BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:03/12/2009 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition (MD)No.8701 of 2009 and M.P.(MD)No.3 of 2009 A.Joel Poul Antony ... Petitioner vs. 1.The Union of India, rep.by its Secretary, Department of Home, Ministry of Home, Shastri Bhavan, New Delhi-110 001. 2.The Secretary, Ministry of External Affairs, The Government of India, Shasthiri Bhavan, New Delhi-110 001. 3.The Secretary, Ministry of Youth Affairs and Sports, Shasthiri Bhavan, New Delhi-100 001. 4.The Secretary, Board for Control of Cricket in India, 2nd Floor, Cricket Centre, Wankhede Stadium, O-Road, Mumbai, State of Maharashtra. ... Respondents Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of mandamus forbearing the respondents from conducting Test Matches and One Day Matches, besides 20/20 Matches with Srilankan Cricket Team scheduled to be conducted from 16.11.2009 to 27.12.2009 and in future and to pass any other orders. (Prayer amended as per the order, dated 16.11.2009, made in M.P.(MD)No.2 of 2009) !For Petitioner ... Mr.D.Muruganantham for Mr.V.Manoharan ^For Respondents ... Mr.K.K.Senthilvelan, 1 to 3 Assistant Solicitor General. For Respondent-4 ... Mr.P.S.Raman (Advocate General) for Mr.P.R.Raman :ORDER
(Order of the Court was made by D.MURUGESAN,J)
The petitioner by name A.Joel Poul Antony is a practising Advocate
of this Court. He has filed this probono publico seeking a direction, in the
nature of writ, forbearing the Union of India and the Board for Control of
Cricket in India (BCCI) from conducting Test Matches and One Day Matches,
besides 20/20 Matches, with Srilankan Cricket Team, scheduled to be conducted
from 16.11.2009 to 27.12.2009 and in future.
2.Initially, the petitioner approached this Court for a similar
relief when there was a proposal to sent Indian Cricket Team to Srilanka to play
tri-series cricket matches at Colombo, which were scheduled to be held on
11.09.2009 and 12.09.2009. Though this Court issued notice on 01.09.2009, by an
order dated 09.09.2009, rejected the interim relief seeking to restrain BCCI
from sending Indian Cricket Team to Srilanka to play the tri-series. By the
time the writ petition was taken up for hearing, the above said tri-series
matches were concluded and therefore the writ petition could not be decided on
merits. Therefore, the petitioner filed M.P.(MD)No.2 of 2009 seeking to amend
the prayer in view of the subsequent decision of the respondents to allow
Srilankan Cricket Team to play matches in India and that petition was ordered by
this Court on 16.11.2009.
3.According to the petitioner, there is a gross violation of Human
Rights in Srilanka against the minority innocent Tamil Speaking people and, at
many a time, not only India but also many other countries in the world condemned
such violation of human rights by the Government of Srilanka. It is the further
grievance of the petitioner that atrocities against the innocent minority Tamil
speaking people still continues and under the guise of eradicating militants,
the Srilankan Government had killed lakhs of innocent minority Tamil Speaking
people and in that way, the Government of Srilanka had violated the basic and
fundamental rights and international laws. It is further contended that massive
attack unleashed by the Srilankan Government, through its armed forces, was also
on children and women, which was also condemned by the international
communities. According to the petitioner, the above act of the Srilankan
Government displays their intention and ulterior motive to eliminate each and
everyone Srilankan Tamil and in that process, the Srilankan Government had
killed more than 10 lakhs Tamil Speaking people, including children and pregnant
women. It is also contended that instances are reported that there were self-
immolations by Tamilians in India to show their sympathy and solidarity to the
Tamil Speaking People of Srilanka. Human Right violations were also noticed and
the same were condemned by various countries. Nevertheless, such violations are
still continuing and such violations are largely reported in Media and Press.
4.In the circumstances, according to the petitioner, it would be
only proper for the Government of India not to allow the Srilankan Cricket Team
to play matches in India so as to show the total disapproval of inhuman
treatment meted out to the Srilankan Tamils and, as the Government of India had
failed not only in preventing the Indian Cricket Team from visiting Srilanka but
also in preventing the Srilankan Team to come to India and also agreed to permit
the Srilankan Cricket Team to play Test Matches, One Day Matches as well as
20/20 Matches in India. Therefore, the petitioner is constrained to invoke the
extraordinary jurisdiction of this Court under Article 226 of the Constitution
of India for the relief sought for in the petition.
5.In support of the petition, Mr.D.Muruganantham, learned counsel
appearing for the petitioner, extensively argued as to the plight of the
Srilankan Tamils, particularly their plight in the detention camps. He would
submit that the policy of the Government should only be such to reflect the
wishes of a large number of people, be it related to national or international.
As there is no dispute that not only a large number of people in India but also
people around the world as well as various Organizations have condemned the
atrocities unleashed on the Srilankan Tamils under the guise of eliminating
terrorism, the Central Government should not have permitted Srilankan Cricket
Team to play matches in India. Therefore, learned counsel for the petitioner
would submit that the Court would certainly have the power of judicial review in
the event the policy does not reflect the wishes of majority of the people. The
Court may also intervene and issue appropriate direction to the Government and
more particularly in respect of the relief sought for in this petition, he
argued.
6.We have heard Mr.P.S.Raman, learned Advocate General, appearing
for the 4th respondent, the Board of Control of Cricket in India (BCCI).
Learned Advocate General had fairly submitted that as regard to the sufferings
of the Srilankan Tamils, as could be seen in the Newspapers and reports in
Media, there cannot be any second opinion. However, he opposed the petition and
submitted that the relief sought for in this petition cannot be ordered on two
grounds.
7.Firstly, the Advocate General would submit that BCCI is not a
State or an instrumentality of the State to be brought under Article 12 of the
Constitution of India. In respect of the said submission, he would rely upon a
Constitution Bench decision of the Hon’ble Supreme Court reported in 2005 (4)
SCC 649 – Zee Telefilms vs. Union of India.
8.Secondly, the learned Advocate General would submit that, in any
case, as to whether Srilankan Cricket Team should be permitted to play cricket
matches in India or not is a matter of policy taken by the Government keeping in
mind the relationship to be maintained with neighbouring countries and such
policy decision is not amenable to judicial scrutiny. In support of the said
submission, he would place reliance on the judgment of the Supreme Court
reported in AIR 1994 SC 1918 – S.R. Bommai vs. Union of India.
9.Having made those two submissions, learned Advocate General, would
fairly submit that he is not pressing the first submission relating to
maintainability of the writ petition and so, the said issue can be left open.
10.Mr.K.K.Senthilvelan, learned Assistant Solicitor General, would
submit that the Government of India has accorded permission to BCCI to conduct
test series and one day matches in India, wherein Srilankan Cricket Team could
participate and such permission was accorded keeping in mind the policy of India
to maintain good relationship with other countries, particularly with
neighbouring countries. The decision being one of a policy decision, the court
would not intervene with such a policy decision. In effect, he adopts the
argument made in this regard by the learned Advocate General.
11.We have considered the respective submissions made by the counsel
on either side.
12.Firstly, we may point out that though the writ petition is
opposed by the respondents on the ground that it is not maintainable as against
BCCI, having regard to the latter submission made by the respondents, we leave
the said issue left open to be considered in an appropriate case. This leads us
to the next question as to the power of this Court to interfere with the policy
matters of the Government, particularly external policy, under the guise of
judicial intervention. In this context, we may mention that the Constitution of
India is the supreme law of India and it lays down the framework designing
fundamental and political principles, establishing structure, procedures, powers
and duties of the Government. It also spells out the Fundamental Rights,
Directive Principles of State Policies and duties of citizens. The Constitution
has recognised separation of powers among Legislature, Judiciary and Executive.
13.As far as the power of the legislature, which is governing the
Government, is concerned, it has exclusively jurisdiction not only to enact laws
but also to evolve policies concerning internal and also external affairs.
There may be instances where the Court would have jurisdiction to interfere with
some of the policy decisions concerning internal matters, like in contractual
matters, etc. However, as far as the external policy is concerned, such policy
is evolved by the Government in exercise of its executive power keeping in mind
the relationship to be maintained with other countries, more particularly with
neighbouring countries. That being a policy of the Government, in our opinion,
the scope of judicial intervention in regard to such policies will not be
available to the courts. We need not elaborate on this principle as it has been
settled by the Constitution Bench of the Supreme Court in S.R.Bommai’s case,
precisely in paragraph No.305. While considering the power of the Government
to issue proclamation under Article 356(1) of the Constitution and with
reference to the policy of the Government in relation to external affairs, the
Apex Court (majority view) has observed as follows.
“305….. We would rather adopt the formulation evolved by this court in
State of Rajasthan (AIR 1977 SC 1361), as we shall presently elaborate. We also
recognise, as did the House of Lords in C.C.S.U. v. Minister for the Civil
Service (1985 AC 374) that there are certain areas including those elaborated
therein where the court would leave the matter almost entirely to the
President/Union Government. The court would desist from entering those arenas,
because of the very nature of those functions. They are not the matters which
the court is equipped to deal with. The court has never interfered in those
matters because they do not admit of judicial review by their very nature.
Matters concerning foreign policy, relations with other countries, defence
policy, power to enter into treaties with foreign powers, issues relating to war
and peace are some of the matters where the court would decline to entertain any
petition for judicial review. …”
14.In the said judgment, it has been categorically held that the
Court would desist from entering those arenas, because of the very nature of
those functions and they are not the matters which the court is equipped to deal
with. The Apex Court has also indicated that those matters concerning foreign
policy, relations with other countries, defence policy, power to enter into
treaties with foreign powers, issues relating to war and peace are some of the
matters where the court would decline to entertain any petition for judicial
review.
15.This being the position of law, as held by the Apex Court, the
grievance of the petitioner cannot be considered. It is the specific stand of
the Government of India that the Government has accorded permission to BCCI to
conduct test matches as well as one day matches wherein Srilankan Cricket Team
can also participate and such permission was granted keeping in mind the policy
of the Government to maintain relationship with neighbouring countries. The
said fact is not disputed. Therefore, we are of the considered view that the
present writ petition cannot be ordered. Accordingly the same is rejected as
the scope of judicial review is not available to the petitioner. No order as to
costs. Connected M.P.(MD)No.3 of 2009 is also rejected.
gb
To:
1.The Secretary,
Union of India,
Department of Home,
Ministry of Home,
Shastri Bhavan,
New Delhi-110 001.
2.The Secretary,
Ministry of External Affairs,
The Government of India,
Shasthiri Bhavan,
New Delhi-110 001.
3.The Secretary,
Ministry of Youth Affairs and Sports,
Shasthiri Bhavan,
New Delhi-100 001.