The Legality and government control on bcci

Introduction

Cricket is a thrilling game to play and watch. It is considered as one of the most popular sports in the world and particularly in India. It provides the mass population of the country with immeasurable entertainment and at the same time strengthens the country’s economy by producing heaps of revenue. Cricket especially in India bridges the gap in society by bringing everyone closer and binding the society as a whole. The sport which is important for both entertainment as well as professional career perspectives needs to be regulated and monitored carefully in a country like India with such a large population associated with and affectionate towards it. [1]The Board of Control for Cricket in India (BCCI or also aforementioned as the Board) regulates and overlooks the growth and development of Indian Cricket and all aspects related to it. The BCCI is the national governing body of Cricket in India established in 1928 under the British Raj and officially registered under the Tamil Nadu Societies Registration Act, 1975 after independence. Unlike other national sports bodies in the country, the BCCI’s uniqueness comes from the fact that it doesn’t come under direct purview of the government of India. Despite numerous legal battles and challenges, the BCCI has proven itself to be a private entity, and thus Legal Control of Cricket in India largely lies outside of the government’s jurisdiction as well.

Zee Telefilms v Union of India and Ors

Until 2004, according to the Ministry of Youth Affairs and Sports, BCCI was under ‘de facto control’ of the government. Even though no exclusive legislation was passed by the government giving authority to the BCCI to govern over all matters related to the sport of cricket. The government still recognised it as the apex body for this purpose and in accordance with that assumption granted the BCCI tax exemptions, authority to select the national team as well as represent the country internationally. The government treated the Board as a public body instead of a private club and expected it to be accountable at the request of the government. In 2004, the Zee telefilms v Union of India and ors[2] was filed in the supreme court under writ jurisdiction of article 32 regarding a contractual dispute. The question of whether BCCI lies under the definition of ‘State’ or not under the Article 12 of the constitution came up in this case. Article 12 states that: ‘In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.’[3]

The judgement with a 3:2 majority held that the BCCI doesn’t fall under the scope of article 12. This judgement was arrived at by following the tests laid down in the previous case of Pradeep Kumar Biswas v Union of India. The BCCI according to the court was not created by a legislative statute, it did not receive any significant financial assistance from the state, it did not have a monopoly status conferred by the state and neither was there any deep pervasive control of the state in the activities of the government. Following these parameters set by the supreme court, it was agreed by the majority bench that BCCI wasn’t financially, functionally or administratively dominated by or was under the control of the Government.[4]

The judgement further stated that despite BCCI performing a public duty, these actions aren’t authorised by the government. Private organisations in India were left in charge of managing and regulating cricket, at the government's behest. Even though the state may have considered a de facto control over the Board, the control wasn’t granted by any other legislation or statute, and thus the board was established to be an autonomous body by the supreme court government. The court further mentioned that the state does have some control over the BCCI which is purely regulatory and not administrative. However, the BCCI does perform a public duty, and there could be instances of violation constitutional or statutory obligation or other rights of citizens, which is why despite denying any petition against the BCCI under Article 32, the aggrieved party can still seek remedy by petitioning under Article 226 in the High Courts which has a much wider scope than Article 32. Therefore it was exclusively established that the BCCI still remained the apex authority for regulation of cricket in India without much control over it.[5]

BCCI v. Association of Bihar

The BCCI v. association of Bihar[6] is a case of importance as one of the key issues that were framed under it was whether the BCCI can be considered a part of the "State" under Article 12 of the constitution and if not then whether it is amenable to the writ jurisdiction of the High court under article 12 of the Indian constitution. Thus, the learned Bench observed that even though the Board performed important public functions akin to State functions, it may come under provisions of Article 226 (which empowers high courts to issue, to any person or authority, including the government-in appropriate cases) instead of Article 32.

Furthermore, the Courts concluded keeping in mind the public functions, that although BCCI can be covered under Article 226, it may not be considered to be "State" for the purposes of Article 12 referring to the case of Zee Telefilms v. BCCI judgement. However, in BCCI v. Association of Bihar, the court did expand the scope of the "State", by incorporating the "nature of duties and functions" test. The important thing to note is that the “nature of the duties and functions” test implies the duties and functions that an institution carries out which further determines the profile of the institute. Hence BCCI, although is a private body, carries various functions, predominantly public in nature like the selection of the Indian team to represent the country in the international Cricket arena. Thus it can be regulated under Article 226 of the Constitution thereby, making it amenable to the writ jurisdiction of the High Court under Article 226. As Article 226 of the constitution confers wide powers on the High Courts to issue writs in the form of prerogative writs. Furthermore, under Article 226, writs can be issued to "any person or authority". The word Authority in this scenario has a liberal meaning unlike Article 12 where it is of relevance only for the enforcement of fundamental rights under Article 32. Thus Article 226 confers power on the High Courts for the issuance of writs necessary for the enforcement of fundamental or non-fundamental rights.[7] Thus the words "any person or authority" used in Article 226 are not bound only to statutory authorities or the instrumentalities of the State but also to any other person or body performing public duty. The form of the body concerned is not very relevant. Therefore the final judgement of the supreme court was that though the BCCI is not a state under article 12 of the Indian constitution it still discharges the “Public Functions” hence it is amenable to the writ jurisdiction of the high court under 226 of the Indian constitution.

Law Commission 275th Report

[8]In the BCCI v Bihar Cricket Association case, the Supreme Court of India analysed BCCI's functioning and discovered that it is plagued by a number of problems. It suggested that the Memorandum of Association of the BCCI should be looked into. The Law Commission of India was entrusted by the Supreme Court of India to examine whether the BCCI comes under the ambit of the Right to Protection Act (RTI) and make recommendations accordingly. The report[9] quoted the then minister of Youth Affairs and Sports, who stated in parliamentary proceedings that any National Sports Federation (NSF) receiving a grant of more than 10 Lakhs would come under the purview of the RTI under section 2(h). The minister further stated that the ministry still considered the BCCI as an NSF. According to this, the report supported the premise that the BCCI should come under the RTI act. An important observation was that the magnitude of ‘control’ that the government exercises under RTI is much lesser than what is required under Article 12 of the constitution. Therefore, the notion that BCCI would have to be covered under the RTI system is supported by the fact that the threshold for "public authority" is lower than that of "State" under Article 12.

Moreover, the Law Commission states that even if the BCCI is continued to be perceived as a private body instead of being brought under Article 12, owing to its monopolistic character along with the public duties it performs as well as ‘substantial financing’ it has received from the state in form of tax exemptions, land grants etc it can still be within the existing legal framework considered to be brought under the RTI act. Furthermore, the report concludes by stating that the Central Government already considers BCCI as an NSF pertaining to the activities it forms nationally as well as internationally for the sport of cricket and therefore to remove any confusion, it should explicitly mentioned as an NSF on the list on the ministry’s website, which would automatically bring it under the control of RTI provisions as well.[10]

If the government approves the suggestion, BCCI will need to put up a system for disseminating information akin to that used by government departments in order to respond to inquiries and deliver information requested through RTI applications.[11]

Geeta Rani v Union of India and ors

BCCI is not a governmental organisation. It is not responsible to the government nor does it have to follow its orders. These provisions made a petitioner namely Geeta Rani to petition against the union of India and BCCI asking the government to dissolute the BCCI of its power to be the apex controlling body of cricket and all powers associated to it and set up one of its own, which comes under the control of the government under article 12. Petitioner’s pleading was that a private body should not be allowed to govern over a sport of such a huge stature in the country without the union having any control. Its actions must be evaluated and seen through the prism of higher standards, having in mind both the welfare of the general populace and the cricket sport. The bench however held this petition and all subsequent petitions being filed related to this as frivolous since the supreme court has already ruled on these issues in the past and has been monitoring the Board’s activities for a few years by setting up committees. Therefore the prospect of a new commission to be set up by the central government or the dissolution of the BCCI was rejected by the court in said plea.

Lodha Commitee:

[12]The Lodha Committee was created for the sole purpose that is to analyse and recommending implementable actions for improving the Board of Control for Cricket in India due to the submission of a report by Justice Mukul Mudgal Committee after an investigation into the 2013 IPL betting scandal. As a result n January 2015, the Court appointed a 3 member panel, headed by former Chief Justice of India, RM Lodha, to decide on the quantum of punishment for Meiyappan and Kundra and for the respective franchises if it were to be necessary which the also be binding upon the BCCI and the parties concerned. And to also suggest amendments to the processes followed by the BCCI in order to prevent fraud and conflict of interest in the sports industries while also ensuring that the board is more responsive to public expectations. Thus to curb this the committee addressed various problems mainly under-representation and over- representation of some state as some states like Bihar Chhattisgarh, Uttarakhand, and six North-Eastern States(Sikkim, Manipur, Meghalaya, Nagaland, Arunachal Pradesh, and Mizoram are unrepresented on the Board. While states like Maharashtra and Gujrat had 3 full representative members representing parts of their states a credible example would be Maharashtra exercises votes through the Associations of Mumbai, Vidarbha, and Maharashtra. Besides this various other problems like “members not representation territories or playing matches’, ‘arbitrary additions and removal of associations’, “un-representation of union territories” etc were also addressed. Therefore solutions like the policy of ‘One State – One Member – One Vote’, No multiple associations from a single State, services railway status of associates not having any voting rights etc were applied in order to bring reform and bring transparency to the field. Hence as of February 2016, the Supreme Court gave directions for BCCI to implement the report recommendations of the Lodha committee. Hence the Lodha committee addressed and proposed many solutions to bring about reformation in the BCCI in the matters of Structure and Constitution, Governance, Management, Conflict of Interests etc[13]

Conclusion

In conclusion, the BCCI despite being considered as a National Sports Federation by the government along with some regulatory controls over it is ultimately an autonomous private body having the maximum powers of controlling cricket in the country along with being one of the most influential and richest cricket authorities in the world. [14]The Lodha Committee appeared to imply that legislation would be necessary to bring the BCCI under the purview of the RTI Act, but the Law Commission of India believes that simple formal administrative notification of the BCCI as a National Sports Federation by the government (presumably the Ministry of Youth Affairs and Sports) should be sufficient. But due to lack of political will, the RTI Act would not be applied to the BCCI on either count. The political will to force the BCCI to public openness is unlikely to occur naturally given that Indian Ministers have historically held crucial BCCI posts; as a result, such an outcome could ultimately and once again necessitate court intervention.

References [1] THE BOARD OF CRICKET CONTROL OF INDIA MEMORANDUM OF ASSOCIATION AND RULES AND REGULATIONS < https://documents.bcci.tv/documents/bcci/documents/1638281851_BCCI-%20Constitution-.pdf> accessed on 1st October 2022 [2] MANU/SC/0074/2005 [3] INDIA CONST. art. 12 [4] Id. at 1 [5] Id. at 1 [6] Board Of Control For Cricket vs Cricket Association Of Bihar & Ors on 18 July, 2016 <https://indiankanoon.org/doc/101366341/> accessed on 1st October 2022 [7] Supra Note 1 at para 32 [8] MANU/TN/1773/2019 [9] 275th Law Commission of India Report, LEGAL FRAMEWORK: BCCI vis-à-vis RIGHT TO INFORMATION ACT, 2005 <https://lawcommissionofindia.nic.in/reports/Report275.pdf> accessed 1 October 2022 [10] Id. at 8 [11] BCCI a ‘state’, bring it under RTI ambit: Law Commission <https://www.hindustantimes.com/cricket/law-commission-urges-centre-to-bring-bcci-under-rti-act/story-RX3y9YVg4MpHezQoeNwSbJ.html> accessed 1st October 2022 [12] Lodha Committee Report On Cricket Reforms: An Overview < https://blog.ipleaders.in/lodha-committee-report-cricket-reforms-overview/#_ednref2> accessed on 1st October 2022 [13] REPORT OF THE SUPREME COURT COMMITTEE ON REFORMS IN CRICKET [Volume One – Report & Annexures] <https://gujaratcricketassociation.com/wp-content/uploads/2020/01/Lodha_Committee_Report.pdf> accessed on 1st October 2022 [14] The BCCI And Public Transparency – A Review Of The Law Commission Report On The Applicability Of The Right To Information Act <https://www.lawinsport.com/topics/item/the-bcci-and-public-transparency-a-review-of-the-law-commission-report-on-the-applicability-of-the-right-to-information-act> accessed 1st October 2022