Breaking: Make BCCI A State Under Art.12 Amenable To Writ Jurisdiction & RTI Act, Liable For Human Rights Violations: Law Commission In It's 275th Report [Read Report]
The Law Commission of India has submitted the 275th report titled LEGAL FRAMEWORK: BCCI vis-à-vis RIGHT TO INFORMATION ACT, 2005 to the Ministry of Law and Justice.
In the Report the Commission has recommended that that The Board Of Control For Cricket In India (BCCI) be viewed as an agency or instrumentality of State, under Article 12 of the Constitution, thereby making it amenable to the writ jurisdiction of the Supreme Court under Article 32. The Commission has also recommended that the BCCI should be held accountable, under all circumstances, for any violations of basic human rights of the stakeholders.Additionally, it is recommended that RTI Act be made applicable to BCCI along with all of its constituent member cricketing associations, provided they fulfil the criteria applicable to BCCI.
The Supreme Court, in the Cricket Association of Bihar case, made reference to the Law Commission of India to examine the issue of bringing BCCI under the purview of the RTI Act, 2005 and make pertinent recommendations to the Government.
Summary of the Report
LCI arrives at a conclusion that BCCI ought to be classified as ‘State’ within the meaning of Article 12 of the Constitution. An analysis of the functioning of BCCI also shows that the Government does exercise control over its activities and functioning. As was argued in the Zee Telefilms case that BCCI, falling in line with the foreign policy of India, did not recognise a player from South Africa due to their practice of apartheid; and that the cricket matches between India and Pakistan in view of tense international relations were made subject to Government approval. The foregoing positions BCCI as a ‘limb of the state’, and it should, therefore, be held to be ‘State’.
The case law discussed in the preceding chapters also sheds light on the threshold of ‘control’ that the Government is required to have on a body under section 2(h) of the RTI Act. It can be deduced from the same that such ‘control’ is much lower in magnitude than what is required under Article 12 of the Constitution. Thus, the threshold for ‘public authority’ being lower than that of ‘State’ under Article 12, bastions the argument that BCCI would have to be covered under the RTI regime.
Moreover, even if BCCI is continued to be regarded as a private body, but owing to its monopolistic character coupled with the public nature of its functions and the ‘substantial financing’ it has received from appropriate Governments over the years (in the form of tax exemptions, land grants et al) it can, within the existing legal framework, still be termed as a ‘public authority’ and be brought within the purview of the RTI Act.
In addition to the above, there are certain other relevant factors that ought to be taken into consideration apriori the recommendations of the Commission, which are as follows:
The uniform of the players of the Indian team (as selected by BCCI) contains the national colours and their helmets display the Ashok Chakra
BCCI, though not a NSF, nominates cricketers for the Arjuna Awards etc
The Parliament and the State Legislatures chose not to enact a legislation to govern the sport of cricket reflecting tacit recognition on the issue afforded to BCCI.
Recently, the Apex Court reaffirmed that BCCI is the “approved” national level body holding virtually monopoly rights to organize cricketing events in the country.
(1) Non-consideration of the role played by BCCI as monopolistic in regulation of the game of cricket has resulted in the Board flying under the radar of public scrutiny, encouraged an environment of opacity and non-accountability. In the past, this has probably given an impression in the minds of the general public that corruption and other forms of malpractices are adversely affecting one of the most popular sports played in India BCCI exercises ‘State-like’ powers affecting the fundamental rights of the stakeholders, guaranteed under Part III of the Constitution. It is hereby recommended that BCCI be viewed as an agency or instrumentality of State, under Article 12 of the Constitution, thereby making it amenable to the writ jurisdiction of the Supreme Court under Article 32.
(2) Human rights are sacrosanct and innately associated with the human personality. These rights are continually evolving, are to be respected by, and can be enforced against not only the ‘State’ but also private bodies/entities. Therefore, the BCCI should be held accountable, under all circumstances, for any violations of basic human rights of the stakeholders.
(3) BCCI virtually acts as a National Sports Federation (NSF). Its own Memorandum of Association states that the Board’s objects and purposes are to control, improve quality, lay down policies pertaining to the game of cricket in India as well as select teams to represent India at international fora. Moreover, as per the statement made in the Lok Sabha, the Central Government has already been regarding BCCI as a National Sports Federation and hence, it is recommended that, for the removal of any doubt, the same be explicitly mentioned in the list of NSFs available on the ministry’s website. This express mention would automatically bring BCCI within the purview of RTI Act. Other sports bodies listed as NSFs’ in Annual Report 2016-17, 177 of the Ministry of Youth Affairs and Sports available on its website do attract the provisions of the RTI Act. This website also contains information regarding (Chief Public Information Officer) CPIOs and Appellate Authorities catering to RTI requests addressed to specific NSFs.178 In light of the above stated facts, since all other sports bodies which are listed as NSFs are covered under the RTI Act, it is inconceivable as to why BCCI should be an exception. (
4) Additionally, it is recommended that RTI Act be made applicable to BCCI along with all of its constituent member cricketing associations, provided they fulfil the criteria applicable to BCCI, as discussed in this Report.
Read the Report Here