INTRODUCTION

On 12th August 2022, the National Anti-Doping Act, 2022 (“Act”) was notified by the Ministry of Youth Affairs and Sports (“MYAS”).¹ However, the Act is yet to be enforced, as  the central government has not notified it in their official gazette. Globally, doping is regulated by the World Anti-Doping Agency (“WADA”), an international agency, which functions autonomously and is responsible for developing, harmonising, and coordinating rules related to doping across all sports. The primary aim of the Act is to implement a regulatory framework which would govern anti-doping in India. This step has been taken to improve the healthcare of sports athletes who have been subject to undertaking performance-enhancing drugs in the past. Previously, India had ratified the United Nations Educational Scientific and Cultural Organisation International Convention against doping in sports (“UNESCO Convention”) in light of which the National Dope Testing Lab (“NDTL”) and the National Anti-Doping Authority (“NADA”) were established.² However, the MYAS has failed to incorporate holistic healthcare laws in the sports sector which would mandate a robust legal compliance services mechanism to be developed by the national sports federations. In light of this, the role of NADA extends to:

Due to delay in enforcement by the Central Government, there are continued legal ambiguities and potential challenges in anti-doping enforcement, impacting athletes and sports federations.³ NADA,  established in 2004, was initially registered as a society under the Societies Registration Act, 1860, and thus did not have statutory authority and was functioning as a non-statutory body. However, the Act has recognised NADA as a  body corporate.⁴ Currently, the National Anti-Doping Rules, 2021 are in force which provides a comprehensive framework for anti-doping measures in India. These rules are aligned with the World Anti-Doping Code, 2021 (“WADA Code”) and covers prohibited substances, therapeutic use exemptions, testing protocols, results management, and sanctions. They are enforceable and serve as the primary regulatory mechanism for anti-doping activities in the country.⁵ However, the Parliamentary Standing Committee on Sports, noted that there were no anti-doping legislations in India, which addresses the challenges specific to the Indian sports landscape. This resulted in  multiple legal disputes and increased costs to be undertaken by federations outsourcing requisite legal compliance services.⁶

KEY FEATURES OF THE ACT

(a) Ban on Drugs

The Act expressly bans athletes, support personnel, and any other persons from indulging in doping in sports.⁷ For clarity, the Act also provides for an exhaustive definition of athlete support personnel.⁸ Certain provisions enumerated within the Act, that are required to be complied with by athletes and any such other persons, include: 

An application must be made to NADA, for exemptions from the use of any prohibited substance, on the ground of any medical condition.⁹

(b) Changes in NADA

The Act advocates for establishing NADA as a statutory body, and prescribed that NADA be headed by a director general who will be appointed by the Central Government.¹⁰ The key functions which have been set forth for the body are: 

Additionally, the Act encourages NADA to collaborate with relevant authorities and stakeholders to devise the best practices in marketing, adoption, and distribution of nutritional supplements.¹¹

(c) Database on Athletes and Doping 

The Act empowers NADA to collect data on athletes¹², and mandates NADA to publicly disclose information pertaining to the name of an individual, violation of anti-doping rules, and penalties imposed for such actions.¹³ Certain information which is collected for the database involves: 

National Board for Anti-Doping in Sports

The Act provides guidelines to establish a National Board for Anti-Doping in Sports (“Board”) to ensure compliance with international principles and provide recommendations on anti-doping regulations in India.¹⁴ Essentially, the Board shall act as a body overseeing the day-to-day functioning of NADA. The Board is appointed by the Central Government and includes a chairperson and two additional members.¹⁵

(d) Dope Testing Laboratories 

Dope testing laboratories which are currently existing have been rebranded as NDTLs and elevated to the status of the primary testing laboratories under the Act.¹⁶ The government has the power to recognise more than one laboratory as a NDTL and establish more NDTLs if required. NDTL is responsible for testing samples for any sports or federations that are not recognised by appropriate bodies; collecting samples for testing and analysis regardless of the occurrence of national or international events; and undertaking any other tests as prescribed.¹⁸

(e) Penalties

The penalties for an anti-doping violation are adjudicated by the National Anti-Doping Disciplinary Panel (“Disciplinary Panel”) which can be appealed at an appellate body that is to be established as per the Act.¹⁹ The primary function of the Disciplinary Panel and appellate body includes hearing matters on: (a) rejection of therapeutic use exemptions; (b) any penalty levied against anti-doping violations; and (c) any other decision as may be prescribed.²⁰ Consequences of such violations include: 

The Act allows parties to appeal decisions made by the appellate body at the Court of Arbitration for Sports.²¹

COMMENTS AND ISSUES ON THE ACT

(a) The World Anti-Doping Code, 2021 (“WADA Code”) requires national anti-doping organisations to operate as independent bodies.²² However, the Act fails to establish the independence of NADA on two counts. Firstly, the Act prescribes that NADA will be headed by a director general appointed by the Central Government.²³ However, the qualification of such director general is not mentioned under the Act, and has been left to be notified via the new rules that are yet to be implemented. Secondly, the Act allows the director general to be removed from office on the grounds of misbehaviour, incapacity, or such other grounds for which the power has been granted to the government. The scope of ‘such other ground’ has not been specified under the Act.²⁴

(b) The Disciplinary Panel has been vested with the power to hear and determine the consequences of anti-doping rule violations.²⁵ The Board has been given the power to constitute the Disciplinary Panel.²⁶ However, unlike the WADA Code, the person appointed to the Disciplinary Panel is not required to have anti-doping experience as a mandatory criterion to be appointed. 

(c) The WADA Code requires that the hearing of an anti-doping rule violation is to be done with operational independence, which means the disciplinary proceedings for any anti-doping violation must be independent without any interference from any third party.²⁷ This ensures that the adjudicating member of such a panel can only be removed on limited grounds that come under the ambit of objective or overriding legal reasons. However, the Act provides the Board with the power to remove members from the Disciplinary Panel on grounds that are specified in the regulations which are to be framed by the Board.²⁸

(d) The Act allows NADA to collect, use and protect the personal data of athletes, which will be maintained and used in accordance with data privacy regulations provided by NADA.²⁹ However, the Act fails to provide guidelines on the maintenance and use of such data which has been left to be specified under the rules.

(e) The Act fails to account for e-sports and e-doping under its purview, which is specific and prevalent in e-sports.Top healthcare law firms have opined that this is a huge lapse in the framing of the legislation as the scope of doping cannot be limited to traditional substance use and must extend to e-doping which affects the virtue of fair competition in e-sports. 

CONCLUSION

The introduction of the Act is a welcome step taken in India as there was a pertinent need to regulate doping-related activities, and provide statutory authority to NADA as an organisation. To that end, it is important that the government notifies the Act, as soon as possible. Nevertheless, the Act attempts to capture the essence of the WADA Code, which is considered as globally recognised international standard to be adhered to. Moreover, there are clarifications on the provisions which are still required to be provided to have an effective impact in curbing the practice of doping among athletes. 

[1]https://prsindia.org/files/bills_acts/acts_parliament/2022/The%20National%20Anti%20Doping%20Act%202022.pdf

[2]https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/13062022_143509_102120474.pdf

[3]Sonali Chhaburao Gite v. Union of India, MANU/DE/4507/2024.

[4] Section 14 (1), National Anti-Doping Act, 2022.

[5]https://indianathletics.in/wp-content/uploads/2021/02/NADA-India-Rules-2021.pdf.

[6]https://cms.rajyasabha.nic.in/UploadedFiles/Synopsis/SynopsisUpload/Session_257/English_030822.pdf

[7]Section 3, National Anti-Doping Act, 2022.

[8]Section 2(e), National Anti-Doping Act, 2022.

[9]Section 5, National Anti-Doping Act, 2022.

[10]Section 14(3), National Anti-Doping Act, 2022.

[11]Section 16 (3)(j), National Anti-Doping Act, 2022.

[12]Section 27(1), National Anti-Doping Act, 2022.

[13]Section 27(4), National Anti-Doping Act, 2022.

[14]Section 7(1), National Anti-Doping Act, 2022.

[15]Section 7(2), National Anti-Doping Act, 2022.

[16]Section 26(1), National Anti-Doping Act, 2022.

[17]Section 26(2), National Anti-Doping Act, 2022.

[18]Section 26(3), National Anti-Doping Act, 2022.

[19]Section 11(1), National Anti-Doping Act, 2022.

[20]Section 22 and 23, National Anti-Doping Act, 2022.

[21]Section 23(9), National Anti-Doping Act, 2022.

[22]Article 20.5, World Anti-Doping Code, 2021.

[23]Section 14(3), National Anti-Doping Act, 2022.

[24]Section 15(8), National Anti-Doping Act, 2022.

[25]Section 11(1), National Anti-Doping Act, 2022.

[26]Section 11(3), National Anti-Doping Act, 2022

[27]Article 8.1, World Anti-Doping Code, 2021.

[28]Section 11(1)(4) read with Section 30(1)(d), National Anti-Doping Act, 2022.

[29]Section 27 (1), National Anti-Doping Act, 2022.