The Sporting Wars: From Judicial Activism to Adventurism

Treating The Football Fever: Indian Way

Recently, the Supreme Court’s edict to the Committee of Administrators (hereinafter “CoA”) to run the All-India Football Federation (hereinafter “AIFF”) has emerged as an instance of third-party interference. FIFA has banned the AIFF with immediate effect citing “undue influence” from third parties.  The ban came as a culmination of a series of events, following Praful Patel’s ouster from AIFF and the subsequent appointment of a three-member CoA, headed by former Supreme Court judge AR Dave, to frame AIFF’s constitution in tandem with the National Sports Code and model guidelines and conduct elections to the body. The knock-on effect of this is that India would not be able to host the FIFA U-17 Women’s World Cup 2022 in October which reflects poorly on its international image. Third-party intervention refers to a situation in which a member association of FIFA has apparently failed to remain independent, is co-opted, and no longer has control over its organization. As per the FIFA statute, member federations should not be subject to legal and political interference in their respective countries. FIFA wanted the Supreme Court-appointed CoA repealed before it lifts the ban. Considering the progression of the events the authors undertake to locate the role of judiciary as an interpreter, activist and adventurer at times which may lead to unwarranted ramifications given the existence thin and blurry lines between the three for it to restrain itself in committing encroachment upon the administrative domain.  

The road from judicial activism to judicial adventurism: a theoretical perspective

“The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policy-making.”^[1]

As per the principles of separation of power enshrined in our Constitution, separate powers vest in the three organs of the state: legislature, executive and judiciary. The elected representatives, members of the executive and all the hon’ble judges take oath to bear true faith and allegiance to the Constitution. While legislature and executive primarily deal with formation and implementation of the law, it is the judiciary that can deal with validity and interpretation. Thus, judiciary is said to be the guardian of the Constitution and the principles enshrined therein. However, it is to be kept in mind that whenever we say that judiciary is the guardian of the Constitution, we do not mean that legislature and executive are not important from a constitutional perspective.

As said, in the case of Ram Jawaya Kapur v. State of Punjab^[2], “The Indian Constitution has not indeed recognised the doctrine of separation of power in its absolute rigidity but the functions of different parts and branches of the government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.”

However, for a society like India, where government is intensive and the aim is to have a welfare state, it is imperative that all the state machineries work in tandem and harmony with each other.

Judiciary has been entrusted, as a result, with the power of judicial review and this power is so sacrosanct that it forms the part of the Basic Structure of the Constitution, as given in the case of Kesavananda Bharati v. State of Kerala^[3]. Any determination by the judiciary can either legitimise or stigmatise the statute. Therefore, the power of judicial review was meant to be exercised to test and interpret the statute on the touchstone of the Constitution so as to remove ambiguities or advance the remedies contained in it. A statute when made conforms to the time period in which it was made but changing times and societal standards also make the laws obsolete and archaic in terms of the letter so contained in them. Thus, we can see how the judiciary has the power to overlook and declare the limits of jurisdiction of all the three organs. Here is when the judicial activism comes into picture as the judge then becomes more inclined on validating or invalidating the legislative and executive decisions. Judicial review coupled with judicial activism hence form a power weapon but this weapon must not be used unguarded. In the case of Trop v. Dulles^[4], the US Supreme Court opined that “judicial power is not immune against human weakness”, and hence the judiciary must exercise judicial restraint when it comes to the power of judicial review.

Judicial activism can lead to judicial adventurism when the judges become extremely critical of the laws made and passed by the Parliament and want to use their whims and fancies at every instance they get, so as to make sure that the ends of justice are met as per their perspective of what justice is. Judges start making laws instead of interpreting laws, an example of which was given in the case of Divisional Manager, Aravali Golf Club and Another v. Chander Hass and another^[5], where the Delhi High Court claimed that no interviews are needed for admission to nursery school amounts to creation of law as there existed no statute to deal with such a scenario. However, this has been regarded a slippery slope as it appears that the judges are riding on unbridled horses and any red light on the way would be ignored unless an external force is applied, in this case, an external force cannot be applied as there is not guardian of the judiciary except the Constitution.

Sports and Judicial overreach: examples

The Supreme Court in BCCI case^[6] appointed a four member CoA to see whether Lodha reforms were being implemented in BCCI or not. It was clear at the very outset that Lodha Committee recommendations would destroy BCCI^[7], despite which the Supreme Court, in its overreaching capacity, intended on the same till the time elections were held a Sourav Ganguly led BCCI came into picture. Something similar happened in the case of AIFF and is happening with other sports like hockey.

Blurring the line between Judicial Activism and Judicial Adventurism- Analysis of recent AIFF suspension by FIFA

True that apex court issued the directions to CoA with its bona fide intent of facilitating the democratic elections within the AIFF, however the court’s reputation itself is in peril now. The directions were issued in the SLP to the Delhi High Court’s order in 2017^[8] in which an Administrator-cum-Returning Officer was appointed for the conduct of the elections of the AIFF in the following manner:

1. To resolve the issue of disaffiliation of members of AIFF
2. To facilitate elections and the preparation of the Electoral college.
3. To supervise the requisite amendments to the AIFF Constitution to bring it in conformity with the National Sports Code.
4. Once the AIFF Constitution has been amended, a fresh round of elections shall be carried out in terms of the National Sports Code.
5. Mandated the AIFF to make available the Administrator an appropriate office space and facilities for the discharge of the aforesaid directions and make available such staff and personnel as the Administrator may express the need for.
6. Alternatively, the Administrator may appoint such personnel to assist him in the aforesaid matter and expenses towards the same shall be borne by the AIFF.
7. except with the prior approval of the Administrator the AIFF shall not make any new financial commitments and routine expenses of AIFF too shall be defrayed, only with the prior approval of the Administrator till the elections are conducted in consonance with the National Sports Code.

It is the argument of the authors that by the constitution of a non-statutory body altogether the court has entered into the domain of administration. It is akin adopting inquisitorial techniques and consequently moving away from adversarial mechanisms. Although the active engagement of the Judiciary is desirable at all times the over activist approach comes with the inherent harbinger of judicial encroachment and leads to judicial adventurism. The court should be conscious of its limits at all times. Allocation of financial resources as being subject to CoA in this case otherwise would require executive intervention and therefore ruling that out should be seen as unwarranted interventions into executive domain, and therefore violation of the separation of powers. The wide-ranging powers to non-statutory authority, while allowing it to function with considerable delegated administrative powers like appointment, supervision, financing inter alia along with judicial dispute resolution powers within the members of AIFF is a clear-cut case of judicial adventurism when there exists no such contemplation of such a body in any statute.

Recent developments: repeal of CoA, analysis and conclusion

The Court has mandated the repeal of CoA and handed back the affairs of AIFF to AIFF administration^[9]. Both these conditions have been met, alongside key amendments to the draft constitution as desired by FIFA – limiting the electoral college to just State association nominees and instead giving players representation as nominated members in the Executive Committee^[10]. It is unlikely that such changes will grant India back its hosting rights of the FIFA U-17 Women’s World Cup because of various points like determining the term of “one post, one principle” and also that AIFF will be governed by the draft Constitution made by CoA only. Additionally, the future of hockey and table-tennis are also under similar dwindling situations because they are also under court-appointed committees.

When there exists a body that consists of elected representatives, it is highly contentious that the Hon’ble Supreme Court, instead of clearing ambiguity regarding certain provisions of the Constitution of the AIFF, which was why AIFF knocked at the doors of the esteemed court prior to the elections that were supposed to be held for the post of president, which was left vacant after Praful Patel completed his term, completely put a hold on the elections and appointed a CoA to deal with the affairs of the Federation.

The Constitution was being framed by the CoA, appointed by the Supreme Court, when FIFA authorities demanded for a new Constitution of AIFF. Despite the same, the electoral college of the AIFF led to ultimate suspension. As per CoA, the electoral college would have equal representation from both state associations and eminent sport personalities but FIFA asked it to be reduced to 25% so as to make sure that none of the Indian future prospects^[11] with FIFA were jeopardised, however the Supreme Court’s decision to go ahead with the electoral college put a question on the independence of the body and became a point of friction between the two bodies and also led to ultimate suspension.

Hence, the authors are of the view that courts, while giving effect to the law of land become police like and their inquisitorial approach when transforms into a complete revamp of the machineries governing the respected authorities, the judiciary oversteps its boundaries and lets go of the restraint that it is supposed to exercise over itself.

1. (1980) 2 SCC 684. ↑

2. AIR 1955 SC 549. ↑

3. (1973) 4 SCC 225. ↑

4. 356 US 86 : 2 L Ed 2d 630 (1958). ↑

5. (2008) 1 SCC 683. ↑

6. (2017) 3 SCC 696. ↑

7. Anil Dharker, Judicial Overreach will destroy BCCI, Deccan Chronicle (26^th August, 2022, 8:41 am), Judicial overreach will destroy BCCI (deccanchronicle.com). ↑

8. WP (C) No. 195/2010. ↑

9. SLP (C) 30748-49/2017. ↑

10. THE HINDU, Sporting trouble: On Supreme Court terminating mandate to manage the football body, The Hindu (August 26, 2022, 11:17 am), Sporting trouble: The Hindu Editorial on Supreme Court terminating mandate of administrators to manage the All India Football Federation. ↑

11. The men’s national team is supposed to compete in the AFC Asian Cup next year, but if the suspension is not lifted by then, Igor Stimac’s boys will be denied the opportunity. The suspension also prevents India from hosting any international competition, jeopardizing the 2022 FIFA U-17 Women’s World Cup that was planned to commence on August 11. ↑

(This article is written by This post has been authored by Simran Sharma and Vidhi Kanodia, 3rd-year students at National Law University, Jodhpur.)