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Legal analysis of the Haryana Government's notification requiring deposit of income

Legal analysis of the Haryana Governments notification requiring deposit of income

Aman Gupta

Published: 18 Jun 2018 7:24 AM GMT

The notification by the Haryana government, requiring sportspersons to deposit 1/3rd of the income has generated significant controversy. The outrage by the athletes led to the M.L. Khattar, the Chief Minister of Haryana, putting a hold on the notification. The detractors have gone to the extent of terming it ‘bizzare’ and as ‘jizya’. However, the supporters argue that the notification is based on the prohibition on government employees to engage in any other employment. Further, they also point to the support and the benefits received by the sportspersons and their families from the government.

This post seeks to analyse the notification and suggest modifications that may be required in respect of the same in case the government wishes to press ahead with the notification.

Was the outrage justified?

As per reports, the notification has arisen from the recent public interest litigation before the Punjab and Haryana High Court which in turn arose due to Vijender Singh turning professional. In the case, the government of Haryana had informed the Court of its intention to suitably modify the service rules for sportspersons in respect of participation in sport activities.

As per the Haryana Civil Services (Government Employees’ Conduct) Rules, 2016 (“Rules”), an employee can participate in sports activities as an amateur without the previous sanction of the government. However, no government employee can, without the previous sanction of the Government, engage in any trade or business, and/or undertake any other employment.

However, there is the question regarding the power of the Sports & Youth Affairs Department to issue the notification. 

As per the Business of The Haryana Government (Allocation) Rules, 1974, the Sports & Youth Affairs Department has the power to deal with establishment matters relating to officers and staff under the administrative control of the Sports & Youth Department, except matters allotted to the General Administration Department.

However, as per rule 30 of the Rules, the power to amend, interpret and relax the Rules vests with the General Administration Department of the government of Haryana. Further, the Rules prohibit the delegation of such power. Thus, the capacity of the Sports & Youth Affairs Department to issue the notification is unclear. 

It may also be noted that the constitutionality of the notification could be challenged on the grounds of violation of Article 14 (right to equality), Article 19(1)(g) (right to practice any profession or carry on any occupation, trade or business) and Article 21 (Right to Life).

This is so as the notification restricts the right to engage in professional sports and commercial endorsements, by requiring them to subject 1/3rd of the income earned and also requiring them to go on extra-ordinary leave without pay during such duration. It can also be argued that such a restriction would adversely impact athletes, as they have a limited career in sports and such a requirement to deposit 1/3rd of the income would limit the resources available for them to improve, thereby impacting on their right to life.

However, the government of Haryana would also have legitimate grounds in such a litigation. 

  • In respect of Article 14, it is settled law that the State is allowed to reasonable classification of persons, so long the classification is not artificial, arbitrary or evasive, and has a reasonable relation to the object sought to be achieved.
  • Additionally, the government has right to impose reasonable restrictions in the interests of general public under Article 19(1)(g). As has been noted by the Allahabad High Court in the case of Dr. Y.P. Singh v. State of U.P., reasonable restrictions can be “imposed on the grounds mentioned in Article 19 with a view to secure efficiency, integrity, impartiality, responsibility and maintenance of discipline”. 

However, the restrictions should have a direct, proximate and rational relation to the conditions of service and must be in public interest.

Further, whilst the scope of Article 21 has been expanded to include the right to livelihood, it cannot be construed in a manner which defeats its purpose. As noted in by the Supreme Court in the State of Himachal Pradesh vs. Raja Mahendra Pal case, “the right to livelihood would include all attributes of life but the same cannot be extended to the extent that it may embrace or take within its ambit all sorts of claim relating to the legal or contractual rights of the parties completely ignoring the person approaching the court and the alleged violation of the said right.”

Thus, any constitutional challenge will have to balance the arguments raised on the above mentioned grounds. 

Where it was unclear

There are also certain interpretation issues in the notification which appear to be of concern. Firstly, the scope of the term “professional sports” is unclear. Generally, the difference between ‘amateur’ and ‘professional’ sports is understood by the fact that  the sportspersons play for remuneration in professional sports, as opposed to amateur sports. Keeping this difference in mind, the notification appears to overlook that certain sports in India do operate on a professional basis.

For example, cricketers in India are provided with contracts with the BCCI and are paid match fees. This appear would qualify cricket within the ambit of “professional sport”. Then, would cricketers employed by the Haryana government be required to deposit income earned from central contract and/or match fees?

The tweets of the Dr. Ashok Khemka, Principal Secretary, Sports & Youth Affairs Department, Government of Haryana, appear to provide certain clarity on the issue. From his tweets, it appears that the term is only intended to cover earnings from leagues in which the player is auctioned, and not the earnings from playing for country, state or employer.1 But, such an interpretation is not evident from the notification itself, as it uses the term ‘professional sports’ and not ‘professional leagues’. Furthermore, the tweets of Dr. Khemka were made in his personal capacity and cannot be used to interpret the notification or bind the government.

Lastly, there has been a concern raised, about the scope of the term “development of sports in the State” as mentioned in paragraph 1 of the notification and what it entails. It would appear that such activities would be guided by Section 5 of the Haryana Sports Council Act, 2016. The section lists the functions of the State Sports Council. Strangely, in paragraph 2 of the notification, which requires depositing of full income while on duty, it is not clarified as to what the Haryana State Sports Council is required to do with such income.

As noted above, due to the indignation of the sportspersons, the notification has been placed on hold for now. If the state government does wish to move forward with the implementation of this notification or a similar policy, one would expect it to happen upon due consultation with the sportspersons affected by the same. Further, clarity would be required on the aspects mentioned herein before.

Asking employed sportspersons to deposit 1/3rd of the income earned from professional sports and commercial endorsements does seem to be harsh given the short duration of an athlete’s career and the amount of finances required to compete at international level in the present day. Further, the notification does club together all employed sportspersons despite the differences that may arise in their respective earnings. The notification in the present form could have the effect of disincentivising sportspersons from joining employment with the government of Haryana. Thus, it is heartening to note that the Chief Minister has assured that just consideration of all issues regarding the notification.

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