14 Sep 2022 11:37 AM GMT
The Supreme Court, on Wednesday, allowed the amendments proposed to the Constitution of the Board of Cricket Control of India (BCCI) to relax the mandatory cooling off period requirement.Now, the cooling off period of 3 years will apply only if a person serves two consecutive terms at the BCCI or the State Association. Also, the cooling off period requirement will apply at that particular...
The Supreme Court, on Wednesday, allowed the amendments proposed to the Constitution of the Board of Cricket Control of India (BCCI) to relax the mandatory cooling off period requirement.
Now, the cooling off period of 3 years will apply only if a person serves two consecutive terms at the BCCI or the State Association. Also, the cooling off period requirement will apply at that particular level, i.e. either at the State Association or BCCI. In other words, the cooling off period requirement will not bar one from seeking election to the BCCI immediately after serving two consecutive terms at the State level.
A Division Bench comprising Justices D.Y. Chandrachud and Hima Kohli passed the order in the plea filed by Board of Cricket Control of India (BCCI) seeking permission to amend its constitution, to do away with the cooling-off period for holding two consecutive terms in BCCI, in State Association or combination of both.
It is pertinent to note that this proposed amendment enables the current President Saurav Ganguly and Secretary Jay Shah to seek a second term in the BCCI after October 2022. As per the unamended clauses, they would have attracted disqualification, since they have completed one term each in the BCCI and the State Association.
The Court noted the submissions made by Solicitor General of India, Tushar Meta that the existing clauses provided that a person who completes one term in State Association followed by one term in BCCI would have to undergo a cooling off period.
It was also submitted that the unanimous view is that the cooling off period will come only after two consecutive terms are completed. However, the proposed amendment sought relaxation of the requirement of mandatory cooling off period only for the post of President and Secretary. In this regard, Amicus Curiae, Senior Advocate Maninder Singh submitted that there is no justification to confine the cooling off period to the two posts and that it must extend to all posts of office bearers of the BCCI and the State Association.
The Bench also noted that Singh had proposed a bifurcation by introducing similar requirement of cooling off at the BCCI and the State Association.
"Clause 6(4) has been bifurcated into Clause 6.4.1. in relation to BCCI and Clause 6.4.2 in relation to State Assocation. Having considered the application, we are of the considered view that...the proposed amendment should be accepted. SG has stated that the amendment proposed by Amicus is acceptable to the BCCI," the Bench said.
The Bench said that the principal rationale for cooling off period has been explained in the case titled Board of Control for Cricket v. Cricket Association of Bihar & Ors (2016) which accepted the recommendations of Justice Lodha commission. It noted that as per existing constitution of BCCI, after holding two consecutive terms in State, BCCI or combination of two, cooling-off period kicks in.
It observed that the consequence of the aforesaid is that first, a person who is elected as an office bearer in State Association for 2 consecutive terms would have to undergo a cooling-off period; second, a person who is elected in BCCI would have to under a cooling-off period after two 2 consecutive terms and third, a person who is elected in State Association for one term and then becomes office bearer of BCCI for one term has to undergo cooling-off period.
"The consequence of the existing provision is that even if one holds one term in BCCI yeah have to undergo cooling off. The submission that the application of cooling off to an individual who has undergone 1 terms at each level is stringent," the Court said.
It added "…keeping in mind the reason for which cooling off period was introduced, we are of considered view that the amendment would not dilute the original objective...We therefore accept the proposed amendment."
Provision for Mandatory Cooling-off Period In Existing Constitution
As per the existing Constitution of BCCI, if a person has served one term (3 years) in the State Association, thereafter they can only serve one term (3 years) in BCCI before being subjected to the cooling-off period. Since one has to hold office in the State Association for contesting election for a post in the BCCI, they will always be subjected to the cooling-off right after they serve their first term in the BCCI.
Proposed Amendment With Respect To Cooling Off Period
The proposed amendment suggests that the requirement of cooling-off will kick in after one has served two consecutive terms in the BCCI, irrespective of their term of service in the State Association.
Amendment As Approved By The Supreme Court
The Apex court has now allowed the relaxation of the mandatory cooling-off period to the extent that after two consecutive terms at BCCI or State Association cooling off period will apply for the respective levels. To put it simply, one who serves as an office-bearer in the State Association for 2 consecutive years has to undergo a cooling off period before they again serve as office bearer of a State Association. One who serves as an office-bearer in the BCCI has to undergo a cooling off period after 2 consecutive terms in the BCCI. However if one who serves as the office-bearer in State Association wants to be elected to the federal level, i.e. BCCI, they can go directly without the cooling off period and serve as office-bearers in the BCCI for 2 consecutive years, after which, the cooling off period will kick in.
The submissions that resonated with the Court for allowing the amendment was that, as per the existing Constitution, after serving as an office bearer in State Association for one term, if a person is elected to the BCCI, they can hold office in the BCCI for only one term, which is not sufficient to get acquainted with the workings of the organisation and to demonstrate leadership.Yesterday, Solicitor General Tushar Mehta submitted that the amendment takes care of the concern that no one is perennially in charge of the BCCI, as well as ensures that experience gathered during their tenure at the State Association is not wasted. The Bench agreed that the primary principal for introducing the cooling off period was to ensure that there is no vested interest. Observing that the original vision of the Apex Court is not being hampered by introducing the relaxations in the cooling-off period, the amendment was approved. The Bench also noted that the sphere of operation and functions of the BCCI and the State Associations being largely distinct, the bifurcation of the State Associations and BCCI and applying cooling off period to respective levels was found to be in tune with the object and purpose of the mandatory-cooling off provision.
Amendment To Other Disqualifications Also Approved
Relaxations were also sought for certain other disqualifications. With respect to the bar on the ministers, government servants or persons holding public offices from contesting BCCI elections, the proposed amendment has sought relaxation to the extent that 'public office' be removed from disqualification. It was argued that cricketers after retirement often assume public office. Therefore, if the relaxation is not granted these former cricketers of eminence would not be permitted to contest the BCCI election. The Bench agreed to remove 'public office' from the ambit of the disqualification.
The other disqualification where relaxation is sought is the bar for those who hold office or post in a sports or athletic association or federation apart from cricket. The amendment sought was allowed by the Bench.
As per the existing constitution, officer-bearers can be disqualified if they are charged for committing any criminal offence. The modification sought herein is that 'charged' can be modified so as to apply to a person who is 'convicted' of an offence and sentenced to a term of imprisonment. In this regard, the modification was sought to protect the office-bearers from frivolous prosecution. The Bench allowed the amendment.
At present the BCCI is to take approval of the Apex Court before amending its constitution. Modification is sought in this regard to do away with the approval mechanism. Refusing to grant the same, the Bench recorded, "Solicitor General has not pressed this amendment."
The Bench also approved some consequential amendments and amendments of administrative nature.
"Amendments proposed doesn't detract from the initial object and purpose of the judgment of this Court, hence are accepted", the bench noted.
Advocate Akhilesh Kumar Pandey representing former members of a Cricket association in Bihar had objected to the amendments sought by the BCCI. However, the Bench did not find merit in these objections.
[Case Status: BCCI v. Cricket Association of Bihar CA No. 4235/2014]
Citation : 2022 LiveLaw (SC) 770
Board of Control of Cricket in India - Supreme Court approves amendments proposed to the Constitution of BCCI
Click here to read/download the order