Will the BCCI be brought under the Right to Information Act 2005?
There is an ongoing debate in India as to whether the BCCI should be classed as a “public authority” and brought under the terms of India’s Right to Information Act 2005 (the “Act”).1 The debate forms part of the wider concerns over the BCCI’s current "independent" governance model, which has been under further scrutiny since the IPL 6 scandal2.3
The Act was enacted “to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense.”4
The Act only applies to those organisations defined as a “public authority"5 under Chapter 1 Part 2, namely:
“(h) ……. any authority or body or institution of self-government established or
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any—
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;”6
The government’s Ministry of Youth Affairs and Sports (MYAS) thinks the BCCI should be classed as a “public authority” and brought under the Act.7 In 2011, the previous sports minister, Ajay Maken, argued that there were “reasonable grounds” to hold this view because the BCCI indirectly receives government funds through, for example, tax exemptions.8 The MYAS has also argued that as the BCCI is the national federation for cricket in India, it should fall under the purview of the Draft National Sports Development Bill 2013 (“the Bill”)9 and therein fall under the Act, according to Chapter 9 of the Bill. 1011
The Supreme Court of India holds a similar view as highlighted in its judgment12 in BCCI vs. Cricket Association of Bihar and others - Civil Appeal No. 4235 of 2014. In this case the Supreme Court established that the BCCI discharges “several important public functions”, such as selecting the national team, as noted above. The judgment explained that discharging public functions means that in case of a future dispute, the affected party can attempt to settle the dispute under “ordinary law or by way of a writ petition under Article 226 of the Constitution”.1314 This demonstrates that the BCCI is subject to the “writ jurisdiction” of the High Court and is not a solely independent body due to its public functions. This reasoning implies that the BCCI falls within the definition of a “public authority” for the purposes of the Act.
Similarly, on 18 July, 2016, the Lodha Committee15, who has been making recommendations for reforming the BCCI’s policies and governance processes, also suggested that the Law Commission explore how the BCCI can be placed under the purview of the Act.
On the other hand, the BCCI maintains that it is an independent body as it is registered as a private not-for-profit organisation1617 and is not directly financed by the Government. On the BCCI’s view, this means that it is not a “public authority”.
Following the Lodha Committee’s lead, as of 7 November, the Ministry of Youth Affairs and Sports (MYAS) has now also instructed the Law Commission propose how to bring the BCCI under the Act.18 On 6 December 2016, the Hindustan Times, reported that the Law Commission has begun exploring the possibility of bringing the BCCI under the Act; after completing its analysis, the Law Commission will be able to report back to the Ministry and the Lodha Committee with further recommendations.1920
In the author’s opinion, bringing the BCCI under the RTI Act would be a crucial step in fostering greater transparency in Indian sport. However, it seems necessary to first clearly determine the perimeters of the definition for “public authority”.
Badminton, CBI’s Sports Integrity Unit, and Age Fraud
As of 5 November, the Central Bureau of Investigation (CBI)’s Sports Integrity Unit reported four junior badminton players allegedly manipulated their age in order to compete in tournaments.21
The CBI’s report to the Badminton Association of India (BAI) noted that the parents of the four badminton players had allegedly altered their dates of birth in the records submitted to the BAI, as compared to their initial birth certificates.22
Registering a false date of birth allows for the players to compete in lower age groups, giving them a competitive advantage over younger players. It also provides them with additional opportunities for sponsorship and financial benefits that are conditional on age.23
For further details on age fraud in India sport and the CBI’s integrity unit, see here.24
The parents involved altered the birth certificates under Section 13 of the Registration of Birth and Deaths Act, 1969 - “Delayed registration of births and deaths”.25
Section 13 allows for birth dates to be registered after an extended period of time with a late fee and/or signature of a specified authority. Sections 13.1 and 13.2 address the requirements for registering births within 30 days of it occurring and from 30 days to a year after it occurs. However, in the author’s opinion, a potential integrity concern lies in Section 13.3, which states:
“ (3) Any birth or death which has not been registered within one year of its occurrence shall be registered only on an order made by a magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.”
If the required verification is obtained, Section 13.3 makes it possible for birth certificates to be registered years after the actual birth occurs.26 The ability to register births years after they occur under Section 13.3, leaves the current process open to manipulation to create false birth certificates at a later date to further assist an athlete to gain a competitive advantage and/or funding.
To address the issue of registering false birth certificates with sports federations, the MYAS introduced the National Code Against Age Fraud in Sport (The Code).27 The Code outlines the procedure for conducting medical examination and requirements for the mandatory identity card, which are both used to verify a player’s age. The identity card will be used as a form of verification for individual athletes age throughout their sporting career.
Both the CBI and the BAI will be taking action against the four players. These possible actions have yet to be announced.28
- Right to Information Act, 2005, https://www.rti.gov.in/rti-act.pdf
- S Singh, ‘A review of the IPL and BCCI spot-fixing scandal – governance, corruption and reform’, LawInSport, 2 December 2015, last viewed on 1 December 2016, https://www.lawinsport.com/articles/item/a-review-of-the-ipl-and-bcci-spot-fixing-scandal-governance-corruption-and-reform
- ‘Report of the Supreme Court Committee on reforms in cricket’, Volume One – Report & Annexures’, The Supreme Court Committee, 18 December 2015, last viewed on 1 December 2016, https://www.sportstarlive.com/multimedia/archive/02682/lodha_full_2682954a.pdf, pg 21
- ibid at 1 (RTI)
- ibid at 1 ( RTI)
- ibid at 1 (RTI)
- G Laghate, ‘Sports Ministry wants BCCI to be brought under RTI’, Economic Times, 6 November 2016, last viewed 1 December 2016, https://economictimes.indiatimes.com/news/sports/sports-ministry-wants-bcci-to-be-brought-under-rti/articleshow/55286772.cms
- ‘Indian sports minister hits back at BCCI’, espn cricinfo, 31 August 2016, last viewed on 1 December 2016, https://www.espncricinfo.com/india/content/story/530571.html
- Draft National Sports Development Bill, 2013, Ministry of Youth Affairs & Sports, last viewed on 1 December 2016, https://yas.nic.in/sites/default/files/File921.pdf
- ‘BCCI under RTI’, Press Information Bureau, Government of India Ministry of Youth Affairs & Sports, 12 August 2013, last viewed on 1 December 2016, https://pib.nic.in/newsite/PrintRelease.aspx?relid=97991
- ibid at 7, Economic Times
- Judgment on CIVIL APPEAL NO.4235 OF 2014, CIVIL APPEAL NO.4236 OF 2014, CIVIL APPEAL NO. OF 2015(Arising out of SLP (C) No.34228 of 2014), Supreme Court of India Civil Appellate Jurisdiction, 22 January 2015, last viewed on 1 December 2016, https://supremecourtofindia.nic.in/FileServer/2015-01-22_1421928541.pdf
- Article 226, Constitution of India, last viewed on 1 December 2016, https://lawmin.nic.in/olwing/coi/coi-english/coi-4March2016.pdf
- For further support, the Supreme Court’s judgment referred to Marsh v. Alabama (3) 326 U.S. 501: 19 L. ed. 265, which holds that if an organisation privately performs a public function “it is bound by the constitutional standard applicable to all State actions.” This is mentioned when explaining Sukhdev and Ors. etc. v. Bhagatram Sardar Singh Raghuvanshi and Anr. etc. (1975) 1 SCC 421, which is an employment dispute case assessing whether the employee of a statutory corporation can be protected under the Constitution. The Supreme Court also mentions Ramana Dayaram Shetty v. International Airport Authority of India and Ors. (1979) 3 SCC 489 which asked whether a company registered under the Companies Act, 1956, or the Societies Registration Act, 1860, can become “an instrumentality or agency of the Government.”
- Ibid at 2; S Singh, ‘A review of the IPL and BCCI spot-fixing scandal – governance, corruption and reform’, LawInSport, 2 December 2015, last viewed on 1 December 2016, https://www.lawinsport.com/articles/item/a-review-of-the-ipl-and-bcci-spot-fixing-scandal-governance-corruption-and-reform
- ibid at 7, Economic Times
- ibid at 3; ‘Report of the Supreme Court Committee on reforms in cricket’, Volume One – Report & Annexures’, The Supreme Court Committee, 18 December 2015, last viewed on 1 December 2016, https://www.sportstarlive.com/multimedia/archive/02682/lodha_full_2682954a.pdf, pg 21
- ibid at 7 (Economic Times)
- D Mahapatral, ‘Law Commission examining RTI for BCCI’, Times of India, 2 November 2016, last viewed on 1 December 2016, https://timesofindia.indiatimes.com/sports/cricket/news/Law-Commission-examining-RTI-for-BCCI/articleshow/55200361.cms
- J Sidhu, ‘Law Commission exploring ways to bring BCCI under RTI act’, Hindustan Times, 6 December 2016, last viewed on 6 December 2016, https://www.hindustantimes.com/cricket/law-commission-exploring-ways-to-bring-bcci-under-rti-act/story-vBJI4EycKkuVAMj28h6AXK.html
- S Deep, ‘How India’s badminton youngsters cheated their age’, Hindustan Times, 5 November 2016, last viewed on 30 November 2016, https://www.hindustantimes.com/other-sports/how-india-s-badminton-youngsters-cheated-their-age/story-GCaMuIjrK5YO0ty2iwTiEM.html
- S Kundu, ‘CBI catches four youth badminton players from India for cheating via age manipulation’, Sports Keeda, 30 Nov 2016, last viewed on 30 Nov 2016, https://www.sportskeeda.com/badminton/cbi-catches-four-youth-badminton-players-india-cheating-age-manipulation
- ibid at 21 (Hindustan Times)
- M Kulkarni, How effectively is India’s new sports integrity unit helping to tackle corruption’, 4 April 2016, last viewed on 30 November 2016, ‘https://www.lawinsport.com/blog/indian-sports-law/item/how-effectively-is-india-s-new-sports-integrity-unit-helping-to-tackle-corruption
- ‘THE REGISTRATION OF BIRTHS AND DEATHS ACT, 1969’, 31 May 1969, last viewed on 30 Nov 2016, https://www.pbnrhm.org/docs/b&d_reg.pdf
- ibid, For reference, the section 13.4 states: “(4) The provisions of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefore and any such birth or death may be registered during the pendency of any such action.”
- ‘Code against age fraud in sports’, Ministry of Youth Affairs and Sports, last viewed on 30 November 2016, https://yas.nic.in/sites/default/files/File824.pdf
- ibid at 22, Sportskeeda
- Age fraud Anti-Corruption Badminton Badminton Association of India (BAI) Board of Control for Cricket in India (BCCI) CBI Sports Integrity Unit Central Bureau of Investigation (CBI) Cricket Governance India Integrity Justice Lodha Committee recommendations Law Commission of India Ministry of Youth Affairs and Sports National Code Against Age Fraud in Sport Regulation Right to Information Act 2005