September 10, 2011

Why shouldn't the BCCI be accountable?

Rahul Mehra
The sports bill will open the board up to scrutiny. If it doesn't have anything to hide, what does it have to fear?

The sports bill proposed by India's sports ministry applies to all sports bodies. The BCCI is a sports body, like others, so why should it have a different status? The BCCI is a National Sports Federation (NSF). It selects the national cricket team, and performs a public duty by doing so. It has been given that power by the government.

This was captured in a historic judgement by the Delhi High Court in 2004. The board argued then that it is a private autonomous body and the team a Board XI and not the Indian team; essentially that Sachin Tendulkar and the like don't play for India. But the Delhi High Court very clearly said then that the team the BCCI selects is not its team, but team India. The court also said that if the BCCI performs these key public functions, it cannot keep away from accountability, and has to be amenable to writ jurisdiction. Therefore, so far as you perform a public function, you can be challenged and you have to be answerable.

Two more recent cases have also held that cricket officials can be classified as public servants. Last year the Kerala High Court ruled that the Kerala Cricket Association officials were public servants within the definition of the Prevention of Corruption Act as it performed a public duty and a public service, a decision that was upheld by the Supreme Court earlier this year.

In May, 2011, the Punjab and Haryana High Court ruled that the Right to Information Act was applicable to the Punjab Cricket Association since it had taken land from the government at a throwaway price - 13.56 acres at a rent of Rs 100 per acre per year. The judge said that amounts to taking substantial funding from the state and under section 2A of the Act makes it a public authority. If a state association of the BCCI has been declared to be a public authority, it is baffling to understand why the BCCI is not so since essentially the BCCI is a formation of its state associations.

Yes, the BCCI does not receive grants or funding from the government, but it does receive tax exemptions (Ed's note: The government revoked the board's income-tax exemption in 2010, and according to the finance minister, Pranab Mukherjee, Rs 200 crore has been collected in tax since then), security at no cost and land for stadiums at bargain prices. If the BCCI had to go out and buy land for stadiums at today's market rates, it would have to spend hundreds, maybe thousands, of crores to acquire land.

This is something the board should acknowledge - that the government of India provides it plenty, and does not interfere in the board's day-to-day operations at all. This bill is only furthering that case. It does not, in any way, look to impose governmental control over cricket or any other sport. The only thing the bill does is give the board parameters and guidelines to follow as an NSF. These are good international practices, which time has tested; they cannot be said to be draconian and intrusive on the autonomy of these so-called private autonomous bodies.

The other question is how does the BCCI generate all its revenue? It is eyeballs. The majority of their income comes from sponsorships and TV rights. The eyeballs come from a key stakeholder, which is the public. If everyone stopped watching cricket, could they generate this revenue from television ratings? You want to generate everything from the public, wanting to use the name Team India, yet you do not want to be accountable. You are ready to accept everything from everyone but not willing to give ordinary levels of transparency in return.

The BCCI operates in a highly autocratic, inefficient and unprofessional mater. The Act will change that. It will make the board accountable for everything. It will give the people a chance to find out how the BCCI qualifies to be a private, autonomous, not-for-profit charitable body when it has a commercial venture called the IPL as a sub-committee. Questions can be asked about scheduling and the ways in which tenders are issued and contracts awarded. Why is it that the BCCI doesn't allow players to get to a country well in time to get acclimatised for a tour? How are television rights, internet rights and the like awarded?

There is a legitimate concern that frivolous requests could be filed about selection matters. Cricket generates a lot of passion, especially in India. But there are enough mechanisms within the RTI Act to allow for exceptions (see Section 8). The same argument can be taken by any other sport, but none have. If it is a frivolous request, the BCCI can deny the right to information on that basis when challenged in court. You can't, however, have a blanket statement protecting the BCCI from having to follow any laws. If the board doesn't want to come under the Act, let it stop taking handouts from the government and stop selecting the Indian team.

The clause in the bill whereby 25% of federation posts are reserved for former players will ensure a large number of ex-cricketers are part of the decision-making process. This will bring fresh ideas and new vigour to the board.

The BCCI says it is transparent and that it releases information about its functioning to the public, but it is important for the people to not just have access to what the BCCI wants them to see; it is important to see everything. The biggest disinfectant is sunlight, and if the dark corridors of the BCCI have nothing to hide and nothing to protect, the board should welcome the Act.

(As told to Tariq Engineer)

Rahul Mehra is a lawyer

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