Legalities and tensions surrounding Lalit Modi’s controversial RCA presidency
Published 07 August 2014
By: Shivam Singh
This article will examine the legalities of Lalit Modi’s election, and the associated conflicting tensions arising between the BCCI and the RCA.
Recently, the Narendra Modi wave swept across the Indian electorate and handed the Bharatiya Janta Party
”) a commanding win in the recently concluded general elections. A little before that another Modi (Lalit Modi) registered a spectacular win in Rajasthan Cricket Association’s
”) elections that sealed his comeback in the Indian cricketing fold.
Lalit Modi’s involvement in Indian cricket was considered dead and buried not too long ago, after being handed down a lifetime ban by The Board for Control of Cricket in India
”) for alleged mishandling of finances in Indian Premier League’s
”) inaugural season. However, he clawed his way back into the sport after the Supreme Court of India
ruled in his favor (see below) and allowed him to take up the RCA presidency.
BACKGROUND TO MODI’S ELECTION
The BBCI’s objection to Modi’s campaign
The BCCI objected to Lalit Modi’s RCA presidency bid. The BCCI has consistently maintained the stance that a person expelled from the BCCI on disciplinary charges was ineligible to assume charge
of the BCCI’s constituent associations.1
Ever since being removed from the BCCI, Lalit Modi has been a vociferous critic of the current BCCI leadership under N. Srinivasan, and has publicly spoken out several times against numerous of its current office bearers.
The BCCI made it clear that his assumption of charge would lead to imposition of sanctions on the RCA. Despite this being the BCCI’s stated position, Lalit Modi contested by taking recourse to Chapter III (Elections) of the Rajasthan Sports Act
”). In January 2014, elections for RCA were conducted with ex-Supreme Court judge NM Kasliwal as an observer.
The RCA’s election process: the RSA 2005, the 2005 elections, and Modi’s rise and fall
The RSA 2005 replaced the Rajasthan Sports (Registration, Recognition and Regulations of Associations) Ordinance, 2004. This statute introduced a change in voting rights within the RCA. Prior to 2005, voting privileges were available to individual members and district associations alike. Under the RSA 2005, individual members were divested of voting privileges and they were extended solely to district associations.
The 2005 elections conducted under RSA 2005 delivered the RCA’s reins to Lalit Modi as he won a close contest against Kishore Rungta. Aggrieved by it, Rungta (see Division Bench Civil Writ Petition No. 6090/2004) challenged the constitutional validity before Rajasthan High Court’s Jaipur bench.
The Petitioner primarily alleged that the Act infringed his fundamental rights guaranteed under the Constitution of India (“the Constitution”), 1950. The impugned rights related to Article 14 (Right to Equality) and Article 19(1)(c) of the Constitution i.e. (Freedom to form association). In sum, the Rungta alleged that the State Government was exercising power invalidly and that it impermissibly curtailed the rights to establish as well as administer associations. The Rajasthan High Court on 23.07.2012 dismissed this challenge and the aggrieved Rungta appealed to the Supreme Court (see Special Leave to Appeal (Civil) No. 36140/20123).
A look at Rajasthan’s politics would reveal that in 2005, when the RSA 2005 was passed, a BJP led government was ruling the state of Rajasthan and it was widely believed that Lalit Modi enjoyed excellent relations with the then BJP government.4 After the BJP government was voted out in 2008, Lalit Modi’s hold over RCA began to wilt and it ended with the expiry of his four-year term in 2009. Subsequently, in April 2010, he was suspended by the BCCI over alleged financial irregularities and was banned for life in 2013.5
THE RCA’S 2014 ELECTIONS
Modi’s return and the Supreme Court’s observations
In response to the BCCI’s objections to Modi’s prospective presidency, the RCA argued that its functioning was governed by the RSA 2005. It contended that the BCCI’s objection to Modi’s presidency were of no consequence since the RCA was directly governed by the state statute. The Supreme Court appointed observer consequently allowed Modi to contest RCA elections and the election results were kept under a sealed cover. The Supreme Court made it clear that the election results were subject to its orders and that they could only be declared with its prior leave.
Subsequently the Supreme Court directed that the results be made public on 6 May 2014.6 It rejected the BCCI’s objection that a life ban on Modi precluded him from contesting an affiliate unit’s elections since he met the eligibility criteria as per Chapter III of RSA, 2005. Upon the declaration of results on 6 May 2014, Lalit Modi was declared as the elected RCA President. The BCCI, under Shivlal Yadav’s interim presidency expelled the RCA from BCCI membership, citing Rule 32 (vii) of BCCI’s constitution, until disciplinary proceedings were concluded against it over grounds of alleged misconduct.7
BCCI at liberty to proceed
However, the Supreme Court conferred liberty upon the BCCI to proceed against any person that may have acted contrary to its rules, regulations or laws.8 It is submitted that this Supreme Court judgment seeks to maintain a delicate balance between a special statute enacted for sports administration and autonomous governance rules of the BCCI.
On the one hand, it offers relief to Lalit Modi because his election as RCA President conducted by a state sports body (RCA) was in sync with the RSA 2005 and it could therefore not be disturbed by the BCCI. On the other hand, it allows the BCCI to examine whether Lalit Modi has transgressed any internal rules or BCCI byelaws and if found to have violated those rules then it can impose sanctions upon him by initiating fresh proceedings.
CAN THE BCCI’S BYELAWS BE APPLIED TO THE RCA?
The BCCI’s legal status under Indian jurisprudence
As held by the Indian Supreme Court in Zee Telefilms v. Union of India9, BCCI is not “State” within the meaning of Article 12 of the Constitution and is not subject to the Indian courts’ writ jurisdiction.
The only exception to this trend has been in Ajay Jadeja v. Union of India10 wherein the Delhi High Court held a writ petition maintainable against the BCCI. However this case does not have precedential value because the petitioner agreed to withdraw the matter in favor of arbitration proceedings.11 Per Indian law, the BCCI is treated as a body incorporated under the Tamil Nadu Societies Registration Act 1975 and it does not come under the purview of any governmental body. It is akin to an essentially autonomous body with monopolistic control over cricket in India.
Given that the BCCI is not treated as a “State” within Article 12’s meaning, its byelaws can operate independently of the State of Rajasthan’s statute, the RSA, 2005. It is therefore open to the BCCI to take recourse to its internal byelaws and suspend the Lalit Modi led RCA from its primary membership. It is conceivable that the BCCI may even amend its byelaws and even accord primary membership to a different body that agrees to abide by the BCCI’s rules.12
The RCA’s position
The RCA on its part has alleged that the BCCI’s move was without any jurisdictional power and further expressed its willingness to challenge this action.
WHAT RECOURSE COULD THE BCCI TAKE?
While both the BCCI and the RCA have made it common ground to proclaim that the interests of Rajasthan’s cricketers would be protected, it is difficult to envisage them getting adequate protection after such suspension.
Conceivably, the BCCI could freeze monetary support to the Lalit Modi led RCA and in the extreme it may also withdraw playing privileges from Rajasthan cricketers until they remain affiliated to the RCA. The author believes this may precipitate into RCA cricketers migrating to other associations so as to ensure that their national team prospects do not suffer.
It has been viewed by some commentators that the first casualty of this ongoing fracas was that the RCA missed out on hosting privileges for the Indian Premier League 2014 edition despite being the home state association for a participating franchise (Rajasthan Royals). All of Rajasthan Royals’ home games were awarded to Ahmedabad and consequently the RCA lost out on gate receipts for all these games. It is widely speculated
that the souring of relations between the BCCI and the RCA was responsible for this.13
Comparisons to Bihar and Jharkhand
While the action described above is unlikely, it is not entirely unforeseeable. A slightly analogous situation arose a decade ago when the eastern province of Bihar was separated into Bihar and Jharkhand associations. Upon the separation in 2004, the BCCI favored changing the association’s name from Bihar Cricket Association (“BCA”) to Jharkhand State Cricket Association (“JSCA”) as the then incumbent (Jagmohan Dalmiya) felt that it would be easier to secure the latter’s vote for his presidency.
The BCA vigorously resisted this move since it felt that its membership privileges should not have been withdrawn and accorded to a newer state association. Subsequently, a new group called the Association of Bihar Cricket (ABC) led by ex-Indian cricketer Kirti Azad staked a claim over management of cricket affairs in Bihar and eventually settled for associate status in 2005.
Bihar and particularly the BCA’s isolation became absolute when the Zee Group’s Indian Cricket League (ICL) was born. The then BCA President (Lalu Yadav) was Union Railways Minister and permitted the ICL to use the Indian Railways’ cricket grounds. The BCCI was locked in a bitter wrangle with the ICL, which it saw as a renegade association. Not only did it ban all participating players but it also ensured that the BCA suffered the BCCI’s full wrath and ever since the BCA has not been accommodated into the BCCI’s fold
Ever since this happened, neither has Bihar hosted any international cricket matches nor has its team competed in the domestic tournaments such as Ranji Trophy. Jharkhand has hosted several games and the current Indian cricket team skipper (Mahendra Singh Dhoni) also hails from Jharkhand.
WHAT COULD THE RCA DO IN RESPONSE?
It is the author’s view that if this were to play out in Rajasthan’s case then the RCA would be compelled to agitate its claims before the courts by arguing that the BCCI actions have been contrary to law and ostensibly motivated by bad faith. It is unlikely that this claim would succeed, as the BCCI is not amenable to the Court’s writ jurisdiction as it is not “State” within the meaning of Article 12 of the Constitution.
The only available recourse to the RCA would be to then move a civil court of appropriate jurisdiction. However the nature of relief that it may seek and obtain would be significantly less compared to the wide amplitude of powers available to the High Courts and Supreme Court under their writ jurisdiction powers of Article 22615 and Article 3216 respectively because it can only contend statutory violations and not infractions of fundamental rights.
Given the long winding nature of civil litigation in Indian courts and hardline stances of both parties, an early resolution of this dispute seems unlikely.
The only foreseeable early solution is a regime change in either the BCCI or the RCA as that may present the backdrop for a rapprochement and an amicable settlement between the adverse parties.
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Shivam is a Sports Law and Dispute Resolution Attorney currently practicing in the Delhi High Court and Supreme Court of India. He has represented athletes, sports associations and sports broadcasters before multiple dispute resolution forums in India.