Recently concluded Commonwealth Games at Gold Coast, Australia, witnessed the Indian contingent got a blow for alleged violations of the “No Needle Policy”.
The Athletics Federation of India (AFI) has decided to implement a similar policy.
A brief Background:
India had dropped from third to sixth place on the World Anti-Doping Agency’s (WADA) 2016 List of Offenders.
What makes India’s position unique is that it’s too high on this list, disproportionately so to the levels of its sporting achievement.
What are the rules in India?
Indian anti-doping rules mirror the WADA code and prescribe a framework of strict liability.
For this, the athlete first needs to establish how the prohibited substance entered his/her system.
This burden is justifiably onerous.
In reality, it disables an athlete caught in inadvertent doping.
Inadvertent doping is due to contaminated or mislabeled supplements, misguided medical treatment and at worst, sabotage.
Harmless food supplements like proteins or vitamins used by athletes are often from unreliable sources like private shops or online purchase.
A recent initiative by the Foods and Safety Standards Authority of India (FSSAI) and National Anti-Doping Agency (NADA) to test and certify supplements is still to be fully operationalized.
What is the way ahead?
The government should create a source for safe permitted supplements as it would curb accidental doping.
An athlete accused of inadvertent doping cannot get supplements tested for contamination, having no access to authorized laboratories.
The National Dope-Testing Laboratory (NDTL) is accessible only to NADA or the government.
Any anti-doping initiative should aggressively focus not only on detection but also on education and awareness.
Athletes, support staff, federations, sports medical personnel must be equipped with well-conceived literature, consultation and workshops.
Current efforts are inadequate. NADA’s efforts need to be supplemented by a cadre of indigenous anti-doping experts.
What is the no needle policy?
The AFI has declared that they have drawn up a two-page protocol which would be distributed to all athletes at national camps and training centres.
As a policy, this will be separate from the Anti-Doping Rules and will have to be implemented in silos.
The infringement of policy can lead to a disciplinary action but not an anti-doping sanction.
An impenetrable infrastructure needs to be put in place first, so that cases of sabotage (simply planting a needle in a competitor’s room) do not become rampant.
Restorative, rather than simply retributive justice:
A framework must be created to constructively counsel athletes to understand the real causes, degrees of fault and administrative lapses.
We must recognise the socio-cultural reality of our sportspersons.
Quite a few are from semi-urban or rural backgrounds. To them, sports are the only route to a better economic status.
Literacy and language are serious impediments. They are subject to the whims and dictates of administrators.
Amidst such intense pressure, they compete and carry our nation’s hopes. But when they err, or are accused of doing so, we disclaim all responsibility.
Sports federations, more famous for politicking, must take this blame upfront.
Mandatory Pre-Litigation Mediation In Commercial Disputes
GS Mains Paper-2
Why in news?
Mandatory pre-litigation mediation in commercial disputes has been introduced by the recent Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018, which amends the Commercial Courts Act of 2015.
This amendment is expected to alter parties’ sense of responsibility in resolving disputes. Mandatory pre-litigation mediation puts the ball in the court of the parties involved, rather than looking at external agencies like courts, and urges them to engage with and resolve disputes.
What is the meaning of mediation?
The Commercial Courts Act was legislated to improve the enforcement of contracts, as part of improving the ease of doing business.
The law defines “commercial disputes” to include regular commercial and business contracts, construction contracts, shareholder agreements, licensing agreements, etc.
The law makes changes for reduction of timelines, tightening processes and designating special commercial courts and commercial divisions to deal with these disputes, among others.
What are the new rules?
The ordinance specifies that no suits concerning commercial disputes will be filed under this Act unless the person filing the suit exhausts the remedy of pre-litigation mediation.
If an urgent interim relief is required, this pre-litigation mediation can be dispensed with.
However, in all other cases, the mediation is mandatory and will be conducted within a period of three months (extendable by another two months with the consent of the parties).
Any settlement arrived at through mediation will have the status of an arbitral award on agreed terms and be enforceable like a decree of court.
Importantly, the time limits for filing cases will pause during the time the pre-litigation mediation is underway.
What is mediation?
Mediation is a process of resolution of disputes by the parties to them.
It involves discussion of the conflicts, moving out of the loop of allegations and counter-allegations, and assessing where interests lie in resolving the disputes.
Options for settlement are explored and a settlement is worked out through joint evaluation.
The process is managed by a neutral person called the mediator, who may evaluate the disputes and weigh in on options for settlement (a variant called conciliation) but has no authority to impose a settlement.
What are the other legislations?
Mediation and mandatory mediation specifically, is not new in India.
The Arbitration and Conciliation Act, 1996, makes a settlement arrived at through conciliation enforceable like a court decree.
Under the Code of Civil Procedure, judges can refer cases to mediation.
The Micro, Small and Medium Enterprises (MSME) Development Act, 2006, mandates conciliation when disputes arise on payments to MSMEs.
The Italian case:
Mediation policies in other countries mandate mediations through various mechanisms, with good effect.
Italy, which faces a high rate of pendency of cases, has adopted what is referred to as ‘opt out’ mandatory mediation
In 2010 and 2013, it introduced a law for pre-litigation mediation. Attempts to mediate were made mandatory for certain disputes (like partition and joint ownership of property) before a case was filed in court.
Another approach to mediation policy has been to impose costs on disputants refusing to mediate, as is done in the U.K.
The ordinance is an important step in mainstreaming mediation, but it is not enough.
There is a need for a comprehensive policy on mediation, rather than the abbreviated and disconnected steps so far.
This policy would encapsulate the process, the role and professional responsibilities of mediators, the rights and obligations of parties in the process, and the outcome of the mediation agreement.