Back in the day when KBC (Kaun Banega Crorepati) would glue the mass population of the country to their television sets, guarantying upward social mobility to the largely middle-class audience, I learned that ‘BCCI’ stood for ‘Board of Control for Cricket in India.’ Naturally, I assumed that the BCCI would be a government-run entity that looked after the gentleman’s game. It wasn’t until recently that I found out to my surprise, the BCCI is not an extension of the ‘State’ under Article 12 of the Constitution of India. Strange, unreasonable, illogical are words that I found myself muttering.
The BCCI is believed to be a private autonomous entity with no public mandate or government control it is not an extension of the state under Article 12 of the Constitution of India owing to the landmark judgment of Zee Telefilms Ltd. v. Union of India. This case settled the issue with a narrow margin of 3:2 verdict. Therefore, if the BCCI does not qualify as ‘state’ under Article 12, it has been equated with other private organizations which would be subject to the competition laws of India, thereby exposing it and its policies to the scrutiny of the Competition Commission and litigation by competitors, like the ICL (Indian Cricket League). There has been an inquiry by the former Monopolies and Restrictive Trade Practices Commission against the BCCI for restrictive and unfair trade practices on account of their initiation of action against and the refusal to consider players who opted for the ICL as well as its refusal to share infrastructure such as cricket grounds with other interested parties. The BCCI is a dominating figure in the cricketing industry, which from its inception, has been regulating the cricketing sphere.
There are many reasons to declare the BCCI as ‘State’ under Article 12. First and foremost, for a private entity to be elevated to the status of ‘State’ on account of the activities carried out by it should bear the stamp of ‘public function’. The BCCI was established under a state legislation which is reason enough to declare it ‘State’ under Article 12. The players that represent India are selected by the BCCI and the ICC recognizes the BCCI as an official body representing India. The BCCI has thereby assumed a monopoly status and the absolute right to regulate and control the sport of cricket and also the rights of the citizens concerning their right to represent the nation. These activities make it evident that the BCCI carries out public functions. Moreover, the large appeal for the sport, which unites us, gives it a ‘public’ element too. The BCCI also has the authority to form its policies and implement them, but since it is not ‘state’ under Article 12, it can do so without the legal and moral responsibility of not violating provisions of equality under Article 14. This means that the only way forward is to have legislation that gives autonomy to the government to control the functioning of the BCCI.
Since there is no legislation to check and control the functioning of the BCCI, this would mean that it guarantees ultimate autonomy to act according to its whims and fancies. For example, after the 2008 terror attacks in Mumbai, the government decided to put on hold all diplomatic and “extra-curricular” interactions with Pakistan, which included the canceling of the proposed cricket series against Pakistan. Although the BCCI followed the government’s directions, theoretically speaking, it could have acted otherwise. In fact, the BCCI has always complied with the government’s foreign policy which is suggestive of its “public” demeanor!
The fundamental problem that the government might face with a unified legislation is that “sports” is a matter falling under the State List. The way around this could be under Article 249 of the Constitution of India whereby the Rajya Sabha could propose a resolution with a two-thirds majority of those present and voting that the Parliament legislates on the sport of cricket, being a matter of necessity and/or expediency in the national interest, in which case Parliament is conferred the constitutional power to make a central law regarding the same. The other way could be by amending the seventh schedule to add “sports” as an entry in the Concurrent List. Now, these legislative processes might be cumbersome but for the larger-than-life sport that cricket happens to be, this must be done. The legislative apathy when it comes to sport is not feasible considering the grand collateral events associated with this particular sport. Cricket is to Indians what Football is to Brazilians, while the latter has had a formal sports law in place for ages unlike the former. The prevalent ad-hocism in the management of Indian cricket calls for exhaustive legislation that stops the Dada Giri (pun intended) of the BCCI.
By Advait Nisal