(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.