The question whether or not the Board of Control for Cricket in India ("BCCI") must be subject to the Right to Information (RTI) Act has been of primary importance over the past couple of years. In times when people are demanding increasing transparency and accountability, the hot topic of why or why not the BCCI should be covered under the RTI Act has been garnering varied opinions and views from scholars, policy makers, academicians and even common citizens interested in the sport and its administration.
The BCCI was set up on December 4th 1928, by a handful of players at Delhi's Roshnara Club to mark an end to the British monopoly in India, an attempt to establish Indian identity in the cricketing world. The BCCI neither follows a proper regulated structure like other sporting bodies in the world nor does it follow laws of corporate governance.
The basic functions agreed upon by the members of this board were advancing and controlling the game of cricket across India, arranging and controlling intercountry, foreign and other cricket matches, to make arrangements related to visits of teams to India, and if necessary to control and arrange all or any interterritorial disputes, as well as to settle disputes or differences between associations allied to the board.
But till date, this body has not been accountable to the citizens of the country and the government at large.
RIGHT TO INFORMATION
Justice PN Bhagwati has rightly said "Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing". Transparency and accountability in administration is the sine qua non of a participatory democracy. In India, till 2005, there was no way of garnering access to any information related to the working of any public authority or matters related to the public interest of people, making it difficult for the common man to participate effectively in the decision making process.
However, due to increased awareness and the growing consciousness of people, the inbuilt desire to know about the country's decision-making bodies grew intense. In such circumstances, our judiciary played an animated role to strengthen public transparency. The Supreme Court, in the case of S.P Gupta v. Union of India1 opined that considering a democratic set up, the people have full right to know about the functioning of the government. Similar, it was also held in the case of Prabhu Dutt v. Union of India2 that the right to know news and information regarding the administration of the Government is included in the freedom of press.
The Right to Information Act3 is considered to be path breaking in deflecting corruption and unjustified delays in the implementation of public policies and decisions of the public authorities. "The basic objective of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense."4 RTI Act brought together the two most important tools 'transparency and accountability' together for eradicating the evil that had become hindrance to good governance.
Section 2(f)5 of the Act which defines 'information' says that such information can also be retrieved which belongs to any private body which can be accessed by a public authority under the law being in force. When this is read with the proviso of Section 8(1)(j)6 of the Act which states that information which cannot be denied to the State Legislature and the Parliament cannot be denied to any person, it can be understood that private bodies also fall under the RTI Act indirectly. Interestingly, in the recent case of D.A.V College Trust and Management Society and Others v. Director of Public Instructions and Others7 the Supreme Court has held that NGOs and other private institutions receiving substantial governmental funding come under the ambit of the RTI Act. However, it said whether an NGO or body is substantially financed by the government is a question of fact which has to be determined on the facts of each case as there may be cases where the finance is more than 50% but still may not be called substantially financed.
SHOULD BCCI DUCK THIS BOUNCER OR PLAY IT?
In today's capitalistic world, sports has become a business for the corporate world. It has shifted the burden of legal regulation onto certain international and national sports federations which control and govern these sports. But in case of cricket, the BCCI is a private venture, having its own rulebook that often caters to their own convenience. It takes certain decisions that have serious implications on the careers of players which in turn giving rise to economic consequences.
BCCI is an autonomous organisation least accountable to the public, players and even the government. It enjoys a clear monopoly status8 with enormous economic and political power but with zero transparency. BCCI has the power to make laws to regulate itself and amend these laws as per its own whims and fancies.
Although BCCI is technically a private body, it's various working and functioning shows that it discharges public functions. Activities like selecting a team that represents India in international matches, disqualification of players and umpires, to name a few. In 2016 in BCCI v. Cricket Association of Bihar and Ors.9, Justice Lodha Committee was set up to make recommendations to the BCCI. The committee believed that the BCCI should discharge public functions subject to an indirect approval of the Central and State Governments that has created a monopoly in the hands of BCCI. It observed, "It is performing a public function of selecting the national and international team to represent the nation at a global front. It regulates cricket in India of all forms at all levels. The decision of Zee Telefilms v. Union of India requires some reconsideration on the ground that it performs the public function involving millions of funds and arbitrary using its power in recent past. Therefore, it should be considered State under Article 12 of Indian Constitution". The Committee also felt that the people of the country have a right to know the details about the BCCI's functions and activities. It was therefore, recommended by apex court that the legislature must seriously consider bringing BCCI within the purview of the RTI Act. The same was upheld in the case of Subhash Chandra Agrawal v. PIO, Department of Sports10.
The Law Commission of India, that works as an advisory body to the Ministry of Law & Justice, in its 275th report11 asked the Government to treat BCCI as an agency of the state under Article 1212 of the Indian Constitution as BCCI controls the policy formulation and implementation related to cricket, affecting the country at large, which the commission believed to be a State function.
It is pertinent to mention that when private individuals or groups are endowed by the state with powers or functions governmental in nature, they become agencies or instrumentalities of the State.13 Even where a corporation is privately performing a public function it is bound by the constitutional standards applicable to all State actions.14
Moreover, in October 2018, the Central Information Commission, the top appellate body in RTI matters, went through the law, orders of the Supreme Court, the Law Commission of India report, submissions of the Central Public Information Officer in the Ministry of Youth Affairs and Sports and concluded that the status, nature and functional characteristics of the BCCI requires fulfilment of the conditions of Section 2(h) of the RTI Act.15 Section 2(h) of the Act defines criteria under which a body can be declared as public authority under the RTI Act. As per this Section, public authority includes anybody or institution controlled or substantially financed, either directly or indirectly by the Government. There is no direct financial assistance to BCCI by the Central Government, but it has been granting concessions in Income tax, customs, etc. to BCCI. Even land is provided at highly discounted rates or nominal value by the Centre and State for the construction of cricket stadiums. These concessions amount to thousands of crores of rupees. This qualifies as indirect funding by the Government. Given all these reasons, one may infer that that the BCCI carries out public functions and also receives governmental exemptions.16
If BCCI is treated as a State under Article 12, it will make BCCI subject to constitutional discipline of fundamental rights. Once BCCI comes under the ambit of RTI, it will improve the ethical standards and discipline in the game, promote efficiency in the management of BCCI, provide accessibility and transparency, prevent conflict of interest situations and eradicate political and commercial interference and abuse and create mechanisms for resolution of disputes within the BCCI.
1 S.P Gupta v. Union of India, (1993) 4 SCC 441.
2 Prabhu Dutt v. Union of India, AIR 1982 SC 6.
3 Right to Information Act, 2005, No. 22, Acts of Parliament, 2005 (India).
4 Guide on Right to Information Act, 2005, Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training.
5 "Information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.
6 Right to Information Act, 2005, §8(1)(j).
7 D.A.V College Trust and Management Society and Others v. Director Of Public Instructions And Others, 2019 (9) SCC 185.
8 BCCI v. Netaji Cricket Club and Ors., (2005) 4 SCC 741.
9 2017 SCC Online SC 370.
10 Central information Commission, Subhash Chandra Agrawal v. PIO, Department of Sports, Order No. CIC/LS/2012/000565.
11 Law Commission of India, Reforms in the Judiciary: Some Suggestions, Report No. 275, 18 (April 2018).
12 INDIA CONST. art. 12.
13 Evans v. Newton, 382 U.S. 296 (1966); Marsh v. Alabama, 326 U.S. 501 (1946).
14 A.C. Muthiah v. BCCI, (2011) 6 SCC 617; Sukhdev v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421
15 Right to Information Act, 2005, §2(h).
16 Smt. Geeta Rani v. CPIO, M/o Youth Affairs & Sports, CIC/ MOYAS/A/2018/123236.
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