-Shailja Rawal, Student, B.A.LL.B., NLSIU

Introduction

Cricket, once a game with proud records is often shammed now-a-days with disparaging remarks such as opulent, oligarchic and opaque.[1] Concerns pertaining to abysmal lack of clarity, break within communication channels and inadequate professionalism have been raised from within the cricket body itself.[2] Unfortunately, this is not the first time such allegations are raised against the authorities however, this paper through its argumentative claims, empirical field-work, cross jurisdictional analysis and future suggestions hopes for it to be the last time. In an attempt, to make the paper interactive and engaging for the reader the paper encourages a dialogic discussion and stimulating suggestions by relying on data collected through online surveys, pictures and graphical representations.

Q 1. Which is the richest sporting body of the world and should it be made transparent towards its citizens?

Prima facie, the question might seem simplistic yet the answer to it involves and raises many pertinent questions which remain un tackled even today. Answer to the above-posed question might be unanimous but reasons and implications of it, in terms of transparency, still remain ambiguous and difficult to deal with. In order to conduct an empirical study and thereby verify several claims, the given question was posed to the class during presentation and all students responded unanimously by identifying BCCI as the Richest Cricket Board of the World.[3]

Not only this, the next question also entailed an urge to push BCCI under the scope of Right to Information Act, 2005 in order to make it more transparent. Similar to the previous exercise, all students again identified the need to make BCCI transparent and accountable.

However, despite such responses, the envisaged utopian state of transparency and accountability still remains a far-fetched reality. Interestingly, both the reader and the writer may acknowledge the need to bring BCCI under RTI, but no change can be observed till the time BCCI also acknowledges and appreciates the same. This acknowledgement on part of BCCI unfortunately still remains a missing link. In fact, years have been spent to dodge any potential move towards transparency, cited reasons of which, are merely superficial and narrow.[4] The issue isn’t new. Whether BCCI should be considered as a public body was placed before the Supreme Court as early as in 2005 by the case of Zee Telefilms Ltd.[5] However, even after 17 years being passed, the question still remains best unanswered.[6] This paper, in an attempt to resolve this controversial debate, seeks to argue that BCCI because of its representative capacity for the entire nation, ought to be covered within the RTI regime not only to free itself from the colonial hangover but also to stand upto the democratic ideals of transparency and accountability. In this regard, several suggestions have been advanced through this paper. Additionally, settled precedents in terms of Supreme Court cases, Law Commission recommendations and Central Information Commissions need to be taken seriously. In order to substantiate the above thesis statement, the paper has been divided into three parts. First, it covers the history and intent with which BCCI was established. Additionally, it also analyses the functions and operations performed by the body which are not merely private in nature instead prove to be nationally relevant. Second, it highlights the importance of transparency by explaining the interface between BCCI and RTI. Third, it pushes BCCI towards a transparent regime by placing its policies and functions within various provisions of the RTI Act.

Board of Cricket for India, headquartered in Mumbai, was formed in December 1928. It is a national body of cricket which is registered under the Tamil Nadu Societies Registration Act.[7] It was originally formed with the help of handful players at Delhi Roshanara Club, which also marks an end of the British monopoly and creation of Indian identity. However, to what extent has this attempt been made successful requires deeper analysis.

BCCI: Still under a Colonial Hangover?

The logo of BCCI, resembles ‘Star of India’ honor given by the British to their favorite princes in colonial times.[8] Given such description, the question arises as to why does India continue with this logo even after approximately a century being passed. India gained independence from British Raj, but Indian Cricket is yet to be relieved from logo, for it still depicts signs of control and oppression.

[9]

Question in terms of identification of the missing element was asked from the class and majority students i.e., 11 out of 16 correctly responded by suggesting that BCCI doesn’t even have any traces or elements of India within its pictorial representation.

Answer to why does India still retain the colonial legacy within its logo is difficult to tackle because ideally speaking the logo of BCCI should have a representation of ‘Indian Flag or Emblem’ both of which stand absent from the given representation. Ever wondered why doesn’t BCCI has within its logo Ashoka Chakra, Four Lions or words ‘Satyameva Jayate’ inscribed within itself?[10] This ‘star of honor’ award was framed after the first war of independence. British Crown created this order of knighthood to honor Indian princes who remained loyal to the crown and helped in maintaining latter’s sovereignty over India.[11]

But the question can be further delved upon and asked if this colonial hangover merely remains restricted to the logo? Unfortunately, not. Looking at the functions and operations performed by BCCI, it can be suggested it hasn’t attained independence till date. The only difference which remains is that unlike previous times, there is no institutionalized structure in lines of British Raj which can cause suppression. Instead, now it’s the mindset of the officials running BCCI who perceive transparency and Indian independence as a threat and continue operating within a colonial hangover.[12] The cold and callous behavior can be noticed by lack of active engagements from BCCI’s end. An RTI was filed by M. Sridhar Acharyulu approximately half a decade back yet there is no concrete response from CIC till date. Following points were raised by the applicant:

• “Why is Indian Cricket Team still retaining BCCI’s logo instead of having Union of India symbol?
• Why is BCCI retaining ‘Star of India’ honor which was designed way back during British Raj?
• Why is there hesitation on part of Indian Government to rely on Indian symbols or emblems including Ashoka Chakra, Four Lions etc.?
• What is the reason behind non-implementation of CIC’s decision of BCCI being a public authority on part of Government of India, PMO or Youth Affairs and Sports?
• Why aren’t actions being taken to prevent frauds such as match fixing and betting despite a bill being proposed?”[13]

However, none of these have been redressed by BCCI. In fact, the colonial legacy is now not just restricted to logo but also reflected within the operations which they perform. Some of the examples of opaqueness can be seen from the following work-related functions:

1. Indian Cricket team’s uniform carries a BCCI logo instead of any Indian Symbol.
2. BCCI, being a private body, is responsible for selecting players/umpires with them possessing no accountability regarding the selection criterion.
3. It retains the sole discretion of disqualifying players and umpires from participation in matches and therefore possesses major decision-making powers. Government, on the contrary, is merely responsible for giving ‘tacit approval’
4. BCCI single-handedly can nominate cricketers for the grant of Arjuna Award
5. It is given substantial tax exemptions and other financial reliefs with no obligation to disclose and/or get their financial books of records audited for the purpose of usage of funds.

These decisions have huge repercussions not just in financial terms but also on policy formulation level. BCCI has been enjoying tax exemptions upto thousands of crores[14] with no accountability pertaining to expenditure pattern. Additionally, what proves to be of even greater concern is that BCCI can make such decisions which can impact not just the entire professional career of an individual but also the win-loss ratio of India in Cricket Matches.

For Instance, Karun Nair, one of the two Indian batsman with a triple-century in the longest format[15] was dropped out unexpectedly from the National Cricket Team by BCCI. The question which arises in the context of transparency is whether he has a right to written explanation for why he wasn’t selected.[16] Such grand debut of players and then unexpected disappearance is not the first or the last time in cricket.

Hanuma Vihari, another such player, recently fell victim to the opaque system and ended up following on the same trajectory as shared by Karuna Nair.[17] On Vihari’s non-selection, people resorted to asking for justice on social media platforms but that hardly yielded into any results and maybe BCCI again chose to keep its eyes and ears close towards such injustice. The idea is to highlight that such decisions not only impact the careers of those players directly affected[18] but also may negatively reflect in India’s ranking at the international level. Today, all of us know who Virat Kohli, MS Dhoni or other such players within the Indian Cricket Team are; but seldom do we acknowledge the hard-work and efforts of those who were thrown out of the picture, for politics and maybe several other reasons which BCCI stands afraid to disclose till date. When shown the picture, merely 1 student out of the original set of 16 students could answer the question and relate him to the controversy

This pie chart would have resulted into exact opposite results if names of players were changed to some big-shot cricketers who can be located within the cricket team or who BCCI chose to show to the general public. Use of these graphs help ascertain the exact impact which selection processes of these ‘privatized’ cricket board have on the image of that player and also the general public at large.

Secrecy in all such matters including selection, finance and symbolic representation on player’s uniforms can amount to abuse of authority.[19] Capacity to resist such authority was granted for the first time by Right to Information Act, 2005.[20] There exist a close interlinkage between good governance and RTI; both of which help maximize the common good of the country. Transparency, Rule of Law and Citizen’s participation form the linchpin of these interactions. This could also be achieved in the context of cricket by relying upon these elements for BCCI and cover it within the scope of RTI. Next chapter helps examine the relationship between BCCI and RTI and ways in which the former could be brought within the scope of latter.

Understanding the Interlinking Dynamics Between Sports Bodies and Transparency

Word ‘secrecy’ is repugnant in a free and open society; and we as people are inherently opposed to the secret societies and secret oaths or proceedings. However, within this world which pushes for transparency, some institutions try to capture within its fold lots of secrets which go against the very narrative of having and flourishing within a democratic society. One such major push for transparency was brought in 2005 which also marks the birth year of Right to Information Act. This legislation is a cumulative result of favorable interpretations provided by the judiciary and a long-drawn struggle fought by the people.[21] State of U.P. v. Raj Narain[22] held that there should be as few secrets as possible. Additionally, it imposed a duty on government agents to disclose information, in case it is demanded so by the people. Right to Information, has its own significance since it motivates the people at large to question the affairs of an institution and thereby check on its corrupt practices, if any. The idea is to make sure that information which forms the heart and soul of society is freely available and gets properly utilized for the right implementation of policies.

Globally, sports have had a huge impact over different aspects of human life including but not limited to physical and mental well-being, professional relationships and constituting a bridge between the socio-economic disparities. It constituting a vital part of human life, therefore, ought to uphold the cardinal principals of transparency which not only is directly related to human rights but also forms the very essence of free and active society. Sporting bodies, such as BCCI, even though largely autonomous are now being brought under the scope of regularization. Considering dwindling IPL money and dubious trials[23], a fact which remains obvious is that BCCI hasn’t had a very clean image in the eyes of public. What gets even more stinging in eyes is that BCCI puts up a strong fight whenever there are attempts to bring it within the purview of RTI. This section while analyzing the importance of ‘right to know and be informed’ as a human right explains the significance for which BCCI should be brought within the ambit of RTI. Additionally, it unravels the reasons which have been cited by BCCI to evade the obligations imposed upon it to follow human and constitutional rights.

Right to Information as a Human Right

Right to information is gradually being recognized as a human right across the world. There has been a change in various constitutions in order to incorporate freedom of Information Laws.[24] Widespread acceptance of the same is also being extended to strengthening free expression.

While some countries recognize Right to Information explicitly in their constitutions; others tend to follow it more as human rights which haven’t been provided a space in the official text. Some international documents in which Right to Information finds a place are:

• Universal Declaration of Human Rights (UDHR)[25]
• International Covenant on Civil and Political Rights (ICCPR)
• UN Human Rights Committee (UNHRC)
• Report of Special Rapporteurs appointed by Economic and Social Council (ECOSOC)

Right to Information is developed not just in the context of state but also extends to private entities. Such private individuals or entities ought to be included within the concept of performing “public function” so that similar legal constraints can be placed on them. Several private entities are engaged in sports but have reportedly been engaged into violence and discrimination, corruption, forced labor etc. in the past. Information empowers humans so that they can scrutinize the working of various private entities and also check for corresponding human rights violation. Vineet Narain v. Union of India[26] while underlining the need for having improved transparency suggested that high levels of corruption observable in various institutions ought to be reduced. It is not merely a punishable offence under the Prevention of Corruption Act but rather acts like a termite which can make the existing system of governance hollow. It can undermine human rights thereby leading to increased chances of systemic economic crimes.[27] The potential adverse impact of choking off the democratic system and threatening the Rule of Law are some of the factors because of which corruption is called the ‘enemy of nation’.[28] Therefore, such malpractices and instances of laxity in effective administration ought to be checked and duly controlled, irrespective of the fact that whether it takes place in the private or public sphere. Duty of Sports Federation is practical and ought to be reflected properly through conduct of raids, following of anti-corruption norms etc.

However, this will be achieved in the context of cricket only when BCCI gets included within the ambit of performing public functions. If FIFA can perform and uphold the ideals of transparency and accountability; then BCCI is no exception. The sooner this gets realized within sports markers, the more self-evident will be the public interest in ensuring transparent governance and fair play.[29]

Transparency within the sports arena from an International Perspective

Analyzing the International perspective remains imperative to be looked into, in order to understand whether the quest for transparency noted within some of the Indian sports bodies is an exception or norm? Unfortunately, latter seems to be the answer since corruption has been a long-standing issue for many sports bodies across the world.[30] Some scandals out of many, have been brought out within the public’s notice. For instance, Winter Olympics conducted by IOC involved bribery for votes. Then, FIFA was marred with allegations over its selection of venues in 2018 and 2022 respectively. International Weightlifting Federations were accused of financial mismanagement and mal-administration. Similarly, Athletics federation covered up for doping instances in the past.[31] The current system is You name the sport and you get an instance of corruption. Meaning, corruption often defined as ‘abuse of entrusted power for private gain’[32] is a global concern. Some organizations are slightly better than others at discouraging corrupt practices and rooting them out as soon as they occur through formulating conflict of interest guidelines and disclosure requirements. However, as of now, it seems to be an all-pervasive problem impacting the world at large in some manner or the other.

Even though international sports have grown in size and significance yet the organizations managing these sports still retain the feature of being ‘non-profit association’. This status of being non-profit is the cause behind most of the controversies since it pushes them outside the purview of accountability and maintaining transparency. This is the reason; they are not held accountable to standards of good governance easily. Professor Pieth, after understanding these plausible ways of evading transparency, remarked that these non-profit associations ought to be considered as ‘potent corporate entities’[33] The worry is that if these suggestions aren’t accounted for in a timely manner, the prestige and respect which sporting as an activity possesses will get lost.

Understanding International Cricket as the Focal Point of Analysis

Similar to other sports, cricket shares the same story of corruption at the international level. Poor governance not only destroys the image of the game but also compromises upon the positive influence that the sport has spread in terms of sportsmanship, teamwork and integrity.[34] Transparency International, within one of its reports, highlighted the need for greater transparency and accountability within its operations. As identified, there are several problems which are plaguing the cricket sporting community in the current times:

• Match Fixing
• Conflict of Interest
• Trading through insider information
• Cronyism and Nepotism

Such problems impact not just the players but also the officials, administrators, sponsors and viewers. Responsibility is vested with the International Cricket Council to administer, develop, co-ordinate, regulate and promote the game of cricket world-wide. In order to check for transparency, it has an anti-corruption unit to check for suspicious activities. It is vested with following responsibilities:

1. Publish minutes/decisions of various meetings which are conducted by Board or the Committee
2. Give out information pertaining to anti-corruption practices, if any
3. Increase independence by promoting balanced representation.

Importantly, ICC plays a significant role in creating good-practice governance template. In this regard, it has implemented various practices which could help combat the exercise of opaque or other non-transparent activities. Its intent is to send across a strong message pertaining to zero-tolerance policy with respect to corruption. Various ways through which it is doing the same is via sensitization, monitoring and training players and other officials etc. In order to combat and fight against corrupt practices, Transparency International, proposed a solid framework and a step-by-step program using which better governance can be ensured within the functioning of an organization. The following diagram sums up the various actions which have been taken in this regard

 Cricket boards of England and Australia: A comparative analysis

Several initiatives have been taken at the international level to strengthen the ethical policies and make sure that corruption gets reduced. Other leading cricket boards of the world including England and Australia have abided not just by ICC recommendations but also the above-mentioned suggestions as provided by Transparency International. In this regard, they have implemented their own laws and policies such as England and Wales Cricket Board Anti-Corruption Code for Participants[35] and Australia’s Ethics Report[36] respectively. The idea is to ensure that both minor and major discrepancies get settled, and the scope is not just restricted to grave commissions such as match-fixing. The above steps in terms of bringing in non-executive directors and implementing policies are helpful for improving governance and transparency.[37] This shows that there is an active intent for ensuring that policies do not remain merely restricted to paper, in fact they also get implemented on the ground level. However, to the contrary, India hardly follows own government or judiciary’s recommendations forget about ICC or any other international body. One wonders the reasons behind discrepancy in various approaches, considering that both England/Australia and India are full time ICC members.

Along with ICC policies, internationally sporting bodies are now being increasingly covered within the scope of ‘public authorities/bodies. The reasons which have been cited in this regard are that these bodies are in a position to take major decisions relating to National Importance and therefore a strict divide cannot be created between public and private bodies.[38] Determining the precise extent of public function is getting notoriously difficult day-by-day and there is no clear test for the same. In such cases, courts should use their discretionary powers on lines of ascertaining whether first¸ state exercises coercive powers; second, source of power; third, impact of decision on public and fourth, need of taking such decision in public interest.[39] This practice is now being reflected in various jurisdictions such as Republic of Armenia, UK, Mexico etc. Performance of Governmental function is now determined by factors such as level of public funding, level of regulation, government involvement and government participation.[40] Taking guidance from the international perspective, BCCI’s actions within India ought to be analyzed and seen if there is an attempt within India to better the existing situation in terms of transparency.

BCCI’s fight against transparency: Analyzing the strengths of defenses taken

BCCI contends that it does not get any direct funding from the government however, it ends up receiving approximately the same, if not more, resources via indirect funding. Some examples of such indirect funding[41] are covered in the blocks given below. The idea is to analyze if such fundings would be sufficient to get covered under section 2(h) of the RTI Act.[42]

Above mentioned instances show that even though BCCI may not receive direct funding, yet it receives such huge amounts by way of indirect funding that the number of financial incentives received remain the same. BCCI after having received tax exemptions to the tune of hundreds of crores rupees, has been urged to be counted as National Sports Foundation thereby covered within the ambit of NADA and WADA.[43]

Contention of BCCI for not being a state under Article 12

Article 12 in the past has led to several contradictory judgments and its scope and extent of usage still varies as per its interpretation. Some judgments considered the definition as exhaustive and thereby limited the scope of institutions which can be included within the term “other authorities”. Contrarily, some cases on the lines of Rajasthan Electricity Board, Jaipur v. Mohan Lal[44] included all constitutional and statutory bodies within the scope of “other authorities”. However, despite the scope having been expanded, Apex Court once again, while examining the definition, pushed a company incorporated within the Companies Act as being outside the scope of definition. Relying on these precedents and probably benefiting from the unsettled position of law, BCCI tried to push itself outside the scope of state by relying on those cases which reduced the ambit of state and gave terms of ejusdem generis a narrower interpretation.

Pushing BCCI Under the Ambit of RTI

The paper argues that BCCI should be covered within the ambit of RTI. This is demanded not just on legal grounds but also in accordance with following democratic ideals such as transparency and public accountability. BCCI has sought to avoid its coverage within RTI to a great extent but now, it is urged, that such long-drawn battle should be concluded for want of ensuring proper answerability to the public. This is the reason; researcher rather favors the dissenting opinion in the case of Zee Telefilms[45] and contemplates that such a controversy wouldn’t have arisen had Justice Sinha’s opinion been taken into account back then.

Legal Provisions	Applicability to BCCI	Judicial Precedents
‘Public Authority’ under s. 2(h), RTI Act.	BCCI being a public authority, it takes such actions which can have deep impact on the life of a player. For instance, it can debar a player in exercise of disciplinary powers, and even put restrictions on the fundamental rights of the players and umpires to earn their livelihood as envisaged under Article 19(1)(g) of the Constitution of India.	Definition of Public Authority has a much wider connotation than that ascribed under Art. 12, Constitution.[46] In case, there arises a doubt regarding applicability of 2(h), then too  a favorable interpretation should be provided in terms of application of RTI Act.[47]
Interpretation of ‘includes’ as used in s.2(h)(d), RTI Act		According to statutory interpretation, ‘means’ is given an exhaustive interpretation however, ‘includes’ is usually given a wider connotation.[48] Analyzing specifically within RTI context, Sanatan Dharam Girls College[49] case held that 2(h)(d) is illustrative and definition prima facie ought to be viewed as being extensive. Given the objective of RTI Act of having an ‘informed citizen’ the words should be given a wide connotation.
Interpretation of ‘control’ as used in s.2(h)(d)(i), RTI Act	BCCI exercises pervasive control over players, managers and umpires. In terms of decision making powers, it has monopolistic powers[50] and authority in taking decisions pertaining to selection/disqualification etc	Although the term ‘control’ has not been defined within RTI yet has been given a wider reference.[51] Thus, possessing a ‘deep and pervasive’ control is considered irrelevant in determining the applicability of RTI.[52]
Interpretation of ‘substantially financed’ in s.2(h)(d)(ii), RTI Act	BCCI receives huge amounts of indirect funding in terms of income tax concessions, exemption from payment of entertainment tax, or other charges incurred for maintaining security during matches. Additionally, it was also exempted from payment of tax liability approximately equating to hundreds of crore rupees.[53]	Any body/entity being substantially financed by the government can be brought under the ambit of RTI Act. Such finances can be either in terms of direct support or even indirect subsidies such as waiver of fees and financial grants.[54] ‘Substantial’ in this context merely means important or material and not necessarily dominant or majority.[55] In fact, past cases suggest that financing to the tune of even 10% of the total amount can be considered substantial.[56]
Meaning and scope of terminology ‘held by or under the control of any public authority’ used under s.2(f), RTI Act	Ministry controls BCCI and therefore an individual should be able to file for information through the same. Such information cannot be denied to anyone even under s. 8(j) since it cannot be denied to the parliament.	According to s.2(f) RTI Act, information includes all those information which relates to private body but can be accessed by a public authority under any law as operating at that time.
Satisfying the essentials of being a ‘state’ under Art. 12, Constitution of India read with Satisfaction of the performance of ‘state function’ under Entry 33, List II, Constitution of India	Even though BCCI may largely perform contractual duties, yet, it can be said to be an instrumentality of state given the nature of public duties or actions performed by the same. It possesses monopoly over regulating and controlling the game of cricket.	Considering that our constitution is an ongoing document, a liberal interpretation ought to be provided towards Art. 12, Constitution of India.[57] A test[58] which was evolved in this regard was: 1.     If the body acts as a public authority or at least performs public functions 2.     It is bound to protect human rights 3.     It has the powers to regulate the rights of citizens and even infringe Art. 19(1)(g) available to players and citizens 4.     Its exercise of ‘de facto’ or ‘de jure’ monopoly 5.     It is imposed with following a positive obligation while performing duties pertaining to public nature By satisfaction of above-mentioned elements, one can conclude that BCCI enjoys state patronage.
Freedom of Speech and Expression under Art. 19(1)(g), Constitution of India	Not just the BCCI officials, players or umpires should be in a position to seek information. Instead, all citizens can do so considering actions performed by BCCI are not just private in nature rather can potentially impact the nation at large.	Right to Information constitutes an essential element of Freedom of Speech and Expression. Citizen participation, being one of the harbingers of democracy, ought to be respected. This can be done only when all individuals are well informed and therefore are in a position to exercise meaningful choices.

Is this the first time such arguments are being advanced? Maybe, No! But unfortunately, the previously made arguments have either been ignored or evaded by BCCI. This battle for transparency had begun way back in 2005 but even after 17 years being passed, transparency and accountability seems to be a long-shot.

Quest for Transparency: A long drawn Saga

The battle advocating for Freedom of Information began in 2005 by the minority view presented in Zee Telefilms.[59] It was further reflected through the minority judges in the case of Pradeep Kumar Biswas.[60] Gradually, the minority opinion became the majority verdict in the case of BCCI v. Cricket Association of Bihar and Ors.[61] The case also directed setting up of Justice Lodha Panel in order to constitute and give suggestions pertaining to applicability of RTI vis-à-vis BCCI. All the above-mentioned cases and reports acknowledged the near monopolistic powers of BCCI and exercise of such powers which can impact different sections of citizenry and even the nation at large. In conjunction with some of the deliberations, the following uncontentious points were summarized[62] as given below:

1. BCCI has ‘de facto’ permission to represent India at the International level. In exercise of these powers, BCCI selects ‘Team India’ who is further responsible for being representative of the entire nation.
2. It has received official recognition from ICC to represent India
3. While enjoying monopolistic powers in regulating and controlling the sport, it has discretionary powers to not just formulate the policy but also implement it on the ground level
4. Its actions and activities can affect the fundamental rights of various stakeholders directly and indirectly.

Continuing from here, it was not just the Judicial precedents but also Law Commission Report which urged BCCI to get itself covered within the purview of RTI. It was felt that the people of India have a right to know the details about BCCI’s functions and activities. This is why, Supreme Court and Central Information Commission, in cases such as Subhash Chandra Agrawal v. PIO, Department of Sports[63] reflected the same. As recent as in the year 2018, CIC again considering the recommendations of Supreme Court, Law Commission Reports and submissions of Central Public Information Officer in Ministry of Youth Affairs and Sports concluded that BCCI, given its nature, scope and extent of powers should be brought within the scope of RTI. This is in pursuance to the fulfillment of various legal provisions including s. 2(h) and s. 2(f) of the Act.

However, despite the Legal and judicial interpretations, BCCI continues to remain in slumber and thereby defy any potential coverage within RTI. Leave RTI, its inclusion within other statues such as NADA have also been a huge controversy and therefore involved huge amounts of time and efforts.[64] Looking at the past, one wonders how many more years will BCCI take to merely follow what the law of land suggests? The author suggests that such evasion and active defiance of law should not be taken lightly. The body can not only be booked under Contempt of Law but also involve imposition of financial liability so that, there remains a threat of sanction for non-compliance.

Understanding the Law of Duress and Economics of Credible Threat

Imposition of sanctions or at least the threat of them play a huge role in enforcement of an agreement.[65] The idea is that when a credible threat exists, enforcement promotes social welfare and enhanced compliance on part of threatened party. Such threat can be evaluated through probability of being convicted. Theory of Deterrence suggests that any party, being a rational actor, will follow law only when sanctions of non-compliance exceed the benefits from compliance. Additionally, the probability of being caught should also be high so that there is enough threat so as to mould the behavior of defaulting party.

Theory of Economic Deterrence

Probability of conviction* Quantum of Punishment > Expected gain from Non-compliance

Given that there is an increased awareness of bringing BCCI within the scope of RTI, it means that there is high probability of detection because any citizen can potentially report any opaque activity which will therefore bring BCCI under the scrutiny of RTI. Additionally, given that numerous decisions have been rendered urging BCCI to become more transparent shifts responsibility on BCCI itself to show why it chose to remain silent and ignorant despite contrary law and precedents being passed. Similarly, high quantum of punishment can be imposed not just in financial terms but also through criminal sanctions. For instance, one form of punishment can be via contempt laws which prescribe imprisonment and fine as penalty.[66] The idea is ensure that expected sanctions exceed the gain from wrongdoing. Or in other terms, the prescribed remedy should be of imperfect disgorgement which means that the sanction imposed on the wrongdoer should leave him worse off and thereby in a way force BCCI to get covered within the scope of RTI.

For instance, a thief cannot be deterred from committing theft if first, there exists a very low probability of him being caught and second, quantum of punishment imposed is equivalent to, or slightly greater than, the value of stolen goods. Therefore, implying that BCCI to comply with law should not only be threatened by showing that there is a big probability of being caught i.e., it facing court’s wrath and second, once caught, the sanctions, both in monetary and non-monetary terms, will be so high that it will offset or bypass the existing benefits which it might be deriving by remaining outside the purview of RTI.

Suggesting the Way Forward

Apart from the imposition of economic threats and sanctions through ‘carrot and stick policy’, it remains imperative that other legal avenues should be suggested. This will not only bolster the claim of information laws being a constituent of human rights but also result into an informed citizenry who believe in pro-active acquisition and distribution of information.[67]

Implementing the claims made on Paper

The preceding chapters suggest that BCCI ought to be covered within RTI since it fulfils the ‘control’ requirement, can be called a ‘public authority’ and also receives ‘substantial funding’. However, apart from these legal considerations, the following factors as suggested through Law Commission Report[68], should also be taken into account:

Having argued for bringing BCCI within the purview of RTI and according suggestions for the same, what still remains to be analyzed is whether BCCI should be regulated by a legislation?

Taking out the Sports Bill from Cold Storage

The Commonwealth scandal and public outrage in 2010 led the then Union Minister, Ajay Maken to introduce National Sports Development Bill, 2010. The bill sought to address three main points:

1. Absence of strict regulation in Indian sports organizations
2. Lack of transparency
3. Inadequate professionalism

However, given these objectives and resistance from sports bodies, the bill never saw the light of the day. Probably, it was ‘too good to be true’. It faced severest of criticisms from politicians and others who were in control of sports bodies at that time.[69] BCCI, being one such entity itself filed a long reply coming upto 27 pages to avoid coming under the scrutiny of RTI.[70] Such reluctance itself shows BCCI’s fight ‘against’ transparency. Considering the status quo, it is essential that such a Sports Bill ought to take a re-birth and thereby taken out of the cold storage. Additionally, establishing sports commission of India can be a good idea since it will not only help regulate the conduct of various sports bodies but also ensure transparency within their respective operations through easy implementation of RTI.

The paper concludes in the hope that a new era for sports ushers which marks the rise of transparency and accountability. Speaking specifically in the context of India, it is suggested that even failure is success in progress. Thus, it doesn’t matter if we are progressing slowly; what matters is that we are at least making a move in the right direction.

“Let Cricket be a kingdom of glass where everything is transparent and there exists no place to hide dark secrets”

* Featured Image Sourced From: https://www.thequint.com/sports/cricket/bcci-rti-law-commission-of-india-explain

[1] DHNS, ‘A bit more grace, and transparency, BCCI?’ Decan Herald (India, 16 December 2021)

[2] ibid

[3] An online questionnaire was prepared and circulated during the seminar presentation dated 20 January 2022. A total of 16 students took part in the same; their responses have been used and graphically presented in order to bolster the claim made in the seminar paper

[4] N Ananthanarayanan, ‘Few Checks And Balances, Bcci Pushed For Transparency’ Hindustan Times (India, 19 April 2018) 1

[5] Zee Telefilms Ltd. And Anr. V. Union Of India (2005) 4 SCC 649

[6] Ananthanarayanan (N 1)

[7] Ashima Jain, ‘Tussle Of State And Non-State: BCCI And RTI, A Fight For Transparency’ CNLU LJ (5) [2015] 111.

[8] PTI, ‘Why Team India Still Uses British-Era Logo: Central Information Commission to PMO’ Economic Times (India, 18 June 2017) 1

[9] Subhash Chandra Agrawal v. PIO, Department of Sports 2017 SCC OnLine CIC 922

[10] Subhash Chandra Agrawal v. Pio, Department Of Sports 2017 SCC Online CIC 922

[11] Ibid

[12] Tarique Anwar, ‘Raj Legacy: Indian Cricket Still Suffering From Colonial Hangover?’ National Herald (India, 19 June 2017) 1.

[13] Gaurav Vivek Bhatnagar, ‘CIC Commissioner Pulled Up for Landmark Judgment on Loan Defaulters’ The Wire (India, 20 November 2018) 1

[14] Agrawal (n 9) 3

[15] Tn Sports Deck, ‘3 Years After Being Dropped, Karun Nair Gets Former Coach’s Backing to Make India Comeback’ Times Now (India, 4 July 2021) 1

[16] Nandan Kamath, ‘Opinion | RTI Compliance an Opportunity For The BCCI Rather Than A Threat’ News 18 (India, 6 October 2018)

[17] Cricket Staff, ‘’Another Karun Nair in Making’: Hanuma Vihari Snubbed for New Zealand Tests and Fans Aren’t Happy At All’ News 18 (India, 12 November 2021)

[18] Ayaz Memon, ‘Karun Nair’s Axing Drama Calls for Transparency in Team Selection Matters’ Hindustan Times (India, 4 October 2018) 1

[19] Jain (n 7) 10

[20] Right To Information Act, 2005

[21] Dr. Madabhushi Sridhar, Right to Information, Law And Practice 3 (1 Edn., 2007).

[22] State of U.P. v. Raj Narain (1975) 4 SCC 428

[23] Saurabh Bhattacharjee, ‘Private and Yet Public: The Schizophrenia of Modern Sports and Judicial Review’ (2015) 8 NUJS L Rev 153

[24] Roy Peled and Yoram Rabin, “The Constitutional Right to Information”42 Columbia HR L Rev (2011).

[25] Universal Declaration of Human Rights, Art. 19

[26] Vineet Narain v. Union of India AIR 1998 SC 889

[27] State of Maharashtra, through CBI Anti-Corruption Branch, Mumbai v. Balakrishna Dattatrya Kumbhar (2012) 12 SCC 384

[28] Subramanian Swamy v. Director, Central Bureau of Investigation and Anr. (2014) 8 SCC 682

[29] Government of India, Legal Framework: BCCI Vis-à-Vis Right to Information Act, 2005 (Law Commission of India Report No. 275, April 2018) 61

[30] Roger Pielke Jr, ‘Obstacles to accountability in international sports governance’ Transparency International < https://www.transparency.org/files/content/feature/1.4_ObstaclesToAccountability_Pielke_GCRSport.pdf> accessed 25 January 2022

[31] Owen Gibson, ‘Crisis at IAAF that threatens to bring athletics to its knees’ The Guardian (India, 13 December 2014)

[32] Garit Hartman, ‘IWF president under suspicion of financial mismanagement’ (Play the Game, 14 May 2013) <https://www.playthegame.org/news/news-articles/2013/iwf-president-under-suspicion-of-financial-mismanagement> accessed 25 January 2022

[33] Arnout Geeraerta, Jens Almc, and Michael Grolle, ‘Good governance in international sport organizations: an analysis of the 35 Olympic sport governing bodies’ (2013) 6(3) International Journal of Sport Policy and Politics < doi:10.1080/19406940.2013.825874> accessed 25 January 2022

[34]: Robert Barrington, Deryck Murray, Sylvia Schenk and Deborah Unger, ‘FAIR PLAY STRENGTHENING INTEGRITY AND TRANSPARENCY IN CRICKET’ (Transparency International, 2013) 3

[35] England and Wales Cricket Board Anti-Corruption Code for Participants

[36] Ethics Centre, Australian Cricket: A Matter of Balance, (Board of Cricket Australia, October 2018)

[37] Lord Woolf, An independent governance review of the International Cricket Council (International Cricket Council, 2012)

[38] Finnigan v. New Zealand Rugby Football Union Inc. [1985] 2 NZLR 159

[39] Chirwa v. Transnet Limited and Ors. [2007] ZACC 23

[40] Government of India (n 29) 67

[41] Jain (n 7) 3

[42] Right to Information Act, s.2(h)

[43] Jain (n 7) 5

[44] Rajasthan Electricity Board, Jaipur v. Mohan Lal AIR 1967 SC 1857

[45] Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649

[46] M.P. Varghese v. Mahatma Gandhi University AIR 2007 Ker 230

[47] Dhara Singh Girls High School through its Manager, Virendra Chaudhary v. State of Uttar Pradesh & Ors. AIR 2008 All 92

[48] Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union, (2007) 4 SCC 685; Tamil Nadu Road Development Company Ltd. v. Tamil Nadu Information Commission (2008) 6 Mad LJ 737

[49] M.D. Sanatan Dharam Girls College, Ambala City & Anr. v. State Information Commissioner, Haryana & Anr. AIR 2008 P&H 101

[50] Jain (n 7) 5

[51] Prasar Bharati v. Amarjeet Singh (2007) 9 SCC 539

[52] Indian Railway Welfare Organisation v. D.M. Gautam (2010) 169 DLT 508; Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa (2010) 118 DRJ 176

[53] Jain (n 7) 3

[54] Munish Kumar Seth v. Public Information Officer 2012 (3) RCR (Civil) 660.

[55] Krishak Bharti (n 52)

[56] Population Services International v. Rajesh Dhiman 2013 SCC OnLine Del 3659; CIT v. Parley Plastics Ltd. 322 ITR 63 (Bom.)

[57] Zee Telefilms (n 45) 55

[58] ibid at p.172

[59] Zee Telefilms (n 45)

[60] Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111

[61] Board of Control for Cricket v. Cricket Association of Bihar & Ors, (2015) 3 SCC 251

[62] Government of India (n 29) 89

[63] Central information Commission, Subhash Chandra Agrawal v. PIO, Department of Sports, Order No. CIC/LS/2012/000565.

[64] PTI, ‘BCCI finally comes under NADA, first step towards becoming National Sports Federation’ The Times of India (India, 9 August 2019)

[65] Oren Bar-Gill and Omri Ben-Shahar, ‘The Law of Duress and the Economics of Credible Threats’ University of Michigan 33(2) (2004) <https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2650&context=articles> accessed 26 January 2022.

[66] Contempt of Courts Act, 1971

[67] Jain (n 7) 8

[68] Government of India (n 29) 100

[69] Neeru Bhatia, ‘The spotty history of sports governance in India shows why it produces so few champions’ Scroll (India, 2 August 2019)

[70] PTI, ‘If BCCI is transparent, why oppose Sports Bill: Maken’ The Indian Express (India, 2 February 2012)