Why The BCCI Will Only Have Itself To Blame If Supreme Court Cracks The Whip Today

11/04/2016 8:45 AM IST | Updated 15/07/2016 8:26 AM IST
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Batsman just after hitting ball in professional cricket match in full stadium at sunset during summer.Stadium is fake created in photoshop.

“Are you refusing to be reformed?”, Chief Justice of India Tirath Singh Thakur asked the Board of Control for Cricket in India on Friday April 8, in course of the hearing on the Lodha Committee report. The combative question attracted headline writers and formed the core of the day’s media reportage.

The key to the immediate future was however contained in another exchange:

Justice Thakur: “When you collect thousands of crores of rupees, are you saying that we cannot question you as to how you spend the same?”

BCCI advocate KK Venugopal: “With respect, yes.”

With that, the BCCI shifted the debate from whether, and how, to implement the Lodha Committee recommendations to a more fundamental question: Does the Supreme Court have any right to ask the BCCI to do anything at all?

That is a gauntlet flung before the apex court. It is also the BCCI’s Hail Mary pass in the face of a ticking clock. Justice Thakur is scheduled to retire at the end of this year. Like any CJI, he presumably would like to leave behind a legacy that lasts beyond his tenure – and few legacies can be as lasting in this cricket-mad nation as a comprehensive clean-up of the BCCI. To question his – and by extension the apex court’s – locus standi puts the BCCI on a path of confrontation that precludes compromise.

That is a gauntlet flung before the apex court. It is also the BCCI’s Hail Mary pass in the face of a ticking clock.

The BCCI had an easier option. In early January, Justice Thakur had told the board that he would be agreeable to referring “some” of the Lodha recommendations back to the committee for review. That was the free hit the BCCI did not utilize. The board could have used slice and dice tactics to dilute the impact of Lodha. It could have told the court: Here is what we can do – we can implement the following reforms right away; this other set of reforms, which necessitates large-scale changes to how we operate, will require more time; and finally these few recommendations seriously impact our core business and hence we request that they be reviewed.

Such partial compliance would have bought the BCCI more time, more wiggle room for the various stalling techniques the board is adept at. The BCCI however abdicated that option and let itself in for a do or die struggle that seems, prima facie, foolhardy.

The question is, why?

Why would the board stick its own neck in a noose when the other end of the rope is in the hands of a visibly incensed court? The answer lies in a series of missteps the board and its high-priced battery of attorneys have made in the Lodha hearings.

Why, the court wanted to know, do some states get very large amounts and others get a pittance?

On January 4, the apex court signalled its acceptance of the Lodha report in all particulars and told the board, in so many words: “If you have difficulty in implementing it, we will ask the Lodha Committee to implement it for you.” That same week, board secretary Anurag Thakur emailed the member associations seeking feedback. On February 19, a Special General Body meeting of the board authorized Thakur to file an affidavit pointing out the various “anomalies and difficulties” in implementing the report.

Over the next few days, various state associations – Karnataka, Punjab, Tamil Nadu and Mumbai among others -- let it be known that they would be filing intervention applications before the apex court. (Kapil Sibal, representing Baroda, went one better and asked permission to approach the Lodha committee directly. The apex court shot him down). These moves were classic stalls. The board could tie up the court’s time with a series of “interventions” by the various state associations, each of which would have to be heard and ruled on separately.

In the first week of March, Anurag Thakur on behalf of the board submitted a comprehensive affidavit. Cricinfo, which accessed the close-hold document, reports that the board objected to pretty much everything:

“…one state one vote; drastic reduction on advertisements; inclusion of Comptroller & Auditor General of India's nominee on managing committee and apex council; representatives of two franchises on the IPL governing council; prohibition on re appointment for members of managing committee and cooling-off period; prohibition on association of ministers/government servants/persons holding posts in another sports body in honorary capacity; restriction of simultaneously holding office in a state association and the BCCI; age cap of 70 years for an office bearer; formation of players' association funded by the BCCI; doing away with existing BCCI committees; bringing the board under the Right To Information Act; and legalising betting.”

That is where the BCCI’s problems began – there was no give in its stance. Board secretary Anurag Thakur – who back in September 2015 had “fruitful discussions” with the committee -- pushed the envelope further by claiming that the committee had not sought his views before submitting the recommendations.

That is where the BCCI’s problems began – there was no give in its stance. Board secretary Anurag Thakur – who back in September 2015 had “fruitful discussions” with the committee -- pushed the envelope further by claiming that the committee had not sought his views before submitting the recommendations.

The statement riled the court, with good reason. Once the Lodha Committee had been constituted, one of its first acts was to prepare an exhaustive questionnaire. This was sent to the BCCI president and secretary, with the request that it be passed on to all member associations. The committee independently sent copies of the questionnaire to all member associations.

The response by the BCCI and its members was lackadaisical. Thakur and then president Jagmohan Dalmiya submitted identical responses; most of the member states submitted off-hand replies and, worse, did not take the personal meetings with the committee seriously.

When Thakur says the Lodha Committee did not consult him before submitting its recommendations, you hear in those words the BCCI’s sense of entitlement. The board is used to commissioning reports that say what its honchos want said, reports that are then touted as “clean chits” laundering various acts of malfeasance, that the board now seems incapable of comprehending that a committee can act with a mind independent of its wishes.

The board in its affidavit argued against recommendations that were core to reform. Like mandatory retirement at age 70 for instance – a clause that immediately hurts MCA president Sharad Pawar. Like the establishment of a players’ association – mooted by Lodha on the grounds that players, around whom the game revolves, deserve a place at the high table. Like the RTI act, which would dilute the BCCI’s ability to be opaque in its activities. And like strictures against the highly intrusive advertising that ruins the fan’s ability to enjoy the game.

anurag thakur bcci

On that last, the board contended that its revenue would be hit drastically. Planted stories suggested the board’s revenue, estimated at Rs 2000 crore, would be reduced by about Rs 1600 crore.

That was demonstrable over-reach. The board currently earns approximately Rs 1400-Rs 1600 crore from IPL alone – which the Lodha committee has left untouched. Its earnings from Tests and ODIs fluctuates depending on the calendar but over time approximates to around Rs 1000 crore. Of this, the committee’s strictures apply only to those international games that are staged in India. In other words, approximately 75% of the board’s earning capacity is unaffected – a far cry from the dire picture the BCCI presented to the court.

The BCCI went further, stating that such a loss in earnings would render it incapable of supporting the states with funds to develop the game. That opened the door for the court to ask for audited accounts of funds given to state associations across the last five years. The accounts in turn opened up a hornet’s nest, with the court questioning the idiosyncratic nature of allocations.

Why, the court wanted to know, do some states get very large amounts and others get a pittance? The BCCI responded that some states have infrastructure and therefore get more money – a point negated by the fact that Tripura, beneficiary to the tune of Rs 60 crore, has no stadium or other cricketing facilities. Further, as Bihar Cricket Association’s legal representative Nalini Chidambaram pointed out, this was vicious-cycle territory: The board does not provide funds to some states, therefore they are unable to create facilities, which the board uses as the excuse to continue to deny funds.

Why, the court further asked, have 11 associations – including Bihar, Rajasthan and Jammu & Kashmir -- not received any money at all? Because, the board argued, they have not submitted proper accounts. Again, the argument was untenable, and provoked the court’s ire. If a member association does not comply with the rules, why penalize the state and the players by starving them of funds, rather than take action against the association itself?

bcci headquarter

The BCCI has always been a law unto itself. Its actions are as arrogant as they are arbitrary. The group in power at any given time favors friends and punishes foes, comfortable in the knowledge that it is above accountability. (Another case in point emerged as I was writing this: commentator Harsha Bhogle has been deprived of his IPL duties with no forewarning, no explanation. And the BCCI leadership has “refused to comment”).

Arbitrary functioning of the kind that the BCCI routinely indulges in cannot however survive judicial scrutiny, as became evident at the April 5 hearing. The BCCI repeatedly painted itself into corners and flailed around for answers, each response only serving to open up a fresh can of worms. Somewhere between then and the next hearing on April 8, the board and its lawyers appear to have realized that their arguments against the Lodha recommendations were getting them nowhere. And from that, they reasoned that their best strategy was to move away from questioning the recommendations, and instead to challenge the very authority of the court.

Back in 2005, in the case of Zee Telefilms Ltd versus Union of India and Others, a five-member constitution bench of the Supreme Court had by a 3-2 margin ruled that the BCCI was not, for legal purposes, a ‘State’ as defined by Article 12 of the Constitution. (Note, inter alia, that the majority judgment was the milder interpretation of the constitution -- the two dissenting judges argued that the BCCI should in fact be considered a ‘State’).

Representing the board in that case was KK Venugopal – the same lawyer who is appearing for the BCCI now. And it is this judgment that forms the basis for the BCCI’s argument that it is a “private, autonomous body” and thus not subject to judicial oversight.

The judge who wrote the court’s position in BCCI versus Bihar is none other than Chief Justice of India TS Thakur. And that sums up the illogic of the BCCI’s brinkmanship last Friday -- the board is challenging, in the CJI’s courtroom, the CJI’s own prior judgment in an attempt to move the argument from the procedural to the constitutional.

However, the BCCI is on tenuous ground here. In the February 2015 judgment in BCCI versus Cricket Association of Bihar and Others, the apex court held that when private bodies exercise public functions – as the BCCI demonstrably does, by virtue of being the country’s official governing body for both national and international cricket – it is amenable to writ petitions under Article 226, and therefore can come under judicial review.

The judgment, further, detailed the functions the BCCI carries out and adjudged that these were being done with the concurrence of the state and central governments, and therefore the functioning of the board is in the public domain – which in turn means these functions can be taken over by the state at any time.

(For instance, the Board owns only one stadium. The others are on lands leased from the state. There is nothing to stop the apex court from recommending that these leases be terminated, that the grounds be taken back by the states, that the central government establish an alternate body to govern cricket – say, Cricket India – and recognize that body as the legitimate authority).

The judge who wrote the court’s position in BCCI versus Bihar is none other than Chief Justice of India TS Thakur. And that sums up the illogic of the BCCI’s brinkmanship last Friday -- the board is challenging, in the CJI’s courtroom, the CJI’s own prior judgment in an attempt to move the argument from the procedural to the constitutional.

This cannot end well for the BCCI. Just how bad it can get will be known Monday (April 11), when CJI Thakur and Justice Ibrahim Khalifulla respond to Venugopal’s last-ditch gamble.

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