In the Hon’ble High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow
Writ petition No- of 2013 (PIL-Civil)
Amitabh and Nutan Thakur Petitioners
Versus
Union of India and another Respondents
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List of Dates and Events (separate)
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Memo of Writ Petition
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Annexure No 1
Letter of International Olympic Committee dated 05/09/2013 |
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4.
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Affidavit
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Photo Identity of the petitioner
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Vakalatnama
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Lucknow
Asok Pande
Dated- 09/09/2013 Counsel for Petitioner # 94154-65438
Dated- 09/09/2013 Counsel for Petitioner # 94154-65438
In the Hon’ble High Court of Judicature at Allahabad,
Lucknow Bench, Lucknow
Writ petition No- of 2013 (PIL-Civil)
Amitabh and Nutan Thakur Petitioners
Versus
Union of India and another Respondents
LIST OF DATES AND EVENTS
S No Date Event
1.
1894 International
Olympic Committee (IOC) formed
2.
1927 Indian
Olympic Association (IOA) formed
3.
04/12/2012 IOA suspended by IOC
4.
05/09/2013 IOC sends letter to
IOA directing certain
amendments
amendments
International Olympic Committee
(IOC), the international Olympic body had suspended IOA in December 2012 for
non-compliance of certain directions. Through its letter dated 05/09/2013 to
IOA, it has made its directions in very clear terms that it wants certain
amendments as stated in to be incorporated in IOA Constitution by 31/10/2013
and if the IOC
directions are not complied with, IOA suspension will not be revoked so that Indian
sportspersons might lose their chance of participating in all forthcoming Olympic
and other games organized by IOC and its affiliates. This suspension of IOA by
IOC has other ill-effects as well. It kindly also needs to be noted that the
directions of IOC are of a nature than would only add to better ethics and
integrity in the IOA and hence needs to be welcomed and incorporated. It is
quite obvious that the Nation cannot stand to lose the IOC membership because
it has its ill-effects not only on sportspersons and sports lovers but on the
entire Nation, which also gives India a bad name in the other entire international
forum and at global arena. This implies that the Ministry of Sports needs to
intervene strongly at this crucial juncture
Hence this Writ
Petition.
Lucknow Asok Pande
Dated- 09/09/2013 Counsel for Petitioner # 94154-65438
Dated- 09/09/2013 Counsel for Petitioner # 94154-65438
In the Hon’ble High Court of Judicature at Allahabad,
Lucknow Bench, Lucknow
Writ petition No-
of 2013 (PIL-Civil)
1. Amitabh
Thakur, aged about 45 years, s/o Sri T N Thakur r/o 5/426, Viram Khand, Gomti
Nagar, Lucknow
2. Dr Nutan
Thakur, aged about 40 years, w/o Sri Amitabh Thakur r/o 5/426, Viram Khand,
Gomti Nagar, Lucknow-------- Petitioners
Versus
1. Union of
India through the Secretary, Department of Sports, Ministry of Sports and Youth
Affairs, Government of India, New Delhi
2. Indian
Olympic Association through Secretary General, IOA, B-29, Qutub
Institutional Area, New Delhi 110016-------- Respondents
Writ Petition under Article 226 of the
Constitution of India
To,
The Hon’ble Chief Justice and His other Hon’ble companion
Judges of the aforesaid Court:
The humble petition of the above named petitioner most
respectfully begs to submit as under:
1.
That by means of this petition, the petitioners are invoking the
extra ordinary jurisdiction of this Hon’ble Court vested with it through
Article 226 of the Constitution to file this Public Interest Litigation (PIL)
with a prayer to kindly issue a writ of mandamus to the Respondent No 1
directing it to ensure the complete compliance of the instructions issued by
the International Olympic Committee (IOC, for short) dated 05/09/2013 (Annexure
No 1) to the Indian Olympic Association (IOA, for short), respondent No 2 as
regards revision of the IOA Constitution in accordance with the directions
issued by IOC before 31/10/2013 as being beneficial for introducing good
governance, ethics and integrity in Indian sports bodies, including IOA, so
that the current suspension of IOA by IOC gets lifted and the Indian sports
persons are able to participate in the forthcoming international games
organized by IOC, in the interest of justice and wider
public/societal interest because this is a matter related with the entire
Nation, its national pride and love and affection of the people for this
country’s honour in the field of sports and games.
The
petitioners declare that they have not filed any other Writ petition before the
Hon’ble Supreme Court and this Hon’ble Court either at Allahabad or its Lucknow
bench pertaining to the subject matter and/ or for the relief prayed for in the
instant writ petition. It is further declared that in respect of the same
subject, no caveat notice has been received by the petitioners. They also
declare that to the best of their knowledge and their search, there is no other
such Writ Petition/PIL as regards the above issue being presented through this
Writ Petition pending anywhere either in the Hon’ble Supreme Court or before
this Hon’ble Court, as far as the petitioners know.
2. That this is
a Public Interest Litigation (PIL) being filed to immediately ensure complete compliance
of the directions issued by IOC to IOA as being beneficial for introducing good
governance, ethics and integrity in Indian sports bodies and to save the participation of Indian sportspersons in various games
organized by IOC, so as to save the national pride and national honour
associated with the performance of sportspersons at various international
forum, including the forthcoming Olympic Games, which have been put in jeopardy
because of the improper insistence of IOA on disregarding the direction of IOC
about certain structural changes in its Constitution to ensure the implementation
of good governance, ethics and integrity, which IOC is trying to be instilled
in all National Olympic Committees, including in India but which IOA has been
vehemently opposing and resisting for the last many months, for the reasons
best known to it, putting the interest of the entire Nation in general, and the
sports-lovers and sports-persons in particular, at stake.
3. That the petitioners make it amply clear that
their objective here is not to malign any particular individual or legal
entity. The sole purpose of filing this PIL is to stop the harm currently being
perpetrated to Indian sports by the improper and intransigent approach being adopted
by respondent No 2, whereby they are resisting the attempt for introduction of good governance, ethics and integrity in
Indian sports bodies by IOC by barring whose sports officials and office
bearers against whom charge gets framed in a court of law, because this matter
is not only limited to IOA or even with the sportspersons who are getting
directly affected by their chances of non-participation in the various Games
organized by IOC which have presently barred/suspended IOA but it has its much
wider ramifications associated with National pride, national ethos and national
honour, for the simple reason that for many-many years now, sports and games
have been recognized as one of the most influential and proven means of
demonstrating a Nation’s strength and glory and is also extremely closely
associated with huge public imagination. Hence, this is a matter that comes
under the realm of Public Interest Litigation (PIL).
4. That this
being a PIL, the petitioners would beg to humbly state that in pursuance of
Rule 1, subrule (3A) of Chapter XXII of the Allahabad High Court Rules 1952, they
shall be presenting all the relevant facts related with themselves, their
particulars, their past works, their concerns and their credentials etc. Petitioner
no 1 is an officer of the Indian Police Service, Uttar Pradesh Cadre though
he is filing this Writ Petition in his individual capacity as a concerned
citizen of this Nation. He is also concerned with various social issues and has
filed WP No 3489
of 2012 (PIL-MB) as regards the role of Intermediaries in the Information
Technology Act 2000 and WP No 3153 of 2012 (PIL-MB) as regards the legal and
administrative status of the Board of Cricket Control for India (BCCI W P No 7596 of 2012 (PIL- Civil) along with petitioner No 2, his wife. He
is also striving for formation of a Unified Police Association for all
policemen, right from the Constable to the DGP and filed two Writ Petitions
which allege discrimination between superior and subordinate officers in Para
Military forces like the PAC, CRPF etc. He also filed a Writ Petition to
increase the retirement age of defence personnel and another petition for
stopping the free supply of alcohol to defence forces. He filed a PIL for
freeing the various investigative agencies from the unwarranted supervision of
the State government. Very recently, he filed a Writ Petition as regards
alleged improprieties in Sahara Q shop bond/advances. Petitioner No 2 is a
social activist and freelance journalist who wants to genuinely and positively
contribute to the society in all possible ways. She works primarily in the
field of transparency and accountability in governance, Human Rights and
assisting in the enforcement of Rule of law. The matter being presented here is
primarily related with the enforcement of Rule of law as enshrined in the
Constitution of India. The petitioner
has filed a very large number of important Public Interest Litigations which
include WP No 3028 of 2011 (PIL-MB)
about exorbitant rise of Airfares during emergency periods, WP No 1361 of 2012
(M/B) as regards the “Model Code Of
Conduct For The Guidance Of Political Parties And Candidates” issued by the
Election Commission of India, WP No 1061
of 2013 (M/B) where she challenged the appointment process of various State
Government Commissions etc including the way Sri K C Pandey was made the Vice
Chairman of Ganna Sansthan despite being an accused in a very serious case, PIL
No 1587 of 2013 for enforcement of the Protection of
Children from Sexual Offences Act, 2012 which has been enacted to safeguard the
interests of the hapless and helpless children who become victims of sexual
abuse etc. She filed a PIL No 2717 of 2013 for formation of Child Commission in
Uttar Pradesh. She also filed a Writ Petition to increase the retirement age of
defence personnel and another petition for stopping the free supply of alcohol
to defence forces. She filed a PIL for freeing the various investigative
agencies from the unwarranted supervision of the State government. Very
recently, she filed a Writ Petition as regards alleged improprieties in Sahara
Q shop bond/advances. These are only a handful of examples of judicial
intervention of her part and the list is certainly not exhaustive. In addition,
the petitioner No 2 is also a well-known RTI activist and Human Rights activist
who undertakes many endeavours for the sake of those in distress, particularly
in cases of State high-handedness. In pursuance of the above Rule 1(3A) of the
High Court Rules, the petitioners state that the public cause they are seeking
to espouse through this Writ Petition is to save the Indian sports from a
permanent damage that is currently being caused by the stubbornness of IOA as
regards implementing the directions of the governing international body, viz.,
the IOC. The petitioners put it on oath that they are not filing this PIL nor
have they filed any other PIL for any ulterior motive save the stated one nor
have they received a single penny through any backdoor activity while filing
these PILs. They state on oath that they have no personal or private interest
in the matter and as far as they know there is no authoritative pronouncement
by the Hon’ble Supreme Court or this Hon’ble High Court on the specific issue
raised here. They put it on oath that the result of the Litigation will not
lead to any undue gain to them or anyone associated with them or any undue loss
to any person, body of persons or to the State.
5. That coming
to the matter of the PIL, the modern Olympic Games are the leading
international sporting event featuring summer and winter sports competitions in
which thousands of athletes participate in a variety of competitions. The
Olympic Games are considered to be the world's foremost sports competition with
more than 200 nations participating. The Olympic Games are held every four
years, with the Summer and Winter Games alternating, meaning they each occur
every four years but two years apart. Their creation was inspired by the
ancient Olympic Games, which were held in Olympia, Greece, from the 8th century
BC to the 4th century AD.
6. That Baron
Pierre de Coubertin founded the International Olympic Committee (IOC) in 1894.
The IOC is the governing body of the Olympic Movement, with the Olympic Charter
defining its structure and authority.
7. That as per
the website of IOC, it is
the supreme authority of the Olympic Movement which says-“Acting as a catalyst
for collaboration between all parties of the Olympic family, from the National
Sports Committees (NOCs), the International Sports Federations (IFs), the
athletes, the Organizing Committees for Olympic Games (OCOGs), to the TOP
partners, broadcast partners and United Nations agencies, the International
Olympic Committee (IOC) shepherds success through a wide range of programmes
and projects. On this basis it ensures the regular celebration of the Olympic
Games, supports all affiliated member organisations of the Olympic Movement and
strongly encourages, by appropriate means, the promotion of the Olympic values.”
The role of the IOC, according to the Olympic Charter, include among others-
(a) To encourage and support the promotion of ethics in sport as well as
education of youth through sport and to dedicate its efforts to ensuring that,
in sport, the spirit of fair play prevails and violence is banned; (b) To
encourage and support the organisation, development and coordination of sport
and sports competitions; (c) To ensure the regular celebration of the Olympic
Games;
8. That Indian Olympic Association (IOA) is
the NOC for India. Sadly and unfortunately, IOA has been suspended
since 04/12/2012. As per the official Press Note of IOC dated 04/12/2012-“
Lausanne, Switzerland: The Executive Board (EB) of the International Olympic
Committee (IOC) today began two days of meetings covering a range of topics,
from National Olympic Committee (NOC) relations to progress updates from
organisers of future Olympic Games. The Board welcomed the Executive Council of
the Association of National Olympic Committees (ANOC), led by its recently
elected President, Sheikh Ahmad Al-Fahad Al-Sabah (Kuwait), who expressed his
organisation’s overall satisfaction with the success of the London 2012 Olympic
Games and reiterated its support for the fight against doping and illegal and
irregular betting. The EB decided to suspend the Indian Olympic Association
(IOA) due to its failure to comply with the Olympic Charter and its statutes,
failure to inform the IOC in a timely matter, and as a protective measure
against government interference in the IOA’s election process. With this
decision, the IOA is no longer entitled to exercise any activity or right,
including financial support, conferred upon it by the Olympic Charter or the
IOC until the suspension is lifted by the IOC Executive Board. In particular,
the Executive Board confirms that the IOA is not entitled to hold any elections
until all pending issues are resolved and the EB decides to lift the
suspension”
9. That with this order of IOC, IOA became a
non-entity in IOC and thereby it affected the entire national sports movement.
IOA was no
longer entitled to exercise any activity or right, including right to
participate in the Olympic Games and all other games organized by IOC. These
include the proposed winter Games in Sochi (Russia) in February 2014, the Summer Youth
Olympics in Nanjing (China) in August 2014 and the next summer Olympics in Rio de
Janeiro, Brazil in 2016.
10.
That
recently the Executive Board (EB) of IOC met on 04/09/2013 ahead of the 125th
IOC Session in Buenos Aires to discuss a range of issues, including updates on
the progress being made in future Olympic Games host cities Sochi 2014, Rio
2016 and PyeongChang 2018. As per the Press Note of IOC website-“The EB also
heard updates on the situations of the National Olympic Committees of India and
of Pakistan. Since the suspension of the Indian Olympic Association (IOA) in
December 2012, the IOC has been working towards finding a solution to improve
good governance within the NOC. The IOC provided the IOA with a roadmap and
sent observers to the IOA’s General Assembly (GA) that took place on 25 August.
The EB heard a report that the GA had approved most of the amendments to the
IOA’s constitution requested by the IOC, but one specific clause had not been
adopted. This clause, which deals specifically with the eligibility of members,
is key to the good governance of the NOC and needs to be fully accepted before
the suspended IOA can proceed with the elections. An official notification of
the IOC’s position will be sent to the IOA.”
11.
That
this was followed by a letter dated 05/09/2013 sent by Sri Christophe De
Kepper, IOC, Director General to Prof Vijay Kumar Malhotra, acting President,
Raja Randhir Singh, Secretary General and all members of the suspended IOA. A
copy of this letter by IOC dated 05/09/2013 is being attached as Annexure No 1.
12.
That
among other things this letter said-“However the IOC noted that a key provision
on which the IOC repeatedly insisted during the preparation phase for the
revision of the IOA Constitution was not included as requested by IOC, namely
the clause which provides that any member who has been charge-framed by any
Court in India, in respect of a criminal or corruption offence which would be
punishable with an imprisonment if he/she was convicted, will not be eligible
to run for the IOA elections and will be provisionally suspended from the IOA
until a final ruling is made. Moreover the IOC noted that the clause initially
proposed by which a member who has been convicted of a criminal or corruption
offence by a court (whose ruling is final) will not be eligible to run for
elections and will be automatically expelled from the IOA was restricted to
persons ‘sentenced to imprisonment for a period over two years’ only.”
13.
That this letter said-“In view of the above, it is required that:
1. The suspended IOA includes the initial wording proposed by the IOC for a
very similar wording which would not dilute the meaning and the expected
results and which would submitted in advance to the IOC with respect to both
charge framed and convicted individuals. This is a prerequisite for the IOC to
approve the revised Constitution of the IOA. For that purpose, the suspended
IOA should meet again in a General Assembly not later than 31 October 2013 and proceed
with the required amendments. 2. Once
this step is completed and the IOC can approve the new Constitution of the IOA,
the suspended IOA would be in a position to hold its Executive General meeting
as soon as possible thereafter and no later than 15 December 2013.”
14.
That it also said-“The IOC would also like to take this opportunity
to reiterate its opinion that the age and tenure restrictions (or at least the
age limit) should be applicable not only to the President, Secretary General
and Treasurer but for all the members of the Executive Council (for consistency
reasons).”
15.
That it said-“Upon completion of the whole process mentioned
above, the IOC Executive Board would be in a position to consider lifting the
suspension of the IOA.”
16.
This letter said that these measures were needed for the basic principle
of good governance, ethics and integrity which must prevail within the Olympic
movement and ended by saying-“Lastly please note that this position has
received the full support of the Association of National Olympic Committees
ANOC) and the Olympic Council of Asia (OCA).”
17.
That
as per Bye-law to Rules 31 and 32 of the IOC related with national Olympic
Committees-“NOCs which cease temporarily or permanently to be recognized by the
IOC thereupon lose all rights conferred upon them by the IOC including, but not
limited to, the rights; 1) to call or refer to themselves as "National
Olympic Committee" 2) to use their
Olympic emblems. 3) to benefit from the
activity of Olympic Solidarity. .4) To take part in activities led or
patronized by the IOC (including regional games); .5) To send competitors, team
officials and other team personnel to the Olympic Games. 6) To belong to any
association of NOCs.
18.
That a news article “Indian Olympic Association suspended: what
are the consequences” dated 04/12/2012 in NDTV website has very well explained
the consequences of this suspension- (1) Indian athletes will not be allowed
to take part in international events - Olympics (next in 2016) and Asian Games
(next in 2014) (2) If concessions are made at all, Indian athletes will then
take part under an international flag of independent participants, not the tri-colour.
(3) Every Olympic body in a country receives some grant to develop sports. It
also receives some expertise on a number of aspects ranging from athletes'
development to R&D expertise. This will stop completely. (4) De-recognition
means a lot of shame for a country in the international scenario. This is not
just in the realms of sports but also transgresses to other fields like
economics and social (5) India loses rights to host or even bid for staging of
any Olympic or Olympic-related event. (6) Indian officials will not be part of
IOC meetings.”
19.
That a look at the above consequences makes it obvious that they
are very serious in nature and have a very deep national and international
impact, limited not only to sports ad sports fraternity but to the entire
National cause, at the international level as well.
20.
That now coming to the legal standing of IOA, it is a Society registered
under the Societies Registration Act XXI of 1860. Its registered Office is
situated at B-29, Qutub Institutional Area, New Delhi 110016. Some of the relevant
objects for which the Society is registered are:- 1. The Indian Olympic
Association, being part of the Olympic movement, undertake to respect
provisions of the Olympic Charter, the Olympic movement, the Anti-Doping Code
and to abide by the decisions of the International Olympic Committee. a. At
National Level to participate in events to promote peace and to promote women
in sport. b. To develop, promote and protect the Olympic movement in India in
accordance with the Olympic charter. c. To support and encourage the promotion
of sports ethics, to fight against doping and to demonstrate a responsible
concern to environmental issues. 3. To enforce all rules and regulations of the
International Olympic Committee and the Indian Olympic Association and not to
indulge in or associate with any activity which is in contradiction with the
Olympic Charter. To follow, observe and uphold the primacy and domination of
the Olympic Charter in case of any contradiction between it and the rules,
bye-laws and the constitution framed by the Indian Olympic Association. 4. To
enforce and defend the exclusive right of the IOC and the Association to the
use of the Olympic properties pursuant to the Olympic Charter. 5. To be the
official organization in complete and sole charge of all Olympic matters in the
country. 8. To
maintain the highest ideals of sport and to promote interest therein,
particularly in connection with the Olympic Games and other Games under the
patronage of the I.O.C. as well as the I.O.A. 9. To have full and complete jurisdiction over
all matters pertaining to the participation of India in the Olympic Games and
other Games under the patronage of the IOC as well as the IOA. To participate
in the Games of the Olympiad by sending athletes and to constitute, organize
and lead its delegation at the Olympic Games and at the regional, continental
or world multi-sports competitions patronized by the IOC. It shall also ensure
that the members of the delegation shall conduct themselves in a responsible
and dignified manner at all such meets. 10. To assist in cooperation with
National Sports Federations the selection, training and coaching of the teams
that will represent India in the Olympic/Asian/Commonwealth/South Asian Games
and other international competitions and tournaments, under the patronage of
the I.O.C. as well as I.O.A. After
selection of the team, to supervise and control the participation of the team
in the said competitions and tournaments. 11. To undertake with the assistance
of National Sports Federations the financing, management, transportation,
maintenance and welfare of teams from India taking part in the Olympic Games
and other Games under the patronage of the I.O.C. as well as I.O.A. 12. To
certify the eligibility of competitors from India for such international competitions
as require such certification. 14. To act as the channel of communication
between National Sports Federations and the Government of India for financial
or other assistance to the Federations.
21.
That for the above specified objects, the IOA has a Constitution
of its own where the IOC wants certain amendments as explained above “for the
basic principle of good governance, ethics and integrity”.
22.
That while today the IOA seems to be refusing the directions of
IOC, interestingly in Indian
Olympic Association vs Viresh Malik and others (W.P. 876/2007) before the
Hon’ble Delhi High Court, IOA had itself stated that it-“relies upon specific
provisions of the Olympic Charter, particularly, Chapter 4, which defines the
mission and role of National Olympic Committees”
23.
That
because of the persistent insistence of the IOA on refusing to follow the
directions of IOC on certain issues mentioned above, the suspension of IOA has
taken place, resulting in this precarious position, hence there is an imminent
need for the Respondent No 1 to intervene immediately in a manner to get the
directions of IOC implemented within the prescribed time period, i.e.,
31/10/2013 so as to end this serious international crisis.
24.
That the importance of sports, the role of IOA
and the expectation from the Government of India can be very clearly understood
from the order of the Hon’ble Supreme Court of India speaking through a Bench
comprising three Hon’ble Judges headed by Hon’ble the Chief Justice of India,
in K.
Murugan vs. Fencing
Association of India, (1991) 2 SCC 412 in the following terms: “Sports
in modern times has been considered to be a matter of great importance to the
community. International sports has assumed greater importance and has been in
the focus for over a few decades” and that- “It is
unfortunate that the highest body in charge of monitoring all aspects of such
sports has got involved in group fight leading to litigation and the objectives
of the Society have been lost sight of. The representation of India in the IOA
has been in jeopardy.” What the Hon’ble Supreme Court had then said holds
true at this juncture as well-“What seems to be of paramount importance is
that healthy conditions must be restored as early as possible into the working
of the Society and a fresh election has to be held as that seems to be the only
way to get out of the malady. The entire nation is looking up to the results of
the competitions at the international games when they are held”. It also said- “17.
Before
we leave this matter we would like to point that the Union of India should take
greater interest in organising sports both for national and international
purposes. Sports have a role to play in building up good citizens.”
25.
That the Hon’ble High Court of Delhi in W.P. (C)
No. 7868/2005, titled ‘Narinder Batra vs. Union
of India’
had similarly said-“ 86. There can be no argument that
international sporting events have been considered an essential part of
diplomatic relations of the nations.”
26.
That this being the great importance of sports in today’s world,
the need for immediate revocation of the suspension of IOA is immense. It is
also very apparent from the letter dated 05/09/2013 sent by the IOC to IOA that
whatever changes that need to be undertaken by IOA are to be incorporated
before 31/10/2013. Otherwise, there is bound to be irreparable loss in this
regards.
27.
That
it also kindly needs to be seen that whatever amendments IOC proposes are only
for the good of IOA and the entire sports fraternity. It wants a clause which
provides that any member who has been charge-framed by any Court in India, in
respect of a criminal or corruption offence which would be punishable with an
imprisonment if he/she was convicted, will not be eligible to run for the IOA
elections and will be provisionally suspended from the IOA until a final ruling
is made. It also wants that the clause initially proposed by IOC that a member
who has been convicted of a criminal or corruption offence by a court (whose
ruling is final) will not be eligible to run for elections and will be
automatically expelled from the IOA. The IOC also wants that the age and tenure
restrictions (or at least the age limit) should be applicable not only to the
President, Secretary General and Treasurer but for all the members of the
Executive Council (for consistency reasons).
28.
This it is pretty obvious that these measures are needed for the
basic principle of good governance, ethics and integrity which must prevail
within the Olympic movement.
29.
That
it is also quite clear from the above directions that all that IOC wants is for
the IOA to comply with the Olympic Charter in its letter and spirit, something which
was formulated so earnestly by Baron Pierre de Coubertin. As stated in the Olympic
Charter- “Olympism
is a philosophy of life, exalting and combining in a balanced whole the
qualities of body, will and mind. Blending sport with culture and education,
Olympism seeks to create a way of life based on the joy of effort, the
educational value of good example, social responsibility and respect for
universal fundamental ethical principles. The goal of Olympism is to place
sport at the service of the harmonious development of humankind, with a view to
promoting a peaceful society concerned with the preservation of human dignity.”
30.
That what the IOC asked the IOA is to keep officials facing
criminal or corruption charges out of the election process. As IOC itself says-
“The IOC has never questioned the principle that till one is convicted one is
innocent. However the IOC Code of Ethics clearly states that the Olympic
parties (which include the NOCs) must undertake to respect and ensure the
respect of the IOC Code of Ethics which says in particular that they must not
act in a manner likely to tarnish the reputation of the Olympic Movement. The
IOA (still suspended) must therefore act responsibly and must adopt a clear
wording in its revised Constitution”.
31.
That hence
any failure
to comply with the directions of IOC or to disobey is definitely bad for the
entire sports scenario of India and is not at all welcome. As this Hon’ble
Court would definitely agree, whatever is being directed in the letter dated 05/09/2013
is not arbitrary or whimsical but is only for the betterment of Indian sports bodies
and need to be incorporated immediately.
32.
That
any resistance, as has been seen so far on the part of IOA which got suspended
from IOC on 04/12/2012 but has not complied with the complete directions of IOC
come as being improper, irrational and retrograde. Such intransigence and
stubbornness on the part of IOA is definitely going to harm Indian sports in
all possible ways- firstly by giving away a golden opportunity to clean the
house and secondly by losing the IOC membership which has such great
implications associated with it.
33.
That hence any such proposal or directions shall be fully welcomed
by IOA, Government of India and others for introducing belter governance in
sports and to save it from criminals and corrupt office-bearers.
34.
That it has already been too late and since 04/12/2012, when the
IOA was suspended, it is now more than 9 months but the compliance of IOC
directions have been completely half-hearted with the result that the IOA has
been kept suspended for this period and the entire Indian sports and the Nation
in turn is suffering because of this improper and incorrect attitude of IOA.
35.
That there could be a possibility of some of the office bearers
and other influential persons feeling that they might lose their seats and
hence the accompanied perks and privileges, if such Rules actually get
implemented, as per IOC directions, but the personal benefit and interests of a
few individuals cannot be allowed to overrule the interest of Sports in India
and the entire National interest, that too at international fora.
36.
That hence the need for this Hon’ble Court to immediately
intervene in this matter of huge Public and National interest ad to stop this
improper intransigence and stubbornness on the part of IOA and the adequate
response so far of the Ministry of Sports to take reigns in its hands to accomplish
successful implementation of the IOC directions in the interest of sports and
national pride and honour.
37.
That
as far as the power and authority of this Hon’ble Court to direct the IOA to
act in a certain manner is concerned, it is well-established that Article 226
confers wide powers on the Hon’ble High Courts to issue writs to "any
person or authority". It can be issued "for the enforcement of any of
the fundamental rights and for any other purpose". As explained by the Hon’ble
Delhi High Court in Indian Olympic Association vs Viresh Malik and others
(supra)-“The term "authority" used in Article 226 should be widely
construed, unlike the term "authority" occurring in Article 12, which
is relevant in the context of enforcement of fundamental rights under Art.32.
Article 226 confers power on the High Courts to issue writs for enforcement of
the fundamental rights as well as other rights. The words "any person or
authority" used in Article 226 are, therefore, not to be confined only to
statutory authorities and instrumentalities of the State. They may cover any
other person or bodies performing public. The form of the body or institution
is irrelevant; what is of relevance is the nature of the obligation imposed,
the breach of which is complained against, or the enforcement of which is
sought. It has thus been ruled that judicial control over ever changing nature
of bodies affecting the rights of people cannot be stereotyped or
straight-jacketed. This was emphasized in Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors,-vs- V. R. Rudani
1989 (2) SCC 691, as follows: "20. In Praga Tools Corporation v. Shri C.A Imanual and Ors.,
(1969) 3 SCR 773 : (AIR 1969 Supreme Court 1306) , this Court said that a
mandamus can issue against a person or body to carry out the duties placed on
them by the Statutes even though they are not public officials or statutory
body. It was observed (at 778) ; "It is however not necessary that the
person or the authority on whom the statutory duty is imposed need be a public
official or an official body, A mandamus can issue, for instance, to an
official or a society to compel him to carry out the terms of the statute under
or by which the society is constituted or governed and also to companies or
corporations to carry out duties placed on them by the statutes authorising
their undertakings. A mandamus would also lie against a company constituted by
a statute for the purpose of fulfilling public responsibilities. (See
Halsbury's Laws of England (3rd Ed. Vol. II p. 52 and onwards)."
38.
That
more recently, in Binny Ltd. &
Anr. v. V.V. Sadasivan,
2005 (6) SCC 657, while deciding when a private body can be said to be
performing public function, the Hon’ble Supreme Court observed: "Judicial
review is designed to prevent the cases of abuse of power and neglect of duty
by public authorities. However, under our Constitution, Article 226 is couched
in such a way that a writ of mandamus could be issued even against a private
authority. However, such private authority must be discharging a public
function and that the decision sought to be corrected or enforced must be in
discharge of a public function.” The Hon’ble Supreme Court also said- “A body
is performing a "public function" when it seeks to achieve some
collective benefit for the public or a section of the public and is accepted by
the public or that section of the public as having authority to do so. Bodies
therefore exercise public functions when they intervene or participate in
social or economic affairs in the public interest.”
39.
That
in IOA vs Viresh Malik (supra), the Hon’ble Delhi High Court said-“These
decisions, as well as previous judgments in India, have demonstrated that
attempts have been made to account for actions of bodies that broadly perform
"public" functions, through judicial review. The court is mindful
that such attempts are part of the larger move to make such bodies
accountable.”
40.
That
the above orders of the Hon’ble Supreme Court and Hon’ble High Courts make it
amply clear that judicial review, including the power to issue the Writ of
mandamus to private bodies like IOA certainly lies with the Hon’ble High Courts
under Article 226 if such private bodies undertake some public function.
41.
That
as regards IOA, in IOA vs Viresh Malik, the Hon’ble Delhi High Court very
clearly stated-“It is the national face of the Olympic movement in India. Its
word determinates the fate of the sport, and sportspersons, who are to attend
and participate in Olympic events (not confined to the Olympics, but also
embracing other, sport specific international events, and regional meets, etc).
It affiliates or recognizes bodies which regulate sports that aspire to
participate in Olympic and international events. Its approval is essential for
any sport - in India- continuing to be part of the Olympic and international
movement” as also that-“Having regard to the pre-eminent position enjoyed by
the IOA, as the sole representative of the IOC, as the regulator for
affiliating national bodies in respect of all Olympic sports, armed with the
power to impose sanctions against institutions- even individuals, the
circumstance that it is funded for the limited purpose of air fare, and other
such activities of sports persons, who travel for events, is not a material
factor. The IOA is the national representative of the country in the IOC; it
has the right to give its nod for inclusion of an affiliating body, who, in
turn, select and coach sportsmen, emphasizes that it is an Olympic sports
regulator in this country, in respect of all international and national level
sports”.
42.
That
the above order states it beyond any doubt that IOA performs public function
and hence it comes under the purview of judicial review, so that the Writ of
Mandamus can be issued against it. These words also make it pretty obvious that
the Hon’ble Higher Courts are always very much concerned about the affairs
related with IOA as it is directly related with National sports movement and
has extremely wide national and international ramifications, which can never be
ignored.
43.
That
the Central Government also took the same stand, in relation to the IOA in IOA
vs Viresh Malik (supra) when it said-“The IOA also claims to be the apex of all
National level sports federations; it represents the national face of the IOC.
It has the power to affiliate or recognize other domestic sports federations,
which in turn can select and sponsor sportsmen to represent the country in
games and events. In these circumstances, the IOA‟s funding by other sources,
does not deflect from the fact that the Government treats it as the sole
representative body, for all manner of sports. Therefore, it is a public authority”
adding that-“under the order of the Government of India (Allocation of
Business) Rules, 1961 the Indian Olympic Association and National Sports
Federations have been specifically listed as an item of Business allocated to
Ministry of Youth Affairs & Sports. For these reasons, it is contended that
the IOA is a public authority.”
44.
That it also kindly needs to be seen that the Government of India
has been recognizing IOC and IOA for long. As per a Ministry of Youth Affairs & Sports
document titled “Dossier for the international Olympic
Committee on Government of India guidelines on good governance in sports
bodies” dated 16/06/2010 signed by Sri Injeti Srinivas Joint Secretary
(Sports), Ministry of Youth Affairs
& Sports-“The Government of India recognises the IOC's commitment to the
Olympic Charter, the fundamental principles of good governance and ethical
values enshrined therein, and believes that the IOC would not support any body
or organization, which contravenes the fundamental basis of the Olympic
Movement viz., Good Governance and Ethical practices.”
45.
That hence the Ministry of Sports has been
issuing instructions and suitable directions even in the past as can be seen
from the facts stated in this Dossier- “The Government of India, Ministry of
Youth Affairs And Sports, issued a communication dated 1st May 2010 restoring
‘limits on the duration of tenure of office bearers of Indian Olympic
Association and all recognized National Sports Federations’ (‘1st
May 2010 communication’), in deference to the binding observations made
by the High Court of Delhi in various proceedings regarding poor governance
practices in National Sports Bodies in India, including the unrestricted
tenures of office bearers of the Indian Olympic Association (‘IOA’),
as well as National Sports Federations (‘NSFs’).”
46.
That the Dossier says-“7. The Government of India, acknowledges
the substantial role in the Olympic Movement for governments and fully endorses
the need for all constituents of the Olympic movement to conform to applicable
laws within their respective jurisdictions. 8. The aforesaid declarations of
the Olympic Congress also, unequivocally, acknowledge the substantial impact of
Sport and Sports Bodies in the public area. “
47.
That the Dossier also says- “9. For the same
reasons, Sport, especially in the context of Sports Bodies can no longer claim
protection from scrutiny/ regulation under the guise of being ‘private bodies’,
in as much as their functions are clearly of a public character. 10.
Consequently, the continued insistence of IOA/ NSFs on autonomy without
supervision in this context is antithetical to the universally accepted
Principles of Good Governance, and contrary to existing legal and moral norms
governing the regulation of entities performing public duties and functions.
11. The Supreme Court of India, through pronouncements in various cases, recognizes
the inherent right of the Courts, as well as the Executive to regulate, albeit
by varying means and methods, the performance of such public functions/duties
even by private bodies.”
48.
That very importantly, this Dossier said-“In
keeping with this jurisprudence, and recognizing the dismal state of affairs in
the arena of Sports and Sports Bodies, Courts in India have, in the recent
past, questioned the inability of the Government of India to ensure some degree
of regulation and transparency in the functioning of IOA/ NSFs and other Sports
Bodies that have been dependent on public funding since their inception. In
particular, they have taken strong exception to the Government’s passive role
and the weak implementation of existing Guidelines that are intended to ensure
that they perform their duties in a non‐arbitrary, democratic and transparent
manner, while protecting the autonomy of the IOA/ NSFs and other Sports Bodies.
16. The 1st May 2010 communication has therefore, been issued with a view to
complying with judicial orders and, views expressed by elected representatives
in the Parliament of India, the strong public opinion, the current best
practices of the International Olympic Committee as well as leading
International Sports Federations, and with a view to encouraging professional
management, good governance, transparency, accountability and democracy in the
IOA and the NSFs.”
49.
That this Dossier said- “It must be recognized
that autonomy of sports bodies is not an end in itself but a means to enable
Sports Bodies perform the functions and duties expected of them. Good
governance practices are therefore, a means of securing and preserving autonomy
which cannot be wished away by Sports Bodies discharging Public Functions
irrespective of whether they are ‘private bodies’ or are supported by the
State. Hence, the argument that advice to adopt good governance principles by
the Government is an invasion on their autonomy lacks force.”
50.
That in the above Dossier, the Central Government
had also said-“ The Guidelines issued by the Government of India is in
conformity with international practice in several jurisdictions which have
enacted Sports Law legislation regulating the conduct of Sports bodies and in
some cases, even prescribing detailed conditions for their recognition in those
jurisdictions. 88. By way of example, The Ted Stevens Olympic Amateur Act of
1978 enacted by the United States of America requires the US Olympic Committee
to establish and maintain several provisions with regard to governance”
51.
That the above statements from the official document
of the Government of India make it amply clear that the Ministry has fully
accepted its role as a shepherd and a Guide to IOA and/or other National sports
bodies in the larger interest of sports as also to comply with the current best
practices of the International Olympic Committee as well as leading
International Sports Federations.
52.
That the same thing was stated by the Hon’ble High
Court of Delhi in Writ Petition No. 3713/2008, titled ‘Indian
Hockey Federation vs. Union of India & ors. as well- “Sports
bodies have to have a degree of autonomy with the Government playing the role
of an effective regulator.”
53.
That there is a need for passing of such
instructions/guidelines by the respondent No 1 to the IOA in the present
circumstances as well, so that the current suspension of IOA gets revoked. Here
the time limit of 31/10/2013 as stated in the 05/09/2013 letter of IOC also
seems to be of utmost importance because the IOC has already started preparing in
full speed for the forthcoming Rio de Janeiro Olympics for which
if the IOA does not ensure compliance of the directions of IOC, it would be too
late and there would be irreparable loss to Indian sports.
54.
That from the initial reaction that has come
from the Sports Ministry through unofficial channels, it seems to be in a state
of internal conflict as to how to face this situation and how to react to it. While
no official press release has come from the Ministry of Sports on this matter
though the Ministry did issue an official statement on the personal attacks on
Sri Abhinav Bindra, the Olympic Gold medalist by the President
of the suspended IOA, Sri Abhay Singh Chautala whereby it said-“ The Ministry
of Youth Affairs and Sports has observed with considerable disquiet, comments
by individuals in the media casting aspersions on certain sportspersons who
have brought laurels to the country in international sports events. The
Ministry reiterates that it considers international sports awardees as national
heroes and has zero tolerance to attacks against sportspersons. The Ministry of
Youth Affairs and Sports remains committed to furthering the cause of Indian
sportspersons and sports in India.”
55.
That as per the various Media reports, Sri Jitendra Singh, Hon’ble
Minister of Sports termed as "very unfortunate," the ramifications
that would arise out of IOC’s decision to stick to its stand on the
charge-framed clause which is opposed by the suspended IOA. While
welcoming the IOC's decision, Sri Singh is said to have said that "it was
expected since the IOA had failed to comply with suggestions put forward by the
IOC. Good governance and ethics are a zero-tolerance subject with the
IOC."
56.
That
as per a Times of India Report dated 06/09/2013-“The minister made an appeal to
the IOA to reconsider their stand. "I appeal to the IOA to put the
interest of the country and its sportspersons first. Better sense should
prevail and they should not suffer," he said. Reiterating the suggestion
made in his letter to the IOC president, Jacques Rogge on Aug 28, the minister
said that he was hopeful that the IOC would devise alternate mechanisms with
regard to the Indian Olympic body so that its sportsperson are able to participate
under the National flag. "As in the past, I have again requested the IOC
to work out an alternative mechanism to arrive at a solution to this impasse in
Indian Olympic sports. There is just no reason why the sportspersons should
suffer because of some individuals' interests." "I don't think there
should be a problem in incorporating these changes because it is a part of the
Olympic Charter. They have been clearly spelt out by the IOC, it is nothing new
that they are saying," he added. "The Government of India has the
same stand as the IOC on ethics and good governance. We are in sync with the
IOC, which we made clear to them in our meeting in Laussane (in May
2013)," said the minister. "The sports ministry have had various
meetings with the IOC, IOA and other stakeholders in the past. I tried
everything in my power to see the national interest and interest of the
sportspersons," he said.”
57.
That
similar statements seem to have come from the Hon’ble Sports Minister in other
newspaper reports as well.
58.
That from the above, it seems that the Hon’ble Sports
Minister, on his personal level, wants that directions of IOC get implemented
by the IOA but the Sports Ministry somewhat seems reluctant to come forth on
this crucial occasion and to give strict and clear directions to IOA to ensure definite
compliance of IOC directions.
59.
That as explained in the above Para, the need of the hour
is not mere good sentiments but strict compliance of the directions of the
international sports body because at stake is the future of the entire Indian
sports and hence the prestige and honour of the entire Nation.
60.
That thus it was expected by the respondent No 1 to have
shown much more pro-active role in these circumstances to save the entire
Indian sports from shame and indignity.
61.
That while this letter might be recent but the matter has
been pending for years now, and even the suspension of IOA by IOC is now more
than 9 months ago. It is rather sad that the Ministry having all the authority
with it, as readily admitted by it on more than one occasions and as repeatedly
pointed out by the various Hon’ble Courts seems to have not risen to occasion in
fulfilling all its legal and administrative responsibilities with the result
that such a situation has arisen, that too in a matter that has immense
national and international repercussions.
62.
That as stated earlier, the Government of India has on
certain other occasions taken a much more pro-active role vis-a-vis IOA and
other National sports bodies and even the various Hon’ble Courts including the
Hon’ble Supreme Court have interfered in matters related with IOA and other
sports bodies, exhorting the Government to act in a more assertive and definite
manner instead of showing a passive or lackadaisical approach, for which the
Hon’ble Courts have shown displeasure over respondent No 1 on more than one occasions.
63.
That the Hon’ble Courts have been prompt to respond to
matters pertaining to internal arrangements of sports bodies and those related
with sports and sporting events in quite readiness even in Public Interest
Litigations as can be seen from the fact that other than the cases mentioned in
above Para, even presently the Hon’ble High Court of Delhi in the Writ
Petition No. 195/2010 titled ‘Rahul Mehra vs. Union of India’’ is seized with irregularities
and non-observance of national sports code by various federations, including
IOA.
64.
That this seems to be one of such most important occasions
where the direct intervention of respondent No 1 is much warranted and where it
is also possibly required of this Hon’ble Court to take judicial review of the
entire set of events and to issue suitable directions to both the Union of
India and IOA in order to save the National pride at international sports arena
and hence in the interest of justice, for the larger national interest, for
safeguarding the genuine interests of Indian sportspersons, for India’s glory
and honour and for the sake of saving India’s reputation in International
sports arena and hence in the international diplomatic world, the two
petitioners, in this matter of wide public importance and public concern, approach
before this Hon’ble Court, having been witness to lukewarm reaction on the part
of respondent No 1 to an extent that was required in this particular case, being
left with no other option than to approach it with this PIL to ask for certain
prayers because of the reasons being stated among the Grounds as enumerated
below.
66.
That the
petitioner’s photograph and Identity proof in the form of Passport has been
enclosed along with.
GROUNDS
(1)
Because the IOC, the international
Olympic body had suspended IOA in December 2012 for non-compliance of certain
directions
(2)
Because the IOC has made its directions
in very clear terms that it wants certain amendments as stated in its letter
dated 05/09/2013 to be incorporated in IOA Constitution by 31/10/2013
(3)
Because if the IOC directions are not complied with, Indian
sportspersons might lose their chance of participating in all forthcoming
Olympic and other games organized by IOC and its affiliates
(4)
Because the suspension of IOA by IOC has other ill-effects as well
(5)
Because the directions of IOC are of a nature than would only add
to better ethics and integrity in the IOA and hence needs to be welcomed and
incorporated
(6)
Because the IOC directions will facilitate good governance in
Indian sports
(7)
Because the Nation cannot stand to lose the IOC membership because
it has its ill-effects not only on sportspersons and sports lovers but on the
entire Nation
(8)
Because the suspension of IOC membership also gives India a bad
name in all the other international forum and at global arena
(9)
Because the Ministry of Sports needs to intervene strongly at this
crucial juncture
(10) Because it
is already more than 9 months since IOA got suspended
(11) Because
somehow the Ministry of Sports seems to have under-performed in putting the
pro-active role expected from it to stop the intransigence and stubbornness on
the part of IOA and to get the directions of IOA implemented in letter and spirit
for bringing in good governance, integrity and ethics in Indian sports.
PRAYER
Wherefore,
it is most respectfully prayed that this Hon’ble Court may be pleased to-
a. to kindly
issue a writ of mandamus to the Respondent No 1, Ministry of Sports and Youth
Affairs, directing it to ensure the strict and immediate compliance of the
instructions issued by the International Olympic Committee (IOC, for short)
dated 05/09/2013 (Annexure No 1) to the Indian Olympic Association (IOA, for
short), respondent No 2 as regards revision of the IOA Constitution in
accordance with the directions issued by IOC, before 31/10/2013 so that the
current suspension of IOA by IOC gets lifted and the Indian sports persons are
able to participate in the forthcoming international games organized by IOC, in wider public/societal interest and national pride, love and affection
of the people for this country’s honour in the field of sports and games.
b.
to pass any other order or directions
which this Hon’ble Court may deems fit and proper in the facts and circumstance
of the present case.
Lucknow
Asok
Pande
Dated- 09/09/2013 Counsel for Petitioner # 94154-65438
Dated- 09/09/2013 Counsel for Petitioner # 94154-65438
In the Hon’ble
High Court of Judicature at Allahabad, Lucknow Bench, Lucknow
Writ petition No- of
2013 (PIL-Civil)
Amitabh and Nutan Thakur Petitioners
Versus
Union of India and another Respondents
AFFIDAVIT
I, Nutan
Thakur, aged about 40 years, w/o Sri Amitabh Thakur r/o 5/426, Viram Khand,
Gomti Nagar, Lucknow, religion Hinduism, education- P Hd, D Litt, profession- Social
Service, the deponent, do hereby solemnly affirm and state on oath as under-
1. That the
deponent is petitioner No 2 in the above noted petition and as such she is
fully conversant with the facts and circumstances of the case, deposed to
hereunder. She has also been authorized by petitioner No 1 to depose before this Hon’ble Court.
2. That the
contents of the paragraphs of
the Writ petition are true to my personal knowledge, based on documents and
records and believed
to be true or are based on legal advice.
3. That the
Annexure No 1 is the true copy of their original.
Place Lucknow (Nutan
Thakur)
Date-
09/09/2013 Deponent
VERIFICATION
I, the deponent above named, do hereby verify
that the contents of paragraphs 1 to 3 above this Affidavit are true and
correct to my knowledge and belief. No part of it is false and nothing material
has been concealed. So, help me God
Signed and verified this the day of 2013 at Lucknow
Deponent
Identification
I identify the deponent, on the basis of
records produced before me, who has signed before me.
Advocate
Solemnly affirmed me on at am/pm by the deponent
Nutan Thakur, who has been identified by Sri clerk
to Sri ,
Advocate, high court, Lucknow Bench, Lucknow
I have satisfied myself by examining the
deponent that she understands the contents of this Affidavit which have been
read over and explained to him by me
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