BOARD OF CONTROL FOR CRICKET v. CRICKET ASSOCIATION OF BIHAR & ORS.

T. S. THAKUR, CJI 1. "Change" it is famously said is al 1that is constant in the world. And yet the world hates change, no matter, it is only change that has brought progress for mankind. Statesmen, Scholars and Scientists have spoken for change and eulogised its significance. For instance Charles Darwin has spoken of 'change' in the context of his theory of evolution and declared "It is not the strongest of the species that survive, not the most intelligent, but the one most responsive to change. "Benjamin Franklin, put it more pithily when he said "When you 're finished changing, you 're finished". Albert Einstein spoke of change when he said "The world as we have created is a process of our thinking. It cannot be changed without changing our thiliking. " The truth is that resistance to change stems partly from people getting used to status quo and partly because any change is perceived to affect their vested interest in terms of loss of ego, status, power or resources. This is true particularly when the suggested change is structural or organizational which involves some threat, real or H

BOARD OF CONTROL FOR CRICKET v. CRICKET 623 ASSOCIATJON OF BIHAR [T. S. THAKUR, CJ!]

perceived, of personal loss to those involved. No wonder, therefore, that the portents of change which the recommendations made by the Committee appointed by this Court symbolizes are encountering stiff resistance from several quarters interested in continuance of the status quo. The fact that the recommendations for change come from a body whose objectivity, fairness, sense ofjustice, equity and understanding of the problems that are crying for a solution are beyond any doubt or suspicion has made little or no difference to those opposing the recommendation.

2Copy pinpoint2. These proceedings are a sequel to our order dated 22"a January, 2015 [BCCI vs. Cricket Association of Bihar and Ors., (2015) 3 SCC 251 ]. We had by that order answered seven distinct questions formulated in para 20 thereof. Six out of those questions related to allegations of sporting fraud, conflict of interest leveled against functionaries of the BCCI and the jurisdiction of a writ court to intervene and issue directions considered appropriate in the circumstances. This Court held that even when the Board of Control for Cricket in India was not "State" within the meaning of Article 12, it was amenable to the writ jurisdiction of the Court under Article 226 of the Constitution oflndia as it was discharging important public functions. Building further on that finding, this Court had while dealing with Question No.7 set up a Committee comprising Justice R.M. Lodha, former Chief Justice of India as Chairman with JusticeAshok Bhan and Justice R.V. Raveendran, former Judges of this E Court as members to determine and award punishment considered appropriate on those found guilty by Justice Mudgal's Committee and to examine for any disciplinary or punitive action, the role played by Mr. Sundar Raman with the help of the investigating team constituted for that purpose. More importantly we had requested the Committee to examine and make suitable recommendations on the following aspects: 119.1. Amendments considered necessary to the memorandum of association of BCCJ and the prevalent rules and regulations for streamlining the conduct of elections to different posts/officers in BCCJ including conditions of eligibility and disqualifications, if any, for candidates wanting to contest the election for such posts including the office of the President of ECCL 119.2. Amendments to the memorandum of association, and rules and regulations considered necessary to provide a H

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A mechanism for resolving conflict of interest should such a conflict arise despite Rule 6.2.4 prohibiting creation or holding of any commercial interest by the administrators, with particular reference to persons, who by virtue of their proficiency in the game of cricket, were to necessarily play some roles as coaches, managers, commentators, etc. B

119. 3. Amendment, if any, to the memorandum of association and the rules and regulations of BCCI to carry out the recommendations of the Probe Committee headed by Justice Mudgal, subject to such recommendations being found acceptable by the newly appointed committee. c

119. 4. Any other recommendation with or without suitable amendment of the relevant rules and regulations, which the committee may consider necessary to make with a view to preventing sporting frauds, conflict of interests, streamlining the working of BCCI to make it more responsive to the D expectations of the public at large and to bring transparency in practices and procedures followed by BCCI. "

3Copy pinpoint3. The Committee accordingly heard the individuals and the Franchisees found guilty by Mudgal Committee and by an order dated 14'h July, 2015 awarded punishments cc.1sideredjust and proper. The E Committee also by a separate report dated I 8d' December, 2015 examined the role of Mr. Sundar Raman and exonerated him of the charges levelled against him. By a separate report dated l 8'h December, 2015, the Committee has recommended several steps and measures that would in its opinion streamline the working of the BCCI and possibly prevent any aberrations or controversies in which it has been embroiled in the past. We shall presently refer to the findings and the recommendations of the Committee in greater detail, but before we do so, we must mention that on receipt of the Committee's report and the recommepdations, we had issued notice to the parties to give them an opportunity to respond to the same. The BCCI has, accordingly, submitted its reply to the reports and the recommendations made therein. In addition, several other organimtions and individuals have intervened to file their responses and objections to the reports and the recommendations and raised several issues.

4Copy pinpoint4. At the same time certain other intervenors have stoutly supported the report of the Committee and the recommendations made therein. H For instance, intervening applications made by Mr. B.S. Bedi and Mr.

BOARD OF CONTROL FOR CRICKET v. CRICKET 625 ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

Kirti Azad, Cricket Association of Pondicherry and several others have A supported the recommendations made by Justice Lodha Committee. The recommendations are also supported by the respondent Cricket Association of Bihar, who has prayed for acceptance of the recommendations and issue of directions for appropriate f911ow up action in implementation of the same. B

5Copy pinpoint5. We have heard at considerable length learned counsel for the parties and those appearing for the intervenors. As noticed earlier the task assigned to the Committee was to recommend such changes in the rules and regulations ofBCCI as would in the opinion of the Committee safeguard the interest of public at large in the sport of cricket, improve the ethical standards and discipline in the game, streamline and promote efficiency in the management of BCCI, provide accessibility and transparency, prevent conflict of interest situations and eradicate political and commerciaf interference and abuse and create mechanisms for resolution of disputes within the BCCI. The direction issued by this · Court for all round reform in the working of the BCCI and the conduct of its affairs proceeded fundamentally on the juristic foundation that BCCI was discharging public functions and is, therefore, subject to the rigours of 'Public Law' making it mandatory for the BCCI to adhere to the principles of reasonableness, fairness, accountability and transparency.

6Copy pinpoint6. The Committee had in the right earnest circulated a detailed questionnaire to various stakeholders, aficionados and patrons of the . game. The questionnaire was based on the view taken hy this Court in the main judgment, the existing rules and regulations of the BCCI and various articles and news reports which pointed out the flaws and loopholes in the cricket administration in this country.. The questionnaire contained 135 questions grouped under 8 distinct heads of areas of concern for cricket administration namely (a) Organization, structure and relationship (b) Source and extent ofjurisdiction (c) Offices, committees and elections (d) Commercial engagements, contracts and services (e) Audit, accounts and finances (f) Player welfare and dispute resolution (g) Conflict of interest (h) Oversight and transparency. G

7Copy pinpoint7. The Committee conducted over 35 days of sittings at Mumbai, Bangalore, Chennai, Kolkata, Hyderabad and New Delhi in the process providing ease of access to respective representatives from various zones and primary Test Centres. The Committee also interacted with 75 persons in India including Former Captains, International and First Class Players, H

626 SUPREME COURT REPORTS [2016] 8 S.C.~.

A Coaches, Managers, Administrators, Journalists, Talent scouts, Authors, Lawyers, Club Owners, Selectors and a Former Chief Justice of a High Court. Suggestions made by those who responded to the questionnaire and those who interacted with the Committee were summarized. The Committee also researched media reports, documentaries, published material, draft legislations, books and articles, apart from 'Several B unsolicited missives from Cricket fans, local experts and administrators about how maladministration was rife in cricket all over the country. The Committee appears to have received complaints of defalcation and siphoning of funds, opaqueness in administration, blatant favouritism and political interference in almost all State Associations, varying only in c degree from place to place. The Committee prepared a comparative analysis of international sports policy and how the same were structured in their constitution, electoral process and overall management and how measures exist to check conflict of interest and enforce ethics.

8Copy pinpoint8. Based on the interactions held and the responses received from various quarters, the Committee identified the problem areas in the functioning of the BCCI, and upon an in-depth appraisal of the material and the interactive sessions held by the Committee came to the definite conclusion that BCCI has been suffering from many ills that had become endemic due to the apathy and involvement of those at the helm of the Board's administration. The Committee recorded a specific finding that the problems faced by tqe BCCJ have beert corhpounded by the involvement/association of many high functionaries in the Central and State Governments some of whom had remained in charge of the administration of the BCCI for several decades. It also came to the conclusion that many officials of the State Associations were holding power without any accountability and transparency by converting the Associations into personal fiefdoms. It found inequities writ large at the high table with some States over-represented in votes, tournament participation and central funding while others were made to wait endlessly in the wings for indefinite period until favoured. The Committee found that policies had been formulated and altered to suit the needs of a few powerful individuals and that coteries had been formed around them which had polarized and compromised independent leadership. The Committee regretfully found that those who had no such agendas had remained quiet, their silence emboldening further malfeasance. It found that cricket players, who are sport's biggest drivers, had also not been spared from the apathy of the BCCJ as they were treated less like assets

BOARD OF CONTROL FOR CRICKET v. CRICKET 627 ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

and more like employees and subordinates of those governing the game. A The Committee found that the Indian Premier League (IPL) which was a remunerative and glamourized component in India had unsavoury interference at the highest echelons of cricket and the overlapping and conflicting interests were not only condoned, but those in the management of the Board had made ex-post facto amendments to facilitate the same. B Having said that the Committee did not hesitate to recognise the hardwork of BCCI staff members and match officials who had ensured that hundreds of matches are organized annually at all levels and that updates are provided to keep the BCCI fully informed. Charity matches for national causes and humanitarian assistance is another area in which BCCJ has been applauded by the Committee while stating that the C Committee has consciously ensured that no measures are recommended that would limit or interfere with the good work being done on behalf of the BCCI. The report submitted by the Committee fmiher indicates that while the Committee was still in the process ofhearing the concerned, the newly elected President of the BCCI had even without waiting for the Committee's report adopted and projected the Committee's views as his roadmap for improving the functioning of the BCCI. Some of those measures like uploading of the Constitution and Bye Laws on the BCCI website, creating a policy for avoidance of Conflict of interest and appointment of Ombudsman had also been taken. The Committee, however, found that although these steps were in the right direction, the same were neither comprehensive nor substantive. The need of the hour observed the Committee was not of making cosmetic changes but those that are fundamental for laying proper foundations on which the BCCI could function in a professional and transparent manner bringing cricket back to its pristine form and restoring the confidence of the cricketers and lovers of the game alike. The Committee said: F

"At a time when the nations highest court has been compelled to find that the game has fallen into disrepute, only extraordinary steps will bring it back from this chasm. We are conscious that some of our proposals may evoke varied responses, but the collective conscience of this Committee is G clear that tough measures are called for to restore Indian cricket to its pinnacle of glory. Individual interest will have to be sacrificed for the sake of the institution, and no exigency of convenience or convention shall stand in the way ofa whole scale structural overhaul. The current governance structure H

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A of the BCCI and its Member Associations is far from satisfactory and it needs to be suitably restructured. Strict terms and tenures have to be imposed on administrators, oversight and audit of member associations need to be carried out, professional management deserves to be introduced in the administration of the game, all States require an equal B say in the affairs of the ECCL financial prudence has to be exercised, independent views in Governance are imperative and cricketers have to be protected and given a free hand in cricketing affairs. There also ought to be an Ombudsman, an Ethics Officer and an Electoral Officer who can provide c institutional resolution while principles of transparency and conflict of interest need to be infused without further delay. The report that follows is the Committees effort to restore Indian to its deserved status by putting in place good governance structures and best practices. "

9Copy pinpoint9. In 'Chapter One' of its rep01i, the Committee dealt with the Structure and Constitution of BCCI, identified the problems that arise from their current status and the need for reform in the same. For clarity and better understanding of the solutions proposed by the Committee we may gainfully extract Chapter One of the Report submitted by it. "Chapter One: The Structure and Constitution It was nearly 200 years after the British first brought cricket to India that its governing body was created. At a time of communal Gymkhanas and the occasional touring team from England, the princely families and other cricket patrons came together to create the Board of Control for Cricket in India, which was registered as a not-for-profit society in Madras (now Chennai). The BCCI has grown from its original composition of less than half a dozen provincial members to have five times that number representing various groups and territorial divisions. The Structure The BCCI at the moment consists of 30 Full Members some of whom do not field teams, while others do not represent H

BOARD OF CONTROL FOR CRICKET v. CRICKET 629 ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

any territory. Twenty States and one Union Territory are A included and ten States and six Union Territories remain either excluded or disenfranchised. In addition, officially there are Associate and Affiliate Members as well as so-called Future Members. The Services Sports Control Board, the Railways Sport B Promotion Board and All India Universities represent particular national service groups, who traditionally constituted the largest employers of Indian sportsmen before the advent of liberal private enterprise. Apart from these, two Clubs - the Cricket Club of India at Mumbai and the National Cricket Club at Kolkata also enjoy full membership C of the BCCl Problems An examination of the existing structure revealed the following anomalies: D a. Not all States are represented on the BCCI One old State (Bihar) and two new states (Chhattisgarh and Uttarakhand) and six North-Eastern States (Sikkim, Manipur, Meghalaya, Nagaland, Arunachal Pradesh and Mizoram) are unrepresented on the Board. Of course, the most significant E omission was Bihar, which, being the third most populous State in the nation required the cricket representatives of its 100 million populace to migrate to other States to ply their trade. Apart from Tripura, the other six sister-States of the north- east had been relegated to various categories of membership F (Associate, Affiliate and Future) which really have no voice on the Board. b. Some States are over-represented Mainly attributable to their historic legacy, both Maharashtra and Gujarat have 3 Full Members, each representing parts G of their respective States. Maharashtra therefore exercises votes through the Associations of Mumbai, Vidarbha and Maharashtra while Gujarat fields the Associations of Baroda, Gu;arat and Saurashtra. H

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A c. Some members do not represent territories The Services Sports Control Board, the Railways Sport Promotion Board and All India Universities show that territorial divisions were not the consistent criteria to determine membership of the ECCi. However, these members B were represented by teams that played competitive cricket. d. Some members neither plav matches nor represent territories Both the National Cricket Club (NCC) at Kolkata and the Cricket Club of India (CCI) at Mumbai were more in the c nature of recreation clubs which neither fielded teams for tournaments nor had a geographical basis for being Full Members of the BCCI. In fact, by virtue of CCI being granted full membership, Maharashtra has garnered as many as four out of the total 30 votes on the Board. D e. Union Territories are unrepresented on the Board Except for Delhi which enjoys a special position under the Constitution as well, none of the other six Union Territories are Full Members of the BCCI. In fact, there have been repeated representations by the Cricket Association of E Pondicherry that just as Delhi, it is also a Union Territory with a Chief Minister and ought to be made a Full Membe1: This issue is sub Judice before the Madras High Court but nonetheless, there seems that some artificial distinction exists in the extant rules between Delhi and Puducherry. F f. Ad-hoc creation of Membership categories The Regulations of the ECCi only speak of three categories of members - Full, Associate and Affiliate. However, we find that there is a list of six "Future Members", a category that does not have a legal basis. This consists of Uttarakhand, G Mizoram, Telangana, Chandigarh, Puducherry and Andaman & Nicobar. Such a classification seems a half-way house with no real purpose except to give the association an illusion that it will be promoted at some vague point in the future.

H

BOARD OF CONTROL FOR CRICKET v. CRICKET 631 ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

g. Arbitrary addition and removal of associations A For reasons best known to the BCCI, despite being a Full· Member, the Rajasthan Cricket Association has been treated as disenfranchised, resulting in the players of the State being forced to move els.ewhere to compete. The non-addition of the Bihar Cricket Association or an equivalent has also led to such a denial to the players from Bihar. ' Solutions Almost universally, apart from those who represented the associations in Gujarat and Maharashtra, the prevalent view was that that the State is a fair unit of representation on the BCCI. On a consideration ofthe entire issue, the Committee is of the view that it is not proper for only one or two States to have multiple members when all other States have single memberships (in fact, while many States have no representation). Democratic norms require each State should have equal representation, and therefore the Committee proposes the policy of 'One State - One Member - One Vote'. In fact, this is the policy followed by other national sports - associations (/HF & A/FF), each of whose members have an equal vote regardless of size or population. Even at the international level (IOC & FIFA), this is the position. Cricket E ought to be no different. It was however also stated that as far as disbursement of funds by BCCI for cricket development, it need not be uniform, but can depend on the need, infrastructure and other relevant criteria, formalized as a clear and equitable policy to incentivize Members to develop the sport. In keeping with the above principle, and notwithstanding any sense of sentiment, there would also be no place for multiple associations from a single State. The Committee is of the view that it be left to the BCCI to decide which of the 3 associations from Gujarat and Maharashtra would be taken to represent the entire State, and the remaining 2 associations from each State would become Associate

H

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A Members, who would however continue to field teams for competitions as they have done in the past. Equally, in States where there are disputes concerning the appropriate governing body [Jammu & Kashmir, Bihar, Rajasthan, etc.], it is best left to the BCCI or the Court (as may be the case), to decide which association would represent the State. B As the Services, Railways and Universities have hitherto enjoyed Full Member rights although they do not represent a particular State, the Committee recommends that they be accorded the Status of Associate Member so that their views may still be considered while they will not have voting rights. c The same principle would apply to the Clubs (CCI and NCC), which do not field cricket teams and have no cause to be treated as Full Members. Those existing Members who are affected by the changes suggested by the Committee must appreciate that the changes are being suggested in the interest of the game as a whole and also having regard to BCCI's role as a national body to promote and control cricket in India. Governance of cricket being the central theme, the. changes in membership in the BCCI are inevitable and must be seen by all concerned in the right spirit offair representation and for the betterment of cricket administration. While there are seven Union Territories, it was found that only Delhi and Puducherry have a Chief Minister and are treated as substantially independent governing entities. F At first glance, there seems no rationale for a distinction between the two, but what cannot be denied is the fact that Delhi, apart from being the national capital, is also a major Test Centre with an international stadium and has nearly 20 times the population of Puducherry. There may thus be some merit for Puducherry not immediately being included as a G Full Member, especially when the issue is sub Judice. Among the Union Territories, it would huwever be appropriate for Puducherry to be now inducted by the BCCI as an Associate Member which will retain rights to field a team and compete. The consequence of the above realignments would also have an effect on how the Zones are constituted. The Zones

BOARD OF CONTROL FOR CRICKET v. CRICKET 633 ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

would consist of Members in such a manner that each of them would be reasonably balanced as far as competition for the various zonal tournaments is concerned. However, this reconstitution is best left to the BCCI for the purposes of convenience and competition. It is also left to the discretion of the BCCI whether the Union Territories would field individual or combined teams for tournaments and whether, for the purposes of expediency and convenience, the teams representing the States of the North-East be combined as well. The categories of Affiliate and Future Members are therefore to be removed, and only Full Members and Associate Members will remain, the former with voting rights and the c latter without. The 4 associations from the States of Maharashtra and Gujarat which would be relegated to the category of Associate Members shall, however, continue to receive grants for cricket development, as may be assessed by the BCCI depending on infrastructure and relevant criteria. D They will also field teams in the domestic tournaments and host international matches. It is imperative that all players across the country have opportunities to represent their States and Zones and then the national team. To punish the innocent residents and E players of a State for the real or perceived shortcoming of the Member Association is illogical and unacceptable. Even if an alternate Association is not readily available, BCCI should function as the parens patriae of Indian cricket and continue to provide equal and alternate avenues for that particular State. The Model Memorandum of Association and F Rules & Regulations of BCCI are at ANNEXURE-A"

10Copy pinpoint10. Jn Annexure-A to the repo1t, the Committee has proposed Model Memorandum of Association and Rules & Regulations of the BCCI which not only sets out the objects and purposes of the BCCI with commendable clarity but also the Rules and Regulations governing G its affairs. It is noteworthy that neither the BCCI nor the interveners have found fault with the revised Memorandum of Association as proposed by the Committee. What has come under attack both from the BCCI and the intervenors, aggrieved of the recommendations are the Rules and Regulations proposed by the Committee. H

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11Copy pinpoint11. Rule 3 of the proposed Rules and Regulations which deals with Membership and Jurisdiction of Members, inter alia, provides that Membership of the Board shall be confined to Full Members and Associate Members. It further provides that each State shall be represented by a State Cricket Association duly recognized by the BCCI and that such associations shall be Full Members. No State shall have B more than one Full Member according to Rule 3 of the proposed Rules. Rule 3-B enumerates 30 States in the country including Delhi and Goa as Full Members of the BCCI. Rule 3-C provides for recognition of only one Member out of multiple Existing Members for a State whileproposing to convert the remaining as Associate Members. Rule 3-C reads as c under: "3-C. In states with multiple Existing Members, the BCCJ shall recognize one of them to represent the State, while the remaining shall become Associate Members. "

12Copy pinpoint12. Equally important is the Rule 3(b)(I) which enumerates grounds for sanction and de-recognition of a Full Member and reads as under: "3 (b) Grounds for sanction and derecognition of a Full Member (1) No Member shall be entitled to any grant from the BCCI if its Constitution fails to provide for, or comply with the following within One year after the Effective Date: (i) The Association shall not have any provision for any post to be held for more than 9 years. (ii) The governing body of the Association shall include representatives of players and women, and a nominee of the Accountant General of the State. (iii) The Association shall grant automatic membership to former international players hailing from the State.

G (iv) The Association shall not have proxy voting. (v) There shall be a provision whereby the Office Bearers of the Association stand disqualified under any of the grounds laid down in Rule 14(3) below. (vi) The Association shall appoint an Electoral Officer, an H Ethics Officer and an Ombudsman.

BOARD OF CONTROL FOR CRICKET v. CRICKET 635 ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

(vii) The Association shall abide by the principles of A Transparency laid down in Chapter 8 of these Rules. "

13Copy pinpoint13. Rule 4 stip_u!ates that each Full Member shall have one vote to be exercised through its authorized representative and that an Associate Member shall be entitled to participate in the General Body Meetings but shall not be entitled either to vote or have its representative elected B to the Apex Council. ·

14Copy pinpoint14. In terms of Rule 3(b)(I)(v) (supra), a person shall be disqualified to be an Office Bearer of any association on the grounds set out under Rule 14(3) which reads as under: "14. THE APEX COUNCIL c (3) A person shall be disqualified from being a Councill<Jr if he or she: (a) Is not a citizen of India; (b) Has attained the age of 70 years; D (c) Is declared to be insolvent, or of unsound mind; (d) Is a Minister or a government servant [except for the nominee under Rule 14(2)(c)]; (e) Holds any office or post in a sports or athletic association or federation apart from cricket; E (j) Has been· an Office Bearer of the BCCI for a cumulative period of 9 years; "

15Copy pinpoint15. In Chapter Two of the Report the Committee has examined the composition of the office bearers of the BCCI and held that those at the helm of the game come from a mixed milieu - some are patrons seeking to promote the sport, while others seek to promote themselves, with no particular attention being paid to cricket itself. The Committee takes the view that cricket, with its popularity and its finances ought to be run professionally. Towards that end, the Committee considers it imperative that a strong governance structure is put in place, which will be at arm's length from the actual day-to-day management of the Associations and the game. The Committee has recorded a finding that with an individual-centric constitution the reins of cricket's richest and arguably most powerful national body remains mired in controversy and seems to have strayed from its chosen path. H

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16Copy pinpoint16. The Committee takes the.. view that BCCI finds it difficult to control and manage the IPL and its most successful venture threatens its existence in its present form. There seems to be no collective interest in the game being promoted and cricket stands without a custodian for its protection and propagation in its most passionately followed nation.

17Copy pinpoint17. The Committee then identifies the problems under different headings and suggests solutions for the same in the following words: a. Concentration· of power From overall superintendence of the Board and its affairs to taking action against players and even appr, <ing the c composition of the team chosen by the Selectors, the President is all-powerful. In practice, this power was even abused with the exercise of veto over the changes in captaincy and selection of ICC representatives. Incumbents were also known to turn a blind eye when issues of corruption and mismanagement were brought to their notice, even going as D far as permitting retrospective amendments to the bye-laws to favour particular interests. b. Lack of competence The running of an organisation like the BCCI requires a clear functioning structure with well defined ideas to be executed. E The present Working Committee of the BCCI consisting of the various office bearers elected by the BCCI and other representatives of the Members do not have any managerial expertise and requisite experience to run BCCI in a professional manner. Specialists and professionals are usually engaged in an ad-hoc manner without any terms and tenures as would be expected with any billion dollar entity. c. Overlap of diverse functions To borrow an analogy from political governance, it is necessary that the making of laws and regulations (legislative functions) are divorced from implementation thereof (executive functions) and those that review their validity or implementation (judicial functions). As far as the BCCI is concerned, the Working. Committee not only lays down the relevant rules, regulations C!nd bye-laws that govern the BCCI, but also oversee their implementation and takes final decisions H

BOARD OF CONTROL FOR CRICKET v. CRICKET 637 ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

when a Member or third party challenges either the rule or A the manner of its implementation. These overlaps provide for extremely complicated and messy functioning. d. Zonal considerations There seems to be no rational basis for the Presidency to be rotated as per Zones, which has the effect oj forsaking merit. B A person who has the support of as few as two or three members in his Zone may end up as the President, if it is the turn of that Zone for election of President. Recent amendments to the rules have permitted individuals who are not even from the zone in question to be nominated to the post. For the same reason, the Vice-Presidents who are elected from each of the five zones seem to be merely ornamental without any specific functions. e. No representation to players It is only by accident that players are elected to the Working Committee of the ECCL Their views are, more often than not, ignored, and the lack of an assured position at the governance table leaves the players gravely hamstrung. With arbitrary contracts and salaries that are dwarfed by those playing for franchises, it is full credit to the national players that they continue with enthusiasm and patriotic fervour to do their best for the country when they have no say in the affairs of the very body towards which they are the primary contributors. f. No representation to women The BCCI has never seen a woman in the Working Committee, and for a body that runs the sport in the country, the BCCI F ought to have bestowed greater attention to the women :S game. Australia, New Zealand, England and even Pakistan are seen to regularly play the women :S game with only governance apathy responsible for the Indian womens team playing few and far between in all forms of the game. Greater support and-promotion is required so that youngsters may also be G attracted to it. g. No independent voice The BCCI has not embraced the modern principles of open governance, which is all the more necessary when discharging such far reaching ·public functions. The Working Committee H

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A consists entirely of representatives of the Full Members, thereby making it :S functioning a closed-door affair with no representation of players or audit experts to act as checks on governance. h. Unlimited terms and tenures B Many individuals occupy various posts in the BCCI for multiple terms and on multiple occasions, without any ceiling limit. There has even been an instance of a former President later becoming the Treasurer. i. No disqualifications c There appears to be no ground on which an office bearer has to demit office. No principles of conflict of interest, of age, of conviction by a criminal court or of holding an office under the Government has been laid down to disqualify an office bearer. Solutions D The governance of the BCCI must be decentralised. No individual is more important than the institution, and so all crucial powers and functions hitherto bestowed exclusively on the President will have to be divided across the governing body, which is to be known as the Apex Council (with a special E and separate governing body for IPL, known as IPL Governing Council) . .The issue of competence regarding those managing the game has to be addressed by bringing in professional managers and area experts, a the111e which is discussed in detail in F Chapter three. As the zonal rotation policy is without any rational basis, and as it has been decided to keep the State as the unit to beco111e a Full Member. it is consistent to have a president who is elected from among the Full Me111bers, so that the best G and most competent person is selected. The provision for five Vice-Presidents is detri111ental to efficiency and efficacy and so only one Vice-President shall be elected to the Apex Council in the same manner as the Secretary, Joint Secretary and Treasurer. The Apex Council should have a fair mix of elected H

BOARD OF CONTROL FOR CRICKET v. CRICKET 639 ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

representatives and independent members. It is recommended that it shall be a nine-member body. The five elected Office Bearers of BCCI (President, Vice-President, Secretary, Joint Secretary and Treasurer) shqll be the members -of the Apex Council. In addition, the Apex Council shall have four other 'Councillors' - two (one male, one female) to be nominated by the Players' Association which is to be formed, one to be elected by the Full Members of BCCifrom amongst themselves and one to be nominated by the Comptroller & Auditor General of India. These measures address the following concerns: a. Transparency is brought in, and independent voices are heard in the governance of the BCCI for the first time; b. The public are the primary stakeholders in the game while its players form its very core. Their involvement through these representatives is most deserving and long awaited c. As women are nearly half the population of the country, the anomalous fact that they do not have a voice in the governance of the sport that has a 'billion hearts' beating for it is now rectified. d. The nominee of the C&AG also brings financial and audit experience which would bring in much required oversight into monitoring the finances of the BCCl e. It continues to ensure a strong say for the Full Members, as it provides that two-thirds' strength on the Council is made up of their representatives. In order to ensure that the posts are not treated as permanent positions of power, each term should be for three years. The total period for which a person can be a member of the Apex Council shall be nine years regardless of the capacity in which suci? position was or is occupied. However, in order to ensure that there is an appropriate cooling-off period, no person shall be a member of the Apex Council for two consecutive terms. Any elected Councillor shall stand automatically disqualified after nine years as an office bearer, and shall also be disqualified from contesting or holding the post if he has completed the age of 70 years, is charged under the penal law, is declared to be of unsound mind, is a Minister H

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A or government servant or holds any post of another sports body in the country. Any nominated Councillor however. would not have more than one term in office. The endeavour in this regard is to filter those who are able and enthusiastic to govern the game that is the national passion.

18Copy pinpoint18. In Chapter three of its report the Committee has examined BCCJ's need for reform in its cricketing and non cricketing management with the help offull time professionals with established skill-sets reporting systems, high-level IT solutions etc. The Committee has recommended. that non-cricketing management ought to be handled by professional managers headed by a Ch iefExecutive Officer at the top. Pure cricketing c matters like selection, coaching and performance evaluation could however be left exclusively to ex players who have greater domain knowledge. Jn so far as umpiring is concerned the same could be handled exclusively by umpires. The Committee has with that objective recommended the following structure in place of the current management D which is ill equipped to deal with issues of cricketing and non-cricketing management, thereby, adversely affecting its performance. The flow chart of the Management structure recommended by the Committee is as under:

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F

G

H

BOARD OF CONTROL FOR CRICKET v. CRICKET 64 I ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

19Copy pinpoint19. The Committee has out of the existing Committees A recommended the continuance of two standing Committees namely; (I) Senior Tournaments Committee and the (2) Tours, Fixtures and Technical Committee for the purpose of providing guidance and advice to the CEO and his Managers.

20Copy pinpoint20. In Chapter four of the report the Committee has discussed B matters relating to Indian Premier League and recommended that the franchisee companies who are responsible for fostering competition and making revenues deserve to be given a role in the governance of the IPL. The Committee has opined that the IPL Governing Council needs to be reconstituted with more autonomy, comprising not only representatives of the Full Members, but also of Franchisees, Players C and an independent auditor. In addition the Committee has recommended that the Committee I Commission to be appointed under the IPL Regulations (Anti Corruption Code, Code of Conduct, Operational Rules, etc.) ought to consist of members selected by a panel of the Ombudsman, the Ethics Officer and the CEO which shall be presided over by the D Ombudsman thereby ensuring independence from the BCCI. 2 I. Chapter five of the report recommends two initiatives viz. (i) An Association of Players and (ii) a strict set of procedures to govern players' Agents. The Committee notes that while almost all Test playing nations have a Players' Association, there has been some reluctance on E the part of the BCCI to initiate such a move, ostensibly due to the apprehension of unionisation. Similarly, both England and Australia have agents' accreditation systems in place to ensure that only those professionals who qualify through a rigorous knowledge and ethics selection process alone represent the players. These systems are administered by the National Board in conjunction with the respective F Players' Associations. The Committee accordingly recommends setting up of a Players' Association with a Steering Committee comprising four persons named in the Report. It has also proposed norms for agent's registration to be administered by BCCI in consultation with the Cricket Players' Association. G

22Copy pinpoint22. In Chapter six the Committee deals with Conflict of Interest and Issues Central to the Regulation of Ethical Conduct in sport. The Committee has spelt out specific types of Conflict oflnterest, and applied them to individuals employed with, or connected to the BCCI with the recommendation that every Office Bearer, Player, Councillor, Employee, H

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A Administrator, Team Official, Umpire or other person connected to the BCCI, its Members or the IPL and its Franchisees is mandated to avoid any act or omission which is, or is perceived to be, likely to bring the interest of the individual in conflict with the interest of the game of cricket.

23Copy pinpoint23. In Chapter Seven, the Committee has dealt with need for B Ombudsman, Ethics and Electoral Officer. The Committee notes that several disputes that exist within the BCCI are born out of years of apathy in governance and gross mismanagement. The Committee has found that the relationship between the Associations, on the one hand, and the BCCI, on the other, has rarely been equitable and balanced, with the latter exercising its hegemony over the former. The Committee has c therefore recommended moderation of such relationship in an objective manner. The Committee has referred to the problems of disgruntlement and litigation in the States of Bihar, Rajasthan, Delhi and Jammu and Kashmir. The Committee has found that absence of suitable dispute resolution mechanism has compounded the situation. Even the arbitration D system that has hitherto existed has been found to be insufficient and palpably inappropriate when two unequals are pitted against each other, especially with the State associations remaining beholden to the Board for matches, grants and revenues. In order to reduce the judicial role and the burdening of the courts and to expedite dispute resolution, the Committee has recommended the appointment ofa retired Judge of the E Supreme Court or a former Chief Justice of a High Court as the Ombudsman of the BCCI, to be appointed once a year at the Annual General Meeting to investigate any complaint received by him/her or suo motu and to resolve any dispute between the Board and any of the above entities or among themselves by following the principles of natural justice, production of evidence and fair hearing. So also the Committee has recommended an Ethics Officer for monitoring adherence to the principles governing avoidance of Conflict oflnterest. The Committee has recommended that Ethics Officer shall have powers inter alia of laying down of additional guidelines or bye-laws on ethics, initiation of investigation or adjudicatory proceedings and the award of warnings, fines, reprimands, suspensions or other action as may be recommended to the BCCI. According to the recommendation all non-IPL ethics issues shall be administered and adjudicated by the Ethics Officer who shall be a former Judge of the High Court to be appointed by the Board. Recommendation for appointment of an Electoral Officer for conducting elections of the Committee under the Rules has also been made by the

BOARD OF CONTROL FOR CRICKET v. CRICKET 643 ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

Committee. The Committee has recommended that in order to ensure competence and to distance the entity from any suspicion or bias, a former Election Commissioner for India could be appointed as the Electoral Officer for the BCCI, whose decision on any subject relating to elections shall be final and conclusive.

24Copy pinpoint24. In Chapter eight of the report, the Committee has dealt with issues touching transparency and oversight and has noted that BCCI in its website did not carry the existing constitution or the bye-laws of BCCI. The Committee has taken cognizance of complaints of many stakeholders that very little of the functioning of the BCCI is done in a fair and transparent manner and that those who seek greater information are either rebuffed by the Board or won over by enticements. The Committee has observed that those whose professional livelihood depends on cricket acknowledge the BCCI's total sway over the sport, and choose to remain silent rather than upset the apple cart. The Committee, therefore, recommends that players and the public, ought to have access to all rules and regulations, codes and instructions of the BCCI in English and D Hindi and that the same should be uploaded on the official website of the BCCI. The Committee further notices that the commercial angle has overtaken the enjoyment of the sport, with advertisements continuing many a times even after the first ball and again commencing even after the last ball is played thereby interrupting the full and proper broadcast of the game. Regardless of the wicket that has fallen, century having been hit or other momentous event, full liberty is given by BCCI to the broadcasters to maximize their income by cutting away to commercial, thereby robbing the sport of its most attractive attribute-emotion. The Committee, therefore, recommends that all existing contracts for international test and one-day matches be revised and new ones to ensure that only breaks taken by both teams for drinks, lunch and tea will permit the broadcast to be interrupted with advertisements as is the practice internationally. The Committee has, further, recommended that the entire space of the screen during the broadcast will be dedicated to the display of the game, save for a small sponsor logo or sign. G

25Copy pinpoint25. The Committee has further found that there is need for better financial management and expenses or professional services. Keeping in mind that BCCI is not for profit, the Committee recommends that resources must be used for the development of the game and financial prudence must be exercised to avoid any unnecessary expenditure. H

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26Copy pinpoint26. The Committee also records a finding that there are no standard norms, objectives and criteria for selection and empanelment of professionals in the field of law, audit, etc. Similarly infrastructure contracts, media engagements, television rights and supply of equipments are not regulated by any norms or procedures to ensure a fair and transparent selection and engagement of the contractors and service B providers. The Committee, therefore, recommends that clear principles of transparency need to be laid down and that all rules, regulations and office orders of the BCCI, the Constitution of the various committees, their resolutions, their expenditures on the various heads, the reports of the Ombudsman, Auditor, Electoral Officer, Ethics Officer and the annual c reports and balance sheet be uploaded on the BCCI Website. 2 7. The Committee further recommends that norms and .procedures ought to be laid down for the engagement of service professionals and contractors, and full transparency of all tenders floated and bid invited by or on behalf of the BCCl will also be maintained. The D Website shall also have links to the various stadia with seating capacities and transparent direct ticketing facilities.

28Copy pinpoint28. The Committee has opined that people of the country have a right to know the details about the functions of the BCCI and its activities and recommends to the legislature to bring BCCI within the purview of E the RTI Act as a public authority.

29Copy pinpoint29. More importantly, the Committee has recommended that the auditors engaged by the BCCI should be tasked to not only undertake a financial analysis but also a performance audit (Compliance Report) to determine whether State associations have actually expended their grants· F towards the development of the game and mark them on a report card which may be utilized to determine the financial support they deserve the following year. This oversight also needs to be considered in the opinion of the Committee because of the high and unreasonable expenditure incurred by the Board under various heads which deserves to be limited and streamlined. G

30Copy pinpoint30. In Chapter Nine of the Report, the Committee has dealt with the menace of match fixing and betting. The Committee has noted that there is a fundamental difference between betting and match/ spot fixing. While the latter interferes with the integrity of the game and attempts to change the course of the match, the former is a general malaise indulged by different sections of the society not only with reference to cricket but

BOARD OF CONTROL FOR CRICKET v. CRICKET 645 ASSOCIATION OF BIHAR [T. S. THAKUR, CJ!]

other games also. The Committee considers the match/ spot-fixing as unpardonable and opines that the only way to deaL with the same effectively is to make it punishable by law. The Committee in that regard recommends appropriate amendment by the legislature.

31Copy pinpoint31. As regards betting, the Committee has on the basis of responses and opinions tendered before it, recommended to the legislature to make the same legal with certain safeguards enlisted in the report. While saying so, the Committee has taken the view that betting by Administrators, Players, Match Officials, Team Officials, Owners, etc., should continue to be an offence under the BCCI and IPL Rules and Regulations. The Committee has made certain recommendations to fulfill the need to educate and sensitize young players and debutants about the game ethics c and the need to inculcate discipline and integrity among players. It has additionally suggested certain measures like preparing Cricketers Handbook for young players, arranging lectures and interactions with cricket players and sport persons of unimpeachable integrity with regard to game ethics and also setting up of Integrity Unit consisting of former cricket players of repute, committed to the cause of cricket, to act as mentors for the young players.

32Copy pinpoint32. The Committee has in addition recommended preparation of a database of undesirable elements (bookies, fixers, etc.,) to be shared with the players and team officials. It has also emphasized the need for verifying and ascertaining whether the person controlling the prospective franchisee has any criminal antecedents.

33Copy pinpoint33. In Chapter Ten of the Report the Committee identifies several other problem areas that call for reform. These problems have been identified and elaborated under the headings 'Membership and Privileges, F Posts and Tenures, Voting, Compliance, Expenditure and Infrastructure, Lack of Professionalism, Dual Posts, Interference in Selection and Transparency. The Committee has, after an elaborate discussion under each one of the above headings, proposed solutions to the same in the following words: G "Solutions There was a consistent view among respondents to the queries that many of the ills befalling Indian cricket find their roots in the State Associations and their lack of administration. The . root cause for the problem is that the BCCI is making H

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\ A substantial annual grants regarding which there is no oversight, and so the status quo remained as it was, with little effort by the provincial administrators. Therefore, it is necessary that there is uniformity in the constitution and functioning of the various associations B (without any office being created for life), that membership of social clubs be divorced from the administration of cricket which is a sombre task, that cricketers be made members and have a say in governance and that management be made professional. The State Associations must also create avenues to generate revenue, improve inji·astructure and develop the c sport, all of which will be marked through a detailed report card. There also has to be an audit and independent oversight of how resources are allocated and spent. It is necessary that all State Associations immediately transition to the use of tamper-proof accounting software which either does not permit alterations or which records all alterations made. The conflicts that arise by holding office both at the BCCI and in the State Associations ought to be brought to an end by automatic vacation of post at the local level when elected to the BCCI. Also, certain disqualifications have to be laid down that apply to those who seek office in the State Associations, along with limits on their tenures and terms. Corrective measures are to be brought into place so that professional managers will interface with the State Governments and attempt to rectify any prevailing shortfalls or drawbacks as far as infrastructure and permissions are concerned. The electoral process will have to be transparent and independent, for which an Electoral Officer (a retired Central or respective State Election Commissioner) will have be appointed. In the event that no such person is available, any other former State Election Commissioner, preferably from a neighbouring State may be appointed. This officer would conduct and supervise the entire process of elections from the filing of nominations to the declaration of results and the resolution of any disputes and objections during the election. H It is also necessary to have an independent selection committee

BOARD OF CONTROL FOR CRICKET v. CRICKET 64 7 ASSOCIATION OF BIHAR [T. S. THAKUR, CJI]

in which the Governing body of the State Association will A have no say, and also for the cricket committees manned only by former players to have an independent say on coaching and evaluation of team performance, apart from the selection of players. The policies of BCCI regarding dispute resolution and Conflict B of Interest, as well as the norms for Agents' Registration will have to apply to the State Associations as well. In order to administer this, the associations may also appoint an Ombudsman-cum-Ethics Officer. It would be open to multiple States to have a single Ombudsman I Ethics Officer so as to C reduce expenditure. The person so appointed shall be an eminent person well versed in adjudicatory processes and it will be his/her task to decide all disputes between the Association and any of its constituents (Districts, Clubs, etc.), or between the constituents, or complaints of any player or member of the public, by following the principles of natural D ;ustice before rendering a decision. As Ethics Officer, it shall be his duty to administer the principles of Conflict of Interest and recommend such action as may be deemed fit as far as an Office Bearer, Employee, Player, Team Official or other individual connected to the E State Association is concerned. Needless to say, if it is an issue that concerns the BCCI as well, the Ethics Officer of the BCCI shall proceed to decide the issue. The Ethics Officer shall also decide all issues concerning the violation of the Agents' Registration norms as far as players of the State are concerned. F

Each State Association will necessarily have a website that carries the following minimum details: a. The Constitution, Memorandum of Association and Rules & Regulations, Bye-Laws and Office Orders and directions G that govern the functioning of the Association, its Committees, the Ombudsman and the Ethics Officer. b. The list of Members of the Association as well as those who are defaulters. c. The annual accounts & audited balance sheets and head- H

648 SUPREME COURT REPORTS [2016] 8 S.C .R.

A wise income and expenditure details. d. Details of male, female and differently abled players representing the State at all age groups with their names, ages and detailed playing statistics. e. Advertisements and invitations for tenders when the B Association is seeking supply of any goods or services (exceeding a minimum prescribed value), or notices regarding recruitment, as also the detailed process for awarding such contracts or making such recruitments. f Details of all goals and milestones for developing cricket c in the State along with timelines and the measures undertaken to achieve each of them. g. Details of all office bearers and other managerial staff (including CEO, COO, CFO, etc.)

D h. Details of directives from the BCCI and their compliances. These websites will have to be maintained and updated at least on a quarterly basis. All the above information will have to be maintained at the registered office ofthe State Association and when sought, the same shall be shared with the applicant on the payment of a reasonable fee, as may be prescribed by E the Association. The cost of construction of a stadium runs into hundreds of crores. On the other hand, formation of a cricket playing ground costs a small fraction of the cost of a stadium. It makes more sense to have cricket playing grounds in each District, F rather than having one 01· two stadia in a State. In fact, the Committee learns that some members are merely collecting the grants from BCCI and depositing them in a Bank so as to accumulate sufficient funds necessary for taking up construction of a stadium. The result is some smaller States G have neither a stadium nor well developed cricket playing grounds. BCCI should therefore encourage the State Associations to: a. Have as many cricket playing grounds and fields instead of multiple stadia, which will enable greater usage and access to greater number of players.

BOARD OF CONTROL FOR CRICKET v. CRICKET 649 ASSOCIATION OF BIHAR [T. S. THAKUR, CJ!]

b. Convert existing grounds and fields into turf wickets so that international standard facilities are made available even from a young age. c. To make the existing stadia amenable to other sports by providing for alternate surfaces to be laid (Astroturf for hockey, Carpet for tennis, etc.) so that income may be generated and there would be all round development of sport, care being taken not to damage the pitch. But they should not be used for public functions where thousands will stomp on the ground. The above recommendations relating to State Associations C (Full Members) will also be applicable to the 4 associations relegated to the category of Associate Members and who are entitled to disbursement of the grant from the BCCJ. "

34Copy pinpoint34. The refonns recommended by the Committee have been finally summed up under the heading "End of the Innings" in the following words: "END OF THE INNINGS If there has been one unifying factor in India, it has been cricket. From C.K.Nayudu to Virat Kohli, the 32 captains of India and the men they have led have been equally deified and vilified by the masses, for such is the ability of the game to inflame passions. It is on behalf of these devotees of willow and leather that this Committee submits this effort to edify the BCCJ. Jn an effort to present the recommendations made by the F Committee in brief, the fo!!o .. i11g synopsis of our proposals are set out:

1. Membership 'One State, One Vote' G Only cricket Associations representing the States would have voting rights as Full Members of the Board, thereby ensuring equality among the territorial divisions. Any other existing members would be Associate Members.

2. Zones H