This article is written by Kannu Upadhyaya.
Table of Contents
This article will explore the possibility of whether India can criminalize doping. World anti-doping agency code 2021 is the international framework governing doping in sports. Doping as described by WADA 2021 is “Occurrence of one or more anti-doping rules violation set forth in Art. 2.1 through 2.11 of the code”. Doping is prohibited to uphold the spirit of sports – ethical pursuit of each athlete’s natural talent. WADA has time and again maintained a stance for countries to explore the possibility of criminalizing doping under their local penal laws or by enacting a special legislation. Anti-doping program not only seeks to protect the health of athletes but also to provide the opportunity for athletes to pursue human excellence without the use of prohibited substances and prohibited methods while upholding the spirit of sports.
Article 4 of the world anti-doping code contains information on the performance enhancing drugs prohibited for use by athletes. It may include any substance and methods that satisfies any two of the following three criteria (1) It has the potential to enhance sports performance (2) it represents an actual or potential health risk to the athlete (3) violates the spirit of sports. Art. 4.2.2 further divides the list of prohibited substances in three categories (1) substances and methods prohibited at all times (2) substance and methods prohibited in competition (3) substances prohibited in particular sports. The purpose of this subclassification of specified or non-specified is to recognize that it is possible for substance to entre into athlete’s body unintentionally.
Specific substances are found in certain food items and medicines which may be available commonly, thus posing a higher risk of accidental consumption. Civil penalties set by anti-doping law for athletes who use prohibited drugs is seclusion from all results including medals privileges and awards. In addition, there is a penalty where the athlete is prohibited from participating in competition for four years if he has taken drug deliberately with an intent to cheat. Intent is the main essential ingredient in sanctioning doping. Many countries like Australia, UK, France, Germany and China has advocated for criminalization of doping but question of many of the country’s legislator is whether this civil penalty of disciplinary nature is enough or the criminal penalties must also be used to combat doping. India on the other hand a confused and lethargic stand when it comes to criminalization of doping.
I believe the current system of penalties imposed by the WADA code is insufficient to deter athletes from doping. When famous and greatest players of all time like Maria Sharapova and Chris Frome are caught in doping scandals it is safe to conclude that doping is pertinent and current civil penalties imposed by WADA code and National agencies has failed to control doping. This article in further chapters will examine how pillar of Indian criminal jurisprudence works in doping scenarios and will provide for arguments both in favor and non-favor of criminalization of doping and in conclusion will try to explore what is way forward for India and criminalization of doping.
India’s Stance on Criminalization Doping
In 2019 India ranked on 7th in list of doping violations list being topped by Russia and France out of which France has already criminalized doping. According to a report and in order to bring the National doping law in accordance with WADA code sports ministry made a proposal to make doping by athletes a criminal offence in 2016 but recently a month ago after back lashes from Indian Olympic committee the ministry withdrew its proposal. India also included in its preamble of National sports development bill to promote activities to curb doping but unfortunately the bill never saw light of the day.
Many reports by Psychologist and Sports personalities say that the adrenalin of fame and win pushes many athletes into taking performance enhancing drugs in order to gain edge over their competitors. Indian despite being ranked 7th in doping violations lacks a proper governance mechanism that track doping control programs in India. The National Dope testing laboratory (NDLT) got a six-month suspension for not conforming with the International standard for laboratories. Nada is now facing the additional burden of conducting doping test in WADA certified labs outside India, Putting unnecessary financial burden on government. Another issue which Indian athletes, coaches, support staff faces is that they are not aware of the banned substances. For example, Prithvi Shaw who was a national level team candidate was tested positive for banned substances which could be found in over the counter cough syrups clearly suggest that even the elitist of players is not aware about the list of prohibited substances.
To stop this rut of doping, a number of measures need to be taken to ensure doping free sports environment and uphold the spirit of sports. Such as Introducing courses or workshop for all to make the aware of list of banned substances this exercise will also be in accordance with chapter 3 of Wada code which talks about educating. Such courses are offered by UK Anti-Doping agency. India shall definitely pool in more funds to Get labs at par with standards of WADA.
Arguments Against Criminalization of Doping
With some academics interested in criminalization of doping, there are, of course those who are against this change of policy. Some jurist believes that the current civil penalties is enough and criminalization of doping in accordance with principals of WADA could hamper the principals of criminal jurisprudence of that sovereign. This set of arguments contends that doping shall not be criminalized as principals of WADA code does not fit in our criminal jurisprudence. This is contended on two grounds – (1) Difference between doctrine of Burden of proof (2) Non feasibility in applying Strict liability approach.
Difference Between Doctrine Of Burden Of Proof
Article 3 of the WADA code stipulates that burden of proof shall be based on standard of proof and not on “beyond reasonable doubt doctrine”. Standard of proof as described is more than mere preponderance of probabilities but less than beyond reasonable doubt. Principals of criminal liability under WADA runs on standard of proof whereas the principals of criminal law under Indian penal law runs of beyond reasonable doubt. However, this would have to be changed if criminal law were adopted in India which eventually would mean that in order to prove beyond reasonable doubt greater evidence would be required for conviction and those charged with doping offence may never be found guilty. Additional this exercise of gathering strong evidence will not only increase the financial burden but will also be super time consuming.
Gathering evidence in cases of doping could be very tricky and if athlete is found innocent it would only have repercussions and act as a prosecution and not prevention. It is possible that athletes who have doped may subsequently be able to evade punishment specially in cases of organized doping where the trial of evidence is very hard to find. In India it is common knowledge and perception that litigation means being stuck in courts for years as gathering evidence and due process takes time. Due process is essential to free trial which recognized fundamental right under Article 21 of constitution of India. If due process is not followed the criminal jurisprudence might be in risk and would risk fundamental rights of individual. India if wants to criminalize doping than establishing a proper criminal framework for doping in sports is required in order to achieve those elements which are currently missing from sporting governing bodies regulatory disposition which are certainty, consistency and transparency hence India shall definitely make a sports law tribunal for speedy disposal of cases. Unfortunately, Discussion for national sport law tribunal is beyond the scope of this article.
Non-Feasibility In Applying Strict Liability Approach
Another Issue with criminalization of doping is whether Strict liability approach as stipulated under the Article 2.1.1 of the WADA code which cast a personal duty upon athlete to ensure that no prohibited substance enters his body can be applied in context of principals of Indian criminal jurisprudence or not. The article specifically states that “it is not necessary that intent, fault, negligence or knowing use on the athlete part be demonstrated”. One of the arguments in favor of strict liability approach as held in Raducan v. IOC is that imposing strict liability can be seen in this comment as being for the protection of athletes who have not violated the WADA code but has unfortunately competed against somebody who has.
This has been time and again described as being necessary for fair competition rule. Strict liability approach in India criminal law states that the court will assume the violation and the accused will be given an opportunity to mitigate the situation and maybe avoid punishment. This proposition has also been upheld by the CAS in Aanes v. Fina and Artcile 10.5.1 of the WADA code. In addition, going one step ahead CAS in obiter also held that Requiring anti-doping authorities to find any intent would be costly and could potentially cripple some sporting federations. It is common knowledge that Indian sporting federation apart from BCCI and few more has been under funded since time immemorial.
In India strict liability approach has only been applied in crimes against state, crimes disrupting public order and affecting public decency and morality. The supreme court in J.K Industries LTD v. Chief Inspector of factories and boilers held that the offence to attract strict liability principal shall be an offence under a special legislation and not among the offences of genera penal law of the country. The supreme court in Union of India v. M/s Ganesh held that courts generally shall not apply strict liability and laid down two exceptions of strict liability that is grave cases of public nuisance and Public interest. Whether crime of doping is of such nature is debatable among the legal circle although I believe that it is not. If it is then it should have been a criminal offence already.
Arguments in Favor of Criminalization of Doping
“Purpose of criminal framework is not retribution for an injustice, but the protection of athlete’s health, as well as the protection of the social and cultural role of sports, the fair play principal, the genuineness of the results and the general and specific prevention”.
These set of arguments explores the possibility of criminalization of doping as it goes against the very ethics of spirit of sports which WADA code has supported in its preamble. Doping is not an act which not only is harmful for the person who dopes but it also affects the society and young generation which aims to enter into sports industry. The only question here is how criminal jurisprudence fits into creating an offence which is against the very ethics of sports. In this regard I believe the offence of Medical Negligence can hold value as the offence goes against very ethics of due care to be adopted by the doctor therefore doping which goes against the very ethos of sports can be criminalized as well. These set of arguments contends that doping shall be criminalized as (1) Criminal punishment would act as heavy deterrence penalties. (2) State has duty to safeguard health of its citizens.
Among sports law community it has been argued that anti-doping stance shall be supported and that current anti-doping system is ineffective in deterring athletes from doping. The Jail term generally imposed by countries who has already criminalized doping, Jail term suggested by WADA committee and Jail term advocated by Indian sports ministry all revolves around the same time period of 4 years as of 4 years sanction in civil offence. Therefore, it is argued by some jurist that how would criminalization act as deterrent. Here I believe that note that the stigma attached to criminal record is more than civil offence hence I believe criminalization would act as more severe deterrence.
It an undisputed fact that Sports personalities are accorded a higher status in society. Famous personalities in order to maintain the higher status or other personalities in order to achieve the fame sometimes tend to cross boundaries and dope. It is argued by the jurist and psychologist that there is a modelling justification for criminalizing doping as youth competitors will follow the example of their sporting role models. Additionally, athlete carry a public perception and tarnished athlete carries no value to fans and business. The fact that performances are based on doping is devastating to audience and bad for credibility of sports.
Mr. Solberg while conducting empirical study for his research concluded that public has a no tolerance policy for doping. Therefore, it can be argued that criminalization can have a subconscious effect on amateurs entering the sports and society in toto. Bottom argue that evolving response to criminalization of particular act can lead to development of new strand of positive morality. He goes on to give example of drunk driving and argues that there is now substantially greater moral disproval then there was when drunk driving was first made criminal offence. I believe criminalization of doping could create such an educative deterrent over time.
Doping shall also be criminalized as it is harmful to the health. Any act which is hazardous to public health can very much be criminalized in India as the Directive principals of state policy and Art.21 stipulates that to safeguard right to health and safety of Individual is duty of state. As we have already observed above how psychology of sports personalities work in respect to doping it can be safely concluded that sports personalities tend to get into performance enhancing drugs in order to win. Cyclist preferred use of performance enhancing drugs is erythropoietin (EPO) and in 2015 cyclist and British Junior time-trial champion Gabriel Evans admitted the use of EPO.
EPO is a naturally occurring hormone but it is also used for medical treatment of anemia. When EPO is used as performance enhancing drugs this allows more oxygen to pass from lungs to the muscles resulting in better performance. Using too much EPO will cause the blood to thicken, a side effect which has resulted in heart attack and stroke in cyclist. In addition, these acts of undermining health are not only restricted to players at national level but also on players at junior level as we take the case of Gabriel Evans. If players at young age of say 15 or 16 get themselves involve in organized doping scandal the doping can have very harsh ramifications on their health. International cycling union president suggest that grooming young cyclist taking drugs is nothing short of child abuse. I believe since doping include acts which can be dangerous to health specially among young individuals then arguments based on health risk are just for criminalizing doping.
The jurist and legal circle have been divided when it comes to taking stance against anti-doping regime. Some jurist believes that current civil penalties are enough and criminalization and throwing athlete in jail would end his career in toto and hence criminalization is out of proportion. While jurist believes that criminalization is correct measure to curb the menace doping as it has become an organized crime some jurist believes that criminalization in accordance with principals of WADA would not fit into criminal jurisprudence of every sovereign. Just like in case of India as we have analyzed the principals of WADA is more in accordance with criminal jurisprudence on civil law countries and not common law countries. WADA has also maintained this stance that they do not want to interfere in sovereign functions.
In this paper we have analyzed both the positive and negative arguments for criminalization of doping. In conclusion I believe that India should criminalize doping as it has become an organized crime syndicated and players at level of U-16 and U-19 teams are at risk but this shall only be done in accordance with brining into a new special legislation to bring it in accordance with criminal jurisprudence of India for this India will have to deviate from principals of WADA and improvise into Indian standards of criminal jurisprudence. In addition I believe that the sports federations and NADA would not equipped enough to deal with crime of doping under new special legislation and hence a new Sports law tribunal shall be set up in order to provide just and speedy justice otherwise if case lingers on in session court for years it would end the career of sports person in toto. In conclusion I hope to see a bright and doping free future for Indian sports industry.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: