Using Question With the Wolf or Enforcing Accountability from the BCCI with the Law

Written by  //  June 2, 2013  //  Law & The Judiciary, Sport  //  3 Comments

[Based on a twitter conversation which I shamelessly butted in into, on @sidvee's suggestion I'm putting down a few thoughts on the recent BCCI-IPL-SpotFixing fracas.]

Cricket, the Board for Cricket Control in India and cricket fans are in a strange relationship triangle . I suppose love is definitely involved, but I won’t go so far as to call it a love triangle!

The BCCI is the (sole) guardian of cricket’s interests in India. BCCI organizes the cricket, selects the players, creates a fixture list and organizes games across the breadth of the country.

Cricket is many things to many fans. An escape, a drug, a love affair that has its ups and downs but never dies, a comforting presence, a memory of ages past, a thing of nationalistic pride, a source of entertainment and fun, or just a sport to be followed with fellow sports fans and create a community of like minded individuals.

Whatever their respective relationships to cricket, the BCCI and the fans have never enjoyed the best of relationships. To the fans, the BCCI is the bumbling, corrupt and incompetent monolith incapable of thinking about anything but money. To the BCCI, the fans are a fickle and dangerous mob who are like a bunch of petulant children constantly in need of amusement and mollification. Yet, the BCCI needs the fans. Cricket in India survives because of the passion of the fans.

And the fans need the BCCI. Where India is in the cricket world was not foreordained simply because of the opened up economy and the demographic dividend. The BCCI has done the hard work of spreading cricket to the smaller centres, created the wealth and infrastructure,  and stood up for India’s rightful position as the most important country in world cricket.

How should fans therefore relate to the BCCI and vice versa?

It is here that we find the problem of accountability.

Accountability, a word more often used in the context of businesses and the State within a specific framework of laws, poses problems when used in the context of a privately run and managed sports body and the fans of that sport who are not members of the sports body. Unlike with governments, cricket fans can’t vote the BCCI leadership out. Unlike with public companies, cricket fans can’t force the company to act as a a majority of shareholders want it to. Unlike with businesses we can’t just take our custom across the road because cricket is not a fungible commodity (whatever the economists among you may think!).

The only option left to the cricket fan therefore is perhaps the Courts.

That path seemed closed by the judgment of the Supreme Court of India in Zee Telefilms v Union of India, a case that spawned the Indian Cricket League and indirectly, the Indian Premier League as well. The long and short of it is that Zee Telefilms which lost the bid to broadcast cricket in India to ESPN Star Sport challenged BCCI’s decision to cancel Zee Telefilm’s bid in the Supreme Court of India under Article 32 of the Constitution on the basis that BCCI’s decision was unconstitutional. This required a two step argument – 1) to show that BCCI was “state” as defined in Article 12 of the Constitution and 2) since it was “State” it was bound by the equality clause of Article 14 of the Constitution of India which has also been interpreted by the Courts to include a duty not to make arbitrary decisions. In a narrow 3-2 ruling the Supreme Court of India threw out Zee Telefilm’s case on the ground that BCCI was not “State” for the purposes of the Constitution. The majority ruled that since the BCCI was not government run, funded or controlled, or perform any governmental functions, it could not be State whereas the minority judgment analyzed the BCCI’s functions and found that it was in fact “State”.

The majority judgment is of course right. It had no choice but to apply a 7 judge Bench decision of the Supreme Court of India in Pradeep Kumar Biswas v Indian Institute of Chemical Biology which laid down the test to determine whether a given body is “State” or not for the purposes of Article 12. Broadly, the test the Supreme Court laid down in Pradeep Kumar Biswas relates to whether or not the body in question is created by a law (as opposed to created under a law), has law making powers itself and is performing functions that would otherwise be performed by the Government. The majority, on applying this test to the BCCI, found that it did not meet that test and therefore held that it was not “State” under Article 12 and Zee could therefore not approach the Supreme Court directly to seek enforcement of fundamental rights against the BCCI.

Yet, the door was not shut entirely against litigants aggrieved by the BCCI’s actions. A crucial passage in the majority judgment goes on to state,

 Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32. (emphasis mine)

The implication is that anyone aggrieved with the BCCI can still approach the High Courts seeking relief under Article 226 for the violation of any legal right. It does not even need to be a fundamental right protected by the Constitution. Under Article 226, the powers of the High Court to give relief suitable to the facts of the case are much wider than the Supreme Court of India under Article 32.

As I’ve written before, this little door of opportunity was seized upon by the Kerala High Court to begin criminal proceedings under the Prevention of Corruption Act, 1986 against officials of the Kerala Cricket Association for misuse of funds. The Supreme Court upheld this order relying precisely upon the above passage from Zee Telefilms.

The Supreme Court hasn’t yet categorically held that the BCCI is an “authority” for the purposes of Article 226. Yet, the Supreme Court has acknowledged that some of the functions carried on by the BCCI would mean that it could be treated as an “authority” for the purposes of Article 226 of the Constitution.

Theoretically, therefore, there is no bar preventing an aggrieved fan approaching the Constitutional Courts of India against the BCCI.The problem however is showing what legal right has been violated by the BCCI’s actions.  Obviously for regular civil disputes relating to contract, property, et al the civil courts can always be approached. For tax and competition law cases, the appropriate regulators have all been actively at the heels of the BCCI.  The difficulty is in showing how the average cricket fan of the country has a legal right to demand that the BCCI be run along certain lines.

One possible route to enforcing accountability is the Right to Information Act which can be applied to all “public authorities”. However, “public authorities” defined under Section 2(h) are only those bodies created by the Constitution, Central or State Laws or substantially controlled, funded and financed by the State or Central Government. The BCCI and respective state associations (except the Services Sports Control Board and the Railways Sports Promotion Board) clearly do not fall under these definitions. Only an amendment to the RTI Act, which brings sports associations which select national teams for that sport, irrespective of how such associations are constituted can bring the BCCI under this Act.

Of all the various “stakeholders” that the BCCI repeatedly harps about, the average cricket fan enjoying the game, either at the stadium or elsewhere is the one who has the least power in her dealings with the BCCI. Advertisers  and sponsors have the power to withdraw their sponsorship. The various constituent associations of the BCCI have the all important vote, and indirectly their members as well. Players, at least those on the State teams and the national enjoy the protections of a contract and a professional relationship with the Board. Perhaps more could be done to empower them, but surely they are nowhere near as voiceless as the ordinary fan.

In the darkest moments of despair, I wonder if all the talk about accountability is laughably silly when it comes to cricket and the BCCI. After all, to borrow a popular Marx-phorism, is the pusher “accountable” to the junkie? If the weed is good, if the highs are accessible and available, what does the junkie care beyond that and as long as the money pours in, and as long as the the law stays away, what does the pusher care? So sometimes there are turf wars, new druglords come and old ones fade away, as long as the goods are being delivered, what do the junkies care?

But I know I’m being unfair to the fan. The fan doesn’t need a metaphorical hit to get through the day. Junkies don’t spend hours debating the  relative merits of drugs or the technical excellence in the manufacture or worry about the future of the drug for that matter. To be sure there will always be the casual fan who’ll switch off and shift to something else occupy the time. But the cricket fan, the one on whose back the BCCI struts the world scene, dictates terms to Governments and poses itself as the envy of the cricket world cares, and cares deeply about the cricket.

Is it too much to expect the BCCI to acknowledge that fact once in a while at least?

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A Supreme Court/Delhi High Court lawyer who writes a bit with a potentially fatal weakness for hyperlinks, tags, and the reader's approval. Follow @alokpi

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