Delhi High Court - Orders
Rahul Mehra vs Union Of India And Ors on 17 December, 2021
Author: Manmohan
Bench: Manmohan, Najmi Waziri
$~SB-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 195/2010
RAHUL MEHRA ..... Petitioner
Through: Mr. Rahul Mehra, petitioner in person with
Mr. Chaitanya Gosain, Advocate
Versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Sachin Datta, Senior Advocate with Mr.
Anil Soni (CGSC), Ms.Neetu Devrani, Mr.
Vinayak Sharma, and Mr. Devesh Dubey,
Advocates, for Resp./ UOI.
Mr. Sanjib K. Mohanty & Mr. Amit
Acharya, Advs. for R- 2 & 3.
Ms. Shyel Trehan & Ms. Bhagya K. Yadav,
Advs. for President of IOA.
Mr. A.S. Chandhiok, Mr. D N Goburdhun,
Sr. Advocates with Mr. Hemant Phalpher,
Ms. Vishakha Gupta and Ms. Alka Singh,
Advocates and Mr. Hrishikesh Baruah,
Mr. Parth Goswami, Mr. Pranav Jain, Ms.
Apoorva Jain and Mr. Sidhant Kaushik,
Advocates for R-4.
Mr. Pinaki Mishra, Sr. Adv. with Mr.
Chetan Anand & Mr. Akash Srivastava,
Advs. for R- 5 & 12.
Mr. Premtosh Mishra, Mr. Yojna Goyal &
Ms. Rytim Vohra, Advs. for R-8.
Mr. Aditya Vikram Singh, Adv. for R-10/
NRAI.
Mr. Vanshdeep Dalmia, Adv. for R-11.
Mr. Dayan Krishnan, Sr. Adv. with Mr.
Signature Not Verified
Digitally signed By:KAMLESH
KUMAR
Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 1 of 18
11:31:01
Ankur Chawla & Mr. Anuj Tyagi, Advs. for
Kho Kho Federation of India.
Mr. Akshay Ringe & Mr. Kartikeya Rastogi,
Advs. for the applicant.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 17.12.2021 W.P.(C) 195/2010 & CM APPLs. 374/2010, 972/2010, 2134/2011, 5253/2012, 16396/2012, 18747/2012, 19681/2012, 2218/2013, 12612/2013, 17149/2013, 1114/2014, 25922/2016, 5931/2017, 13610/2017, 44608/2017, 36560/2018, 40205/2018, 54625/2019, 915/2020, 4947/2020, 14056/2020, 17630/2020, 19980/2020, 23074/2020, 28431/2021, 28432/2021, 35863/2021, 35864/2021, 40041-40042/2021, 42794-42795/2021, 43183/2021, 43266-68/2021, 44454-44455/2021 & 45280-45282/2021
1. The learned counsel for the parties have been heard apropos the General Body Meeting ('GBM') of the Indian Olympic Association ('IOA') scheduled for 19.12.2021 as a preparatory step towards holding of election to the Executive Council of the IOA. It has been noted on the earlier dates that representation sports persons in the executive committee/decision making process of sports bodies recognized by the Government of India is an essential requirement of the National Sports Development Code of India, 2011 („NSC‟). It stipulates that "the adoption of good governance practices by National Sports Federations (NSFs), including the Indian Olympic Association (IOA), is essential for healthy sports development in the country". All sports bodies in India are to comply with the National Sports Code ('NSC'). In Indian Olympic Association Vs. Union of India, (2014) 212 DLT 389, this court has held, inter alia, as under:-
Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 2 of 18 11:31:01".... 86. For the foregoing reasons, it is held that the petitioners‟ contentions are rejected. The Court reiterates its conclusions that international sports and regulation of NSFs, and IOA, in respect of the matters which are the subject of these proceedings, falls within Entry 97 of the First List to the Seventh Schedule to the Constitution of India. 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. This Court also specifically notes the letter/notice dated 20.09.1975, which forms part of the Sports Code, as modified by the later letter of 01.05.2010, to the following extent:
"i. The President of any recognized National Sports Federation, including the Indian Olympic Association can hold the office for a maximum period of twelve years with or without break:
ii. The Secretary (or by whatever other designation such as Secretary General or General Secretary by which he is referred to) and the Treasurer of any recognized National Sports Federation, including the Indian Olympic Association, may serve a maximum of two successive terms of four years each after which a minimum 'Cooling off period of four years will apply to seek fresh election to either post.
iii. The President, the Secretary and the Treasurer of any recognized National Sports Federation, including the Indian Olympic Association, shall cease to hold that post on attaining the age of 70 years.
iv. The other provisions in respect of the tenure limit as contained in the letter of 1975 mentioned above shall remain as it is.
v. The above dispensation will come into operation with immediate effect."
This regulation (subject to any subsequent amendments) Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 3 of 18 11:31:01 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...."
2. Olympics Games and many other international sporting events are organised by the International Olympic Committee (IOC) in coordination with National Olympic Committees (NOC) of participant countries. In India the NOC is the IOA. It coordinates the sending of sports teams selected by NSFs to international sporting events. The NSFs and State Olympic Associations ('SOAs') largely constitute the Electoral College of IOA.
3. As noted above, the NSFs, IOA and other sports bodies recognized by the Government of India would have to bring their constitution in accordance with the NSC, as held by the Supreme Court in Maharashtra Archery Association Vs. Rahul Mehra & Ors. (2019) 18 SCC 287 as well as by this court in the case of Indian Olympic Association Vs. Union of India, (supra). The court is informed that barring 6, none of the other 56 NSFs are complying with the NSC. That being the position, they cannot be deemed to even be the representative body in terms of the NSC.
4. The Government of India says that representation of the sportspersons is imperative, as has already been noted by this Court in the earlier orders. The composition of the National Olympic Committee („NOC‟), in the present case IOA, has been spelt out in Clause 28 of the IOC Charter. It reads, inter alia, as under:-
"28 Composition of the NOCs* Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 4 of 18 11:31:01
1. Whatever their composition, NOCs must include:
1.1 all IOC members in their country, if any. Such members have the right to vote in the general assemblies of the NOC. In addition, the IOC members in the country referred to in Rule 16.1.1.1 and Rule 16.1.1.2 are ex officio members of the NOC executive body, within which they have the right to vote;
1.2 all national federations affiliated to the IFs governing sports included in the programme of the Olympic Games or their representatives;
1.3 elected representatives of athletes. Those representatives must have taken part in the Olympic Games. They must retire from their posts at the latest by the end of the third Olympiad after the last Olympic Games in which they took part. Upon request by an NOC, the IOC Executive Board may grant an exemption to the requirement that such representatives must have taken part in the Olympic Games.
2. The NOCs may include as members:
2.1 national federations affiliated to IFs recognised by the IOC, the sports of which are not included in the programme of the Olympic Games;
2.2 multisports groups and other sports-oriented organisations or their representatives, as well as nationals of the country liable to reinforce the effectiveness of the NOC or who have rendered distinguished services to the cause of sport and Olympism.
3. The voting majority of an NOC and of its executive body shall consist of the votes cast by the national federations referred to in paragraph 1.2 above or their representatives. When dealing with questions relating to the Olympic Games, only the votes cast by such federations and by the members of the executive body of the NOC are taken into consideration. Subject to the approval of the IOC Executive Board, an NOC may also include in its voting Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 5 of 18 11:31:01 majority as well as in the votes taken into consideration on questions relating to the Olympic Games, the votes cast by the IOC members referred to in paragraph 1.1 above and by the elected representatives of athletes referred to in paragraph 1.3 above.
4. Governments or other public authorities shall not designate any members of an NOC. However, an NOC may decide, at its discretion, to elect as members representatives of such authorities.
5. The area of jurisdiction of an NOC must coincide with the limits of the country in which it is established and has its headquarters."
5. In effect, voting for the Executive Council of the IOA can be only in terms of the said provisions. However, in India, the SOAs have been given voting rights. This additional batch of votes is ex facie in breach of the IOC Charter and the National Sports Code. In its affidavit dated 08.01.2014 the Government of India has listed the objectionable anomalies apropos the IOA constitution. It reads, inter alia, as under:-
"..... 2. That the Union of India vide its letter No. F. 8- 17/2009-SP.III Vol. II dated 23rd February, 2011 (Annexure
1) has already conveyed to the IOA as follows:
(i) Inclusion of State Olympic Associations as voting members is not in conformity with the Relevant Rule of the Olympic Charter which deals with the composition of NOC. State/ UT Olympic Associations are to represent IOA at the State level and for discharging that function, they need not get the voting rights.
(ii) IOA should be a confederation of NSFs dealing with Olympic Sports and not a confederation of its own affiliated and other sports bodies.
(iii) The Executive Council with 28 members is very large .Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 6 of 18 11:31:01
(iv) Clause VIII (a) of IOA‟s Constitution is very restrictive and all the members of the Society should be free to contest the elections for any post.
3. Government of India reiterates its stand as contained in para (2) above. Inclusion of any of these stipulations in the Code/ Guidelines of the Government of India is a matter of decision to be taken in due course after careful consideration.
4. Regarding lack of uniformity in the number of votes given to different categories of voters, Government of India is of the view that the provisions contained in Rule 28 of the IOC Charter should be followed. As per this, voting majority of an NOC and of its executive body shall consist of the votes cast by the National Federation affiliated to the International Federations governing sports included in the programme of the Olympic Games or their representatives.
5. As regards the size of the General Body of IOA, the Government of India is of the view that it should be reasonable and IOA should not have much flexible to add categories/ members.
6. Regarding limiting age and tenure restrictions to 3 office bearers, it is stated that this was done as per the view that emerged following consultations. Government of India favours these restrictions to be followed in respect of all office-bearers.
7. That since the IOA is the mother body of all NSFs and is required to function as per the Olympic Charter, the Union of India has not formulated guidelines for its structure and internal functioning so far and has not required it to seek recognition specifically.
8. That IOA has since amended its Constitution..."
6. The court is informed that earlier clause 29 is the current clause 28 of the IOC charter mutatis mutandis. For their recognition, NSFs have to comply with the Guidelines as spelt-out in Annexure-II to the National Sports Code.
Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 7 of 18 11:31:017. Clause 3.6 thereof stipulates that:
"No office bearer of a National Federation shall hold office simultaneously, in any other National Federation, excepting the Indian Olympic Association".
8. In clause 3.20, it also requires:
"Inclusion of prominent sportspersons of outstanding merit as members of the respective sports federations on a tenure basis. The strength of such prominent sportspersons with voting rights should be a certain minimum percentage (say 25%) of the total members representing the federation and selection of such sportsperson should be in consultation with this Department".
9. Clause 9 of the NSC spells-out the conditions of the eligibility for recognition as under:
Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 8 of 18 11:31:0110. Should an NSFs not comply with the said requirements, it will be liable to be suspended. The consequences of suspension/withdrawal of recognition is contained in Annexure-III of the NSC. It reads inter alia as under:
"III. Upon withdrawal of recognition the NSF will cease to exercise the function of the NSF for the concerned sport discipline. It shall forego the right to regulate and control the sport in India and select the national teams and represent India in international sports events and forums. It will also become ineligible to use India in its name or receive any benefit or concession meant for an NSF as detailed in clause 3.6 of the National Sports Development Code 2011."
11. Wherever, recognition is withdrawn the NSF will, inter alia, not be able to enjoy the following benefits:
"3.6. The National Sports Federations who have the recognition including the annual recognition of Government of India in the Ministry of Youth Affairs and Sports, enjoy various facilities/concessions provided by Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 9 of 18 11:31:01 the Government of India. However, failure to comply with the Government Guidelines issued from time to time could result in one or more of the following consequences for the NSF concerned:-
1) Shall not be able to select the national teams and represent India in any international event or international forum (Reference: entry 10 and 13 of Union List in the Seventh Schedule of the Constitution of India and observation of Hon„ble High Court in the case referred to above)
2) Shall not be allowed to use the word "India" in its name since inclusion of the word "India" suggests the patronage of Government of India. (Reference: The Emblems and Names (Prevention of Improper Use) Act, 1950 which prohibits the use of India in the name of any entity without prior approval of the Government, as it may suggest or be construed to suggest the patronage of the Government)
3) Shall lose its All India character and may not be able to regulate and control the concerned sports discipline in the country. (Reference: Most of the NSFs are registered under the Societies Registration Act, 1860 or under a State Societies Registration Act which are operative in a particular State and as such without the recognition of Central Government, the NSF cannot operate beyond the boundaries of the State concerned where it is registered).
4) Shall not be able to avail itself of Custom Duty Exemption for import of sports goods, sports equipment, sports requisites as an NSF/Apex Body.
(Reference: Department of Revenue„s Notification No.5/2010-Customs dated 19.10.2010 read with Notification No.146/94-Customs dated 13.07.1994 allows the custom duty exemption to NSF under a certificate issued by SAI; further Notification No.21/2002-Customs provides custom duty exemption for import of Requisites for games and sports for Apex body in relation to the concerned Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 10 of 18 11:31:01 game or sport).
5) Shall not be able to avail itself of Income Tax exemptions under relevant provisions of the Act (e.g. as per the Section 80(G) (2)(viii) (c) any sum paid by the assessees, being a company, in the previous year as donations to the Indian Olympic Association or to any other association or institutions established in India, as the Central Government may, having regard to the prescribed guidelines, by notification in the official gazette specify in this behalf for (i) the development of infrastructure for sports and games;
(ii) the sponsorship of sports and games; is exempted from tax).
6) Shall not be able to avail itself of the special dispensation available to NSFs to remit funds towards sponsorship, prize money for activities abroad (Reference: FEMA (Current Transaction) Rules 2000 - Schedule II section 9)
7) Participation in national and international events organised by NSFs that are not recognised by Government of India in the Ministry of Youth Affairs and Sports shall not be considered for appointment to government jobs under sports quota.(Ref: DOPT„s orders)
8) The sportspersons of the unrecognised NSFs may not be able to get admissions under sports quota in schools and colleges.
9) The sportspersons participating in national championships organised by NSFs not recognised by Government of India in the Ministry of Youth Affairs and Sports shall not be entitled for railway concession or other concessions granted for this purpose.
12. Mr. Pinaki Misra, the learned Senior Counsel, who now does not appear for any party, has made a valuable suggestion that: to begin with, as a salutary step of bringing in a minimum 25% representation of the Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 11 of 18 11:31:01 sportspersons in the Executive Council of the IOA, NSFs and SOAs, the latter two largely comprising the IOA Electoral College, requisite amendments should be made in their respective constitutions/Articles of Association.
13. Ms. Shyel Trehan submits that the faction (Narender Batra faction/ President of IOA) of the IOA she represents is agreeable to the said suggestions.
14. It is largely agreed by all parties that to begin with, due representation of sportspersons i.e. 25% of the Executive Council ought to be ensured. Ms. Shyel Trehan submits, on instructions, that a provision for 9 or so sportspersons i.e. 25% in proportion to the current size of the Executive Council will be considered for being incorporated in the constitution/Articles of Association of the IOA for which appropriate amendments will be put to vote in the meeting scheduled to be held on 19.12.2021. Whether the number will be 9 or 25% of a smaller Executive Council will be prudently considered for being incorporated, in terms of the NSC and IOC charter into the IOA constitution/Articles of Association.
15. There is no dispute that this endeavour is necessary to bring the IOA and all NSFs in conformity with the NSC on their own, lest the Government of India be constrained to derecognize non-confirming entities which would result in the withdrawal of all support to them, including the monetary assistance.
16. According to the Model Election Guidelines to be followed by all NSFs, the Managing Committee can be only of 7 (seven) Officer Bearers (in addition to 5 executive members) as under:-
1 President 1(one) Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 12 of 18 11:31:01 2 Vice-Presidents 2(2) 3 General Secretary 1(one) 4 Treasurer 1(one) 5 Joint Secretaries 2(four)
17. Mr. Rahul Mehra submits that Executive Council of the IOA has about 40 persons, which is far too large and the monies expended on their air-fare, hotel charges and other charges for preparatory sports' meets etc. are possibly avoidable and the same could well be channelled towards direct advancement of sports. A smaller/leaner bureaucracy of the IOA would possibly be more manageable and responsive to supporting and augmenting sports activities in the country.
18. The petitioner further submits that the IOA and the NSFs have to align their constitution/Articles of Association strictly in terms of the NSC and with the laws of the land, especially, as spelt out in the judgments and orders of this Court and of the Supreme Court; while the IOA has to additionally conform to the IOC Charter in letter and spirit. He submits that the IOA needs to conform, in particular, to the following aspects Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 13 of 18 11:31:01
19. The petitioner contends that the SOAs have no role whatsoever, they are largely populated with persons who are over seventy years and have perpetuated their stay in the said bodies for decades, they have niot been Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 14 of 18 11:31:01 granted voting rights under the IOC charter for a NOC i.e. IOA. Therefore, their votes need to be disregarded.
20. The stand of the Government of India apropos the restrictive covenant in the IOA constitution has been recorded in the order dated 30.11.2021 as under:-
"11. The petitioner submits that the National Sports Code is the paramount document whose applicability is imperative and it has been so held by judicial orders, but the constitution of the IOA is not in consonance with it. The restrictive clause is against the democratic spirit. If elections are held as per the existing constitution/ Articles of Association, it would not be a truly representative body. The Government of India seemingly agrees with the aforesaid view. Therefore, he says, inter-alia, that any election which is contrary to the National Sports Code would be of no consequence and that elections be held only in terms of the said Code and/or in the interim an Administration may be appointed.
12. Mr. Sachin Datta, learned senior counsel for Union of India admits that a restrictive covenant is arbitrary and anathema to the democratic traditions."
21. As noted hereinabove, it has been the stand of the Government of India from 2010, that the IOA constitution is not in consonance with the NSC on a number of issues, including the restrictive clause for candidature in elections. Presently only the latter clause is highlighted. Surely, it along with all the other anomalous clauses of the IOA constitution would need to be brought in consonance with the conformity with the NSC, lest the corollary action ensue.
22. There is complete unanimity of all parties that sporting activities should not be affected because of the delay in the election of the IOA. They also acknowledge that playing under the national flag is a matter of immense Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 15 of 18 11:31:01 pride for a sportsperson. Every time the national flag is unfurled to celebrate victories and achievements sportspersons at international sporting events, the country celebrates. They concur that the issues pertaining to the IOA elections be resolved at the earliest. The resolution to the impasse within the IOA is largely dependent upon its own wisdom, rapprochement and internal exercise. Two factions, largely represented by the President and the General Secretary, are at odds with each other. They need to put aside their differences in the larger national interest, if the IOA wishes to facilitate participation of Indian sportspersons at sporting events organized by or under the International Olympic Committee (IOC). As a first step in this regard, it would be prudent that the IOA constitution is brought in consonance with the NSC and be modelled on the IOC Charter and law of the land, in terms of the court orders.
23. There is a dispute regarding the Electoral College of the IOA, the President and the Secretary General have their respective lists and the difference between the two lists is of about 30 votes, there are differential voting rights as well. Understandably, till the Electoral College of the IOA is finalized, no election can possibly be held.
24. The respondents desire that the former judge be appointed to oversee and conduct the GBM since the rift between the two main factions of the IOA is rather sharp. They also do not object to the appointment of Mr. Injeti Srinivas, former Secretary, GoI to assist in the process. In view of the above, it is directed that:
(i) the GBM of the IOA shall be held on 19.12.2021, at Olympic Bhavan, Qutub Institutional Area, New Delhi- 110 016, and such amendments to the constitution/Articles of Association of the IOA, as may be Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 16 of 18 11:31:01 agreed and/or requisite in terms of the NSC, the IOC Charter and orders of this court and of the Supreme Court shall be put to deliberation and vote. The amendments, as noted in para 18 above, shall be duly considered.
(ii) The meeting shall be conducted by Mr. Justice Rajiv Sahai Endlaw, former Judge of this Court (mobile phone no. 9717495002 e-mail:
[email protected]), who is appointed as the Administrator for the proposed GBM. His fees is fixed at Rs.3,00,000/-. Mr. Injeti Srinivas, the former Secretary of the Ministry of Youth Affairs and Sports, Government of India, shall assist the learned Administrator in the said exercise and to oversee and facilitate the meeting. His fees is fixed at Rs.1,50,000/-. Their fees shall be paid by the IOA through its General Secretary. They shall be intimated of this order by the parties and their learned counsel. If for some reason Mr Srivinas is not available to assist on the said date, the learned Administrator may seek assistance of another person.
(iii) The list of the Electoral College prepared by the parties, shall be submitted to the learned Administrator by 7:00 p.m. on 18.12.2021 at his email address, as well as delivered through hard copies. Wherever disputed, the votes cast will be segregated as disputed and undisputed.
(iv) The proceedings of the meeting shall be videographed. The Deputy Commissioner of the Police concerned, shall ensure due security at the venue. Copy of this order be sent DCP, also through Standing Counsel, GNCTD. All COVID-19 related SOPs and protocols shall be duly observed. Only those persons, whose names are in the list submitted to the learned Administrator, in terms of para (iii) above, or Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 17 of 18 11:31:01 as may be permitted by him, will be permitted to enter the venue of the meeting. The proceedings of the meeting shall be recorded and furnished to the court. A copy of the approved minutes, as may be shall be put before the Government of India to ascertain if there is due compliance of the IOA constitution in terms of the NSC and judicial orders.
(v) The GOI may depute an officer of a rank not below a Deputy Secretary, to observe the proceedings.
(vi) A copy of the National Sports Code as well as other relevant documents will be supplied to the learned Administrator and to Mr Injeti Srinivas.
25. In this application, the courts‟ views as expressed hereinabove, are prima facie.
26. List on 23.12.2021.
MANMOHAN, J.
NAJMI WAZIRI, J.
DECEMBER 17, 2021 sb Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:18.12.2021 W.P.(C) No.195/2010 Page 18 of 18 11:31:01