Disparities in the Legal position of the BCCI

 

The Board of Control for Cricket in India (BCCI) is the only governing entity for controlling activities pertaining to cricket in India and enjoys a de facto monopoly.[i] It was founded in 1928 under the Tamil Nadu Societies Act with the help of social elites from the pre-independence period who had an affinity for cricket. It is now registered in Mumbai and, among other things, performs the function of selecting the national team to represent India in international tournaments, a task traditionally performed by the National Sports Federation (NSF). While in early 2019 there were reports that BCCI has signed to be an NSF, there is still no clear and conclusive documentation that consolidates it. On the other hand, in a compilation of all the recognized NSFs assembled by the Minister of Youth Affairs and Sports in December 2019 in India, BCCI appears to be unaccounted for.

This means that apart from cricket, all other sports in the country are handled by an NSF, which is a bizarre inconsistency.In India, there is no other sport of such magnitude that produces so much money, attraction and audience as cricket, and the body that governs it, regulates it and makes laws around it conveniently, is private.The need for regulation is urgent and immediate, but there are judicial and constitutional obstacles that obstruct the smooth inclusion of the BCCI as a State, which have served as barriers to date.

The Zee Telefilms Case and the importance of its Dissenting Judgement

BCCI performs multi-fold functions, which are considerably elaborate, and enormous for a private entity. Despite this, over the years, the BCCI has still managed to retain its private status. In 2005, in Zee Telefilms v. Union of India, BCCI took the stand of not being a state body before a 5-judge bench. The Union of India (UOI) opposed this by stressing that its roles were public in nature. The UOI noted that BCCI assumes the position of a representative for India when it sends players from India to international tournaments.Additionally, for playing international matches, government permission is required. The BCCI must have government approval, which is subject to foreign policy and global affairs, for any instance of an international match or tournament. Despite these arguments, the judgement given by a 3:2 majority stated that the BCCI was not functionally, technically, financially or administratively related to the government. Therefore, it could not be regarded as the state, and whatever government power and control it had was not ‘deep and pervasive.’[ii] This judgement also dismissed the argument that the BCCI performed ‘State-like’ role and functions in its service.

In the Zee Telefilms case, the dissenting judgment given by Sinha J. is significant to understand why BCCI can be considered a state entity. He opined that a different test is required to decide whether BCCI comes under Article 12 as the general view of financial, functional and administrative control given in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology would apply only when a body is formulated by the State itself for different purposes, but, incorporated under the Companies Act or registered under the Societies Registration Act. Clearly, the BCCI has been a private entity since 1928 and was deliberately permitted by the Indian government to be the archetypal entity regulating cricket. This dissent highlighted the implicit monopoly bestowed by the State upon the BCCI.

BCCI implicitly discharges public functions, but with minimal accountability

The most up-to-date stance of the Hon’ble Supreme Court in Board of Control for Cricket in India v. Cricket Association of Bihar states that the BCCI discharges a public role and even though BCCI is not a State agency, it is entitled to writ jurisdiction of the High Court under Article 226 of the Constitution. The law is currently in flux as the SC has stated that the BCCI performs a public function, but, inevitably fails to categorize it in accordance with Article 12. In paragraph 69 of this case, the court explains that, because of its public role, a non-statutory, non-governmental entity such as the BCCI is equally subject to the same degree of judicial review as any governmental body. Moreover, the court uses this argument to justify a study of the internal regulation of the BCCI, Rule 6.2.4.

In reviewing the legal status of the BCCI, Gautam Bhatia has concisely clarified that when this paragraph is read in accordance with the courts’ examination of Rule 6.2.4 of BCCI’s controversial internal regulation, which entitles administrators to have commercial interests in the IPL, Champions League and other T20 tournaments, it can be reasonably interpreted that the Court held that private bodies carrying out public functions are specifically subject to Part III of the Constitution. It treated the internal regulation of the BCCI as a statute (which would normally go beyond judicial review because of the precedent established in Zoroastrian Co-Operative v. District Registrar Co-Operative), and then applied Article 14 to it. The very fact that the court applied the Constitution to the BCCI’s internal working implies the move to hold it accountable under Part III of the Constitution. This would suggest that the court reintroduced the principle of BCCI performing 'state-like' functions previously enforced by the Zee Telefilms judgement, supplementing it with the requirement that, pursuant to Article 32, one may not go directly to the Supreme Court, but only to the High Court under Article 226.[iii] Thus, we can view that the judiciary is moving closer and closer for inclusion and transparency of the BCCI to the State, but does not want to take the leap yet.

The Significance of Cricket as a Cultural Good

In recognising the need for legislation and inclusion under Article 12, the point about cricket being a cultural good can be useful. With huge revenue streams for the country, Cricket has given birth to generations of fans and viewers alike.It has evolved into an essential government resource, enhancing global cooperation and soft power.Therefore, it seems very plausible to suggest that entities serving as gatekeepers of access to cultural goods must be viewed as performing public functions.[iv] It is also wise to conclude that cricket, since the figures are consistent with this claim, is an important cultural good. Cricket accounts for 85% of India's sporting economy, with billions of spectators. Citing an instance where ex-Finance Minister Jaswant Singh cut Cricketers’ income tax in a 2003 quarter-final match against Pakistan,among other events, that highlight cricket’s cultural importance and effect on the masses. Emily Crick, while examining the impact of cricket on Indian national consciousness has stressed the political, social and cultural relevance of the sport.[v]All sports that serve a public good for a society can and should be funded and supported by the state and taken over as a social expense with a positive return. In other words, in the medium to long term, they must be understood as public investments. Objective standards for sport as public interest must be laid down and means to determine the outcomes of this 'investment', must be developed. The state should also play a role in promoting, funding and, above all, controlling such a sport.[vi]

The Abortive Inclusion of BCCI under RTI Act.

In 2018, the Central Information Commission classified BCCI to be "virtually" an NSF. In its 275th report, the Central Information Commission, citing the points listed by the Law Commission of India, claimed that the BCCI may not be allowed to escape the governmental overview because it keeps the fundamental rights of current and future players, umpires, spectators, and various organisers hostage. The report highlighted the use of tri-colours on the uniform of the squad, Ashok Chakra on the helmet and nomination of players for Arjuna Awards as markers of state functions performed by BCCI. In addition, the lack of regulations and legislation on cricket and the de-facto monopoly of the BCCI have also been taken into account. Currently, BCCI is responsible for a large amount of money, almost equal to Rs. 11,900 crores, in relation to the IPL and other undertakings. As per the report, land grants and tax exemptions granted by the government are common. Land grants and tax exemptions granted by the government are normal, according to the report. Since there is a lack of accountability, BCCI is also vulnerable to corruption and money laundering.

There have been concernsthat have stopped the smooth inclusion of the BCCI under RTI. For instance, after an RTI application was filed against the Ministry of Youth Affairs and Sports in 2018, an order was passed by the Central Information Commission specifically categorising BCCI as an NSF making it accountable under section 2(h) of the RTI. The BCCI declined to agree with the classification and did not recognise it. It responded with a stay order issued by Madras HC in 2013, in which BCCI had already lodged a plea challenging its inclusion under the RTI Act. This reply should not have been entertained as the SC has reiterated that, unless a "speaking order" extending a stay was issued in the interim period, any stay order would expire after a period of six months from that day. Also, the extension should solely be granted under “exceptional circumstances wherefore the continuation of the stay order is validated more than instant final disposal of the trial.” If BCCI falls within the scope of the RTI Act, all its decisions – whether about team selection, team trainings or sending teams for competitions, organisation of events can be the subject of RTI enquiries. Records, minutes of board meeting, documents, opinions, emails, contracts etc. would be subject to such enquiry. The result could be greater accountability. Thus, the expeditious disposal of this case carries significance as it directly affects public interest. The stay order has long expired and should not be used as a weapon to advance the agenda of the BCCI in the name of justice. Furthermore, the government should officiallyrecognize the existence of BCCI as an NSF by an updated list released by the Ministry of Youth Affairs and Sports in order to remove any inconsistencies.

Conclusion

The need to tackle judicial and procedural problems and to include the BCCI within the framework of Article 12 is feasible and necessary by all means. Cricket is a billion-dollar industry in India. The privilege of withdrawing from the government's overview cannot be granted to an undertaking of this magnitude when we know that its consequences are bound to affect the human rights, tax money and welfare of people. A change of perspective is needed in order to give priority to equity, justice and fairness over the interests of the few elite who are at the forefront of a wealthy conglomerate that benefits from the audience and cultural significance of a sport enjoyed by billions.

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[i]Zee telefilms Ltd. v. Union of India, (2005) 4 SCC 649 (per S.B. Sinha, J., dissenting)

[ii]ibid, para 23.

[iii]Gautam Bhatia, The BCCI Controversy, Public Functions and Cultural Goods, and the Return (?) of the Functional Test, Indian Constitutional Law and Philosophy (Aug. 25, 2016), https://indconlawphil.wordpress.com/2016/08/25/the-bcci-controversy-public-functions-and-cultural-goods-and-the-return-of-the-functional-test/.

[iv]ibid.

[v] Emily Crick, Institute of Peace and Conflict Studies, New Delhi, India, Cricket and Indian National Consciousness, IPCS(2007), http://www.ipcs.org/issue_briefs/issue_brief_pdf/560458831IPCSResearchPaper9-EmilyCrick.pdf.

[vi] Jorge Pereira et al., Universidade da Madeira, Funchal, Portugal, The public interest of sports at non-profit sports organizations that are supported by the government, SciELO (July/Sept. 2016), http://www.scielo.br/scielo.php?pid=S1807-55092016000300675&script=sci_arttext&tlng=en.

(Shruti Chaudhary is 4th Year Law Student of Dr. Ram Manohar Lohiya National Law University, Lucknow)