Devi’s Public Interest Litigation & the call for clearer dispute resolution guidelines in India

Published 20 May 2015 | Authored by: Manali Kulkarni

The facts of Indian boxer, Sarita Devi’s, case are relatively well documented (see this author’s previous blog).1 By way of brief recap, on 1 October 2014, Devi refused to accept the bronze medal presented to her during the awards ceremony at the 2014 Asian Games Incheon, choosing instead to hang the medal around the neck of her semi-final opponent, Park Ji-Na.

Devi believed that the result of the semi-final bout, which she was adjudged to have lost, was biased and incorrect and that she had clearly won the fight. The judges, however, ruled differently, and pursuant to Rule 52 of the AIBA Technical Rules, boxers are unable to appeal the judges’ decision (although they can appeal the referee’s decisions during the fight). Accordingly, the result stood.

In response to Devi’s actions, the International Boxing Association (AIBA) banned Devi for a year for breaching Article 3.13 of the AIBA Disciplinary Code, which states:4

3.1 All persons subject to this Disciplinary Code must:

(e) at all times behave with respect towards each other;

(f) respect the principles of honesty, integrity and sportsmanship; and

(g) act in accordance with the principle of fair-play.

The ban expires on October 1, 2015. Sandeep Jajodia, president of India’s boxing governing body, Boxing India (BI), later explained that Devi was also fined 1000 Swiss Francs for her actions.5 AIBA has noted that Devi’s ban can be reduced based on her behavior in the year and that she may still be able to compete in the 2016 Rio Olympics.6

 

The response in India: a Public Interest Litigation plea

The case has caused much stir in India owing to the perceived severity of AIBA’s ban, and the apparent lack of an appropriate and coordinated legal challenge. Questions were asked about the appropriate responses of relevant governing bodies, the principal issues being (i) whether or not there should have been an effective appeal to the Court of Arbitration for Sport (CAS), and (ii) the wider concern about the general lack of clarity surrounding the dispute resolution processes. The governing bodies singled out for their perceived failings included:

  1. Delhi International Arbitration Centre – India’s central body for overseeing and conducting institutional arbitral procedures;7
  2. Boxing India – pursuant to Article 4.28
  3. The Indian Olympic Association (IOA) – the IOA‘s involvement is due to Devi’s incident taking place at the Asian Games, which are part of the Olympic movement through the Olympic Council of Asia (OCA).9 Any occurrence at the Asian Games falls under Article 6110

The criticisms reached such a degree that a senior advocate, Rajiv Dutta, decided to file a Public Interest Litigation plea to ask the Courts to address the issues. The particulars of the filing shall be examined in more detail below, but first this author will describe the concept of Public Interest Litigation (PIL) in India for those unfamiliar.

An overview of PIL in India

PIL is “litigation for the protection of public interest.11 It can be introduced by a private party that is not the aggrieved party.12 Any PIL plea in India must prove two criteria:13

  1. Must be filed for public interest; and
  2. Must not be “a frivolous litigation by busy body

For the constitutional basis, any party can file a PIL plea14 in:

  1. The Supreme Court, pursuant to Article 3215 of the Constitution of India, “Right to Constitution Remedies”;
  2. The High Court under Article 22616 of the Constitution of India, “Power of High Courts to issue certain writs”;
  3. The Court of Magistrate under Section 13317 of the Code of Criminal Procedure, pertaining to the “conditional order for removal of nuisance”.

Interestingly, the victim of the offence is not required to be present in court for PIL pleas to be heard. Fertilizer Corporation Kamgar Union vs. Union of India (1981)18 noted that PIL, thus, challenges the traditional understanding of locus standi(standing)19, which requires the petitioner to prove harm was done to him/herself for the case to proceed. The original judgment of Kamgar Union v Union of India (1981) argues that allowing pleas to be filed for public interest prioritizes individual rights, aims to encourage “liberal judicial review”, discourages the courts’ restrictive rules of standing, and promotes activism for public justice. PIL should thus continue to be a part of the Indian judicial system.20

 

Devi’s PIL

Senior advocate, Rajiv Dutta, filed a PIL plea to the Delhi High Court on 10 December 2014 asking the Court to address the perceived injustice of Devi’s ban and to examine the wider issue of ensuring that there are clearer guidelines on dispute resolution procedures present within the regulations of sports federations in India. It was reported in India that:

"The plea contends the [DAC] has failed to consider that athletes registered with the local federations like Boxing India do not have any recourse against punitive measures recommended by international forums. It claims that the incident involving Sarita Devi is merely an indication of the larger malaise prevalent in the sports administration and particularly in sports federations.

The petition seeks to ensure that there are clear guidelines and a framework in place to ensure that such an incident does not recur by implementing clear procedures for dispute settlement within the sports bodies."21

And more particularly that the plea puts it to the Court that:22

  1. The DAC needs to fully understand and comprehend the CAS rules used to resolve international disputes;
  2. The DAC should use its powers to require local associations within its jurisdiction to amend their rules to include the CAS Arbitration Clause; and
  3. The IOA and the DAC should take any immediate action that is possible to try to resolve Devi’s matter and have her suspension lifted.23

 

Hearings to date

The first hearing took place on 17 December 2014, when Chief Justice Rohini and Justice Endlaw on the Delhi High Court bench instructed Dutta to provide the DAC and the IOA with copies of the CAS rules relating to the PIL.24

On December 24, the Bench issued a notice, to BI asking why it was not considering appealing AIBA’s decision and asking the Ministry of Youth Affairs and Sports (“Sports Ministry”),25 the government’s arm in Devi’s dispute, to submit all relevant documents and regulations relating to the matter.26 Ahead of the Bench’s request, the Sports Ministry had already called for a review of AIBA’s decision on Devi’s case.27

BI initially had until January 5 to reply to the Court, and until January 17 to appeal AIBA’s decision.28 However, BI revealed that they had in fact been writing to AIBA to try to ensure that Devi did not face a life ban (which had been considered), and were thus satisfied with the one-year ban.29

Consequently, BI confirmed to the Bench on January 5 that it would not be able to appeal AIBA’s decision to ban Devi, explaining that in their view there was no arguable basis for an appeal. They also stated that Devi had not formally asked BI to intervene with her case.30

As of January 17, the Delhi High Court issued a notice requiring BI, IOA,31 and Devi to further explain their decision not to appeal Devi’s incident. The governing bodies and Devi were required by the Delhi High Court to reply by April 15. Their responses have yet to be publicly documented.32

 

Comment

Article 67.233 of the AIBA Statutes34 (and Article 59.1 (b)35 of the AIBA Procedural Rules) recognizes the jurisdiction of the Court of Arbitration for Sport (CAS) for disputes falling under Rule 5936 of the IOC Charter37 (as Devi’s misdemeanor did).

The plea asks the court to, "issue direction to the [DAC] and the [IOA] to take immediate and urgent steps to file appropriate legal remedies against the suspension decision taken by the international boxing association pursuant to decision dated October 21 taken by its disciplinary committee”.38, 39 However, the authors notes that there is a time limit for appeals pursuant to the Article R49 of the CAS Statutes of the Bodies Working for the Settlement of Sport-Related Disputes, set at 21 days “from the receipt of the decision appealed against,40 so it is somewhat unclear whether there are any further effective legal remedies that could be pursued to challenge AIBA’s decision. What is also unclear is whether or not the DAC would have any legal standing to be able to directly lodge any appeal, or to require another institution to do so (to the extent the time limit hasn’t already passed).

 

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About the Author

Manali Kulkarni

Manali Kulkarni

Manali is the COO at LawInSport and executive contributor of the editorial board for LawInSport. She holds an LLM in Sports Law from Nottingham Law School (Nottingham Trent University).

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