Comment

BCCI monopoly and judicial review

NEED FOR ACCOUNTABILITY: “The BCCI has suffered an enormous loss of credibility in recent times.” Picture shows a qualifier match of the Indian Premier League in 2014. Photo: K.R. Deepak  

The Supreme Court of India, in holding that the Board of Control for Cricket (BCCI) in India is bound by the rigours of public law, in a landmark judgment on January 22, may well have helped steer cricket administration in the country into a new age of greater accountability. In recent years, the BCCI has suffered an enormous loss of credibility. Its management has been riddled with several cases of egregious conflicts of interest. And the Indian Premier League, organised under the Board’s aegis, has become renowned for its wanton excesses. As a result, any trust that was reposed in the Board by the public has over the last decade been completely obliterated. Viewed intuitively, the Supreme Court’s intervention certainly seemed necessary to restore “institutional integrity” to the management of cricket. Counter-arguments, however, abound. In spite of the BCCI’s quite palpable maladministration, many appear to see the court’s verdict, which seeks to imbue in the Board a more onerous public responsibility, as an improper exercise of powers of judicial review. Although these arguments can appear pedantic, they also carry particular jurisprudential weight. Critics say, as the BCCI argued for itself, the Board is merely an exclusive society governed purely by a set of by-laws, which are in the nature of a private contract between an elite set of members. According to the BCCI, it owes an obligation only to those members that subscribe to its by-laws; and even these obligations are restricted by the nature of the responsibility imposed therein.

Outside statutory control

In the case of other private societies, such a contention would typically be valid, as most such entities generally derive their authority solely from contract. But concentrating only on the source of a body’s power can lead to gross distortions. This is especially so in the case of the BCCI, which operates in a nebulous space outside statutory and constitutional control, but nonetheless wields enormous monopolistic power. In completely controlling competitive cricket in India, with nearly no regulation whatsoever, the Board has appropriated unto itself a unique ability to make substantial encroachments into civil liberties guaranteed by the Constitution. It can certainly affect, for instance, free of all checks and balances, the rights of Indian citizens to participate in games of cricket, with a view to ultimately securing employment as a cricketer.

Public bodies in India are generally held accountable through a process known as judicial review. Originally, under English Common Law, principles of which have been substantially adopted by Indian laws, the Crown possessed a discretionary power to issue “prerogative writs.” These were extraordinary orders directing the behaviour of different wings of the government, including inferior courts and public authorities. Through this power, which was subsequently transferred to the judiciary, the courts sought to impose a high standard of transparency, reasonableness and proportionality in action on public authorities.

In India, the Supreme Court and the different State high courts have been vested with a similar power to issue writs through Articles 32 and 226 of the Constitution. Article 32 grants a person the liberty to approach the Supreme Court directly when his or her fundamental right has been violated. Ordinarily, this relief is available only against the “State” (defined in Article 12 to include “the government and Parliament of India, the government and the legislature of each of the States, and all local and other authorities within the territory of India or under the control of the Government of India.”) Article 226 affords a wider relief. It allows a person to approach a high court seeking a writ against any person or authority for any purpose.

Each of these articles has been the subject of substantial debate by the Supreme Court. In the case of Article 12, the court has held that it is only those bodies that are created by a statute, which enjoy their own lawmaking powers, and are pervasively dominated — financially, functionally, and administratively — by the government that can be described as a “State.” Practically, what this has meant is that private bodies, even if they were capable of invading fundamental rights, through acutely entrenched processes of discrimination, would not be held accountable for such violations. Even Article 226, which grants the high courts the authority to issue writs, has been circumscribed to include within its jurisdiction only those authorities that perform overwhelmingly public functions. But even these bodies would not be bound by many of the fundamental rights— such as the right to equality — but would be governed only by other constitutional and statutory rights specifically guaranteed against them, and the more general common law principles of reasonableness and fairness in administrative action.

Inroads into fundamental rights

The question of whether the BCCI is “State” for the purposes of Article 12 was already conclusively determined in 2005 by the Supreme Court in a case initiated by Zee Telefilms Ltd. Here, a five-judge bench found that the BCCI was not an instrumentality of the State, and was therefore not subject to most of the fundamental rights guaranteed by the Constitution. This also meant that petitioners aggrieved by a decision of the Board could usually not approach the Supreme Court directly for relief. What the ruling ignored however is the fact that some private authorities, such as the BCCI, which exercise public functions independent of governmental regulation, could use their monopolistic position to make critical inroads into fundamental rights, particularly by curbing access to livelihood or to a public resource that citizens are ordinarily entitled to use. The danger in such an approach was, in fact, recognised as far back as in 1787 by Lord Chief Justice Hale in his treatise, De Portibus Malis, where he wrote that when private property is “affected with a public interest, it ceases to be juris privati only.”

Therefore, in the recent litigation initiated by the Cricket Association of Bihar, the Supreme Court, although bound by its earlier decision in Zee Telefilms, is correct in holding that the BCCI is amenable to judicial review under Article 226. It now becomes incumbent upon the Board to act with a sense of fairness and equity, and to ensure that it does not abuse its dominant position.

Some fear that this decision of the Supreme Court would open up the floodgates, bringing a number of societies and other such private associations within the courts’ powers of judicial review. But, as the English barrister Michael Beloff once wrote, “It is an argument, which intellectually has little to commend it… For it is often the case that once the courts have shown the willingness to intervene, the standards of the bodies at risk of their intervention tend to improve.”

Common law has historically imposed a duty on those exercising powers of monopoly — whether self-arrogated or through governmental intervention — to act fairly and reasonably. Our courts must now extend this rationale to hold not only the BCCI accountable, but also other such private associations, which in exercise of monopolistic powers, impinge upon the citizenry’s most basic civil liberties.

(Suhrith Parthasarathy is an advocate practising in the Madras High Court.)

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Printable version | Mar 3, 2021 12:40:43 PM | https://www.thehindu.com/opinion/op-ed/bcci-monopoly-and-judicial-review/article6824141.ece

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