Excerpts from a conversation with Suhrith Parthasarathy, who practises law at the Madras High Court, and Aju John, who teaches sports law and media law
Subash Jayaraman: You have followed the case closely. What was the process by which these rulings came about and the role the court has played?
Suhrith Parthasarathy: How it was initiated really was when the Cricket Association of Bihar (CAB) filed a writ petition against BCCI and India Cements and all other concerned parties in the Bombay High Court. They essentially sought two reliefs. One is that they wanted the probe panel, which was established by the BCCI internally to go into the spot-fixing and betting allegations against people like Gurunath Meiyappan and Raj Kundra, and N Srinivasan to a limited extent - to be quashed and wanted a High Court-monitored panel to be established in its place.
What the Bombay High Court did was that [rule that] on one hand the probe panel that the BCCI had set up was unconstitutional, and therefore they quashed that panel. On the other hand, they said that it is only the BCCI that has the power now to appoint a new panel, and they refused to appoint a panel comprising of High Court judges, which is what the CAB had sought.
Both parties filed appeals to the Supreme Court - the CAB saying that the court should appoint the panel, and the BCCI saying that the original panel was valid and they should allow that panel to complete its work and arrive at a conclusion.
SJ: What are your initial impressions about the decision on January 22?
Aju John: The Supreme Court could have done far more with respect to the questions that are still an issue. I just feel that it is in the nature of the jurisdiction, the approach that the Supreme Court took. The court will always be careful about substituting its judgement for the judgement of the BCCI.
It is a different matter that the Supreme Court had to take the extraordinary step of appointing a probe committee - the Mudgal Committee - in the first place. That was because, as the court explains in the judgement, the BCCI did not even follow its own procedures in reacting to a spot-fixing allegation.
As long as the court is acting in its supervisory jurisdiction, what the court will try to do is merely examine whether the right process has been followed to take the decision, and not try to answer the question of whether the right decision has been made. In this case, what the court did - the amendment to article 6.2.4 that [had earlier] permitted Srinivasan's conflict of interest - was that it examined at that stage whether the BCCI had the power to make such an amendment. Because it was a public body and was bound to follow principles such as natural justice and fairness, the BCCI did not have the powers to pass such an amendment.
SJ: The BCCI has always called itself a private body. Now the Supreme Court is saying that it is carrying out public functions and hence it is subject to the rigours of public law. Is there a Pandora's box that is being opened?
SP: It is possible to make that argument, and that there might be more claims made against the BCCI. I don't think that is necessarily a bad thing. You have a body that is so opaque and has not been amenable to anything which tries to guide it towards transparency.
What the Supreme Court has said here is that the BCCI has to act in line with general principles of reasonableness and fairness. Therefore, if they refuse to give a hearing to a person before according him a ban, then that would vitiate that action. That would mean that he would have to be reinstated and be given a fresh hearing. That doesn't necessarily mean that they cannot take that action again, but they will have to take that action after giving a fair hearing, and ensuring the principles mentioned within the BCCI's code are fulfilled.
SJ: Let's take an example of a player who is not being selected for India, and he feels aggrieved. Could he or his parents file a plea asking whether he had a fair shot at selection or not?
SP: The other thing with the writ jurisdiction is that it essentially is a discretionary power at the end of the day. Yes, the BCCI is amenable to that but it is a power that will be exercisable to the High Court and Supreme Court only in their discretion. You would hope that the court will not waste time with issues of selection. Having said that, the BCCI would still be accountable, [to ensure] that the [selection] meeting was held in a fair manner.
Now, let's assume that there is a conflict of interest in the selection committee. That could come potentially within the ambit of the court of jurisdiction to determine whether the selectors have been fair in arriving at their decision.
Discrimination is possibly most rampant in lower levels in India - Under-19, U-16, U-13 levels. There could be issues like selection to a camp, National Cricket Academy, etc. There might be some criteria, say, to determine who should go to Australia for a cricket camp. If I feel that the procedure is not followed properly, there might be more litigation initiated just to ensure that all laws and principles of reasonableness are followed, not to go into the question of whether the better player has been selected or not. That is something that the courts in their wisdom will not do.
SJ: How far can someone go in requesting disclosure from the BCCI? Is it possible for private communications between BCCI officials be made public, or BCCI accounts to be made public beyond what is done in the annual report?
AJ: Currently I don't see the BCCI coming within the definition of a public authority under the RTI [Right to Information] Act. The RTI Act would have required them to make positive disclosures, which is a certain amount of information that has to be mandatorily disclosed under the RTI Act, and then they have to respond to RTI enquiries. In the current situation I don't think the BCCI comes within the RTI Act.
"I think one or two points have been forgotten by the time the Supreme Court judgement came out. I think we should all remember that there is no law on match-fixing or spot-fixing in India" Aju John
SJ: What is the extent of the court's jurisdiction as far as the BCCI's constitution is concerned? The Supreme Court has set up a three-member committee to make recommendations to the BCCI about certain reforms and practices.
SP: The Supreme Court is a very powerful body in the sense that they can effectively do what they want to ensure justice. But this is not something that they will mandatorily impose, and I don't think they ought to be doing that either. These suggestions are going to be recommendatory in nature, and you would hope that the suggestions are taken on board by the BCCI and implemented within its constitution.
The issue about the BCCI is that it is essentially a society which is registered under the Tamil Nadu Societies Registration Act here in Chennai, and various state associations are members. What the Supreme Court has effectively said is that the BCCI owes a larger obligation to the public. This is not an argument that they have necessarily made in the judgement, but why I feel that this is correct is not necessarily because the State has granted them official sanction as a monopoly, but because the State has allowed them to function as a monopoly. They are the only effective cricket board that is operating in India on a national basis, and all the state associations that are recognised in each state fall within the BCCI, and BCCI selects the Indian cricket team and represents India in the ICC. And the moment you are a monopoly that performs a function which can deny people their livelihood or any other civil rights, then I think you owe a larger obligation to ensure that you are reasonable in your actions, that you follow basic principles of fairness, you treat different people equally to the extent possible.
SJ: A question from listener Kartikeya Date, and it relates to the BCCI having a de facto monopoly over cricket in India. His question is: is the ICC laying the ground work for the BCCI or any other cricket board to challenge judicial review, saying they are not a monopoly by choice?
AJ: I think courts will concern themselves with the factual reality of the matter, which in this case is that the BCCI is pretty much a monopoly. I don't think the fact that a new federation or association for cricket cropping up in India would be reason enough for a court to deny its powers of judicial review. The courts will look at factual reality, and even if there is somewhat healthy competition, significant market power might also be reasonable enough for the courts to exercise powers of judicial review.
SP: I completely agree. I feel that even if there was a rival association, and you saw how this worked with the ICL, for instance - the BCCI effectively pulverised it and ensured that it would occupy centre stage as far as cricket in India goes. As long as it continues to do that I would think that it would still be amenable to judicial review. Now that the Supreme Court has made a judgement on this and laid down the law, I don't think it would be changed merely by the ICC to bring some sort of regulation in, which would allow different "national" boards to compete with BCCI for official recognition.
SJ: Another listener, Freddie Wilde, wants to know if India Cements manages to sell Chennai Super Kings before the Supreme Court's ruling on CSK's future, what effect would it have on a decision to terminate CSK? If there was a ruling about CSK's future, would that continue with the new owner as well?
SP: That's a very good question, and I don't think it would. I don't think this probe panel which has been established would go so far as to take action against CSK or Rajasthan Royals. That's my personal opinion, of course. The Supreme Court has permitted N Srinivasan to have India Cements exit ownership of CSK and continue to retain the presidentship of the BCCI, and people can correct me if I'm wrong, but it's possible that India Cements could sell its stake in CSK to someone and maybe have an option to re-purchase CSK at some point in the future, which they might exercise, assuming that Srinivasan is done with his presidency at that time.
SJ: There is a clause in the IPL constitution which says that if a franchise brings the league or the board into disrepute then they can be penalised by getting kicked out of the league. So far, what the Supreme Court has ruled is that Mr [Gurunath] Meiyappan was a part of the ownership of CSK and was involved in betting. If they were in violation, would the court just leave the BCCI/IPL Governing Council to take action rather than impose a judgement?
AJ: I think, as I said, the court has been using a gentle hand in this. The court hasn't tried to exercise its powers instead of the powers given under the IPL regulations or the BCCI Memorandum of Association. So what the court has done here is to set up this new probe committee to exercise powers on behalf of the BCCI under the BCCI and IPL regulations. The court has also not reached a conclusion about what offences have been proved against CSK and Rajasthan Royals. So the question of punishment is secondary to whether offences have been established. That question has also been left to the probe committee.
SJ: I want to get your thoughts on what has transpired in the last 16 to 20 months in terms of what it means for the BCCI and for N Srinivasan. And in general on sport governance in India.
SP: I think this is an important judgement. I think the Supreme Court was correct in saying that the BCCI ought to be amenable to the general rigours of public law and that they ought to act in a reasonable, fair and just manner. But this is also just the tip of the iceberg. This is just the beginning of what should be a long process of cleaning the BCCI of its many malaises.
AJ: I think one or two points have been forgotten by the time the Supreme Court judgement came out. I think we should all remember that there is no law on match-fixing or spot-fixing in India. This is an anomaly that needs to be corrected very soon - the fact that the police has been involved in an investigation without the technical backing of a defined criminal offence.
Secondly, we should also be aware of the fact that the internal governance mechanism of cricket has not been the one that has spotted an instance of spot-fixing or match-fixing. It's either the police or the media that spots it.
As far as the judgement is concerned, I think it is a fantastic step. The BCCI has been resisting pressure from the government, and from the media for so many years, and is immune to pressures from the international Olympic movement, so pressure had to come from the judiciary. And I'm so glad that the judiciary has announced that BCCI will be treated on par with a body that performs public functions and therefore will have the responsibilities of a body that will perform public functions.