'Oral tradition' of government clearance defines PCB-BCCI verdict

India and Pakistan teams line up for the national anthems Associated Press

The ICC's Disputes Resolution Committee (DRC) may have ruled against the PCB's claim for damages against the BCCI, but it may also have established an important precedent for the prospect of bilateral ties between the two countries. That centers upon the BCCI wanting the approval of the Indian government when touring Pakistan, something the three-member panel recognised was not a legal requirement but an "oral tradition".

It is an important point, concluding a 26-page judgement which ultimately ruled that the PCB had no claims for two tours the BCCI did not undertake in 2014 and 2015, despite having signed an agreement to do so in April 2014. The BCCI maintained that the agreement was not legally binding and cited the main reason for not playing as the absence of clearance from the Indian government.

The DRC established that there was no "express directive" or Indian law by which a bilateral tour had to be sanctioned by the government. The DRC also felt that it was not clear which ministry of the Indian government could give the consent, that "the manner in which such approval had to be sought and obtained, appeared to the Panel more a patchwork quilt than a seamless robe."

Instead, the DRC said that it was "ultimately persuaded' by the evidence of a couple of BCCI witnesses - Ratnakar Shetty (the former general manager of administration at BCCI) and Salman Khurshid, the former Indian foreign minister. On numerous occasions Shetty was the BCCI messenger who put forth the requests for bilateral tours with the Indian government. Khurshid had approved some of those requests during his time in office. Both men explained to the DRC that although not a written law, seeking and getting the government clearance was a norm and had become, as Khurshid said, an "oral tradition".

"The Panel's conclusion is that what varied was the readiness with which such approval for an Indian tour of Pakistan would or would not be granted, which itself, was a reflection of the state of relations between the two Governments and peoples, informed by security and political considerations rather than whether there was any need for such approval in the first place."

The DRC found there was "no evidence" that the BCCI had sought government clearance for a proposed series in the UAE with Pakistan in November 2014. The first instance of the BCCI seeking approval occurred in November 23, 2015, when then BCCI secretary Anurag Thakur approached the Indian government for clearing India to play Pakistan in Sri Lanka.

"It is common ground that such approval was not obtained; hence the cancellation of the 2015 tour," the DRC noted in its findings, released by the ICC on Tuesday.

During the DRC hearings, which took place in Dubai between October 1-3, the PCB argued the BCCI had applied for the clearance "too late". The DRC was "confident" that the clearance would not have been "granted" because the political climate between the two neighbours was "generally tense". That confidence has bemused officials within the PCB, who question how the DRC could place itself in the shoes of the Indian government on such a call.

But the DRC pointed to the heavy exchanges between security forces of both countries at the border, exacerbated further by the hardline verbal rhetoric of the defence ministers of both India and Pakistan. For further context of the environment, it pointed to terrorist attacks in India through 2015, "said to have been perpetrated by Pakistan-based terrorist organisations", which claimed many lives.

On August 20, 2015, the then PCB chairman Najam Sethi had expressed apprehensiveness about the "potential impact" in such a fraught climate on the proposed tours in a note to Pakistan's prime minister. "The Indian government has seemingly withheld its permission for India to play Pakistan stating that the cricket series would be inappropriate in the current atmosphere of tension at the borders, Lakhvi's release, Gurdaspur incidents. Accordingly, there is a possibility that India would not agree to honour its commitment to play its series with Pakistan."

The DRC said the PCB's "pessimism" was justified.

The last time India and Pakistan played a full bilateral tour was towards the end of 2007. Early 2006 was the last time Pakistan hosted India in a bilateral tour. The BCCI insisted at every dialogue that without the Indian government's approval no bilateral cricket with Pakistan was possible. As a consequence, India did not play Pakistan during the ICC Women Championship during the 2014-16 round. On that occasion, however, the ICC's technical committee rejected the BCCI's stance about government clearance and awarded points to Pakistan instead.

The two countries have, however, played against each other in nearly every ICC tournament as well as the Asia Cup since then, a point the PCB made during the proceedings.