Cricket is the opium of the Indian masses. From grandma to grand child, everyone talks about
A.G.Noorani writes in The Hindu on 10 June 2013,
One wishes there was more cricket in India’s politics and no politics in
India’s cricket. But the reality of an insufferably scandalous state in
both spheres stares us in the face. The charade in Chennai on June 2
aroused wide public revulsion because of the events in the preceding
fortnight, especially against the background of the sordid power
struggles by politicians in the Board of Control for Cricket in India
(BCCI). Rules on conflict of interests were violated. Charges of
corruption involving crores of rupees were not investigated thoroughly
enough. One hopes that revulsion at the BCCI’s working prompts an
effective cure for what is plainly a diseased system which stinks to
high heaven.
Involved are three distinct issues, namely the resignation of the BCCI
president and co-owner of Chennai Super Kings IPL team, N. Srinivasan,
after the arrest of his son-in-law Gurunath Meiyappan who faces charges
of betting and match fixing; conflicts of interests; and the rotten
structure of the BCCI.
Crisis of confidence
The test Mr. Srinivasan prescribes is wrong. It is not whether charges
of similar wrong-doing are made against him personally. It is whether,
in the totality of circumstances including his open and close proximity
to his son-in-law, there is not a crisis of confidence which requires
him to step down from office, as distinct from stepping aside.
A precedent directly on point suggests the correct test. Britain’s Home
Secretary Reginald Maudling resigned on July 18, 1972, the day the Prime
Minister announced that the Director of Public Prosecutions had
instructed the police to investigate into the affairs of John Poulson, a
wealthy architect with whom Maudling had a close business relationship
in the mid-1960s. He was neither accused nor suspected of any crime,
either in connection with Poulson, or anyone else. However, the
investigation was to be held by the Metropolitan Police, over whom the
Home Secretary had authority. By this test, besides the crisis of
confidence, Mr. Srinivasan has not a leg to stand on.
On conflict of interests, the locus classicus is a statement made
in Parliament on behalf of the British Prime Minister by Sir John
Simon, a distinguished lawyer, in 1937. “No man should allow himself to
occupy any portion of the time which he is bound to devote to his public
duties in a disregard of his public duties, and pursuing any private
interest whatever, whether it is in playing golf or in the nature of
business.” The spectacle of Union Ministers Sharad Pawar, Farooq
Abdullah, Praful Patel, C.P. Joshi and the Leader of the Opposition in
the Rajya Sabha, Arun Jaitley, on the Board is an unedifying one.
Neither these politicians nor the equally distinguished businessmen like
N. Srinivasan, Jagmohan Dalmiya and Lalit Modi are known to have
elevated the standards of the BCCI. The only qualification they flaunt
is “love of cricket,” a test which opens the doors to millions of
aspirants.
Two things are clear beyond doubt. The BCCI needs drastic reform if it
is to function properly and in the public interest and the reform will
not, cannot, come from within. Sadly, former Union Sports Minister Ajay
Maken’s National Sports Development Bill, 2011 fell by the wayside.
Split judgments
The Supreme Court has ruled on the BCCI’s status thrice in split
judgments. Unfortunately, one fundamental was overlooked. It is the
doctrine of a private utility so affected by the public interest as to
legitimate legislation in the public interest. It was propounded as far
back as in 1877 in the haven of private enterprise, the U.S. Its Supreme
Court ruled that when “one devotes his property to a use in the public
interest in which the public has an interest, he, in effect, grants to
the public an interest in that use and must submit to be controlled by
the public for the common good” (Munn vs Illinois 94 U.S. 113, 126 (1877).
The Supreme Court has yet to rule finally on the BCCI’s status. But its three rulings are instructive. They are: BCCI vs. Netaji Cricket Club and Ors
(2005) 4 SCC 741 decided by Justices N. Santosh Hegde and S.B. Sinha,
on January 10, 2005. However, they split only three weeks later in the
second case on February 27, each speaking for the differing judges (3-2)
in Zee Telefilms Ltd. & Anr. Vs. Union of India & Ors (2005) 4 SCC 649; and A.C. Muthiah vs. BCCI & Anr
(2011) 6 SCC 617 decided on April 28, 2011 by Justices J.M. Panchal and
Gyan Sudha Mishra. They differed. The BCCI’s status, therefore, awaits a
decision by a larger Bench.
That said, the judges’ observations provide cold comfort to the BCCI’s
oligarchs. The first case said that “the enormous power exercised by the
Board” imposes on it the duty to act “fairly”, “reasonably” in “good
faith” so as to conform to “higher standards”.
In Zee Films, three judges held that the BCCI was not an
instrumentality of the state and was therefore not “the state” within
the meaning of Article 12 of the Constitution. But it noted that its
“activities can be said to be akin to public duties or state functions”.
A citizen whose rights are violated can sue it in the High Court under
Article 226 of the Constitution though not for violation of fundamental
rights.
In a powerful dissent, Justice Sinha pointed out that the BCCI “was
allowed by the state to represent the state or the country in
international fora, it became a representative body of the international
organizations as representing the country. The nature of function of
such a body becomes such that having regard to the enormity thereof it
acquires the status of monopoly for all practical purposes; regulates
and controls the fundamental rights of a citizen as regards his right of
speech or right of occupation, becomes representative of the country
either overtly or covertly and has a final say in the matter of
registration of players, umpires and others connected with a very
popular sport”.
Justice Sinha noted that “the Board had all along been obtaining the
requisite permission for sending an Indian team abroad or for inviting a
foreign team to India in the prescribed form … a number of documents
have been annexed, which clearly go to show that from the very beginning
the Board had been asking for the permission of the Ministry of Human
Resource Development either to go abroad or to play or participate in
other countries or for inviting the others to play in India. Such
permission had been sought for in the form prescribed in terms of the
said Regulations. The said documents leave no manner of doubt that the
Board had asked for and the Union of India had granted de facto recognition.”
Thus, while the majority ruled that the BCCI was subject not to the
Constitution’s fundamental rights but to the writ jurisdiction of the
High Courts, the minority ruled that it was also bound to respect the
fundamental rights to equality and to the practice of an occupation.
The gap was narrow. In the third case, A.C. Muthiah challenged the
amendment to the Regulations (Clause 6.2.4) on September 27, 2008
permitting Mr. Srinivasan, BCCI’s treasurer as well as Managing Director
of India Cements Ltd, to bid in the Indian Premier League’s auction for
ownership of CSK. Justice Panchal held that the Netaji Club case was “no longer good law” in view of the ruling in the Zee Telefilms case though it had not been overruled.
‘Multiple loyalties’
Justice Gyan Sudha Mishra disagreed. Her judgment cogently defines the
BCCI’s status. She trenchantly criticised the amendments, predicted that
“multiple loyalties can create commercial activities with the
activities of the BCCI.” It wields monopoly control while enjoying state
recognition and facilities. The right to see the game of cricket, live
or on TV, the careers of cricketers and much else depend on its will.
And the BCCI has demonstrated incompetence, if not worse. The remedy
lies in legislation which lays down a charter for democratic governance
to ensure probity, accountability and transparency. Entry 63 of the
Union List empowers Parliament to legislate in respect of any
“institution declared by Parliament by law to be an institution of
national importance.” The BCCI is just that. The provision was invoked
to rid the Indian Council of World Affairs, a registered society, of the
control of an individual with an agenda of his own. In doing so, the
government alas also reduced the ICWA to an appendage of the Ministry of
External Affairs. The law must guarantee the autonomy of the BCCI
without touching the title to its properties and funds.
All that the law should do is to incorporate it as a legal entity, bound
by the rules of democratic corporate governance. To begin with, the
Right to Information Act, 2005, should be made applicable by widening
the definition of “public authority” in Section 2 (L) to cover any body
which “performs a public function or receives assistance or recognition
from the State”. Next, no “public servant” as defined in Section 21(c)
of the Prevention of Corruption Act, 1988 should be eligible to serve on
the Board. This will relieve our hard pressed ministers, civil servants
and legislators from a singularly onerous duty to serve the nation in
that thankless task. Members of mercantile bodies, incorporated or not,
should also be excluded. Criteria for membership should be provided.
Thirdly, the law should ensure the holding of free and fair elections
regularly at the Board level, and in affiliated bodies, and mandate the
auditing of accounts and their publication. All this should be capped by
an ombudsman who would report annually to Parliament on the working of
the BCCI.
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