justice Gita Mittal, said in her order“…every noting contained in a Government file is not a binding and enforceable order of the competent authority.”

The court ruled that the government guidelines were valid and enforceable. It also stated that the federations should suffer the consequences of non-adherence to the guidelines which included withdrawal of recognition and financial assistance.

That set the stage for M. S. Gill to amend the guidelines further. He did not want a set of guidelines to remain in the government files without any one seriously following it. He was also prepared to give some concessions.

 He brought in the stipulation of 12 years or three terms for a president (from two consecutive years, the second one on a two-third majority), and put an age cap of 70 for all sports officials, incorporating the theme from the IOC rules.

Following a dialogue at the IOC Headquarters in Lausanne, in June, 2010, among the IOC, IOA and a ministry delegation headed by its Joint Secretary, Injeti Srinivas, who was the architect of the Sports Code and the man who rebutted the IOA’s constant ‘autonomy’ arguments, much seemed to have been achieved only to be frittered away in subsequent months.

The IOA agreed to a set of constitution amendments but took a somersault at Ranchi and went back further at another meeting in New Delhi in 2011

By the time the IOA elections arrived in December 2012, the Delhi High Court had intervened again. It told the IOA to follow the National Sports Code and hold elections under its rules.

Politics within the IOA meant that the IOC took an exaggerated view of the “interference” from the Government, warned the IOA about consequences and suspended it even before the elections. The impasse was allowed to continue for more than a year.

The understanding that the Sports Minister Jitendra Singh reached with the IOC officials, in the presence of IOA representatives in Lausanne, was that the IOC would help the ministry draft the National Sports Bill, which by then had undergone two revisions from its initial draft stage.

The recent court ruling has said that the government may continue with the Sports Code till appropriate legislation is passed.

Jaitley's arguments

It is pertinent to note here that none other than Arun Jaitely, representing the Board of Control for Cricket in India, in presenting the arguments against the Sports Bill before the Justice Mukul Mudgal Committee, in May, 2011, had expressed reservations about the Bill. He pointed out that many of the provisions in the Bill were contrary to what they had in the BCCI constitution, especially those on tenure, and thus they would not be acceptable to the BCCI.

Jaitley argued that it was beyond the powers of the Centre to legislate on sports, at least on several aspects concerning sports, a State subject. He forecast several hurdles that could come up when such an exercise was undertaken. He also expressed doubts whether the stipulation of the Government that a federation could use ‘India’ only when it had the approval of the Government was tenable.

The recent High Court order has upheld the right of the Union Government to legislate on sports.

“This regulation (subject to any subsequent amendments) should, till appropriate legislation is framed by Parliament, bind the parties and all NSFs as a condition for recognition, aid and crucially, for the use of the term “India” by any team in International Olympic sporting event,” the court ruled.

With the new government taking over, it could be assumed the Bill would once again be pushed to the backburner.

NSFs bow to Govt.

What happens to the Sports Code is a matter of conjecture. Almost all the NSFs have bowed to the ‘might of the Government’ during the past two years, attacked as they had been in the media following the CWG scam, ridiculed as they had been by the public, harassed as they had been by the government in approving their long-term plans, and cash-starved as they had been through all these years.

Even if they become financially independent, they would not be able to use the term ‘India’, as confirmed by the recent Delhi High Court order.

The athletes have generally supported the Sports Bill since it gives more representation to active and retired athletes in administration, and gives them the hope that better days could be ahead.

The Archery Association, though de-recognized because of Malhotra’s re-election, has been getting government support through different channels since the government does not want athletes to suffer. The same has been the case with the boxing federation since its de-recognition because of the ‘termination’ of its relationship with the international federation.

Malhotra, who served the IOA as its Senior Vice President till the last elections, is not new to government de-recognition. The AAA had suffered it in the past, too. As Chairman of the briefly revived All India Council of Sports (2002-2004) during the Vajpayee government, he could have recommended the scrapping or modification of the guidelines, but he did not, probably since no one was following those guidelines.

Too late for IOA?

The disenchanted bunch of sports officials, unable to fight back against the government since without the latter’s support the sport could suffer irreparably, may try to revive the debate about tenure guidelines now.

It is too late perhaps to interfere with the amendments carried out to the IOA constitution, incorporating the tenure guidelines as prescribed by the government since they had the approval of the IOC also. Any fresh change will again require the IOC’s approval.

Individual federations could be a different matter if the tenure and age clauses are removed from the Sports Code/guidelines. It will be a retrograde step, though.

There are other issues also, especially in the proposed Bill, those related to sports election commission, appellate sports tribunal and code of ethics.

Any attempt to tinker with these provisions in the Bill,_provided the Bill is being taken up_ may prove disastrous since it could send a wrong message to the public at large.

V. K. Malhotra has his task cut out.

(Concluded)