Coming straight to the crux of the matter, it must be candidly acknowledged that there have been long standing demand for making BCCI a public body from various quarters. The Law Commission of India recommended to the government on April 18 in its 275th report titled 'Legal Framework: BCCI vis-à-vis Right to Information Act, 2005' which it submitted to the Ministry of Law and Justice that the 90-year-old Board of Control for Cricket in India (BCCI) should be declared a public body. This report has been prepared pursuant to the directions issued by the Supreme Court of India in the landmark case of Board of Control for Cricket v Cricket Association of Bihar & Ors, (2015) 3 SCC 251 which also ensured that the Lodha Committee was formed to suggest reforms in the BCCI.
It is extremely important to note that the Lodha Committee headed by former CJI RM Lodha came out with a report dated 18 December 2015 recommending several steps and measures to streamline the working of the BCCI. The Lodha Committee found the BCCI to be lacking in fairness and transparency and proposed measures to ensure transparency. It felt that the people of the country have a right to know the details about the BCCI's functions and activities. This further necessitated bringing BCCI under the RTI Act and making BCCI a public body. In July 2016, the Supreme Court passed another landmark judgment titled Board of Control for Cricket vs Cricket Association of Bihar & Ors authored by the then CJI TS Thakur along with Justice Fakkir Mohamed Ibrahim Kalifulla accepting gracefully most of the recommendations of the Lodha Committee.
There can be no gainsaying that the Law Commission of India was absolutely direct in recommending to the government that the 90-year-old Board of Control for Cricket in India (BCCI) should be declared a public body. Also, it recommended that the Right to Information (RTI) Act be made applicable to BCCI along with all of its constituent member cricket associations, provided they fulfil the criteria applicable to BCCI. In addition, it also recommended that the BCCI should be held accountable, under all circumstances, for any violation of basic human rights of the stakeholders.
Needless to say, the Board's monopolistic activities, directly and indirectly, affect the fundamental rights of citizens, players and other functionaries. This has been complained also many times even by prominent persons including former cricketers. The Law Commission of India said in its 128 page report handed over to Union Law Minister Ravi Shankar Prasad that a private citizen should be able to move the highest court against the BCCI for any violation of his fundamental right. In other words, the BCCI must be held accountable for its actions and should not be given immunity from all the accountability that it owes towards private citizen among others.
To be sure, the Law Commission of India said the Board has been 'flying under the radar of public scrutiny and encouraged the environment of opacity and non-accountability'. BCCI too must be held accountable for all its actions and taken to task for all its lapses. This environment of opacity and non-accountability must be replaced with more transparency and accountability because this alone can ensure that BCCI functions properly and meet the high expectations that people pose in it!
Simply put, the Law Commission was of the view that the BCCI has created 'an impression in the minds of the general public that corruption and other forms of malpractices are adversely affecting one of the most popular sports played in India.' In no uncertain terms, the Law Commission of India categorically recommended that, 'The BCCI should be held accountable, under all circumstances, for any violations of basic human rights of the stakeholders'. There can be no denying or disputing it.
As it turned out, the Law Commission which is the government's highest law advisory body concluded that the BCCI exercises 'state-like' powers in the regulation of cricket, and thus comes under the definition of 'state'. Very rightly said! Moreover, even if BCCI is continued to be regarded as a private body, but owing to its monopolistic character coupled with the public nature of its functions and the 'substantial financing' it has received from appropriate Governments over the years (in the form of tax exemptions, land grants et al) it can, within the existing legal framework, still be termed as a 'public authority' and be brought within the purview of the RTI Act. Be it noted, the Law Commission of India headed by Justice BS Chauhan has recommended that BCCI should be classified as 'state' under Article 12 of the Constitution so that it is answerable to the authorities like the Supreme Court. It also expressly recommended that RTI Act be made applicable to the BCCI along with all of its constituent member cricketing associations, provided they fulfill the criteria applicable to BCCI.' It may be recalled that it was in July 2016 that the Supreme Court asked the Law Commission of India to recommend whether the body can be brought under the ambit of RTI or not.
Truth be told, the BCCI virtually acts as a National Sports Federation (NSF). The Law Commission recommended that the Ministry website should explicitly mention BCCI in the list of NSFs. This the Law Commission said would automatically bring it within the purview of the RTI Act.
It would be imperative to mention here that while listing some of the reasons why it concluded that the BCCI is a 'limb of the state', the Law Commission pointed out how the cricket board as an entity, is permitted de facto by the state to represent the country at the international stage. It selects the Indian cricket team. The selected players wear the national colours and are the recipients of Arjuna awards.
Truly speaking, the Law Commission of India noted that, 'An analysis of the functioning of BCCI also shows that the government does exercise control over its activities and functioning.' As for instance, BCCI falling in line with the foreign policy of Indi, did not recognize a player from South Africa due to their practice of apartheid; and that the cricket matches between India and Pakistan in view of tense international relations were made subject to government approval. The foregoing positions BCCI as a 'limb of the state'. The Law Commission in its report said that, 'It is hereby recommended that the BCCI be viewed as an agency or instrumentality of the state, under Article 12 of the Constitution, thereby making it amenable to the writ jurisdiction of the Supreme Court under Article 32.'
It cannot be lost on us that the ICC recognizes BCCI as the 'official' body representing India and neither the government nor BCCI have ever challenged, discussed or changed the status. The Law Commission also highlighted the political significance that is wielded by the BCCI. It minced no words in saying that, 'On several occasions over the years the post of the President of BCCI was occupied by a politician owing allegiance to the then governing political party.'
Going ahead, the Law Commission underlined how the BCCI has enjoyed tax exemption which amounted to INR 21,683,489/- (INR Twenty-one billion six hundred eighty-three million two hundred thirty-seven thousand four hundred eighty nine. It concluded that the government has provided the Board with 'indirect substantial funding' by means of tax exemptions, subsidies, concessions and providing land at 'paltry' lease amounts. The Law Commission said categorically and convincingly that, 'If the government is foregoing a significant amount of money, which otherwise would have been deposited in the National/State Exchequer, it would quantify as indirect substantial funding by the government. It would follow that the body/entity receiving such benefits would be a 'public authority', even though it may be a private, non-statutory or non-government body.'
To recapitulate, the Law Commission of India made some very important recommendations in its 275th report as we have discussed above. These recommendations are worth implementing. Briefly stated, some of the pertinent recommendations are as follows: -
1. Non-consideration of the role played by BCCI as monopolistic in regulation of the game of cricket has resulted in the Board flying under the radar of public scrutiny, encouraged an environment of opacity and non-accountability. In the past, this has probably given an impression in the minds of the general public that corruption and other forms of malpractices are adversely affecting one of the most popular sports played in India. BCCI exercises 'State-like' powers affecting the fundamental rights of the stakeholders, guaranteed under Part III of the Constitution. It is hereby recommended that BCCI be viewed as an agency or instrumentality of State, under Article 12 of the Constitution, thereby making it amenable to the writ jurisdiction of the Supreme Court under Article 32.
2. Human rights are sacrosanct and innately associated with the human personality. These rights are continually evolving, are to be respected by, and can be enforced against not only the 'State' but also private bodies/entities. Therefore, the BCCI should be held accountable, under all circumstances, for any violations of basic human rights of the stakeholders.
3. BCCI virtually acts as a National Sports Federation (NSF). Its own Memorandum of Association states that the Board's objects and purposes are to control, improve quality, lay down policies pertaining to the game of cricket in India as well as select teams to represent India at international for a. Moreover, as per the statement made in the Lok Sabha, the Central Government has already been regarding BCCI as a National Sports Federation and hence, it is recommended that, for the removal of any doubt, the same be explicitly mentioned in the list of NSFs available on the ministry's website. This express mention would automatically bring BCCI within the purview of RTI Act. Other sports bodies listed as NSFs' in Annual Report 2016-17, 177 of the Ministry of Youth Affairs and Sports available on its website do attract the provisions of the RTI Act. This website also contains information regarding (Chief Public Information Officer) CPIOs and Appellate Authorities catering to RTI requests addressed to specific NSFs. 178. In light of the above stated facts, since all other sports bodies which are listed as NSFs are covered under the RTI Act, it is inconceivable as to why BCCI should be an exception.
4. Additionally, it is recommended that RTI Act be made applicable to BCCI along with all of its constituent member cricketing associations, provided they fulfil the criteria applicable to BCCI, as discussed in this Report.
All said and done, the recommendation made by the Law Commission of India in its 275th report is a landmark one and must be promptly implemented. It brooks no more delay now. BCCI must be made a public body as the Law Commission of India has very rightly recommended. The report rightly points out that, 'The existence of a right to have access to government information is increasingly accepted around the world, both at the domestic and international levels. With countries such as Mexico and Paraguay designating the 'right to information' as the 'human right of access to information'. At the domestic level, a right to information was seen to be finding its place in the Constitutional law of several nations, and since the early 1990s, there has been a huge upsurge in the number of States adopting Freedom of Information laws. There is now widespread acceptance of the right to information being an essential part of free expression; found in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), and the regional human rights treaties in Africa and the Americas.'
Interestingly enough, under the UK Freedom of Information Act 2000 (FOI), the Secretary of State has the power to designate any person who appears to exercise functions of a public nature as a public authority. In this manner, anybody performing public functions or functions of a public nature can be covered under the ambit of the FOI Act. In Mexico, the General Act of Transparency and Access to Public Information referring to 'right to information' as the 'human right of access to information' lays down rather exhaustive criteria for inclusion of 'individuals and legal entities who receive and use public resources and exercise acts of authority'. Article 81 thereof requires the concerned agency to take into account factors such as 'if a governmental function is performed, the level of public funding, the level of regulation and government involvement, and whether the government participated in its creation'.
It is time to now wind up. Before that let me leave my readers with what is enunciated in Para 4.9 of the 275th report of the Law Commission of India. It states that, 'The right to information is a basic right that buttresses good governance, democracy and the practical realisation of human rights. Good governance is not achieved simply by having efficient government or even a democratically elected government. Freedom of information and the assurance of widespread citizen participation in public affairs and an active civil society are essential for the full realisation of democracy and to develop a culture of human rights and accountability. The recognition of right to information is crucial for achieving these ends, hence there is a need for a guaranteed and legislated right to information.'