(Sparsh Chavan is a Second Year student at Jindal Global Law School)
Featured Illustration – “The Pickwick Papers, A Game of Cricket” by Robert William Buss
The Board of Control for Cricket in India (BCCI) is the sole governing body for cricket in India and enjoys a de facto monopoly.[i] Established with the help of social elites of the pre-independence era who had an affinity for cricket, it was registered under the Tamil Nadu Societies Act in 1928. Today, it is headquartered in Mumbai and inter alia, has the role of selecting the national team to represent India in international tournaments, a function commonly undertaken by a National Sports Federation (NSF). Although in early 2019 there were reports of BCCI signing to be an NSF, there is still no conclusive paperwork that solidifies it. On the contrary, in a compilation made by the Minister of Youth Affairs and Sports of all the recognized NSFs in December 2019 in India, BCCI seems to be missing.
This implies that apart from cricket, all other sports in the country are managed by an NSF, which is a peculiar incongruity. There is no other sport of such a magnitude in India that yields so much money, attraction and viewership as cricket and conveniently the body that governs it, regulates it and makes laws surrounding it is private. The need for regulation is pressing and immediate, but there are judicial and constitutional hurdles that inhibit the smooth inclusion of the BCCI as State, which have acted as barriers till date.
The Zee Telefilms Case and the Relevance of its Dissenting Judgement
The functions of the BCCI are vast, and as I will elaborate, quite enormous for a private entity. Despite this, the BCCI has always managed to maintain its private status through the years. In 2005, BCCI took the stand of not being a state body in Zee Telefilms v. Union of India, before a 5-judge bench. The Union of India opposed this by emphasising on the public nature of its functions. The UOI submitted that when the BCCI sends players from India to international tournaments it assumes the role of a representative for India. Moreover, government permission is required for playing international matches. On every instance of an international match or tournament, the BCCI has to have government approval which is subject to foreign policy and world affairs. Despite these arguments, it was decided by a 3:2 majority that the BCCI was not functionally, financially or administratively related to the government. Hence, it could not be considered as the state, and whatever government control it had was not ‘deep and pervasive.’[ii] This judgement also rejected the argument that the BCCI performed ‘State-like’ functions in its operation.
The dissenting judgment in the Zee Telefilms case given by Sinha J. is essential to understand why BCCI can be considered a state body. He stated that a different test in qualifying whether BCCI comes under Article 12 is necessary as the generic view of financial, functional and administrative control in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology would apply only when a body is created by the State itself for different purposes, but, incorporated under the Companies Act or registered under the Societies Registration Act. Clearly, the BCCI is a private body since 1928 and was consciously allowed to be the archetypal body governing cricket by the Indian government. The implied monopoly conferred to the BCCI by the State was highlighted by this dissent.
How BCCI is impliedly performing public functions, albeit with limited accountability.
The most recent position of the Supreme Court in Board of Control for Cricket in India v. Cricket Association of Bihar states that the BCCI discharges a public function and even though BCCI is not a State body, it is amenable to writ jurisdiction of the High Court under Article 226. Currently, the law is caught in flux as the SC says the BCCI performs a public function, but, invariably fails to categorize it under Article 12. In paragraph 69 of this case, the court explains that a non-statutory, non-governmental body like the BCCI is equally subject to the same level of judicial scrutiny as any governmental body, due to its public function. Further, the court uses this reasoning to justify a review of BCCIs internal regulation, Rule 6.2.4.
Gautam Bhatia, in the analysis of the BCCI’s legal status has concisely explained that when this paragraph is read alongside the courts’ examination of Rule 6.2.4 of BCCIs controversial internal regulation, which enables administrators to have commercial interests in the IPL, Champions League and other T20 tournaments, it can be reasonably construed that the Court held that private bodies performing public functions are directly subject to Part III of the Constitution. It treated the BCCI’s internal regulation (which would normally be beyond judicial review due to the precedent of Zoroastrian Co-Operative v. District Registrar Co-Operative) as a statute, and then applied Article 14 to it. The very fact that the court applied the Constitution to the BCCI’s inner working implies the move to hold it accountable under Part III of the Constitution. This would mean that the court reintroduced the idea of BCCI performing ‘State-like’ functions which was previously struck down by the Zee Telefilms judgement, supplementing it with the condition that one cannot go straight to the Supreme Court under Article 32, but only the High Court under Article 226.[iii] Hence, we can see that the judiciary is inching closer and closer for inclusion and transparency of the BCCI to the State, but does not explicitly desire to take that leap yet.
The Importance of Cricket being a Cultural Good.
The argument about cricket being a cultural good can be useful in understanding the need for regulation and inclusion under Art. 12. Cricket has birthed generations of fans and viewers alike with massive revenue streams for the country. It has evolved into an important resource for the government, boosting international cooperation and soft power. Therefore, the contention that bodies that act as gatekeepers of access to cultural goods must be deemed to be performing public functions seems fairly feasible.[iv] It is also prudent to assume that cricket is an essential cultural good, as the statistics are congruent with this argument. Cricket accounts for 85% of the sports economy of India, with a viewership in billions. Citing an instance where ex-Finance Minister Jaswant Singh slashed income tax for Cricketers in a 2003 quarter-final match against Pakistan along with other events that highlight cricket’s cultural relevance and impact on the masses, Emily Crick, while analysing cricket’s influence on Indian national consciousness has highlighted the political, social and cultural relevance of the sport.[v] All sports that represent a public good for a society can and should be supported and taken over by the state as a social cost with a positive return. In other words, they must be understood as public investment in medium to long term. An objective criteria for sport as public interest must be established, and means for evaluating the results of this “investment” must be set. Hence the state should assume a role that endeavours to support, sponsor and, above all, regulate such sport.[vi]
The Ineffective Inclusion of BCCI under RTI Act.
The Central Information Commission has categorised BCCI to be ‘virtually’ an NSF in 2018. Citing points mentioned by the Law Commission of India in its 275th Report, the Central Information Commission stated that the BCCI cannot be allowed to escape governmental overview as it holds the fundamental rights of players both current and potential, umpires, spectators, and various organizers hostage. The report highlighted the use of tri-colours on the team uniform, Ashok Chakra on the helmet and nomination of players for Arjuna Awards as indicators of BCCI performing state functions. Moreover, the absence of legislation on cricket and the de-facto monopoly of the BCCI was also taken into account. Currently, BCCI is responsible for a lot of money, almost equivalent to INR 11,900 crores, vis-à-vis the IPL and other undertakings. According to the report, land grants and tax exemptions given by the government are common. BCCI is also susceptible to corruption and money laundering, as there is a lack of transparency.
There have been problems which have prevented the smooth inclusion of the BCCI under RTI. For example, an order passed by the Central Information Commission after an RTI application was filed against the Ministry of Youth Affairs and Sports in 2018 clearly categorized BCCI as an NSF and made it accountable under section 2(h) of the RTI. The BCCI refused to cooperate and did not accept the classification. It responded with a stay order issued in 2013 by the Madras HC, where BCCI had already filed a plea contesting its inclusion under RTI Act. This reply should not have been entertained as the SC has reiterated that that any stay order would lapse after a period of six months from that day unless a “speaking order” extending a stay was granted in the intervening period. Also, the extension should exclusively be granted under “exceptional circumstances wherein the continuation of the stay order is warranted more than expeditious final disposal of the trial.” If BCCI comes within the purview of the RTI Act, all its decisions – whether regarding team selection, organisation of events, team trainings or sending teams for competitions, can be the subject of RTI enquiries. Records, board meeting minutes, documents, opinions, emails, contracts etc would be subject to such enquiry. The consequence may be greater transparency. Thus, the expeditious disposal of this case holds importance as it directly affects public interest. The stay order has long lapsed and should not, in the interest of justice, be used as a tool to further the BCCI’s agenda. Furthermore, the government should formally acknowledge the existence of BCCI as an NSF by an updated list published by the Ministry of Youth Affairs and Sports so that any inconsistencies can be quashed.
Conclusion
The need to battle the judicial and procedural problems and include BCCI under the ambit of Article 12 is, by all means, viable and necessary. Cricket in India is a billion-dollar industry. An activity of this magnitude cannot be afforded the privilege to escape from the overview of the government when we know that its repercussions are bound to impact citizen’s human rights, tax money and security. A change in perspective is required so that equality, justice and fairness are given priority over the interests of the elite few who are at the helm of a prosperous conglomerate that profits on the viewership and cultural importance of a sport that is loved by billions.
[i] Zee telefilms Ltd. v. Union of India, (2005) 4 SCC 649 (per S.B. Sinha, J., dissenting)
[ii]Supra note 1 at 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] Infra note iii.
[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/560458831IPCS-ResearchPaper9-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.
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