The BCCI and public transparency – A review of the Law Commission Report on the applicability of the Right to Information Act
Published 25 May 2018 By: Nandan Kamath
“Sunlight is said to be the best of disinfectants.”1 – Justice Loius D. Brandeis
On 18 April 2018, the Law Commission of India, pursuant to an order by the Supreme Court, issued to the government its report on the applicability of the Right to Information Act, 2005 to the Board of Control for Cricket in India (BCCI).
This article reviews and analyses the report, examining:
The background and sequence of events
The Law Commission’s recommendations
The implications of the Right to Information Act applying to the BCCI
Analysis of the Law Commission’s findings
Concerns and responses
What comes next?
Background and Sequence of Events
The Lodha Committee Report on Reforms in Cricket of 2015, while recommending a fundamental restructuring of the BCCI and Indian cricket in general, opened with the following sentence: “Cricket is a national sport that connects the people of India in a unique way.” (Page 1)
The Lodha Committee went on to state that the task given to it by the Supreme Court of India was clear, i.e., to “recommend those changes in the Rules and Regulations of BCCI that will further the interest of the public at large in the sport of cricket, improve the ethical standards and discipline in the game, streamline and create efficiency in the management of the BCCI, provide accessibility and transparency, prevent conflicts of interest situations and eradicate political and commercial interference and abuse and create mechanisms for resolution of disputes and grievances.” (page 3)
Further, it observed that as the Supreme Court had held that the BCCI was carrying out public functions – functions that govern the interests of the public – the necessary corollary was that the BCCI is subject to the rigours of public law, including acting in line with the general principles of reasonableness and fairness, and adhering to the basic principles of accountability and transparency.
While recognising the public interest in the BCCI’s governance of cricket in India and the consequent need for accountability and transparency, the Lodha Committee proposed that these principles ought to be operationalised through institutional structures and remedies – not only through reforming the BCCI’s internal structure to enable effective self-regulation but equally through reliance on existing institutions and public laws to supplement such self-governance. One such public law made reference to was the Right to Information Act, 20052 (RTI Act).
The RTI Act was passed in 2005 and provides the regime under which citizens can secure access to information that is under the control of public authorities in order to promote transparency and accountability in their functioning. The Act recognises that the revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the government, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information and it seeks to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal.
The Lodha Committee concluded that, having regard to the emphasis laid by the Supreme Court that BCCI discharges public functions and also the Court’s reference to indirect approval of the Central and State Governments in activities which has created a monopoly in the hands of the BCCI over cricket, it felt that the people of the country have a right to know the details about the BCCI’s functions and activities. It therefore recommended that “the legislature must seriously consider bringing BCCI within the purview of the RTI Act.” (Page 58)
“We are not called upon in these proceedings to issue any direction in so far as the above aspect [the applicability of the RTI Act to the BCCI] is concerned. All that we need say is that since BCCI discharges public functions and since those functions are in the nature of a monopoly in the hands of the BCCI with tacit State Government and Central Government approvals, the public at large has a right to know and demand information as to the activities and functions of the BCCI especially when it deals with funds collected in relation to those activities as a trustee of wherein the beneficiary happens to be the people of this country. As a possible first step in the direction in bringing BCCI under purview of Right to Information Act, we expect the Law Commission of India to examine the issue and make a suitable recommendation to the Government. Beyond that we do not consider it necessary to say anything at this stage.” (Paragraph 82)
Pursuant to the Supreme Court order, the Law Commission of India (LCI) undertook the aforesaid task and issued to the government on April 18, 2018 its Report No. 275 entitled “Legal Framework: BCCI vis-à-vis Right to Information Act, 2005”4 (the Report).
The Law Commission’s Recommendations
The LCI recommended in the Report that the RTI Act must apply to the BCCI and also all state cricket associations. While arriving at this conclusion, in summary, it concluded as follows:
The BCCI should be considered "State", for the purpose of Articles 12 and 32 of the Indian Constitution, by virtue of being "an agency or instrumentality of the state"; (Paragraph 7.1)
If the above is not accepted, BCCI should still be treated as a "public authority" given "state control"; (Paragraph 7.2)
If recognised as a private body only, the BCCI should be treated as a "public authority" given its monopolistic character, its impact on human rights and, most specifically, the "substantial financing" it has received “directly or indirectly” from the central and state governments through large tax exemptions, discounts on prime real estate for stadium construction, etc.; (Paragraph 7.3)
The BCCI's use of national names/insignia and the tacit recognition it receives from the state must be duly noted; (Paragraph 7.4)
The BCCI virtually acts as a National Sports Federation and has been recognised as such by multiple governments, even if this status has not been admitted by the BCCI itself; (Paragraph 7.5 (3))
Implications of the RTI Act applying to the BCCI
Were the RTI to become applicable to the BCCI, the BCCI would be required to:
maintain all its records catalogued and indexed in a manner and the form which facilitates the public’s right to information; (Section 4)
publish, inter alia, the particulars of its organisation, functions and duties; the powers and duties of its officers and employees, a directory of such officers and employees and a statement of their remuneration and compensation; the procedure followed in the decision making process, including channels of supervision and accountability; the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; a statement of the boards, councils, committees and other bodies, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public; its budget, indicating the particulars of all plans, proposed expenditures and reports on disbursements made; particulars of recipients of concessions, permits or authorisations granted by it; (Section 4)
publish all relevant facts while formulating important policies or announcing the decisions which affect the public; (Section 4)
provide reasons for its administrative or quasi-judicial decisions to affected persons; (Section 4)
designate a Public Information Officer to provide information to persons requesting for the information under this Act. (Section 5)
The result would be that all Indian citizens would have the right, subject only to the RTI Act’s limitations, to inspection of BCCI work, documents, records; to take notes, extracts or certified copies of BCCI documents or records; to take certified samples of BCCI material; and to access BCCI’s electronic records. The scope of “information” covered is expansive and includes any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.
In summary, the BCCI and all of its processes, documents and decisions would be opened up to and for public scrutiny in a manner that all other public authorities (including all significant National Sports Federations recognised by the Ministry of Youth Affairs & Sports) are.
Analysis of the Law Commission’s Report
While the LCI’s ultimate finding that the RTI Act must extend to the BCCI is unsurprising as a natural extension of the Supreme Court’s judgment in the BCCI case, its approach and findings are worth analysing.
Firstly, it is noteworthy that the LCI not only affirmatively recognised the economic ("monopoly") nature of the BCCI acting as a sports federation for cricket but also went further to outline the power and ability of such a body to impact the human rights of athletes and potential athletes. Previously, most similar attempts at legal analysis have primarily relied on whether or not the body is funded by the state and/or uses stage insignia and names. While state funding is indeed one of the elements in determining whether a non-government organisation is a “public authority” the economic and human rights impact of the body’s powers are dominant themes of the Report and its recommendations. This represents a broader and more contemporary view of the jurisprudence backing the application of public laws to prima facie ‘private’ bodies in sport. This multi-pronged approach does, in fact, raise some interesting questions addressed further below.
Conversely, the LCI might have overstepped its brief in undertaking an analysis on the applicability of Articles 12 and 32 of the Indian Constitution to the BCCI and determining that, in its view, the BCCI should be considered “state” as a result of being “an agency or instrumentality of the state”. (Paragraph 7.1) This determination by the LCI is neither actionable nor essential to the RTI applicability analysis. The RTI Act applies to any body deemed to be a “public authority” under its stated definition.
2 (h) "public authority" means any authority or body or institution of self- government established or constituted—
(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 organization substantially financed, directly or indirectly by funds provided by the appropriate Government.
It is noteworthy that being recognised as “state” or is subject to “state control” are not determining factors on whether a body is a “public authority”. Also, the LCI need not have waded into the Article 12/Article 32 debate given that there is already in place adequate judicial precedent (including in the Zee Telefilms case5) from the country’s highest courts on writ jurisdiction (and, consequently, the prospect of judicial scrutiny) in relation to sports federations in general and the BCCI in particular. This part of the LCI’s analysis is therefore not particularly meaningful either substantively or procedurally. Similarly, the LCI’s conclusion that the BCCI should be treated as a “public authority” under the RTI Act by virtue of being “controlled by the state” does not stand on particularly strong ground.
On the other hand, the LCI’s analysis of whether the BCCI is "public authority" by virtue of “substantial direct or indirect funding by the state” is consistent with the LCI’s mandate and judicial and administrative precedent.6 Nonetheless, an interesting question does arise – if the BCCI had not historically received economic benefits from the central and state governments (such as large tax exemptions and real estate at excessively discounted rates for building stadiums and other facilities), would a similar conclusion have been reached based only on the body’s use of national names and insignia, tacit state recognition, its economic powers and impact on human rights? This will remain a topic wide open for future debate and analysis.
Concerns and Responses
Despite the fact that most of the bodies in India that are recognised and notified as National Sports Federations (as well as the Indian Olympic Association, India’s National Olympic Committee) are and have been subject to the provisions of the RTI, questions have been raised in certain quarters on the desirability of applying public transparency norms to the BCCI given that it is a sports body. The primary argument here is that sports bodies perform strategic functions and handle personal information and that competitive advantage would be lost and privacy impinged on should all information relating to its functioning be available to citizens and competitors (international, national and individual) alike.
However, this criticism might well be unfounded given that the RTI Act itself has, in Section 8, adequate safeguards for balancing of these interests, with protections for national strategic interests, commercial confidences, trade secrets, intellectual property, the privacy of personal information and information received in a fiduciary capacity. In such cases an application for information can be rejected, the only exclusions being where disclosure of such information outweighs in importance any possible harm or injury to the interests of the party to whom it relates.
To bring these protective provisions into a sporting context, the National Sports Development Bill, 2013 (which has remained in cold storage and has not been passed) in its Section 37(2) excepted the following types of information from the right to information in respect of national sports federations:
“(a) selection, appointment or exclusion of an athlete, coach, trainer or physiotherapist for participation in an athletic competition; (b) quality of performance of an athlete at athletic competitions; (c) injuries suffered by an athlete; (d) medical health and fitness of an athlete; (e) the whereabouts of an athlete; (f) test results and information that are treated as confidential under the National Anti-Doping Agency Code; and (g) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party.”7
These concerns relating to strategic information and privacy are capable of redressal through exceptions of these nature without diluting the essence of the public’s right to know and the sports organisation’s obligation to operate transparently in material aspects of its administration and governance.
In summary, the report's key conclusions are entirely consistent with recent judicial pronouncements. The government has now heard from the LCI but the LCI’s recommendations are not binding on the government. However, in this case the LCI’s opinion was affirmatively sought by the Supreme Court of India.
Although the Lodha Committee seemed to suggest that legislation would be required to bring the BCCI within the RTI Act’s remit (i.e., the legislature would need to pass legislation, e.g., by passing a law such as the National Sports Development Bill, which included a provision applying the RTI Act to all National Sports Federations), the LCI believes that simple formal administrative notification of BCCI as a National Sports Federation by the government (presumably the Ministry of Youth Affairs and Sports) should suffice. On either count, the RTI Act will not be applied to the BCCI in the absence of political will (although the body itself could electively choose to comply with some or all of the RTI Act’s requirements as it did, albeit indirectly, in a recent case). Given that Indian lawmakers have historically held key BCCI positions, the political will to compel the BCCI to public transparency is unlikely to arise organically and such a result could ultimately, and once again, require judicial intervention.
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- Tags: 2005 | Board of Control for Cricket in India (BCCI) | Cricket | India | Indian Constitution | Law Commission of India | Lohda Commitee Report | Right to Information Act | Supreme Court of India | The Lodha Committee Report on Reforms in Cricket of 2015
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