Cats, bells

The Supreme Court has ruled that the BCCI, its officials, state associations and members thereof can be booked under the Prevention of Corruption Act.

Hold the hosannas, though. The fact that the SC had to make the ruling is in fact the real story — the BCCI holds itself above the laws of the land, sheltering under its “private body” tag while abrogating to itself the right to name and run the team that represents the country. Successive cases, and the resulting rulings, have been chipping away at that armor, but the impact of each such small step is diluted by the BCCI’s battery of lawyers and the many delaying tactics the body employs. Also, this is a battle being played out over many small fronts — thus, just a week ago the BCCI was still maintaining its autonomous status in connection with a taxation issue.

Right here, right now, the Court has permitted the prosecution of two officials of the Kerala State Cricket Association. The logical next step — the actual prosecution — remains a distant dream, however. The best you can say about this judgment is it at the least ends the debate about whether the BCCI is above the PCA, and by extension above the laws of the land.

The judgment that could really set the cat among the pigeons is the one relating to conflict of interest, where the SC is hearing a petition filed by AC Muthaiah against N Srinivasan. For those who came in late, the crux of the petition involves a post-facto change in the board’s constitution to permit Srinivasan to own a team while remaining an office bearer in the BCCI, and also a member of the IPL governing council.

Briefly, India Cements bought the Chennai Super Kings franchise in 2007. N Srinivasan was then the treasurer of the BCCI; he was also — still remains — vice-chairman and managing director of India Cements.

At the time of the purchase, the relevant clause (6.2.4, Regulations for Players, Officials, Umpires and Administrators) in the board’s constitution said:

“No administrator shall have, directly or indirectly, any commercial interest in the matches and events conducted by the board.”

The IPL is, even by the board’s own admission, is a sub-set of the BCCI and not an independent entity; as Shashank Manohar repeatedly said when the Modi imbroglio was at its height, overall authority vests with the BCCI president. Therefore the constitutional provision above applies to the IPL as well, which in effect means that Srinivasan was not permitted to bid for, and own, a franchise.

When it became apparent that this violation could snare Srinivasan in legal complications, the BCCI executive then led by Sharad Pawar, in September 2008, slipped an amendment into place. As with most such acts of the present administration (the most recent being the late amendment of auction rules, that has triggered a protest by MI and RCB), only a few words were changed, but the difference was crucial. The amended clause read:

“No administrator shall have directly or indirectly any commercial interest in any of the events of the BCCI, excluding IPL, Champions League and Twenty20.”

This is the crux of the case before the SC. Back in September last year, when the apex court first heard the case, the Board centered its argument on whether Muthaiah had any business bringing the case to court in the first place. The former president had filed the case, the BCCI contended, only because he had lost the election for president of the TNCA to Srinivasan. The court sensibly contended that the motivation of the petitioner could not be the yardstick to measure the worth of the petition itself.

That’s the last we’ve heard of it. The court had at the time deferred its judgement. Four months down the line, the wait continues.

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19 thoughts on “Cats, bells

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  4. Based on the comments this seems like a orthogonal thought but what is the harm in nationalizing cricket? Cricket has survived in our country in spite of the BCCI and not because of it. The passion for the game, lack of a strong alternate sport as a hobby and its present polularity is never going to go away. So what is wrong if all the money earned is added to the state fund. Maybe some of it might trickle down to other sports then.

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  6. Prem,
    Over a long period of time, these cases of nepotism, corruption, skewing the rules to favor oneself when in a high position have created a sceptical attitude in me with reference to where India is going but there is one heartening thing: However we might not agree with our elders at the time of independence, they did one thing: Created institutions like Supreme court basically a system where atleast there is a potential to redress the grievances, eventually it is upto the masses themselves to make use of the powerful institutions, I dont know how that will happen

    • JazzyB
      My fundamental point is that public’s interest is no legal basis for declaring a private organization to be a public body. That tramples upon property rights and is akin to mobocracy. And any monopoly that is not created through legislation in the first place cannot be attacked using legislation or law.
      But as Prem says, we must wait for the official transcript. Maybe I am overreacting here.
      In the meantime…
      I don’t think the ICC recognizes BCCI because the government does so. It is an affiliation. In fact, even taxpayer-funded bodies like the IOC run this way.
      But I completely agree that a) the BCCI should stop getting any special treatment as far as taxes & concessions go. And b) They should be subject to regulatory oversight like any corporate entity in India is. Which is restricted to checking if the corporate conforms to existing laws and rules. Not ad hoc interference in the name of oversight.
      Of course courts should get involved if there are disputes. But these are usually civil cases (like whether the IPL auctions were fair), which means you need an injured party as a plaintiff. Not the state (unless it is a violation of current laws). So, in this case, it is right that the officers who misappropriated funds should be punished. But they should be punished under whichever law you and I would be punished if we embezzle from our companies. Not the PoC act which is specifically for public servants.
      You may think I am getting too stuck-up on this. But believe me, it all sounds very rosy and cuddly when the power of the people, expressed through the judiciary, actively battles known-ills. But the moment we open the doors for such things, it means we are responding to situations instead of acting on the basis of principles. And then there will be no basis in the future for what is right and what is wrong.

  7. I don’t think it is right for the court to decide that BCCI officials are public servants because the public has a keen interest in the function they perform.
    So what if we call the team they select the Indian team? Femina selects women who are called Miss India. That doesn’t make them a public body.
    Basically the ICC has recognized BCCI as the authority who decides the team from India for all games played by their member associations.
    The courts have every right to adjudicate civil disputes between say, a franchise and the BCCI, because enforcing contracts is a legitimate role of theirs. But they can’t arbitrarily decide who are public “servants” and who are not.
    It may suit us at this moment to have the BCCI answerable to all and sundry from government, but in the long run this is going to harm cricket in India and also send a scary message to private clubs and bodies.
    What BCCI probably needs is more corporatization and therefore more regulatory oversight, but what we are getting now is outright nationalization.

    • Ramesh, the point is, BCCI holds monopoly over the cricket administration in India. I dont think anybody is saying that BCCI president is like the Prime Minister. Eventhough it is a private body, it is the ONLY body that manages cricket in India. Thats where the court made them accountable.

      I dont think making BCCI accountable means that it has to report to the Government, I mean, the Executive. It needs to do its things neatly. If it doesnt, Executive can charge them and they have to answer to the Judiciary. Thats how it works. Just because there are so many laws applicable to me, I dont have to report to the nearest police station everyday. I just need to act within those laws. If I dont, then the police will catch me, and then I need to answer the questions coming in front of the judge. Thats all.

      And yeah, if Femina is the only body that conducts Miss India, and if that is in the public interest, they should actually be accountable. May be most of us may not care. But what if another Aiswarya Rai was denied a titile entitled to her just because another girl made a secret deal with the judges? It becomes a legitimate grievance, dont you think? Ultimately, you need to interpret the laws by the times. Cricket is a big public interest in India and so many lives and careers have become dependent on it.(It may not have been when BCCI was first formed as, may be, a part-time hobby of the Maharajas. But thats long back, times have changed and there is nothing wrong if the judiciary recognizes it). If Miss India attains that status, well, why not?

      • To give another analogy, if BSNL takes its own sweet time to process your phone application now, what would you say to them? Go To Hell. Right? Because you have other options. Would you have done that 15 years back? You would have wanted a consumer court badly then. Why?

    • Ramesh, setting aside the libertarian argument for a moment, what the courts have done, consistently, is not equate the BCCI with “public servants” as exemplified by say government officials. What the courts are saying is that the BCCI, albeit a private body, exercises certain public functions — and that the exercise of those functions (emphasis here) is subject to oversight.

      The fact that the ICC recognized the BCCI is neither here nor there — that recognition stems from the fact that the government of India has authorized the BCCI to represent the country’s cricket interests. If the government withdraws that recognition today and names you instead as the official body for cricket in India, the ICC has no choice but to recognize you, and act with you. In other words, the ICC has neither the authority, nor the jurisdiction, to decide who should front cricket in India — that is an internal decision the ICC can at best ratify.

      Next up, some of us have argued repeatedly that it is time to decide one way or other whether the BCCI is a non-profit or for-profit. If the BCCI is a non-profit — and you know as well as I the rights and privileges that status affords — then its every action is in violation of the provisions attached to that status. If it is a for-profit, then it is time for the government to withdraw various privileges granted to the BCCI. For instance, every single cricket ground under the BCCI through its state affiliations has been leased to it on nominal fees (would you believe something like 1.5 lakh a year, in some cases?) so the BCCI can conduct cricket in India. Since the BCCI makes humongous profits out of those grounds and the activities hosted thereon, in violation of the non-profit status that entitled it to this privilege, we argue that it is time to charge the BCCI the full fee, and to use that money for the betterment of other sport. Similarly, why should the BCCI remain untaxed? That privilege was given to it back in the day, when cricket in the country was in its infancy and needed nurturing. Today, the reasons for that concession are no longer valid, and need to be revoked. As I remember we once discussed during one of those beer days, affirmative action cannot and should not be in perpetuity; there needs to be a finite deadline.

      I could go on, but the point I am driving at is, the judgment may have been badly phrased (I am waiting for a copy, having learnt long ago not to trust the precis-writing skills of the media) in the “public servants” bit, but what the judgement actually does is precisely what you suggest it has the right to — it makes case law that the courts have the right to adjudicate on disputes, and to take punitive note of corruption. Both these rights have been consistently denied by the BCCI till date, on the grounds of “autonomy”.

      It does not suit me, nor have I ever made the case, that the BCCI should be answerable to the government and to all and sundry. However, I’ll continue to argue that there needs to be legal oversight over the BCCI, so that it can be held accountable for its actions. My sense is this judgment is a far cry from the nationalization you fear — nowhere does the court say the BCCI should be brought under government oversight, do note.

  8. If the law was not amended WHEN Srinivasan bought CSK, it is still a vilation, isn’t it? Or is it retrospective? Hope the Powar magic just remains an illusion and the court see the reality.

    • It *is* a violation, even if retrospective, because the constitution specifies rules for amending. One of them is that any amendment has to be passed by 2/3rd of the general body in a formal meeting. What the BCCI did was amend the constitution through executive committee fiat, without bothering with GB ratification. Absent that, the amendment is not proper, not valid, hence legally null and void. The trick is to break down the BCCI’s “autonomy” — or anonymous, as ToI says — claim so these matters can come up before the courts. Hence the importance of the many little legal battles being fought on various fronts. Judgments establishing case law that the BCCI is subject to the prevailing laws is a step in the right direction.

    • Pawar’s real genius is that he allowed various officials to do as they pleased so long as he got what he wanted. The same thing he is doing with Agriculture 🙂

      • Agreed. I just wonder how nobody has the balls to speak out… or the ones with the balls are nipped in the bud!

      • Ah! I claim pioneering spirit on behalf of TN w.r.t this particular modus operandi on because our M Karunanidhi was the one who perfected this strategy much before any one elsed

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