NEW DELHI: The Planning Commission told the Supreme Court on Tuesday that anyone spending more than Rs 965 per month in urban India and Rs 781 in rural India will be deemed not to be poor. Updating the poverty line cut-off figures, the commission said those spending in excess of Rs 32 a day in urban areas or Rs 26 a day in villages will no longer be eligible to draw benefits of central and state government welfare schemes meant for those living below the poverty line.
According to the new criterion suggested by the planners, if a family of four in Mumbai, Delhi, Bangalore or Chennai is spending anything more than Rs 3,860 per month on its members, it would not be considered poor. It’s a definition that many would find ridiculously unrealistic. Not surprisingly, the new above the poverty line definition has already created outrage among activists, who feel it is just a ploy to artificially depress the number of poor in India. The plan panel said these were provisional figures based on the Tendulkar committee report updated for current prices by taking account of the Consumer Price Index for industrial and agricultural workers.
TOI broke down the overall monthly figure for urban areas and used the CPI for industrial workers along with the Tendulkar report figures to see what these numbers translate into and how much the Planning Commission believes is enough to spend on essential items so as not to be deemed poor.
The Planning Commission suggests that spending Rs 5.5 on cereals per day is good enough to keep people healthy. Similarly, a daily spend of Rs 1.02 on pulses, Rs 2.33 on milk and Rs 1.55 on edible oil should be enough to provide adequate nutrition and keep people above the poverty line without the need of subsidized rations from the government. It further suggests that just Rs 1.95 on vegetables a day would be adequate. A bit more, and one might end up outside the social security net.
People should be spending less than 44 paise on fruits, 70 paise on sugar, 78 paise on salt and spices and another Rs 1.51 on other foods per day to qualify for the BPL list and for subsidy under various government schemes. A person using more than Rs 3.75 per day on fuel to run the kitchen is doing well as per these figures. Forget about the fuel price hike and sky-rocketing rents, if anyone living in the city is spending over Rs 49.10 a month on rent and conveyance, he or she could miss out on the BPL tag.
As for healthcare, according to the Planning Commission, Rs 39.70 per month is sufficient to stay healthy. On education, the plan panel feels those spending 99 paise a day or Rs 29.60 a month in cities are doing well enough not to need any help. Similarly, one could be considered not poor if he or she spends more than Rs 61.30 a month on clothing, Rs 9.6 on footwear and another Rs 28.80 on other personal items.
The monthly cut-off given by the Planning Commission before the apex court was broken down using the Consumer Price Index of Industrial Workers for 2010-11 and the breakdown given in Annexure E of the Tendulkar report of expenditure calculated at 2004-05 prices.
The new tentative BPL criteria was worked out by the Planning Commission and approved by the Prime Minister’s office before the government’s affidavit was submitted before the Supreme Court. The plan panel said the final poverty line criteria would be available after the completion of the NSSO survey of 2011-12.
The Montek Singh Ahluwalia-headed Planning Commission had drawn flak from the apex court which, on May 14, took exception to the poverty line definition which initially said anyone spending more than Rs 20 in urban areas and Rs 15 in rural areas should not be considered poor. “The Planning Commission may revise the norms of per capita amount looking to the price index of May 2011 or any other subsequent dates,” the court had said. So, the planners have now given a revised figure of Rs 32 for urban areas and Rs 26 for poor areas.
In their affidavit, the planners have defended their definition of the poverty line and not revised the norms, but merely updated them with the CPI for the current year. The affidavit says, “The recommended poverty lines ensure the adequacy of actual private expenditure per capita near the poverty lines on food, education and health and the actual calories consumed are close to the revised calorie intake norm for urban areas and higher than the norm in rural areas.”
Ministers involved in sports bodies oppose the Sports Development Bill. Sharad Pawar sees it as an attempt to bring the BCCI under the RTI.
THE organised wails and breast-beating of members of the Union Cabinet holding high offices in sports bodies, at the Cabinet meeting on August 30, reminds one of a similar spectacle enacted by Zamindars over half a century ago, when Bills for abolition of the Zamindari system were introduced in State legislatures. This time the tamasha was over the National Sports Development Bill, 2011, which Minister for Sports and Youth Affairs Ajay Maken tabled for discussion in the Cabinet.
The strongest opposition came from Agriculture Minister Sharad Pawar, who threatened to take up the matter with the United Progressive Alliance (UPA) chairperson Sonia Gandhi and ask her to discuss it in the UPA coordination committee: “[T]ell [ sic] her to allow me to follow my party’s decision during the voting on the Bill” ( The Times of India, August 31). The confidence with which he anticipated the decision of his party, the Nationalist Congress Party (NCP), says a lot for that party and for him.
The shrillest of the mourners was Farooq Abdullah. As has been pointed out earlier in this journal, citing authoritative dicta by constitutional authorities, Ministers who are affected personally by a proposed measure have absolutely no right to be present at the Cabinet meeting that is to discuss the measure. The vice is not cured one bit by “disclosure of interest”, quite apart from the fact that the interest was only too well known. (“A flawed waiver”, Frontline, May 6, 2011). Rule 255 of the Rules of Procedure of the Lok Sabha provides that if a member of a committee of Parliament has a “personal” or “direct interest” on a matter to be discussed, he shall, on the Speaker’s finding to that effect, “ cease to be member thereof forthwith”.
In 1937, Sir John Simon reiterated the rules on behalf of the Prime Minister:
“In the first place, it is plain that in no circumstances must a man who holds the position of a Minister ever allow himself to be in such a situation that his public duty will conflict with his private interests…. The second principle is that no man should allow himself to occupy any portion of the time which he is bound to devote to his public duties in a disregard of his public duties, and pursuing any private interest whatever, whether it is in playing golf or in the nature of business.
“The third principle is that inasmuch as the secrets of the government are specially in charge of Cabinet Ministers, no Minister, and particularly no Cabinet Minister, must in any circumstances put himself in a position where he is not able to be the complete guardian of those secrets in that there is any possibility of any private interests being served through a knowledge of those secrets” (324-C. Debates Ss., 1220).
What is the lure of power over sports bodies that drives politicians to seek that power while grasping simultaneously at state power? In this category fall also Praful Patel, Vilasrao Deshmukh, C.P. Joshi, Farooq Abdullah and Arun Jaitley.
Regardless of their protests, the Bill must be considered objectively. Control of sports bodies by politicians is offensive; more so is state Control. Involved are two distinct issues. One is the application of the Right to Information (RTI) Act, 2005, to the Board of Control for Cricket in India (BCCI). The other comprises regulatory measures over all national sports federations, including the BCCI. They are: a 70-year age bar and a 12-year tenure limit on office-bearers of the federations and the BCCI, a 25 per cent reservation of seats on their executive boards for sportsmen of the same game, anti-doping norms, provision for “recognition” of the federations (BCCI included) by the Government of India and the publication of audited accounts. Clause 6(1) of the Bill reads thus: “Every national sports federation shall, in collaboration with the Sports Authority of India (SAI) and with the approval of the Central Government, develop a long-term development plan for a period of four years.”
Heavy Industries Minister Praful Patel’s objection is valid: “If such a Bill is passed, bureaucrats like a Joint Secretary will be soon running the sports federation. What is their competence in sports administration? The Sports Ministry should rather address the issue of free and fair elections in sports bodies.”
The Sports Minister replies: “Section 6(1) Clause only relates to those federations which are funded by the government. After all, the Ministry has a right to see how its funds are utilised. But the provision is not applicable for bodies like the BCCI, which does not take grant-in-aid from the government” ( Indian Express, September 1).
For all the furore, there is considerable common ground between the rival viewpoints and, therefore, ample ground for compromise. Note these pronouncements. Sports Minister Ajay Maken said: “Whichever provision that sports federations find intrusive, we are willing to look into it. Our intention is not to control the national sports federations but to regulate them. We do not intend to be intrusive.”
Praful Patel said he did not have any issue with opening the BCCI to RTI scrutiny, adding that this was his personal view. Patel, who heads the All India Football Federation (AIFF), however, said he had objections to only specific provisions and not to the entire draft Bill per se. “Personally, I don’t have any issues with RTI [for BCCI]. But I do not agree with the clauses relating to age bar, tenure limitation and control of sporting bodies by the government.”
A provision of the draft Bill says: “Every national sports federation (this includes the BCCI) shall every year before December 21 publish on its website audited annual financial statements, comprehensive report of its activities and achievements.” What objection can any sports federation possibly have to such a provision? Sports federations, the BCCI included, select national teams for participation in matches abroad.
In the very nature of things, there has to be a certain liaison between the state and the federations. The BCCI is accepted internationally only because it is seen internationally to enjoy a measure of official backing and support. Without these its clout would dissipate. We have to steer between the Scylla of politicians’ corrupting control and the Charybdis of state control, which will cripple sports.
Some legislation is overdue. One must consider first the legal status of the BCCI and, relatedly, its behaviour. There are four rulings on its status. One is by the Delhi High Court. The other three are by the Supreme Court: (1) BCCI vs Netaji Cricket Club and Ors. (2005) 4 Supreme Court Case 741 decided by Justices N. Santosh Hegde and S.B. Sinha on January 10, 2005. Only a few days later, on February 2, 2005, they split; each pronouncing for the differing judges (3-2), a narrow majority, in (2) Zee.Telefilms Ltd & Anr vs Union India & Ors. (2005) 4 SCC 649, and, lastly, (3) A.C. Muthiah vs BCCI & Anr (2011) 6 SCC 617 decided on April 28, 2011, by Justices J.M. Panchal and Gyan Sudha Misra. They differed and referred the matter to the Chief Justice of India “for being assigned to an appropriate Bench”. Thus, despite the three cases, the issue of the BCCI’s status remains to be decided finally, one hopes by a larger Bench. The final result is unlikely to please the zamindars of the BCCI, judging by the reasoning of the eminent judges who ruled on the issue. It is best to quote their words at some length.
Part III of the Constitution, embodying the Fundamental Rights, applies only to “the state”, not to private individuals or associations. Article 12 defines what “the state” means in this context. It covers the Central and State governments and legislatures and “all local or other authorities within the territory of India or under the control of the Government of India”. The Supreme Court interpreted Article 12 to cover a host of bodies so that the citizen can enforce his fundamental rights against them. Is the BCCI a state so defined? The BCCI was formed in 1928, as an unregistered association of persons. It was registered in 1940 under the Societies Registration Act, 1860, a Central statute. It was later registered under the Tamil Nadu Societies Registration Act, 1975, which came into effect on April 22, 1978.
The first case ( BCCI vs Netaji Cricket Club) concerned elections for the post of the BCCI’s president. Netaji Club was a member of the Tamil Nadu Cricket Association (TNCA), which, in turn, was a member of the BCCI. The judgment was delivered by Justice S.B. Sinha of the two-judge Bench. Justice Santosh Hegde was party to it. It said:
“The Board is a society registered under the Tamil Nadu Societies Registration Act. It enjoys a monopoly status as regards regulation of the sport of cricket in terms of its Memorandum of Association and Articles of Association. It controls the sport of cricket and lays down the law therefor. It inter alia enjoys benefits by way of tax exemption and right to use stadia at nominal annual rent. It earns a huge revenue not only by selling tickets to viewers but also selling right to exhibit films live on TV and broadcasting the same. Ordinarily, its full members are the State associations except Association of Indian Universities, Railway Sports Control Board and Services Sports Control Board. As a member of ICC [International Cricket Council], it represents the country in the international fora. It exercises enormous public functions. It has the authority to select players, umpires and other officers. The Rules of the Board clearly demonstrate that without its recognition no competitive cricket can be hosted either within or outside the country. Its control over the sport of competitive cricket is deeply pervasive and complete.
“In law, there cannot be any dispute that having regard to the enormity of power exercised by it the Board is bound to follow the doctrine of ‘fairness’ and ‘good faith’ in all its activities. Having regard to the fact that it has to fulfil the hopes and aspirations of millions, it has a duty to act reasonably. It cannot act arbitrarily, whimsically or capriciously. As the Board controls the profession of cricket, its actions are required to be judged and viewed by higher standards.”
Zee Telefilms Ltd vs Union of India was decided by a Bench of five judges. It squarely concerned the issue whether the BCCI fell within the definition of “the state” in Article 12. The Bench split narrowly. Justice Santosh Hegde delivered the judgment for himself and Justices B. Singh and H.K. Sema, while Justice S.B. Sinha delivered the dissent on his own behalf and on behalf of Justice S.N. Variava.
Admittedly, the BCCI is neither controlled by the government nor does it receive financial assistance from it. The majority ruled that it was not an instrumentality of the state. The government’s plea that it enjoyed it “ de facto recognition” was rejected. But the majority qualified this:
“However, it is true that the Union of India has been exercising certain control over the activities of the Board in regard to organising cricket matches and travel of the Indian team abroad as also granting of permission to allow the foreign teams to come to India. But this control over the activities of the Board cannot be construed as an administrative control. At best this is purely regulatory in nature and the same according to this court in [the] Pradeep Kumar Biswas case is not a factor indicating a pervasive state control of the Board.
“Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or state functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or she is not a state. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.” The gap between this view and the minority view is not wide.
Article 226 confers on High Courts power to issue “to any person or authority” and “any government” writs for the enforcement of the fundamental rights “and for any other purpose”. Article 32 empowers only the Supreme Court to issue writs for the enforcements of the fundamental rights. The majority very well knew that the Supreme Court has driven a coach-and-four through Article 32. It has issued writs for all manner of purposes. It would be unsafe for the BCCI to bank on the majority view with its explicit recognition that the BCCI does exercise “ public duties or state functions”. How then can it object to Central legislation?
Justice Sinha’s dissent focuses on this very point, the BCCI’s Achilles’ heel. He said: “Its actions of promoting the sport, making laws for cricket for the entire country, representing the country in international forums, appointing India’s representatives, and the all-pervasive control over players, managers and umpires are state actions.” He cited an English ruling that said: “The reason why a club is not subject to judicial review is not just because it is self-regulating. The panel wields enormous power. It has a giant’s strength. The fact that it is self-regulating, which means, presumably, that it is not subject to regulation by others, and in particular the Department of Trade and Industry, makes it not less but more appropriate that it should be subject to judicial review by the courts.”
Justice Sinha observed: “The Board [BCCI] while enjoying monopoly in cricket exercises enormous power, which is neither in doubt nor in dispute. Its action may disable a person from pursuing his vocation and in that process subject a citizen to hostile discrimination or impose an embargo which would make or mar a player’s career. The right to pursue an occupation or the right of equality are embedded in our Constitution, whereby citizens of India are granted much higher right as compared to the common law right in England. A body although self-regulating, if it performs a public duty by way of exercise of regulatory machinery a judicial review would lie against it. The question has since been considered from a slightly different angle, viz., when such action affects the human right of the person concerned holding that the same would be public function. If the action of the Board impinges upon the fundamental or other constitutional rights of a citizen or if the same is ultra vires or by reason thereof an injury or material prejudice is caused to its member or a person connected with cricket, judicial review would lie. Such functions on the part of the Board being public functions, any violation of or departure or deviation from abiding by the Rules and Regulations framed by it would be subject to judicial review. Time is not far off when having regard to globalisation and privatisation the rules of administrative law have to be extended to private bodies whose functions affect the fundamental rights of a citizen and who wield a great deal of influence in public life.” The logic is unanswerable.
Justice Sinha pointed out: “The traditional tests of a body controlled financially, functionally and administratively by the government as laid down in Pradeep Kumar Biswas would have application only when a body is created by the state itself for different purposes but incorporated under the Indian Companies Act or the Societies Registration Act. Those tests may not be applicable in a case where the body like the Board was established as a private body long time back. It was allowed by the state to represent the state or the country in international fora. It became a representative body of the international organisations as representing the country. The nature of function of such a body becomes such that having regard to the enormity thereof it acquires the status of monopoly for all practical purposes; regulates and controls the fundamental rights of a citizen as regards his right of speech or right of occupation, becomes representative of the country either overtly or covertly and has a final say in the matter of registration of players, umpires and others connected with a very popular sport. The organisers of competitive Test cricket between one association and another or representing different states or different organisations having the status of state are allowed to make laws on the subject, which is essentially a state function in terms of Entry 33 List II of the Seventh Schedule of the Constitution. In such a case, different tests have to be applied.”
The BCCI selects India’s Team, not the BCCI’s team. “As per ICC Rules and Guidelines for Classification of Official Cricket, the definition of a Test match in clause 1(a)(i) is as follows: ‘Any cricket match of not more than five days scheduled duration played between two teams selected by full members as representatives of their member countries and accorded the status of Test match by the Council.’ Indisputably, the Union of India had issued guidelines, which had been reviewed from time to time. The Ministry of Youth Affairs and Sports issued the revised guidelines and forwarded the same to the presidents/ Secretary General, Indian Olympic Association, and presidents/ hon. general secretaries of all recognised sports federations, incorporating therein the amended provisions. Cricket is included in annexure I within the category.”
Justice Sinha proceeded to analyse the government’s guidelines. “Annexure II appended to the guidelines provides for recognition of national sports federations, inter alia, by laying down the eligibility therefor and the necessity of filling of applications in that behalf. Clause 3, 12, reads as under: ‘There would be only one recognised federation for each discipline of sport, irrespective of the fact that the particular sport caters to youngsters, men, women or veterans.
‘However, this condition shall not apply to federations already recognised by the Department.’ Clause 5 provides for grant of recognition. Annexure III appended to the said guidelines provides for the procedure for suspension/withdrawal of recognition and consequences thereof. The guidelines also prescribe forms required to be used by the federations for different purposes.
“The Board for all intent and purport was a recognised body. Probably in that view of the matter, the Board did not think it necessary to apply for grant of such recognition by the Union of India, asking it for passing a formal order. However, the Board had all along been obtaining the requisite permission for sending an Indian team abroad or for inviting a foreign team to India in the prescribed form. …a number of documents have been annexed, which clearly go to show that from the very beginning the Board had been asking for the permission of the Ministry of Human Resource Development either to go abroad or to play or participate in other countries or for inviting the others to play in India. Such permission had been sought for in the form prescribed in terms of the said Regulations. The said documents leave no manner of doubt that the Board had asked for and the Union of India had granted de facto recognition.” So much for the objection to the government’s power of “recognition”.
“It is not disputed that the Union of India has not recognised any other national sports body for regulating the game of cricket in India. It is the categorical stand of the Union of India that only by such recognition granted by the Union of India is the team selected by the Board the Indian cricket team, which it could not do in the absence thereof. We cannot accept the submission of Mr Venugopal to the effect that even while playing abroad, the Board sends its own team. It is evident from the records, which fact has also been noticed by the Delhi High Court in its judgment in Rahul Mehra, that the Board fields its team as the Indian team and not as Board Eleven, which without having any authority from the Union of India it will not be able to do. The stand that the cricket team selected by the Board only represents it and not the country is incorrect. Having regard to the Rules of the ICC, its own Rules as also various documents placed before this court by the Union of India, the conduct of both the Board and the Union of India clearly goes to show that sub silentio both the parties had been acting on the premise that the Board is recognised as the only recognised national federation for the purpose of regulating the game of cricket in India.”
Read this: “A body which carries on the monopolistic function of selecting a team to represent the nation and whose core function is to promote a sport that has become a symbol of national identity and the medium of expression of national pride, must be held to be carrying out governmental functions. A highly arbitrary or capricious action on the part of such a powerful body would attract the wrath of Article 14 of the Constitution. The Board itself acted as a representative of the Government of India before the international community. It makes representations to the effect that it was entitled to select a team which represents the nation as a cricket-playing country, and, thus, the same would, without anything more, make its action a state action. For the said purpose, actual control of the Board or issuing any direction in that behalf by the Government of India is not of much significance, but the question as to whether the government, considering the facts and circumstances, should control the actions of the Board as long as it purports to select a team to represent India would be a matter of great significance.
“The guidelines issued by the Union of India clearly demonstrate its concern with the fall in standard of Indian teams in sports in important international sports events. It would not be correct to draw a comparison between an event of international sport as significant as cricket with beauty pageants and other such events as the test necessary to be evolved in this behalf is the qualitative test and not the quantitative test. The quality and character of a sport recognised as a measure of education and nation-building (as a facet of human resource development) cannot be confused with an event that may be a form of entertainment. Cricket, as noticed hereinbefore, has a special place in the hearts of citizens of India.
“The monopoly status of the Board is undisputed. The monopoly enjoyed by the Board need not be a statutory one so as to conform to the tests contained in Clause (6) of Article 19 of the Constitution. It can be a de facto monopoly which has overtly or covertly received the blessings of the Union of India. The de facto monopoly of the Board is manifest as it, as a member of ICC (even if it is technically possible to float any other association), can send an Indian team abroad or invite a foreign team to India. In the absence of recognition from the ICC, it would not be possible for any other body, including the Union of India, to represent India in the international cricket events featuring competitive cricket….
“The Board which represents a nation with or without a statutory flavour has duties to perform towards the players, coaches, umpires, administrators and other team officials. They have a duty to create safe rules for the sport, if by reason thereof a physical injury to the player is to be avoided and to keep safety aspect under ongoing review. A body may be autonomous but with autonomy comes responsibility. Sport is a ‘good thing’ wherefor a societal end is to be provided. Sport must receive encouragement from the state and the general public or at least not be discouraged. Health, sociability and play are considered to be important values to be recognised in a human.
“Having regard to the nature of activities, viz., the Board represents a sovereign country while selecting and fielding a team for the country with another sovereign country, promoting and aiming at good relations with the said country as also peace and prosperity for the people, even at the domestic level the citizens of the said country may be held to be entitled to the right to invoke the writ jurisdiction of this court even if hereby no personal fundamental right is directly infringed.
“With the opening up of the economy and globalisation, more and more governmental functions are being performed and showed to be performed by private bodies. When the functions of a body are identifiable with the state functions, they would be state actors only in relation thereto… What is necessary is to find out as to whether by reason of its nature of activities, the functions of the Board are public functions. It regulates and controls the field of cricket to the exclusion of others; its activities impinge upon the fundamental rights of the players and other persons as also the rights, hopes and aspirations of the cricket-loving public. The right to see the game of cricket live or on television also forms an important facet of the Board. A body which makes a law for sports in India (which otherwise is the function of the state), conferring upon itself not only enormous powers but also final say in disciplinary matters and, thus, being responsible for making or marring a citizen’s sports career, would be an authority which answers the description of ‘other authorities’.”
The third case arose out of a suit filed by A.C Muthiah, a former president of the BCCI, against the BCCI. It had invited Indian Cements Ltd., based at Chennai and represented by its managing director N. Srinivasan (respondent 2), to participate in the auction conducted by the Indian Premier League (IPL). Srinivasan was also the hon. treasurer of the BCCI and president of the TNCA. He was awarded the franchised IPL rights for ownership of Chennai Super Kings team by the BCCI. Muthiah alleged conflict of interest and filed a suit in the Madras High Court for various reliefs. Srinivasan participated in the Annual General Meeting of the BCCI held in Mumbai on September 27, 2008, since the court had not granted a temporary injunction. More, he was also elected secretary of the BCCI. On the same day, Clause 6.2.4 of the Regulations for Players, Team Officials, Managers, etc., was amended with immediate effect to cover the plea of conflict of interest. It now read: “No administrator shall have directly or indirectly any commercial interest in the matches or events conducted by [the] BCCI excluding events like IPL or Champion League Twenty 20” (emphasis added, throughout).
Muthiah sued again to have the amendment declared void as being made mala fide. The matter eventually reached the Supreme Court. Justice Panchal not only held that the BCCI was not “the state” but opined in the teeth of the record that the Netaji Club case was “no longer good law” in view of the ruling in the Zee Telefilms case. There was nothing to prevent the Bench in the latter case from saying so. It had not. Indeed, Santosh Hegde’s remarks quoted above came very close to Justice Sinha’s.
Justice Gyan Sudha Misra disagreed with Justice Panchal completely, observing: “Just after a few days of filling of the suit by the plaintiff-appellant herein Shri Muthiah, wherein he sought to enforce the policy in Clause 6.2.4 against the second respondent Shri N. Srinivasan, BCCI met on 27-9-2008 and introduced an amendment to Clause 6.2.4 carving out an exception therein, which reads as follows: ‘No administrator shall have directly or indirectly any commercial interest in any of the events of BCCI excluding IPL, Champions League and Twenty 20.’ Thus, by one stroke of an amendment, which was introduced with racing speed, without any deliberation by BCCI, and without notice of 21 days to the members on this agenda, which was required under the Regulation, the most commercial event of BCCI, namely, IPL, Champions League and Twenty 20 matches, were excluded from Clause 6.2.4, diluting the entire effect of Clause 6.2.4, reducing this salutary clause into a dead letter.”
Two observations by Justice Misra deserve particular attention. “I also find sufficient force and substance in the contention of the learned counsel for the appellant that as BCCI discharges important public functions such as the selection of Indian Team and the control on the players and has to discharge important public functions, it cannot be expected to act arbitrarily, whimsically and capriciously so as to hold that the two suits are not maintainable at the instance of the appellant, who, although admittedly is the past president of BCCI and hence an administrator, had no locus standi to file even a civil suit and seek order of injunction for suspending the effect of amendment on the plea that as he was not a member of the subcommittee he was not competent to challenge the amendment introduced in the BCCI Regulations.”
The judge added. “It is essential to highlight that the BCCI Regulation itself acknowledges this position when it lays down in Clause 6.2.4 that ‘no administrator shall have direct or indirect commercial interest in any events of BCCI’, but dilutes its effect by amending it and making IPL, Champions League and Twenty 20 matches as an exception which is the most lucrative and revenue generating event. If the administrator is clearly barred as per the Regulations from having any commercial interest in the events of BCCI, it is beyond my comprehension as to how only one class of matches, which was IPL, Twenty 20 and Champions League, could be treated as an exception by allowing an office-bearer to participate in the bid but preventing him from other matches including Test matches.”
More to the main point: “It would be difficult to overlook that multiple loyalties can create commercial interest with the activities of BCCI, thus resulting in conflict of interest since the financial or personal interest of the Board would clearly be inconsistent with the commercial and personal interest of the administrator of the Board. In addition, the rule of equity and fairness provides that no one who stands in a position of trust towards another can in matters affected by that position, advance his own interests, for example, by trading and making a profit at that other’s expense as the rule of legal prudence mandates that once a fiduciary is shown to be in breach of his duty of loyalty, he must disgorge any benefit gained even though he might have acted honestly and in his principal’s best interest. In the instant matter, when BCCI held auction for owning IPL team and an administrator, respondent 2, participated in the bid, variety of real and/or perceived conflict of interest cannot be ruled out. These included access to insider information, possible undue influence on the decision-makers who held the auction, and the like.” The BCCI was clearly guilty of gauche manoeuvre. This is not the conduct of one as pure as driven snow. The BCCI’s status and its conduct cry for legislation. The former’s uncertainty must be removed. Excesses like the latter must be curbed. The Jagmohan Dalmiya and Lalit Modi power struggles in the BCCI tell their own tale.
First the definition of “public authority” in Section 2 (h) of the Right to Information Act, 2005 must be widened to include “any body which receives aid and assistance from the government whether by user of government-owned land for services, of a government agency”. To put the matter beyond doubt, the BCCI can be mentioned explicitly in this amendment – or in the proposed Bill.
Some genius in the Sports Ministry prepared an 81-page note for the Cabinet claiming that Parliament can legislate by invoking entries 10 and 13 of the Union List ( DNA, August 31). This is utterly false. These entries relate, respectively, to “foreign affairs” and “participation in international” fora. “Sports” is a State subject exclusively under Entry 33 of the State List. Equally wrong would it be to invoke Entry 25 in the Concurrent List on “education”, stretching it to cover sports despite its explicit mention in the State List. However Entry 63 of the Union List empowers Parliament to legislate in respect of any “institution declared by Parliament by law to be an institution of national importance”. The BCCI fits the Bill even more than the Indian Council of World Affairs for which it was invoked.
Even in the U.S., the haven of private enterprise, its Supreme Court propounded the doctrine that when “one devotes his property to a use in the public interest which the public has an interest, he, in effect, grants to the public an interest in that use and must submit to be controlled by the public for the common good” ( Munn vs Illinois 94 U.S. 113, 126 (1877). This is the doctrine of private utility affected by public interest. Legislative competence is beyond challenge. It is only right that the power should be exercised in a conciliatory spirit. There is and can be no issue as to the RTI. On the other points – age bar, tenure, etc. – the government must engage in quiet and earnest talks with the BCCI, other sports bodies, sportsmen of note and, indeed, the public at large.
The Times of India of September 7 carried this report by K. Shrinivas Rao:
“BCCI secretary N. Srinivasan has admitted before Parliament’s standing committee on finance that the Indian board needed to own up for financial irregularities in the Indian Premier League. Srinivasan said the BCCI could not cleaim exoneration simply by claiming that suspendd IPL chairman Lalit Modi was running the show. The BCCI had previously put the onus on Modi when it came to explaining lapses in expenditure during the first three editions of the IPL…. Maintaining that other senior officials had no idea of wrongdoings since Modi was given a free hand. The change in the BCCI’s stance is revealed in a recent report of the standing committee.”
N. Srinivasan is quoted in direct quotes: “I know we can’t plead before you that we did not know all this was happening. Your question would be, were you not vigilant? I am sorry, sir, there is no defence for me.”
In the face of all this, it would be a betrayal of the public interest to leave this rogue elephant at large.