

Couch Talk 153 (Play)

Guest: Suhrith Parthasarathy & Aju John

Host: Subash Jayaraman

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Subash Jayaraman (SJ)– Hello and welcome to Couch Talk. Today’s guest are two lawyers – Suhrith Parthasarathy – who practices law at the Madras High Court, and Aju John – who practices with MyLaw.net where he teaches courses on sports law and media law. They are here to discuss the recent Indian Supreme Court rulings pertaining to the 2013 IPL Corruption Case.

Welcome to the show, gentlemen.

Aju John (AJ)– Thank you, Subash! Thanks for having me here.

Suhrith Parthasarathy (SP)– Thanks, Subash. Pleasure to be here.

SJ– Absolutely my pleasure having you both.

As lawyers and fans of cricket, you have followed the case closely both of you wrote common pieces on the rulings on different news outlets. I want to begin with the setting up the scene – as to what the process was by which these rulings came about and the role the court has played out here. What was the question put to the Supreme Court and what was the answer, and what it means?

AJ– This was a writ petition before the Bombay High Court, that was appealed to the Supreme Court. The writ petition arose from the events that followed the 2013 IPL corruption scam. The Bombay High Court did not intervene in the affairs of the BCCI to a great extent, but the Supreme Court decision seems to have overturned that and also has taken a great step towards pushing the BCCI towards greater accountability.

SP– How it initiated really was when Cricket Association of Bihar (CAB) filed what is known as a writ petition against the BCCI and India Cements and all other concerned parties at the Bombay High Court. They essentially sought two reliefs. One is that they wanted the probe panel, that was established by the BCCI internally to go into the spot fixing and betting allegations against people like Gurunath Meiyappan and Raj Kundra and in fact N. Srinivasan to a limited extent – to be quashed and wanted a High Court monitored panel to be established in its place. What the Bombay High Court did was that on one hand it that the probe panel that the BCCI had set up was unconstitutional, in the sense that it was not a fair panel and therefore they quashed that panel. On the other hand, they said that it is only BCCI that has the power now to appoint a new panel and they refused to appoint a panel comprising of high court judges, which is what the CAB had sought.

Both parties filed appeals to the Supreme Court. The CAB saying that the court should appoint the panel, and the BCCI saying that the original panel is valid and they should allow that panel to complete its work and arrive at a conclusion.

SJ– What are your initial impressions? Aju mentioned about greater accountability, but initial impressions about the decision of January 22nd?

SP– I think it is a bit of a mixed bag. On the one hand there are a number of positives to come out of the judgement. It definitely instills far greater accountability in the BCCI as a sports organization, as a sports authority. On the other hand, there are some things that the Supreme Court could have dealt with differently. There was so much media brouhaha over this entire case and there were a number of juicy quotes coming out of the Supreme Court. I am not sure the judgement lived up to that in the end. Ultimately now, they end up establishing another panel which comprises of retired Supreme Court judges to determine what the penalty should be for Meiyappan and for Kundra and also in terms of investigating Sundar Raman. I would have hoped that Supreme Court could have given [a completeness] to the case, by determining what was there before it completely.

AJ– On the point that Suhrith made that the Supreme Court could have done far more with respect to the questions that are still at issue, that are still open – I just feel that it is in the nature of the jurisdiction, the approach that the Supreme Court took to arrive at these questions which are in its jurisdiction where Supreme Court is acting as the constitutional court and dealing with a body fulfilling a public function. This is the jurisdiction that the Supreme Court is using to arrive at this particular issue.

Once the Supreme Court has taken this particular approach, it is very difficult for the court to act in anything other than as a supervisory jurisdiction. The court will always be careful about substituting its judgment for the judgment of the BCCI. It is a different matter that the Supreme Court had to take the extraordinary step of appointing a probe committee – the Mudgal Committee – in the first place. That was because, as the court explains in the judgement – the BCCI did not even follow its own procedures of reacting to a [spot] fixing allegation. Given these reasons, it is difficult for the Supreme Court to take the further step saying that this should be the quantum of punishment. These precise allegations against these individuals against Meiyappan or Raj Kundra or Sundar Raman have been proven. That would amount to the court substituting its judgment for the judgment of the BCCI.

Why I think this is the correct approach to take is because of various factors. The most important of them being the resistance the BCCI has shown to government regulations in the past. We have had debates over whether we should have a national sports code, which the BCCI has roundly refused. The BCCI has refused to come within the Rights To Information (RTI) Act. The BCCI has refused to apply for the status of a National Sports Federation. Given the fact that the BCCI has refused to do all this, I think it is important for any kind of regulation coming from the state to do so with a soft hand as well.

As long as the court is acting in its supervisory jurisdiction, what the court will try to do is merely examine whether the right process has been followed to take the decision, and never try to answer the question of whether the right decision has been made. In this case, what the court did, whether the amendment to article 6.2.4 – that is the controversial amendment that permitted Srinivasan’s conflict of interest – the only thing that the court examined at that stage was whether the BCCI had the power to make such an amendment. Because it was a public body and because it was bound to follow principles such as natural justice and fairness, BCCI did not have the powers to pass such an amendment.

SJ– That is the crux of my question. You tell it is a public body now. BCCI always calls itself a private body, and it is one. Now the Supreme Court is saying that it is carrying out public functions and hence it is subject to the rigours of public law. Is there a pandora’s box that is being opened?

SP– It is possible to make the argument that this opens a pandora’s box of sorts and that there might be more claims made against the BCCI. I don’t think that is necessarily a bad thing. You have a body that is so opaque and has been not been amenable to anything which tries to guide it towards transparency. As I said I don’t think this is a bad thing that this will open up more litigation or more action against the BCCI. This is something that will be more helpful in the long run. There might be more litigation presently which crops up as a consequence of this judgment. In the long run you’d hope that BCCI will understand that because it is now subject to the rigours of the public law it will do things in a more transparent way, more reasonable way, it will subscribe to the principles of natural justice.

Let’s take something like the incident concerning (Santhakumar) Sreesanth. There were allegations of spot fixing and there is a criminal case going along on the side. He claims that he was given five minutes before a probe commission which is a part of the BCCI before they imposed a ban on him. Now, they seem to follow an exact diametrically opposite proceeding with people like Meiyappan. Here with Sreesanth, according to him they spent just 5 minutes on him and decided to ban him. Now, we don’t know whether the principles of natural justice that were followed, whether he was given a fair hearing or so forth. I am not saying we ought to know. But, he is clearly being denied his livelihood here by virtue of the actions of the BCCI rightly or wrongly. When they are taking such an action – I am not saying they haven’t done that here, we don’t know the full facts – but they ought to give him a fair hearing, they ought to abide by their bylaws.

The difference between an action in public law and an action in private law effectively, to try and clarify things…. the Supreme Court and the High Court under the constitution through articles 32 and 226 have been given extraordinary powers. They can quash any action taken by a public authority effectively if it violates a fundamental right. Those are a set of rights like the Bill of Rights in the USA or the Human Rights Act in the UK. These rights if they are violated by the state, then the Supreme Court and the High Court can intervene and quash that action or force an authority to act in a certain way.

In a private action, you will have to go through a suit, go through an entire trial and then the trial court arrives at a decision to rule in favour of the plaintiff or the defendant. Most of us are aware of the civil trials and how they work.

Whereas in a writ jurisdiction as Aju mentioned earlier, the scope of intervention is definitely more limited in the sense that huge arguments with respect to the kind of differntial questions of fact, like one party claims one set of facts and the other party claims another set of facts. The only way of determining the issue is by means of a fully fledged trial, then you don’t want to be doing all of that through a public law action. They are only here to test it on an overall basis, in terms of some constitutional right or some statutory right was violated on the face of it.

What the Supreme Court has said here is that the BCCI has to act in line with general principles of reasonableness and fairness. Therefore, if they refuse to give a hearing to a person before according him a ban, then that would vitiate that action. That would mean that he would have to be reinstated and be given a fresh hearing. That doesn’t necessarily mean that they cannot take that action again, but they will have to take that action after giving a fair hearing, after ensuring the principles mentioned within the BCCI’s code are fulfilled.

This is where the court’s roles now come in. earlier, the way things were going, the BCCI was not to be amenable to that. As per their argument, they ought not to be amenable to that. The only way to bring them to justice in any way is for some person to say some private right of his is violated, by violation of some private contractual obligation or otherwise, which would take its own course over a long trial and then the court can decide either way based on evidence. In a case like this where the person is denied hearing, you might not need a full trial to determine that he has been denied a hearing. He has either been given a hearing or not been given a hearing. This is something which the High Court or Supreme Court exercising its writ jurisdiction can determine.

SJ– I have a question on this. Let’s take an example of a player in the team being selected for India and a player who is not being selected, and he feels aggrieved. Those decisions are affecting the livelihood of a player. Could he or his parents or whoever file a plea with the court asking that they want to know what happened in the selection committee to see whether he got a fair shot at the selection or not. Because now it acts as a public body, could it be extended to that extent?

SP– The other thing with the writ jurisdiction is that it essentially is a discretionary power at the end of the day. Yes, the BCCI is amenable to that but it is a power that will be exercisable to the High Court and Supreme Court only in their discretion. You would hope and think that the court will not waste time in issues of selection and whether the better player was selected. Having said that, they would still be accountable that the [selection] meeting was held in a fair manner. Now, let’s assume that there is a conflict of interest in the selection committee. That could come potentially within the ambit of the court of jurisdiction to determine whether the selectors have been fair in arriving at their decision.

But, let’s go to a level lower. Let’s forget the Indian cricket team and the Ranji teams. The discrimination is possibly most rampant in far lower levels in India –u-19, u-16, u-13 levels. There could be issues like selection to a camp, National Cricket Academy, etc. there might be some criteria, say, to determine who should go to Australia for a cricket camp. There, I feel that if the procedure is not followed properly, there might be more litigation that are potentially initiated just to ensure that all laws and principles of reasonableness are followed – not to go to the question of whether the better player has been selected or not. That is something that the courts in their wisdom wouldn’t do.

SJ– Aju, I want you to add on to it. Also, how far can someone request for disclosure from the BCCI? Is it possible for Private communications between BCC publications to be made public or BCCI accounts can be made public beyond what they do in annual report? So, give your thoughts on the earlier questions and also answer these.

AJ– Just to add to what Suhrith said, we are well aware of high the conflict of interest is very rampant at the lower levels of the game where people who own cricket academy are also selectors in state level junior teams and all that. All these questions will again come to the courts and the courts will have to make a discretionary call on it. The courts will have to make determination on case by case basis.

That is also the case with disclosure of information. Currently, I don’t see the BCCI come within the definition of a public authority in the RTI act. It would mean that they would have to make a disclosure within the RTI Act. The RTI Act would have required them to both make positive disclosures, which is a certain amount of information that has to be mandatorily disclosed under the RTI Act and then they have to respond to RTI enquiries. In the current situation I don’t think the BCCI comes within the RTI Act to apply.

SJ– Suhrith, you had written about the judicial review. What is the extent of the court’s jurisdiction as far as BCCI’s constitution is concerned? The Supreme Court has set up a three member committee to make recommendations to BCCI about certain reforms and practices. How binding are those recommendations? Can the court amend the BCCI’s constitutions or can they only make suggestions? Can they legally enforce these amendments?

SP- The Supreme Court of India is a very powerful body in that sense, in that they can effectively do what they want to to meet the full ends of justice. But this is not something that they will mandatorily impose and I don’t think they ought to be doing that either. These suggestions are going to be recommendatory in nature and you would hope that the well-meaning suggestions are taken on board by the BCCI and implemented within its constitution.

The issue about the BCCI is that it is essentially a Society which is registered under the Tamil Nadu Societies Registration Act here in Chennai and various state associations are members. The argument that they make is that they are only a private society and that therefore the only obligations they owe are to their members, and when there is some violation of their bye laws – which are the rules and regulations for how the BCCI is to be run – then any member is free to approach a civil court and take the case forward for a trial.

What the Supreme Court has effectively said here is that the BCCI owes a larger obligation to the public. This is not an argument that they have necessarily made in the judgment, but why I feel that this is correct is because the BCCI, not necessarily because the State has granted them official sanction as a monopoly, but the State has allowed them to function as a monopoly. They are the only effective Cricket Board that is operating in India in a national basis, and all the state associations that are recognised in each state fall within the BCCI and BCCI selects the Indian cricket team and represents India in the ICC. And the moment you are a monopoly that performs a function which can deny people their livelihood or any other civil rights that they enjoy, then I think you owe a larger obligation to ensure that you are reasonable in your actions, that you follow basic principles of fairness, you treat different people equally to the extent possible. The BCCI, because of this judgment, is not going to be bound by these fundamental rights, but they nonetheless as a result of this decision have to act in a manner that is expected of a public authority.

SJ– Aju, what is your take on what the judicial review amounts to? What is the scope of it?

AJ– Judicial Review is a power that constitutional courts have to keep a check on powers exercised by public bodies. So usually, judicial review is exercised against executive, administrative or legislative bodies. In this case the court has said that the BCCI controls cricket and cricket has a special place in our national consciousness, and they give a list of other reasons why the BCCI needs to be treated akin to a body that performs certain public functions. Therefore, all the responsibilities that fall upon a body which performs certain public functions, the BCCI also has. These include responsibilities such as a responsibility to be fair, and the responsibility to follow principles of natural justice. These are two of the responsibilities that the court has specifically pointed out. There could be other responsibilities as well, and other courts, I guess, will point them out when other issues crop up before these courts.

SP– Throughout this podcast we have used words like the ‘principles of natural justice’. I just want to clarify for listeners who are probably not necessarily well versed with the law. What natural justice effectively entails is that what natural justice basically entails is that people taking action in public authorities, should act without bias and secondly they should always hear the other side. For example if you are taking action against X person, you have to hear what he has to say. These are two fundamental tenets that occupy principles of natural justice.

SJ– I want to bring up another topic. This is from a listener, Kartikeya Date, and relates to what you had mentioned earlier Suhrith, about BCCI having a de facto monopoly over cricket in India. Recently there have been some proposed governance changes in the ICC. If there were rival governing bodies in a country, they would have the power to decide which one gets the official recognition as the national representative to the ICC. Right now this is limited to associate nations, but Kartikeya’s question is, is ICC laying the groundwork for BCCI or any other Board to challenge judicial review saying they are not a monopoly by choice?

AJ– I think courts will concern themselves with the factual reality of the matter which in this case is that BCCI is pretty much a monopoly. I don’t think the fact that a new federation or association for cricket crops up in India would be reason enough for a court to deny its powers of judicial review. The courts will look at factual reality and even if there is somewhat healthy competition, significant market power might also be reasonable enough for the courts to exercise its powers of judicial review.

SP– I completely agree with Aju. I feel that even if there was a rival association, and you saw how this worked with the ICL for instance. The BCCI effectively pulverised it and ensured that it would occupy centrepiece as far as cricket in India goes. As long as it continues to do that I would think that it would still be amenable to judicial review. Now that the Supreme Court has made a judgment on this and laid down the law, I don’t think it would be changed merely by the ICC bring some sort of regulation in which would allow different ‘national’ boards to compete with BCCI for official recognition. I don’t think that would change the position of law. Certainly not in the near future. Possibly if several rival Boards crop up and there is a drastically change in scenery in India altogether, may be. But I don’t see that changing in the near future.

SJ– We have talked so far in general terms but this is a specific question from Freddie Wilde. He’s interested in knowing if India Cements managed to sell CSK before the Supreme Court’s ruling on CSK’s future, what effect does it have on a decision to terminate CSK? If there was a ruling about CSK’s future, would that continue on with the new owner as well?

SP– That’s a very good question, and I don’t think it would. I don’t think this probe panel which has been established would go so far as to take action against CSK or Rajasthan Royals. That’s my personal opinion, and of course this is subject what really does transpire. The Supreme Court has permitted N Srinivasan to have India Cements exit ownership of CSK and continue to retain Presidentship of BCCI, and I might not be technically correct on this, and people can correct me if I’m wrong, but its possible that India Cements could sell its stake in CSK to X party and maybe have an option to re-purchase CSK as some point in the future which they might exercise assuming that Mr. Srinivasan is done with his Presidentship at that time.

SJ– You both can comment on this. There is a clause in the IPL constitution which says that if a franchise brings the league or the Board into disrepute then they can be penalised by getting kicked out of the league. That’s one of the punishments. So far, what Supreme Court has ruled is that Mr. Meiyappan was a part of the ownership of CSK and was involved in betting and all that. If that were all true and they were in violation, would the Court just leave the BCCI/IPL Governing Council to take action rather than impose a judgment on this. Am I correct in understanding that?

AJ– I think, as I said, the Court has been using a gentle hand in this. The Court hasn’t tried to exercise its powers instead of the powers given under the IPL regulations or the BCCI Memorandum of Association. So what the court has done here is to set up this new probe committee to exercise powers on behalf of the BCCI under the BCCI and IPL regulations. The Court has also not reached a conclusion about what offences have been proved against CSK and Rajasthan Royals. So the question of punishment is secondary to whether offences have been established. So that question has also been left to the probe committee.

SJ– I wanted to get your thoughts on what has transpired in the last 16 to 20 months in terms of what it means for BCCI and for Mr. N Srinivasan to be specific. And in general on sport governance in India itself.

SP– I think this is an important judgment. As I mentioned earlier, I’m not saying they were correct in every aspect. In the sense that there is this habit of appointing panels comprising of ex-judges of the Supreme Court and I’m not sure what to make of that.

But on an overall basis I think the Supreme Court was correct in saying that BCCI ought to be amenable to the general rigours of public law and that they ought to act in a reasonable, fair and just manner. You would hope that as a result of this decision the BCCI becomes more transparent as a body, that it takes on more responsibility and it acts in a manner that benefits Indian cricket as a whole. And also that these various aspects that have unravelled over the last few years in terms of the conflicts of interest and these various allegations of betting and spot-fixing. Spot-fixing and match-fixing aren’t exactly offences under Indian law but that doesn’t mean that they are activities that are to be encouraged. This hits at the very core of cricket’s integrity and you would want these activities to be quelled and unless BCCI acts in a transparent manner we don’t know how they’re going to go about getting this rot out of Indian cricket. To that extent it is encouraging that the Court has held that the BCCI can be brought to justice through an initiation of litigation through writ petitions and by the High Court and Supreme Court exercising writ jurisdiction. But this is also just the tip of the iceberg. This is just the beginning of what should be a long process of cleaning the BCCI of its many malaises.

AJ– I think one or two points have been forgotten by the time that the Supreme Court judgment came out. I think we should all remember, as Suhrith pointed out, that there is no law on match-fixing or spot-fixing in India. This is an anomaly that needs to be corrected very soon – the fact that the police has been involved in an investigation without the technical backing of a defined criminal offence.

Secondly, we should also be aware of the fact that the internal governance mechanism of cricket has not been the one that has spotted an instance of spot-fixing or match-fixing. Its either the police or the media that spots it. There should have been warning bells ringing in any anti-corruption mechanism that had been built to combat match-fixing and spot-fixing just by the fact that there was rampant conflict-of-interest, but these warning bells did not ring.

As far as the judgment is concerned I think it is a fantastic step. I think it is high time that in the absence of pressures from elsewhere – the BCCI has been resisting pressure from the government, and from the media for so many years, and the BCCI is immune to pressures from the international olympic movement because it is not part of the international olympic movement in any sense, so pressure had to come from the judiciary. And I’m so glad that the judiciary has announced that BCCI will be treated on par with a body that performs public functions and therefore will have the responsibilities of a body that will perform public functions. As Suhrith said this is the beginning of a period of reform and this should be the beginning of a period of reform, and I hope that this results in an honest interrogation of the BCCI’s constitution to ensure that decisions are made for the best of the sport and not for vested interests or other reasons that should not be part of your decision making as an official [body] administering cricket in India.

SJ– Thank you so much for being on the show Suhrith and Aju.

SP: Thank You

AJ: Thank You

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Episode Transcribed by Bharathram Pattabiraman and Kartikeya Date