BCCI v. Cricket Association of Bihar

  In the Supreme Court of India
Name of the Case  BCCI v Cricket association of Bihar
Citation AIR 1993 SC 892
Year of the Case  2016
Appellant Board of Control of Cricket
Respondent Cricket association of Bihar
Bench/Judges T.S. Thakur, Fakir Mohamed Kalifulla
Acts Involved  Article 19, Article 19(1), Article (32)
Important Sections Anti Corruption law

Abstract

The game of cricket religiously followed in India has always attracted the limelight for the wrong reasons. Though a lot of glamour and publicity is attached to it, yet it is also affected by a fair share of controversies which have brought about utter disrespect for the people responsible for administering this game from all corners of the country due to its improper functioning in India. It is often believed that operations pertaining to the game are defined by conflict of interests and lack of transparency which are detrimental to the proper organization of the game in this country.  Besides that, often questions have been raised in relation to the legal status of the Board of Control for Cricket in India (BCCI) and liability arising out of the misuse of power exercised by it, which have attracted the attention of the Honorable Supreme Court of India.  With the help of this paper, the author aims to analyze the case of Board of Control for Cricket in India v Cricket Association of Bihar and analyze as to whether this judgment is another instance of leniency adopted towards people associated with the BCCI or whether an attempt has been made at restricting the powers of people related to it and bringing about accountability in the operations of the board in relation to cricket administration in this country.

Introduction

Change it is famously said is all that is constant in the world. And yet the world hates change, no matter, it is only change that has brought progress for mankind. Statesmen, Scholars and Scientists have spoken for change and eulogized its significance. For instance Charles Darwin has spoken of ‘change’ in the context of his theory of evolution and declared “It is not the strongest of the species that survive, not the most intelligent, but the one most responsive to change.” Benjamin Franklin, put it more pithily when he said, “When you’re finished changing, you’re finished”. Albert Einstein spoke of change when he said “The world as we have created is a process of our thinking. It cannot be changed without changing our thinking.” The truth is that resistance to change stems partly from people getting used to status quo and partly because any change is perceived to affect their vested interest in terms of loss of ego, status, power, or resources. This is true particularly when the suggested change is structural or organizational which involves some threat, real or perceived, of personal loss to those involved. No wonder, therefore, that the portents of change which the recommendations made by the Committee appointed by this Court symbolizes are encountering stiff resistance from several quarters interested in continuance of the status quo. The fact that the recommendations for change come from a body whose objectivity, fairness, sense of justice, equity and understanding of the problems that are crying for a solution are beyond any doubt or suspicion has made little or no difference to those opposing the recommendation.

Issues

These proceedings are a sequel to our order dated 22nd January 2015 [BCCI vs. Cricket Association of Bihar and Ors., (2015) 3 SCC 251]. We had by that order answered seven distinct questions formulated in para 20 thereof. Six out of those questions related to allegations of sporting fraud, conflict of interest leveled against functionaries of the BCCI and the jurisdiction of a writ court to intervene and issue directions considered appropriate in the circumstances. This Court held that even when the Board of Control for Cricket in India was not “State” within the meaning of Article 12, it was amenable to the writ jurisdiction of the Court under Article 226 of the Constitution of India as it was discharging important public functions. Building further on that finding, this Court had while dealing with Question No.7 set up a Committee comprising Justice R.M. Lodha, former Chief Justice of India as Chairman with Justice Ashok Bhan and Justice R.V. Raveendran, former Judges of this Court as members to determine and award punishment considered appropriate on those found guilty by Justice Mudgal’s Committee and to examine for any disciplinary or punitive action, the role played by Mr. Sundar Raman with the help of the investigating team constituted for that purpose. More importantly we had requested the Committee to examine and make suitable recommendations on the following aspects:

119.1. Amendments considered necessary to the memorandum of association of BCCI and the prevalent rules and regulations for streamlining the conduct of elections to different posts/officers in BCCI including conditions of eligibility and disqualifications, if any, for candidates wanting to contest the election for such posts including the office of the President of BCCI.

119.2. Amendments to the memorandum of association, and rules and regulations considered necessary to provide a mechanism for resolving conflict of interest should such a conflict arise despite Rule 6.2.4 prohibiting creation or holding of any commercial interest by the administrators, with particular reference to persons, who by virtue of their proficiency in the game of cricket, were to necessarily play some roles as coaches, managers, commentators, etc. 119.3. Amendment, if any, to the memorandum of association and the rules and regulations of BCCI to carry out the recommendations of the Probe Committee headed by Justice Mudgal, subject to such recommendations being found acceptable by the newly appointed committee.

119.4. Any other recommendation with or without suitable amendment of the relevant rules and regulations, which the committee may consider necessary to make with a view to preventing sporting frauds, conflict of interests, streamlining the working of BCCI to make it more responsive to the expectations of the public at large and to bring transparency in practices and procedures followed by BCCI.”

Arguments

The Committee accordingly heard the individuals and the Franchisees found guilty by Mudgal Committee and by an order dated 14th July 2015 awarded punishments considered just and proper. The Committee also by a separate report dated 18th December 2015 examined the role of Mr. Sundar Raman and exonerated him of the charges levelled against him. By a separate report dated 18th December, 2015, the Committee has recommended several steps and measures that would in its opinion streamline the working of the BCCI and possibly prevent any aberrations or controversies in which it has been embroiled in the past. We shall presently refer to the findings and the recommendations of the Committee in greater detail, but before we do so, we must mention that on receipt of the Committee’s report and the recommendations, we had issued notice to the parties to give them an opportunity to respond to the same. The BCCI has, accordingly, submitted its reply to the reports and the recommendations made therein. In addition, several other organizations and individuals have intervened to file their responses and objections to the reports and the recommendations and raised several issues.

At the same time certain other intervenors have stoutly supported the report of the Committee and the recommendations made therein. For instance, intervening applications made by Mr. B.S. Bedi and Mr. Kirti Azad, Cricket Association of Pondicherry and several others have supported the recommendations made by Justice Lodha Committee. The recommendations are also supported by the respondent Cricket Association of Bihar, who has prayed for acceptance of the recommendations and issue of directions for appropriate follow up action in implementation of the same.

We have heard at considerable length learned counsel for the parties and those appearing for the intervenors. As noticed earlier the task assigned to the Committee was to recommend such changes in the rules and regulations of BCCI as would in the opinion of the Committee safeguard the interest of public at large in the sport of cricket, improve the ethical standards and discipline in the game, streamline and promote efficiency in the management of BCCI, provide accessibility and transparency, prevent conflict of interest situations and eradicate political and commercial interference and abuse and create mechanisms for resolution of disputes within the BCCI. The direction issued by this Court for all round reform in the working of the BCCI and the conduct of its affairs proceeded fundamentally on the juristic foundation that BCCI was discharging public functions and is, therefore, subject to the rigors of ‘Public Law’ making it mandatory for the BCCI to adhere to the principles of reasonableness, fairness, accountability and transparency.

The Committee had in the right earnest circulated a detailed questionnaire to various stakeholders, aficionados, and patrons of the game. The questionnaire was based on the view taken by this Court in the main judgment, the existing rules and regulations of the BCCI and various articles and news reports which pointed out the flaws and loopholes in the cricket administration in this country. The questionnaire contained 135 questions grouped under 8 distinct heads of areas of concern for cricket administration namely (a) Organization, structure and relationship (b) Source and extent of jurisdiction (c) Offices, committees and elections (d) Commercial engagements, contracts and services (e) Audit, accounts and finances (f) Player welfare and dispute resolution (g) Conflict of interest (h) Oversight and transparency.

The Committee conducted over 35 days of sittings at Mumbai, Bangalore, Chennai, Kolkata, Hyderabad, and New Delhi in the process providing ease of access to respective representatives from various zones and primary Test Centers. The Committee also interacted with 75 persons in India including Former Captains, International and First-Class Players, Coaches, Managers, Administrators, Journalists, Talent scouts, Authors, Lawyers, Club Owners, Selectors, and a Former Chief Justice of a High Court. Suggestions made by those who responded to the questionnaire and those who interacted with the Committee were summarized. The Committee also researched media reports, documentaries, published material, draft legislations, books, and articles, apart from several unsolicited missives from Cricket fans, local experts, and administrators about how maladministration was rife in cricket all over the country. The Committee appears to have received complaints of defalcation and siphoning of funds, opaqueness in administration, blatant favoritism, and political interference in almost all State Associations, varying only in degree from place to place. The Committee prepared a comparative analysis of international sports policy and how the same were structured in their constitution, electoral process, and overall management and how measures exist to check conflict of interest and enforce ethics.

Holdings

Based on the interactions held and the responses received from various quarters, the Committee identified the problem areas in the functioning of the BCCI, and upon an in-depth appraisal of the material and the interactive sessions held by the Committee came to the definite conclusion that BCCI has been suffering from many ills that had become endemic due to the apathy and involvement of those at the helm of the Board’s administration. The Committee recorded a specific finding that the problems faced by the BCCI have been compounded by the involvement/association of many high functionaries in the Central and State Governments some of whom had remained in charge of the administration of the BCCI for several decades. It also concluded that many officials of the State Associations were holding power without any accountability and transparency by converting the Associations into personal fiefdoms. It found inequities writ large at the high table with some States over-represented in votes, tournament participation and central funding while others were made to wait endlessly in the wings for indefinite period until favored. The Committee found that policies had been formulated and altered to suit the needs of a few powerful individuals and that coteries had been formed around them which had polarized and compromised independent leadership. The Committee regretfully found that those who had no such agendas had remained quiet, their silence emboldening further malfeasance. It found that cricket players, who are sport’s biggest drivers, had also not been spared from the apathy of the BCCI as they were treated less like assets and more like employees and subordinates of those governing the game. The Committee found that the Indian Premier League (IPL) which was a remunerative and glamourized component in India had unsavory interference at the highest echelons of cricket and the overlapping and conflicting interests were not only condoned, but those in the management of the Board had made ex-post facto amendments to facilitate the same. Having said that the Committee did not hesitate to recognize the hard work of BCCI staff members and match officials who had ensured that hundreds of matches are organized annually at all levels and that updates are provided to keep the BCCI fully informed. Charity matches for national causes and humanitarian assistance is another area in which BCCI has been applauded by the Committee while stating that the Committee has consciously ensured that no measures are recommended that would limit or interfere with the good work being done on behalf of the BCCI. The report submitted by the Committee further indicates that while the Committee was still in the process of hearing the concerned, the newly elected President of the BCCI had even without waiting for the Committee’s report adopted and projected the Committee’s views as his roadmap for improving the functioning of the BCCI. Some of those measures like uploading of the Constitution and Bye Laws on the BCCI website, creating a policy for avoidance of Conflict of interest and appointment of Ombudsman had also been taken. The Committee, however, found that although these steps were in the right direction, the same were neither comprehensive nor substantive. The need of the hour observed the Committee was not of making cosmetic changes but those that are fundamental for laying proper foundations on which the BCCI could function in a professional and transparent manner bringing cricket back to its pristine form and restoring the confidence of the cricketers and lovers of the game alike. The Committee said:

“At a time when the nation’s highest court has been compelled to find that the game has fallen into disrepute, only extraordinary steps will bring it back from this chasm. We are conscious that some of our proposals may evoke varied responses, but the collective conscience of this Committee is clear that tough measures are called for to restore Indian cricket to its pinnacle of glory. Individual interest will have to be sacrificed for the sake of the institution, and no exigency of convenience or convention shall stand in the way of a whole scale structural overhaul. The current governance structure of the BCCI and its Member Associations is far from satisfactory and it needs to be suitably restructured. Strict terms and tenures have to be imposed on administrators, oversight and audit of member associations need to be carried out, professional management deserves to be introduced in the administration of the game, all States require an equal say in the affairs of the BCCI, financial prudence has to be exercised, independent views in Governance are imperative and cricketers have to be protected and given a free hand in cricketing affairs. There also ought to be an Ombudsman, an Ethics Officer and an Electoral Officer who can provide institutional resolution while principles of transparency and conflict of interest need to be infused without further delay.

The report that follows is the Committee’s effort to restore Indian to its deserved status by putting in place good governance structures and best practices.”

In ‘Chapter One’ of its report, the Committee dealt with the Structure and Constitution of BCCI, identified the problems that arise from their status and the need for reform in the same. For clarity and better understanding of the solutions proposed by the Committee we may gainfully extract Chapter One of the Report submitted by it.

“Chapter One: The Structure and Constitution It was nearly 200 years after the British first brought cricket to India that its governing body was created. At a time of communal Gymkhanas and the occasional touring team from England, the princely families and other cricket patrons came together to create the Board of Control for Cricket in India, which was registered as a not-for-profit society in Madras (now Chennai). The BCCI has grown from its original composition of less than half a dozen provincial members to have five times that number representing various groups and territorial divisions.

The Structure the BCCI now consists of 30 Full Members some of whom do not field teams, while others do not represent any territory. Twenty States and one Union Territory are included, and ten States and six Union Territories remain either excluded or disenfranchised. In addition, officially there are Associate and Affiliate Members as well as so-called Future Members.

The Services Sports Control Board, the Railways Sport Promotion Board and All India Universities represent national service groups, who traditionally constituted the largest employers of Indian sportsmen before the advent of liberal private enterprise. Apart from these, two Clubs – the Cricket Club of India at Mumbai and the National Cricket Club at Kolkata also enjoy full membership of the BCCI.

Problems An examination of the existing structure revealed the following anomalies:

Not all States are represented on the BCCI One old State (Bihar) and two new states (Chhattisgarh and Uttarakhand) and six North-Eastern States (Sikkim, Manipur, Meghalaya, Nagaland, Arunachal Pradesh, and Mizoram) are unrepresented on the Board. Of course, the most significant omission was Bihar, which, being the third most populous State in the nation required the cricket representatives of its 100 million populaces to migrate to other States to ply their trade. Apart from Tripura, the other six sister-States of the north-east had been relegated to various categories of membership (Associate, Affiliate and Future) which really have no voice on the Board.

Some States are over-represented Mainly attributable to their historic legacy, both Maharashtra and Gujarat have 3 Full Members, each representing parts of their respective States. Maharashtra therefore exercises votes through the Associations of Mumbai, Vidarbha and Maharashtra while Gujarat fields the Associations of Baroda, Gujarat, and Saurashtra.

Some members do not represent territories The Services Sports Control Board, the Railways Sport Promotion Board and All India Universities show that territorial divisions were not the consistent criteria to determine membership of the BCCI. However, these members were represented by teams that played competitive cricket.

Some members neither play matches nor represent territories Both the National Cricket Club (NCC) at Kolkata and the Cricket Club of India (CCI) at Mumbai were more in the nature of recreation clubs which neither fielded teams for tournaments nor had a geographical basis for being Full Members of the BCCI. In fact, by virtue of CCI being granted full membership, Maharashtra has garnered as many as four out of the total 30 votes on the Board.

Union Territories are unrepresented on the Board Except for Delhi which enjoys a special position under the Constitution as well, none of the other six Union Territories are Full Members of the BCCI. In fact, there have been repeated representations by the Cricket Association of Pondicherry that just as Delhi, it is also a Union Territory with a Chief Minister and ought to be made a Full Member. This issue is sub judice before the Madras High Court but nonetheless, there seems that some artificial distinction exists in the extant rules between Delhi and Puducherry.

Ad-hoc creation of Membership categories The Regulations of the BCCI only speak of three categories of members – Full, Associate and Affiliate. However, we find that there is a list of six “Future Members”, a category that does not have a legal basis. This consists of Uttarakhand, Mizoram, Telangana, Chandigarh, Puducherry, and Andaman & Nicobar. Such a classification seems a half-way house with no real purpose except to give the association an illusion that it will be promoted at some vague point in the future.

Arbitrary addition and removal of associations for reasons best known to the BCCI, despite being a Full Member, the Rajasthan Cricket Association has been treated as disenfranchised, resulting in the players of the State being forced to move elsewhere to compete. The non-addition of the Bihar Cricket Association or an equivalent has also led to such a denial to the players from Bihar.

Rationale

The author would like to state that, the judgment delivered by the apex court is a good attempt at bringing about more amount of transparency in the functioning of cricket. In the opinion of the author, the apex court has rightly laid down that, conflict of interest of people associated or in any way related to the BCCI cannot be accepted for the purpose of cricketing operations in India. Yet, merely acting against BCCI officials or people related with it cannot be sufficient to induce transparency into the sport. In the opinion of the author, the constant reluctance of the apex court in bringing BCCI under the ambit of Article 12 of the Constitution of India and regarding it as instrumentality or agency of “state” in relation to cricketing operations is the primary reason behind the unregulated powers exercised by BCCI and people related to it. The author would like to further state that, the absence of a proper cricketing legislation is the biggest reason behind corruption and lack of accountability in the administration of the sport in this country.  The question as to whether this was a “Restriction imposed upon people associated with BCCI or a farcical form of justice” cannot be answered in the affirmative only based on this judgment. Hence, it can be concluded that the answer to the question can only be given in the future when this judgment is made applicable in similar cases arising in the future and only if a substantial curtailment on the powers of BCCI takes place. Solutions Almost universally, apart from those who represented the associations in Gujarat and Maharashtra, the prevalent view was that that the State is a fair unit of representation on the BCCI. On a consideration of the entire issue, the Committee is of the view that it is not proper for only one or two States to have multiple members when all other States have single memberships (in fact, while many States have no representation). Democratic norms require each State should have equal representation, and therefore the Committee proposes the policy of ‘One State – One Member – One Vote’. In fact, this is the policy followed by other national sports associations (IHF & AIFF), each of whose members have an equal vote regardless of size or population. Even at the international level (IOC & FIFA), this is the position. Cricket ought to be no different.

It was however also stated that as far as disbursement of funds by BCCI for cricket development, it need not be uniform, but can depend on the need, infrastructure and other relevant criteria, formalized as a clear and equitable policy to incentivize Members to develop the sport.

In keeping with the above principle, and notwithstanding any sense of sentiment, there would also be no place for multiple associations from a single State. The Committee is of the view that it be left to the BCCI to decide which of the 3 associations from Gujarat and Maharashtra would be taken to represent the entire State, and the remaining 2 associations from each State would become Associate Members, who would however continue to field teams for competitions as they have done in the past. Equally, in States where there are disputes concerning the appropriate governing body [Jammu & Kashmir, Bihar, Rajasthan, etc.], it is best left to the BCCI or the Court (as may be the case), to decide which association would represent the State.

As the Services, Railways and Universities have hitherto enjoyed Full Member rights although they do not represent a particular State, the Committee recommends that they be accorded the Status of Associate Member so that their views may still be considered while they will not have voting rights. The same principle would apply to the Clubs (CCI and NCC), which do not field cricket teams and have no cause to be treated as Full Members.

Those existing Members who are affected by the changes suggested by the Committee must appreciate that the changes are being suggested in the interest of the game as a whole and also having regard to BCCI’s role as a national body to promote and control cricket in India. Governance of cricket being the central theme, the changes in membership in the BCCI are inevitable and must be seen by all concerned in the right spirit of fair representation and for the betterment of cricket administration.

While there are seven Union Territories, it was found that only Delhi and Puducherry have a Chief Minister and are treated as substantially independent governing entities. At first glance, there seems no rationale for a distinction between the two, but what cannot be denied is the fact that Delhi, apart from being the national capital, is also a major Test Centre with an international stadium and has nearly 20 times the population of Puducherry. There may thus be some merit for Puducherry not immediately being included as a Full Member, especially when the issue is sub judice. Among the Union Territories, it would however be appropriate for Puducherry to be now inducted by the BCCI as an Associate Member which will retain rights to field a team and compete.

Conclusion

The consequence of the above realignments would also influence how the Zones are constituted. The Zones would consist of Members in such a manner that each of them would be reasonably balanced as far as competition for the various zonal tournaments is concerned. However, this reconstitution is best left to the BCCI for the purposes of convenience and competition. It is also left to the discretion of the BCCI whether the Union Territories would field individual or combined teams for tournaments and whether, for the purposes of expediency and convenience, the teams representing the States of the North-East be combined as well.

The categories of Affiliate and Future Members are therefore to be removed, and only Full Members and Associate Members will remain, the former with voting rights and the latter without. The 4 associations from the States of Maharashtra and Gujarat which would be relegated to the category of Associate Members shall, however, continue to receive grants for cricket development, as may be assessed by the BCCI depending on infrastructure and relevant criteria. They will also field teams in the domestic tournaments and host international matches.

It is imperative that all players across the country have opportunities to represent their States and Zones and then the national team. To punish the innocent residents and players of a State for the real or perceived shortcoming of the Member Association is illogical and unacceptable. Even if an alternate Association is not readily available, BCCI should function as the parent patriae of Indian cricket and continue to provide equal and alternate avenues for that State.

Frequently asked questions (FAQs)

Q1: Is BCCI A State Under Article 12 Of the Indian Constitution?

Answer: bodies are part of the State which are for the services of the people. All National Sports Federations (NSFs) are also part of the State but BCCI is private club (IT IS NOT An NSF). Hence, BCCI is not a part of the State under Article 12 of the Indian Constitution.

Q2: What Is Article 19 Of the Indian Constitution?

Answer : The heart of the Article 19 says: “Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Q3: What Do You Mean by Article 32 Of the Indian Constitution?

Answer: Article 32 refer to the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

Q4: What Is Anti-Corruption Law?

Answer: The Prevention of Corruption Act, 1988 is an Act of the Parliament of India enacted to combat corruption in government agencies and public sector businesses in India.

Q5: Who Was the Judge in BCCI V Cricket Association Of Bihar?

Answer: T.S. Thakur was the judge in the Following case.

References

https://indiankanoon.org/doc/101366341/

https://www.casemine.com/judgement/in/58117f252713e179478f631b

https://www.google.com/amp/s/nslrblog.wordpress.com/2015/03/07/board-of-control-for-cricket-in-india-vs-cricket-association-of-bihar-a-restriction-on-people-associated-with-BCCI-or-a-farcical-form-of-justice/amp/

https://www.google.com/amp/s/m.timesofindia.com/sports/cricket/news/BCCI-vs-bihar-cricket-association-sc-to-hear-matter-on-wednesday/amp_articleshow/77086811.cms

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