BCCI has lost privilege cover, say lawyers

The Supreme Court's decision to open the BCCI to judicial scrutiny under Article 226 of the Constitution has implications that go beyond the cricket field and into the boardroom, potentially influencing the way the sport will henceforth be run. That is the consensus opinion among several lawyers ESPNcricinfo spoke to following the court's judgement on Thursday.

While delivering the order, the bench of Justices TS Thakur and FMI Kalifullah began by answering a key question: whether the BCCI is a 'state' and, if it is not, whether it is amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India. A writ jurisdiction is essentially the right to seek a remedy against the state, the route open to a private citizen questioning a state or state body of any wrongdoing.

The first instance of the court trying to determine whether the BCCI was a state and was performing public functions came in a case concerning Zee Telefilms Ltd. and Anr. v Union of India and Ors. (2005). The case related to the exclusive television rights for a four-year period; the BCCI, through an order, cancelled the allotment in favour of Zee Telefilms. A petition was filed by Zee Telefilms under Article 32 in the Supreme Court which the BCCI challenged saying such a plea could only be filed against the state.

The majority verdict of the court ruled that BCCI was not a state but it did point out that, by picking an Indian team, controlling the activities of players and others like match officials, scorers, administrators, the BCCI was performing public functions. Any violation made it open to litigation under Article 226 of the Constitution of India, the court ruled.

On Thursday, the court reinforced the same in its order (Pages 32-35) and further qualified its view as to why the BCCI could not anymore hide under the cover of being a private, autonomous body immune to litigation.

"The BCCI can't make changes on its own which are contrary to the law," Vidushpat Singhania, a Delhi-based sports lawyer and secretary to the Mudgal Committee, said. "Like in the past the way the BCCI changed its constitution or rules and regulations for the benefit of an X person cannot be done anymore. Earlier the BCCI would say since it was an autonomous body only its public functions could be challenged. But no one could challenge if it made any amendments to its rules and regulations. That is no more the case."

Another lawyer, whose clients include eminent sports personalities, felt the biggest change coming out of the ruling is that the court is now willing to go into micromanagement and deep into the governance structure of a sports body. And that was the area where the court had moved forward from the Zee Telefilms case. "The most significant part is how specific the process has been laid out to determine the punishment. They have named the committee. They have given them specific guidelines. They have made the findings a fact. This is the whole exercise of power under Article 226.

"So far what the court used to do was more oversight saying that this hasn't been done, please go back and do it properly. But constituting and naming the committee is actually a big development," the lawyer, who requested anonymity, said.

According to Gopal Sankaranarayanan, an advocate in the Supreme Court, it is one of the first instances in which the functioning of the BCCI has been scrutinized with reference to the actual cricket. "It is not a question of telecast rights. This is more in the nature of a public interest litigation because it is dealing with lack of transparency, conflict of interests, match-fixing. All these are important issues, (for) all of which even a fan can file a petition."

Sankaranarayanan, who was part of the BCCI legal team in the Zee Telelfilms case, said that the Thursday verdict must put a full stop on the full control the board insisted it had in running the game. "It is not really the law but the courts now feel they are empowered to take on more questions about how BCCI functions. There was this very comfortable couch that the BCCI administrators were sitting on which has been once and for all dislodged. Now they have realised they can't get away with virtually anything. The courts will step in."

Essentially the Supreme Court has taken custody of cricket as a sport, as a result of which its national administrator will not remain unregulated. The willingness of the courts can be seen in the case relating to K Balaji Iyengar v State of Kerala. Iyengar, a former Kerala junior cricketer, had filed a case of corruption and misappropriation against the Kerala Cricket Association under the Prevention of Corruption Act 1988.

The special court said it did not hold jurisdiction to hear the case. Hearing the case in 2011, the Supreme Court determined that the KCA was performing public duties and its officials were classified as public servants.

It held that "even if Kerala Cricket Association is not an 'other authority' and thereby not an instrumentality of the State for the purpose of Article 12 of the Constitution, if the Secretary and President of the Association, who hold those offices are authorised or required to perform any public duty by virtue of holding their offices, they would be public servants as defined under the POCA."

Thakur was one of the two judges who presided over that case. Along with his colleague Justice VS Sirpurkar, Thakur upheld a Kerala High Court decision that said the officials of KCA were public servants. The court's decision meant that officials who are part of a private body but perform what can be considered a public function could now be tried under the Prevention of Corruption Act, which applies only to public servants.

Going forward, according to Sankaranarayanan, one potential scenario where the BCCI or the state associations could now be pulled up would be with team selections. "If a parent of a player feels he has been left out for whatever reasons, he/she could easily file a writ asking for procedures etc. This need not stop only at team issues. It could also be administrative selections."

There is no doubt such challenges will crop up around the country. Whether the court entertains them is another matter. It cannot now decline a plea, but can say it is not a case for it to interfere in and is better left to the experts. "Now the public of India have a right to seek a writ against the BCCI when it comes to administration and running of the sport," Sankaranarayanan says.

Singhania also reckons the BCCI will be amenable under the Right to Information Act jurisdiction. "The court said that you are exercising public functions and that is only because the State has given its concurrence. You are supposed to beregulated by the State. And hence any citizen of India can ask the BCCI for information."

But Sankaranarayanan said he disagrees with Singhania. "The court dealing with a private society cannot change the nature of the society. What they can do is adjudicate jurisdictional powers with reference to the kind of functions that are discharged. The court answered a question in a very, very limited purpose only dealing with whether Article 226 would lie against the BCCI. I don't think it is such an easy leap to say just because there is a writ jurisdiction the BCCI is amenable to RTI."

The experts point out that the courts do not want to impose themselves as long as the BCCI and its administrators carry out their functions according to the rules. The lawyer, who did not want to be named, points out the court will still never intervene on matters of policy and selection. "It is not just about setting the standards, but actually now quasi-governance. It is almost like court-enforced governance review. To make sure there are no conflict of interests, to check for the various clauses in rules and regulations. The BCCI will now have to guard against any sort of ambiguity, any sort of arbitrariness, [have] much better paperwork and more open decision-making."