IOA derecognition

The International Olympic Committee (IOC) suspended the Indian Olympic Association (IOA)
in Dec, 2012 at its Executive Board meeting in Lausanne, apparently for ignoring its warning
against holding its elections under the National Sports Code. There was talk of taking the case to
the Court of Arbitration for Sport (CAS), especially in view of the lack of hearing afforded to the
IOA before the suspension was slapped on it and the fact that elections were yet not held.
The IOA did not show the urgency or diplomacy that was warranted to deal with the situation.
The IOA allowed things to drift even though contentious issues related to government guidelines
on tenure of office-bearers — first enforced in 1975 — had been brewing for more than two
years.
The contentious issue had been the tenure guidelines of the Union Government that the IOA has
not accepted, but has been ordered to follow by the Delhi High Court in the elections. The IOC
has objected to the IOA enforcing regulations that are not part of its constitution and are against
the Olympic Charter. It was the former Sports Minister, M. S. Gill, who pulled out the old
guidelines from ‘cold storage’ in 2010, amended them and firmly told the IOA and the National
Sports Federations (NSFs) to fall in line. Once the IOC warned the IOA that it should not go
ahead with its elections under the National Sports Code as directed by the Delhi High Court, the
suspension was a foregone conclusion. Even as it has objected to government regulations
dictating the IOA’s elections, the IOC has all but made it plain that it would not be averse to the
idea of tenure restrictions if the measure is voluntarily adopted rather than imposed by the
government.
Factional fights within the Indian Olympic body have only helped divert the real issues that have
plagued Indian sports administration for long, and delayed the reforms that are badly needed.
The IOA’s inability to sort things out with the government has led to this unprecedented
suspension in its 88-year-old history (guess had the things been sorted out, the guidelines would
have been adopted as if it was voluntary in nature and hence would have been able to avoid
suspension). The Commonwealth Games scam that led to officials including IOA President
Suresh Kalmadi and current Secretary-General-designate, Lalit Bhanot, being charge-sheeted,
has only strengthened the public perception that sports bodies need to be brought under
government regulation, especially when government funds are being utilised for the
development of sports. The courts have concurred with the government view. The IOC’s sanction
is not an intractable position but both the government and the IOA will need to come on board to
clean up the mess without harming the interests of the athletes.
September, 2013: The International Olympic Committee (IOC) has insisted that the Indian
Olympic Association (IOA) must fully accept its draft amendments, including the one barring
those charge-sheeted from contesting elections. The sanction will apply only to those officials
who are convicted and sentenced to a jail term of more than two years. The IOA had been
objecting to the amendment on the ground that the law of the land allowed politicians facing
various charges to contest elections. The IOA adopted a diluted version of the clause at its
August 25 meeting.

Implication
Contrary to what is being constantly projected in sections of the media, the IOC sanction does
not allow Indian athletes to compete under the Olympic flag etc., though that could be a
possibility if the situation arose. At the moment, it is a blanket ban on IOA and athletes, too,
since only a National Olympic Committee can enter a team in the Olympics and the Asian
Games while in the absence of a Commonwealth Games Association, the IOA normally performs
the function for the Commonwealth Games also.
AIBA has suspended IABF and others might follow suit.
The IOC has warned that there could be further sanctions in case the suspended IOA did not take
remedial measures. It had stated that it re-served the right to look into the status of Indian
athletes in Olympic-related (qualifying) events, too.
the function for the Commonwealth Games also.
AIBA has suspended IABF and others might follow suit.
The IOC has warned that there could be further sanctions in case the suspended IOA did not take
remedial measures. It had stated that it re-served the right to look into the status of Indian
athletes in Olympic-related (qualifying) events, too.

Balanced view
Historically, the international and national Olympic bodies have considered themselves the sole
proprietors of sport. Lately, however, governments, the biggest funders and the all-important
stakeholders at mega events like the Summer Games, have started asserting themselves for extra
space, more influence. This has often led to power struggles, court cases and mudslinging.
To complicate matters, the Olympic charter, government guidelines and the law of the land don’t
always follow the same grammar. The International Olympic Committee, the Indian Olympic
Association and the sports ministry took turns to claim the moral high ground, blaming the others
for not following the real rules. This debate has an overwhelming stench of hypocrisy. While the
IOC flaunts its zero tolerance for governmental interference, the reason the IOA was suspended,
it constantly seeks state intervention and cooperation when it comes to hosting the Olympics and
the Asian Games. The IOA conveniently snuggles up to the sports ministry when it is bidding for
mega sporting events but when the government talks about accountability, it goes on the
warpath. It is sad that the IOC’s stance has indirectly encouraged the IOA not to adopt good
governance principles on the false pretext of autonomy and the cost of it has to be borne by
innocent athletes. In this entire episode, the Indian athlete has suffered the most and the national
pride has taken a hit for the excesses committed by the IOA and indifferent attitude shown the
IOC.
There is a desperate need to dismantle a few monopolies, force some climbdowns and bring all
the stakeholders on the same page. A bit of give and take will not just balance the power
equation but make it stable too. The question is: why can’t India also adopt the United States
system where the U.S. Olympic Committee is bound by law to adopt good governance principles
and cannot amend its constitution without public hearing?

IABF suspension
Indian Amateur Boxing Federation has been suspended by the international federation (AIBA).
The suspension (on IABF) would remain until the IOC lifted the ban on IOA. A look at the
AIBA constitution or by-laws shows that there is no provision by which the federation can
suspend a National federation just be-cause the IOC has suspended the concerned National
Olympic Committee (NOC). Other International federations did not seem to have been
influenced by the IOC decision at this stage at least

National Sports Code

National Sports Code only seeks transparency and accountability from the Indian Olympic
Association (IOA) and the NSFs (National Sports Federations) in promoting the Olympic
movement in the country. It makes the adoption of basic universal principles of good governance
of the Olympic and sport movements mandatory for the IOA and all NSFs, be it transparent
elections, tenure limit, keeping corrupt officials out, or representation of athletes in the
management of sport. Further, these principles are based on the Olympic Charter. Principles of
good governance, under “applicable laws”, supported by the IOC and espoused by the Olympic
Congress in 2009, demand that federations bring in reforms, change their style of functioning,
make transparent rules for elections and allow more representation to athletes.Therefore, the
stand of the IOC on derecognition is self-contradictory. While on the one hand it underlines the
need to maintain the highest standards of ethics in sport, on the other, it makes good governance
optional, leaving it to the total discretion of the NOC. The result is for all of us to see — the
pathetic state of sports in the country.
The ministry had recently derecognised the Archery Association of India (AAI) and suspended
the Indian Amateur Boxing Federation (IABF) for not following the National Sports
Code.Athletics federation of India has received notice on some clauses and may face suspension
in coming days.

Sports bill
Since the NSFs were registered societies, they have the autonomy to govern their affairs. Since
the government provides financial assistance, it has the right to seek an audit of their expenses.
Since sports is a State subject under the Constitution, the group will also look into the
Sports bill
Since the NSFs were registered societies, they have the autonomy to govern their affairs. Since
the government provides financial assistance, it has the right to seek an audit of their expenses.
Since sports is a State subject under the Constitution, the group will also look into the
requirement for a separate Sports Development Bill for the States. It will also explore the
possibility of constituting new bodies — like a Sports Election Commission, a Dispute
Resolution Tribunal and an Ethics Committee — and their powers to avoid long-drawn legal
processes.

Hockey
Rules change
• elimination of extra-time from matches
• a 45-second time-frame for all penalty corners to check excessive delay and time-wasting
tactics by teams.

Fixing
Facts
• Betting and gambling are listed as Entry 34 of the State List. The State legislature has the
power to regulate sports betting and gambling within the territory of the State.
• Before Independence, betting and gambling were governed by Central legislation,
namely, the Public Gambling Act, 1867, which governed aspects of gambling in certain
territories of India. After Independence, some States adopted the Act to apply to their
territory through Article 252 of the Constitution.
• The Information Technology (Intermediaries Guidelines) Rules, 2011, enjoin upon an
intermediary to mention in their user agreement/terms and conditions that the user of the
computer resource of the intermediary shall not host, display, upload, modify, publish,
transmit, update or share any information that is related to or encourages gambling.
Concern
• The stark reality, whether we like it or not, is that betting is common and it is not just on
IPL matches that bets are taken. The underground betting industry bets on everything
from sports to politics, especially during elections, and even the weather.
• There is little evidence for the current legal regime prohibiting sports betting being
effective. Not only is there a substantial informal domestic betting industry, but many
foreign websites currently offer Indian citizens a chance to gamble.
• Fuelled by the 140-year old Public Gaming Act, which punishes public gambling, and the
Information Technology Act, which requires service-providers to crack down on online
gambling, law enforcement agencies have so far targeted bookies and companies with
criminal and civil lawsuits.
• There are two options— one, crack down on gambling and betting with strict laws and
stricter enforcement to ensure that the evil is curbed, if not eliminated altogether. Or two,
accept that it is not possible to eliminate it and thus recognise its existence and frame
tight laws to regulate it, the idea being to curb illegal activities associated with betting.
Going by experience, we have failed in exercising the first option.
• Strict legislation is a sine qua non against fixing. Had the first lot of match-fixers been
given exemplary punishment (there was no law then, there isn’t a law now), we might not
have had history repeat itself.

Making it Legal
• It is neither practical nor possible for the law-enforcement agencies to deploy adequate
resources to curb betting when it has to tackle serious crimes such as terrorism, murder,
rape and robbery.
• in the order of undesirable activities in society, gambling comes after the other serious
offences listed above and mainly because it is inflicted on oneself. In the end, it is a vice
as much as drinking or smoking is, not a crime like murder or rape.
• Goa and Sikkim recognise gambling (State subject). We need to be careful about the
distinction between fixing and gambling. The former can never be a legal activity just as
insider trading cannot be in the stock markets.
• There are important advantages to accepting and regulating sports betting. Effective
regulation, according to the report, means protection for the inexperienced and the
 offences listed above and mainly because it is inflicted on oneself. In the end, it is a vice
as much as drinking or smoking is, not a crime like murder or rape.
• Goa and Sikkim recognise gambling (State subject). We need to be careful about the
distinction between fixing and gambling. The former can never be a legal activity just as
insider trading cannot be in the stock markets.
• There are important advantages to accepting and regulating sports betting. Effective
regulation, according to the report, means protection for the inexperienced and the
vulnerable against the dangers of unwise betting behaviour; a fair and prosperous
industry that provides consumers with entertainment in a controlled and responsible way
that they can trust; protection for the integrity of sport; prevention of sport betting from
being linked to criminality or being used to launder the proceeds of crime; protection for
players, coaches and everyone involved with sport from unscrupulous approaches; and
generation of substantial revenues for the state, which currently are being lost to overseas
operators or remain uncontrolled in the black economy comprising satta operators.
• By mandating clear book-keeping and watching the transaction trail, we can ensure that
illegal money or mafia funds do not enter the business. Such funds are typically cash-
based and the law should prohibit cash-based betting beyond a fixed limit.
• With close supervision from the regulator, unfair practices such as fixing of outcomes can
be controlled. Today the activity is not policed at all.
• The money raised through licensing of betting houses and tax on profits from betting
transactions can be used to fund a public campaign to create awareness on the ills of
betting and gambling. Choosing less popular games at the outset could be an advantage,
as the tax revenue collected from the betting could be ploughed back into promoting the
sport in question.
• There is an important caveat to all this. To balance the legal sanction which can be
misconstrued as promotion of gambling by the government, the latter should
simultaneously unleash a campaign highlighting the ills of gambling and clearly warn
gamblers of the ruin that it can cause to them. The message to citizens should be clear:
yes, betting on sports is allowed as a legal activity but remember, betting/gambling is a
vice.
• The three major hurdles, according to the FICCI, are: defining the scope and mechanism
of regulation; implementing sports betting in a constitutional context; and hammering out
the issues of taxation.
• The first and foremost of these issues is making sure that by allowing betting on sports,
the door is not accidently left open for wagers on speculative financial instruments or on
industries like insurance. Furthermore, the type of bets that can be placed requires clear
definition. For instance, in an ideal system, betting on whether (in cricket) the next ball
will be a no-ball should be disallowed. Some regulatory systems in the world do restrict
“live” or “in play” betting
• A national regulatory body should be established. It would not only look after issuance of
licences to betting operators but also perform several administrative and quasi-judicial
functions that could maintain a system of checks and balances. A robust regulating model
is no substitute for a swift justice system, harsh punishment of sportspersons engaging in
fixing activities, and the political will of sporting bodies in tackling downside issues that
come with the game.
• The lessons from horse-racing (where betting is legal)- First, jockey-fixing, the
counterpart to match- or spot-fixing in cricket, which is caused by a deviant jockey
“hooking” to slow down his/her horse’s run on the turf, is supposed to be eliminated by
watchful stewards. But in reality, despite several suspensions, it is well known that races
still do get fixed. Second, in horse-racing, a large number of bookies are outside the
“legal” ring of betting in the turf clubs.
• Persons placing bets are at the mercy of bookies as they have no legal right to have their
bets realized
Against
• SC has held tha gambling activities were, in their very nature and essence, extra-
commercium, although they might appear with the trappings of trade. “They were
considered to be a sinful and pernicious vice by the ancient seers and lawgivers of India
and have been deprecated by the laws of England, Scotland, United States of America
and Australia. The Constitution-makers of India, out to create a welfare state, could never
have intended to raise betting and gambling to the status of trade, business, commerce or
intercourse,” it observed. (Much of the regulation of gambling in other countries
happened in recent years; the Gambling Commission in the United Kingdom, for
example, to regulate gambling including betting in sports, was set up under the Act of
 and have been deprecated by the laws of England, Scotland, United States of America
and Australia. The Constitution-makers of India, out to create a welfare state, could never
have intended to raise betting and gambling to the status of trade, business, commerce or
intercourse,” it observed. (Much of the regulation of gambling in other countries
happened in recent years; the Gambling Commission in the United Kingdom, for
example, to regulate gambling including betting in sports, was set up under the Act of
2005.)
• Can lead to the loss of the hard-earned money of the undiscerning and improvident
common man and thereby lower his standard of living and drive him into a chronic state
of indebtedness and eventually disrupt the peace and happiness of his humble home.
• At any rate, you cannot legislate against human greed. Corruption can take many forms—
from bowling a pre-arranged no-ball to manipulating your way at the top —and it is
important to understand what can be done and what cannot.
• Theoretically, you cannot monitor, leave alone control, spot-fixing. A player can enter
into an agreement today for a match to be played three months later, and no one would be
the wiser. On-field signals will get more sophisticated, communications untraceable, the
money trail difficult to follow

BCCI
• There is no doubt that the BCCI is the best-run sporting body in the country. There is a
regular system of elections and a federalism in place with the respective associations
functioning independently. Matches from the under-15 level to the World Cup are
conducted on schedule and most professionally, the coaching is in place, the system of
identifying talent and nurturing it to greatness is well-established.
• So too is the system of favours-and-rewards, political adjustments and cover-ups, secrecy
and the refusal, now increasingly difficult to sustain, to bring itself under the Right to
Information Act.
• This is a fine time to make fundamental changes in the way the Board functions.
• It is a feudal, archaic, anachronistic body which still insists on having “control” ( a
colonial word) in its name. Time to at least consider running it like a corporate (not so
far-fetched considering the billions it handles) with a proper CEO, and with the twin
mottos of transparency and accountability in its constitution. Asking the government to
take over is no solution because the government’s track record is abominable.
• If the bookies can zero in on the disaffected and vulnerable with such ease, surely players
are in a better position to do so, and perhaps nip the problem in the bud.
• Thirteen years ago, we made the mistake of letting the fixers go lightly, and now those
involved in that shameful episode have become Members of Parliament, coaches and
experts on television taking the moral high ground. Deterrence, theoretically the strongest
arrow in the quiver, was never a weapon. It is possible that Indian cricket will plumb
greater depths before things begin to change for the better. And that might not be such a
bad thing.
Wail of zamindars
A.G. NOORANI
Ministers involved in sports bodies oppose the Sports Development Bill. Sharad Pawar sees
it as an attempt to bring the BCCI under the RTI.
R. RAGU

N. Srinivasan, Secretary of the BCCI and co-owner of the Chennai Super Kings IPL team.
His election as president of the BCCI has been challenged in court on the grounds of
conflict of interest.
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
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.”
SAURABH DAS/AP

MAHENDRA SINGH DHONI in action for the Chennai Super Kings, which he led to a
trophy win in the 2011 edition of the Indian Premier League.
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
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.
BCCI's status
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.
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.
VIJAY VERMA/PTI

AJAY MAKEN, MINISTER of State for Sports and Youth Affairs. The National Sports
Development Bill he tabled for discussion in the Union Cabinet stirred up a controversy
with quite a few Ministers opposing many of its provisions.
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
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.”
Recognised body
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
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….
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.
Questionable amendment
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
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
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.
 http://www.indianexpress.com/story-print/1045004/

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Giving the game away

Abhinav Bindra Posted online: Fri Dec 14 2012, 00:51 hrs
We need professionalism and accountability in sports administration

The crisis in Indian sports has come to a head with the International Olympic Committee (IOC) suspending the Indian
Olympic Association (IOA), the body that governs Olympic sport in India. Things might not have come to this if the
members of the IOA had been more invested in the development of sports and athletes in the country.

The lack of professionalism is not just a problem for the IOA. The Indian Amateur Boxing Federation has been
suspended by the International Boxing Association, and the Archery Association of India (AAI) has been derecognised by
the Indian government. The sports ministry also issued a notice to the Athletics Federation of India, questioning its
election procedures. In all likelihood, other associations will face similar bans.

Every sports association in India must use this as a chance for introspection. Indian athletes have made significant gains
in the past few years, and we cannot squander these gains because of administrative issues. The recent suspensions
have foregrounded the lack of accountability and transparency in the governance of sports federations. We cannot make
cosmetic changes in the way these organisations are managed, only to face a similar situation a few years down the
line. A serious overhaul of the standards of sports governance is necessary.

Parliament must pass a bill that covers all Olympic and international sport. It should ensure that the IOA and other
federations adopt higher standards of governance. More athletes must participate in sports administration. There must
be age and tenure restrictions on office bearers. For example, the AAI has been administered by the same president for
over 40 years. This has allowed the organisation, and Indian archery, to stagnate. The Indian sports code, which sets
the age limit for the heads of sports associations at 70 and restricts their tenure to 12 years, should be upheld. Passing
a sports bill would be doing a great service to the aspirations of future Indian athletes.

Professionalism needs to be brought into sports administration. This may not yield immediate results in terms of sporting
victories or medals, but it will enhance the performance and quality of Indian athletes.

There are several aspects of sports governance that need urgent reform. One, more former athletes and experts must
actively participate in governance. Champions must be built. Talent must be found, skill sandpapered, techniques tuned
and minds strengthened. This requires a relentless pursuit of greatness. Sports must be taken to the grassroots, and
young people must be given opportunities to develop their talent.

We must make a clear distinction between administrators and experts, for sport has a managerial aspect and a training
aspect. Former athletes don’t always understand organisation, while administrators can’t fathom the intricacies of the
sport. Each must know his place. For far too long, Indian sports administrators have held on to their positions to serve
vested interests; the athlete has been the last priority on their agenda. The time has come for a different type of sports
administrator to enter the arena: one who has integrity, passion for the development of Indian sports and the athletes’
interest foremost in his mind.

Sports governance must also deal with the matter of raising finances. In India, 98 per cent of all funding for international
sports comes from the government. Why is there no private or corporate sponsorship? In the US, corporate sponsors
provide 95 per cent of the funds. One of the main reasons that Indian Olympic sports federations do not attract private

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sponsorship is the lack of transparency in the governance of these bodies. No one is willing to be held accountable for
the money.

Officials must be accountable for their entire tenure. Just like athletes, they too must face frequent performance reviews
to evaluate their success in the development of the sport they preside over. This cannot always be measured in terms of
medals, but in the enhancement in the standards of the sport and the participation of young athletes. Officials must
organise programmes that enable sports to grow. They must provide opportunities for sports in schools and develop a
club culture.

Only greater accountability, transparency and new standards of professionalism in sports association can ensure that
India continues to participate in, and excel at, international sports.

The writer is a world and Olympic champion in air rifle shooting

[email protected]

2 of 2 21-Dec-12 11:18 PM
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ESSAY

Wail of zamindars
A.G. NOORANI

Ministers involved in sports bodies oppose the Sports Development Bill. Sharad Pawar sees it as an attempt to bring the BCCI
under the RTI.
R. RAGU

N. Srinivasan, Secretary of the BCCI and co-owner of the Chennai Super Kings IPL team. His election as president of the BCCI
has been challenged in court on the grounds of conflict of interest.

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

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Opinion » Lead

Published: June 10, 2013 00:36 IST | Updated: June 10, 2013 00:45 IST
Effective cure for an ailing system
A. G. Noorani

The Hindu
The cricket board should be made an autonomous legal entity, brought under the Right to Information Act and “public servants”
made ineligible to serve on it

One wishes there was more cricket in India’s politics and no politics in India’s cricket. But the reality of an
insufferably scandalous state in both spheres stares us in the face. The charade in Chennai on June 2 aroused wide
public revulsion because of the events in the preceding fortnight, especially against the background of the sordid
power struggles by politicians in the Board of Control for Cricket in India (BCCI). Rules on conflict of interests were
violated. Charges of corruption involving crores of rupees were not investigated thoroughly enough. One hopes that
revulsion at the BCCI’s working prompts an effective cure for what is plainly a diseased system which stinks to high
heaven.
Involved are three distinct issues, namely the resignation of the BCCI president and co-owner of Chennai Super
Kings IPL team, N. Srinivasan, after the arrest of his son-in-law Gurunath Meiyappan who faces charges of betting
and match fixing; conflicts of interests; and the rotten structure of the BCCI.
Crisis of confidence
The test Mr. Srinivasan prescribes is wrong. It is not whether charges of similar wrong-doing are made against him
personally. It is whether, in the totality of circumstances including his open and close proximity to his son-in-law,
there is not a crisis of confidence which requires him to step down from office, as distinct from stepping aside.
A precedent directly on point suggests the correct test. Britain’s Home Secretary Reginald Maudling resigned on
July 18, 1972, the day the Prime Minister announced that the Director of Public Prosecutions had instructed the
police to investigate into the affairs of John Poulson, a wealthy architect with whom Maudling had a close business
relationship in the mid-1960s. He was neither accused nor suspected of any crime, either in connection with

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Poulson, or anyone else. However, the investigation was to be held by the Metropolitan Police, over whom the Home
Secretary had authority. By this test, besides the crisis of confidence, Mr. Srinivasan has not a leg to stand on.
On conflict of interests, the locus classicus is a statement made in Parliament on behalf of the British Prime
Minister by Sir John Simon, a distinguished lawyer, in 1937. “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 spectacle of Union Ministers
Sharad Pawar, Farooq Abdullah, Praful Patel, C.P. Joshi and the Leader of the Opposition in the Rajya Sabha, Arun
Jaitley, on the Board is an unedifying one. Neither these politicians nor the equally distinguished businessmen like
N. Srinivasan, Jagmohan Dalmiya and Lalit Modi are known to have elevated the standards of the BCCI. The only
qualification they flaunt is “love of cricket,” a test which opens the doors to millions of aspirants.
Two things are clear beyond doubt. The BCCI needs drastic reform if it is to function properly and in the public
interest and the reform will not, cannot, come from within. Sadly, former Union Sports Minister Ajay Maken’s
National Sports Development Bill, 2011 fell by the wayside.
Split judgments
The Supreme Court has ruled on the BCCI’s status thrice in split judgments. Unfortunately, one fundamental was
overlooked. It is the doctrine of a private utility so affected by the public interest as to legitimate legislation in the
public interest. It was propounded as far back as in 1877 in the haven of private enterprise, the U.S. Its Supreme
Court ruled that when “one devotes his property to a use in the public interest in 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).
The Supreme Court has yet to rule finally on the BCCI’s status. But its three rulings are instructive. They are: BCCI
vs. Netaji Cricket Club and Ors (2005) 4 SCC 741 decided by Justices N. Santosh Hegde and S.B. Sinha, on January
10, 2005. However, they split only three weeks later in the second case on February 27, each speaking for the
differing judges (3-2) in Zee Telefilms Ltd. & Anr. Vs. Union of India & Ors (2005) 4 SCC 649; and A.C. Muthiah vs.
BCCI & Anr (2011) 6 SCC 617 decided on April 28, 2011 by Justices J.M. Panchal and Gyan Sudha Mishra. They
differed. The BCCI’s status, therefore, awaits a decision by a larger Bench.
That said, the judges’ observations provide cold comfort to the BCCI’s oligarchs. The first case said that “the
enormous power exercised by the Board” imposes on it the duty to act “fairly”, “reasonably” in “good faith” so as to
conform to “higher standards”.
In Zee Films, three judges held that the BCCI was not an instrumentality of the state and was therefore not “the
state” within the meaning of Article 12 of the Constitution. But it noted that its “activities can be said to be akin to
public duties or state functions”. A citizen whose rights are violated can sue it in the High Court under Article 226 of
the Constitution though not for violation of fundamental rights.
In a powerful dissent, Justice Sinha pointed out that the BCCI “was allowed by the state to represent the state or the
country in international fora, it became a representative body of the international organizations 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”.
Justice Sinha noted that “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.”
Thus, while the majority ruled that the BCCI was subject not to the Constitution’s fundamental rights but to the writ
jurisdiction of the High Courts, the minority ruled that it was also bound to respect the fundamental rights to
equality and to the practice of an occupation.
The gap was narrow. In the third case, A.C. Muthiah challenged the amendment to the Regulations (Clause 6.2.4) on
September 27, 2008 permitting Mr. Srinivasan, BCCI’s treasurer as well as Managing Director of India Cements
Ltd, to bid in the Indian Premier League’s auction for ownership of CSK. Justice Panchal held that the Netaji Club
case was “no longer good law” in view of the ruling in the Zee Telefilms case though it had not been overruled.

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‘Multiple loyalties’
Justice Gyan Sudha Mishra disagreed. Her judgment cogently defines the BCCI’s status. She trenchantly criticised
the amendments, predicted that “multiple loyalties can create commercial activities with the activities of the BCCI.”
It wields monopoly control while enjoying state recognition and facilities. The right to see the game of cricket, live or
on TV, the careers of cricketers and much else depend on its will.
And the BCCI has demonstrated incompetence, if not worse. The remedy lies in legislation which lays down a
charter for democratic governance to ensure probity, accountability and transparency. 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 is just that. The provision was invoked to rid the Indian Council of World Affairs, a
registered society, of the control of an individual with an agenda of his own. In doing so, the government alas also
reduced the ICWA to an appendage of the Ministry of External Affairs. The law must guarantee the autonomy of the
BCCI without touching the title to its properties and funds.
All that the law should do is to incorporate it as a legal entity, bound by the rules of democratic corporate
governance. To begin with, the Right to Information Act, 2005, should be made applicable by widening the
definition of “public authority” in Section 2 (L) to cover any body which “performs a public function or receives
assistance or recognition from the State”. Next, no “public servant” as defined in Section 21(c) of the Prevention of
Corruption Act, 1988 should be eligible to serve on the Board. This will relieve our hard pressed ministers, civil
servants and legislators from a singularly onerous duty to serve the nation in that thankless task. Members of
mercantile bodies, incorporated or not, should also be excluded. Criteria for membership should be provided.
Thirdly, the law should ensure the holding of free and fair elections regularly at the Board level, and in affiliated
bodies, and mandate the auditing of accounts and their publication. All this should be capped by an ombudsman
who would report annually to Parliament on the working of the BCCI.
(This article draws on some of the arguments first made by the author in “Wail of Zamindars,” Frontline, Volume
28, Issue 20 (2011))
Keywords: BCCI, corruption, N. Srinivasan, IPL spot fixing scandal, cricket betting, match fixing, IPL 2013, Indian
cricket
Printable version | Jun 10, 2013 8:02:29 AM | http://www.thehindu.com/opinion/lead/effective-cure-for-an-ailing-system/article4797871.ece
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COVER STORY
LEGAL STATUS

Dubious status of BCCI

g.p. sampath kumar Special Police Security at Bangalore's Chinnaswamy Stadium for an IPL match on April 4.

THE Board of Control for Cricket in India (BCCI) was formed in 1928 as an unregistered association of persons. It was registered only
in 1940 under the Societies Registration Act, 1860. It was later registered under the Tamil Nadu Societies Registration Act, 1975,
which came into effect on April 22, 1978.
Facts about its inception notwithstanding, the legal status of the BCCI continues to be problematic. Is the BCCI a “public authority”? If
so, is it not duty-bound to answer queries under the Right to Information Act? In its written statement submitted to the Central
Information Commission (CIC), the Union Ministry of Youth Affairs and Sports maintained on December 14, 2011, that the BCCI was
on a par with other national sports federations and had been availing itself of various government benefits, such as customs duty and
income tax exemptions. Describing this as indirect funding of the BCCI, the government asked the CIC to treat the Board as an entity
financed substantially by the government, and therefore, qualifying as a “public authority” under the RTI Act.
The Central government pointed out that all civic and security services were provided by the Central or State governments concerned
for organising BCCI sporting events. The hidden costs of expenditure on security, visa clearances, and so on were borne by the Centre
and the State governments concerned, the Ministry told the CIC. Many State governments have provided land at concessional rates,
much below the prevailing market prices, for the construction of cricket stadia. The Ministry claimed that the BCCI was performing
functions akin to state functions and also performing public duties by selecting national teams and representing India in international
events. The CIC’s three-member Bench has reserved its verdict in the case.
In the case of Zee Telefilms Ltd. vs Union of India, the Centre told the Supreme Court’s five-judge Bench that it granted de facto
recognition to the BCCI as the apex national body for regulating the game of cricket in India. The BCCI, however, denied that the
government had granted any recognition to it. The majority of the three judges in this case held that the BCCI was not an
instrumentality of the state even though it exercised public duties or state functions. Earlier, in another case, the Supreme Court had
held that having regard to the enormity of power exercised by it, the Board was to follow the doctrine of fairness and good faith in all
its activities. It had a duty to act reasonably, the court had ruled.
The BCCI’s status is the subject matter of another three-judge Bench of the Supreme Court, which has not completed its hearing. The
verdict of this Bench and that of the CIC will hopefully lead to clarity about the BCCI’s legal status.
V. Venkatesan

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 g g g

UTHRA G.
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CHATHURVEDI Could this be the end of the road for the World Series Hockey?

I
T isn’t often that a non- also the players. More so in WSH, pension
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attract the best in the business everything else in Indian hockey, ministryy to re-recognise
g it. than anything else. It’s a choice
towards a new experiment. And if the complexities go far beyond At the same time, the ministryy between the devil and the deep a
the said experiment happens to simple explanations. The organis- termed HI as “derecognised”
g for sea, and the players are hanging
go against the grain of traditional ers have promised huge amounts not holding elections for three by their fingernails.
sports administrative practices in to players — from Rs 4 crore for years nor
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the country, expect not only the champions to Rs 25 lakh for procedures of governance. This, more difficult are the Olympics in a
question marks over its viability the highest goalscorer — plus in effect, restored the 2008 status August, and the qualifiers for the
but also all kinds of hurdles that something they never had and quo. Except p that, in the mean- same in February 2012. Despite
may or may not have anything to craved much more: respectp and time, the international federation everything, for a hockey player,
do with the sport itself. mass recognition.
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haps whose organisers were too Now that WSH has been T
naive to realise the power of Now that WSH is postponed, players hope they will get postponed, to be held after the
sports bureaucracy in India. a breathing space to make a decision. But HI has said qualifiers, players hope they will a
First, a brief encapsulation of that it will not consider permission to WSH at any time. get a little more breathing space
whatt WSH exactly is. In simple and time to make a decision. But
terms, it has been envisioned as a striker who recently won an un- tion. Thee HI vs IHF battle is still HI has reiterated that it will not
35-dayy competition
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knockout rounds and eventually Hockey Federation (IHF), not resentingg India at international price for the same. With the BCCI
in a best-of-three final to decide Hockey India (HI).
( ) Let me tryy competitions,
p players
p y must have terminating Nimbus’s contract as
the winner. There is a misconcep- and explain.
p The IHF was sus- HI’s blessings,
g but there is little in broadcaster, r, the co-promoters
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tion that it is designed as a dom- pended
p in 2008 and derecognised
g it except pride. A
And HI has al- WSH mayy well be facingg a finan-
estic hockey league akin to Euro- in 2009 byy the sports
p ministry,
y the ready said that any player who cial crisis that could result in WSH
pean
p football leagues.
g It iss based IOA
O and the international feder- turns out for WSH will not get to being a stillborn baby.
more on the IPL in cricket. ation (FIH).
((FIH)) It wass replaced
p byy don India colours. It would not At the moment, though, it’s
What makes WSH special p — HI, a recognised
g ad-hoc commit- assure them financial security, business as usual for Indian
as also IPL — is thee huge
g amount tee, to ggovern the sport
p in the something WSH promises. What hockey’s administration. a
of moneyy at stake, not onlyy for the country. y However, a Delhi HC makes it even worse is the kind of
organisers or the team owners b but ruling in 2010 held the IHF’s sus- dodgy selections and ego issues [email protected]
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Vijaya Sampath Posted online: Wed Jun 05 2013, 00:36 hrs

An anti-fixing law will run up against the difficulty of detecting malpractices

The recent spot-fixing scandal in the “gentlemen’s game” has highlighted the inadequacy of our criminal laws in dealing
with such cases. The police have sought to book the players under Sections 420, 120B and 409 of the IPC. But can
these sections appropriately address and check this menace? The answer, unfortunately, is in the negative.

For an offence under Section 409, there needs to be a breach of trust by a public servant or an agent. The BCCI, the
franchisee and the players entered into a tripartite agreement for securing the services of the player for the team.
Therefore, it would be very difficult to establish that the player was acting as an agent of the franchisee or the BCCI. In
order to prove cheating under Section 420, one needs to establish that the accused, dishonestly and with an intention to
defraud, induced a person to deliver property. Though cheating could be established as per the rules of cricket, the act
of dishonestly inducing a person to deliver property is difficult to prove. Primarily, it is the punters who have been
cheated of their property or security, which in itself is illegal in India. It is debatable whether the act of “fixing” a game or
parts of it amounts to cheating (as defined in the IPC) audiences and fans.

Provisions in the existing regulations to address match-fixing and spot-fixing are not wholly absent. The ICC has an
anti-corruption code for participants and the BCCI’s anti-corruption code contains similar provisions. But the power to
take action under these codes is limited to the participants and cannot include the bookies and punters. This is because
the code can be applied only after a contractual arrangement between the participants and the governing body. And
bookies are (thankfully) not part of such an arrangement. Further, since the code is imposed by the governing body of
the sport, the penal provisions are of disciplinary nature. Penalties range from bans to fines. Wrongdoers cannot be
punished for criminal breach of law.

The inadequacy of the IPC provisions, the limited applicability and force of the anti-corruption codes of sporting bodies
and the sweep of the illegal bookie network has prompted the Central government to deliberate on an anti-fixing law
called the Prevention of Dishonesty in Relation to Sporting Events Bill.

Dishonest acts in sporting events range from deliberately manipulating the event, or a part of it, for gain to
underperforming, or “tanking”, for a sporting advantage. Dishonesty could also include omitting to inform the authorities
of an overture from a bookie or a punter. Many kinds of offences can be contemplated under the legislation; not all of
them are committed for monetary gain. Therefore, the legislation would have to carefully address the quantum of
punishment for these acts and the parties who fall within its purview. While deliberate manipulation for financial gain
should be punished, the penalty for tanking to gain a sporting advantage should be addressed only under the rules of the
sporting body. It should be excluded from the ambit of the draft legislation.

Though the anti-fixing legislation may have been spurred by the cricket controversy, it is imperative that it tackles
corruption across all sports. Football, hockey, Formula 1 and badminton seem to be gaining commercial traction in India.
It is important that the Central government takes into account all sports events, within and outside the country, in which
Indian nationals are involved. Sports is a requisite for a healthy society and the government needs to ensure that it is not
tainted by the corrupt practices of a few. It would be prudent for the government to deliberate longer and take into
account all issues related to the prohibition of such practices. It should desist from rushing to enact a law that is

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defective or only partially addresses the problems linked to fixing in sport today.

The biggest concern that the anti-fixing legislation needs to address is the problem of detection and investigation of
wrong practices. Worldwide detection of such corrupt practices are linked to legalised betting and the analysis of betting
patterns. With betting being illegal in India, the detection of wrongdoing would be a problem. The difficulties in detection
may even hamper the effective enforcement of the anti-fixing legislation. The lack of coordination among various
agencies, such as the police departments of various states, income tax authorities, the enforcement directorate and the
anti-corruption unit of the BCCI, spells disaster and ineffective implementation. This has to be tackled through regulation.

With inputs from Vidushpat Singhania

Sampath is senior partner and Singhania is principal associate at a Delhi-based law firm.

Views are personal

[email protected]

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