Thursday, September 8, 2011

If the BCCI is officially a private body, how can the cricket team it selects be the officialnational team?


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If the BCCI is officially a private body, how can the cricket team it selects be the officialnational team?
September 07, 2011 01:01 PM Bookmark and Share
Vinita Deshmukh
bcci2
Why are some heavyweight politicians opposed to the Board of Control for Cricket in India coming under the purview of the RTI Act, as proposed in the new Sports Bill presented by the sports minister? Curiously, while the BCCI fights to keep its financial affairs out of public scrutiny on the grounds that it is a private body, it declares itself a charitable institution to secure tax exemption
"The government's charge against Anna Hazare's movement was that it was steered by a group of private individuals, so how can they represent India. In the same context then, how has the government remained tight-lipped about a private body like the BCCI representing India in cricket? If BCCI represents India, then it must come under government control. And therefore, logically, BCCI should be a public authority, accountable under the RTI Act,'' said Central Information Commissioner Shailesh Gandhi, when MoneyLife asked him for his comments on the matter ofheavyweight politicians, who head various sports federations, and their vehement opposition to the BCCI being included under the purview of the RTI Act in the new Sports Bill presented by sports minister Ajay Maken.

Curiously, while the government has time and again thrown up its hands on the issue of transparency and accountability of the BCCI (Board of Control for Cricket in India), last September it allowed attorney general GE Vahanvati along with his junior advocates, Naila Jung, Nishanth Patil, Anoopam Prasad and Rohit Sharma, and Tamil Nadu advocate general PS Raman, to appear on behalf of the BCCI. The case pertained to a complaint filed by AC Muthiah, former president of the BCCI, challenging the bid by N Srinivasan, current president of the BCCI, for the IPL franchise of Chennai Super Kings to India Cements company, as a breach of the cricketing body's rules that prohibit its office-bearers from engaging in conflict of interest activities. If the BCCI is a private body, how come the government's high-profile attorney general fights its case, especially when the government rules of 1987 prohibit government law officers from appearing for private parties?

Delhi-based RTI activist Subhash Chandra Agrawal had invoked the Right to Information (RTI) Act on the rules and regulations of the government's law officers in the context of the attorney general fighting a case for the BCCI, and he sought copies of the correspondence between the law ministry and the attorney general on this matter. When he did not get a reply, he appealed to central information commissioner (CIC) Sushma Singh.

The CIC directed the law ministry to provide details on how it allowed its attorney general to appear for the BCCI in his private capacity. She also rejected the law ministry's argument that its correspondence with the attorney general is confidential. This is because in another case where additional solicitor general AS Chadhiok appeared privately on behalf of a private power distribution company in Delhi, in 2010, the ministry had provided copies of the show-cause notices issued to Mr Chandhiok under the RTI Act; so why should the correspondence with Mr Vahanvati be kept secret?

The CIC ruled the in Mr Agrawal's favour, saying that "the appellant be provided the information within four weeks free of cost."

In another case, Dwarka-based RTI activist Rejimon CK, president of Dwarka Forum, had filed an RTI application to Deepika Kachhal, public information officer and director sports, regarding the BCCI, but she declined to give information saying that the BCCI is not a public authority. On 23 March 2010, Mr Rejimon filed his first appeal to Injeti Srinivas (JS Sports) asking for the following information:
  •  As per information of the Department of Sports, has the BCCI implemented section 4 of the RTI Act 2005. If so please provide details of 17 manuals available online, including PIO.
  •   Please provide the mandate given by the Government of India to the BCCI and its details.
    (i) The date on which the government recognised the BCCI as India's apex body
for cricket in India.
    (ii) Please provide the relevant approval detail by the government through the department website, under suo motto declaration, for larger public interest.
    (iii) Has the Ministry of Sports intervened in any matter related to the BCCI; if so under what provision did this happen?
  •  Please provide the list of government officials handling cricket matters and the BCCI in the Ministry of Sports since 2005.
  •  Please provide list facilities/invitation received from BCCI by government officials.
  •  Please provide the policy/procedure and documents to be submitted to get the approval of the government for an apex body and official authorisation to represent the country.
  •  Please provide the list of documents that the Ministry of Sports has received from the BCCI since its inception.
  • Has the ministry or the government received any funds from the BCCI and vice-versa?
  • Has the ministry or CAG investigated the financial matters of the BCCI?
  •   Please provide the procedure and method adopted by the ministry to ensure that sports like cricket, or sports bodies, are not misused for any personal benefit by any office-bearers and bring a bad name to the nation.
Mr Rejimon received the following reply:
The BCCI does not take any grant from this ministry and hence the ministry has not declared it as a public authority under the RTI Act 2005.
 The BCCI is an autonomous body registered under the Societies Act and does not take financial assistance from the government. The BCCI only seeks government approval for sending teams aboard and inviting foreign teams for participation in tournaments.
 No individual official is responsible for cricket matters. The entire sports bureau looks after the work relating to various disciplines including cricket. The contact details of department officials are available on the website of the ministry.
 No facilities/invitation received from BCCI by government officials.
 Please refer to the ministry website which gives details of all schemes including financial assistance for various purposes and the procedure to avail of the same.
The BCCI provides Rs50 crore to this ministry under the National Sports Development Fund. (In which year it gave this amount, is not clear in the reply.)
No, as BCCI has never taken any financial assistance from the government. (To the query on investigation by the CAG.)

Time and again the BCCI has been exempted from coming under the RTI Act. Way back in 2008, Nagpur-based RTI activist Anil Khare appealed to the Central Information Commission when his RTI application regarding various functions of the BCCI were not replied to. Here is the order of the information commissioner Padma Balsubramanian that allowed the BCCI to get away from public scrutiny.

"In the matter of Right to Information Act, 2005 - Section 18 
Complainant:  Shri Anil Chintaman Khare
Respondents: Board of Control for Cricket in India (BCCI)
Mr Niranjan R Shah, honorary secretary

Facts: 
The appellant sought for various information regarding the affairs of BCCI from the president of BCCI. Since he did not get any response, he addressed an appeal to appellate officer of BCCI. Since he did not get any response for this appeal also, he filed the present appeal.

Comments were called for from BCCI which has submitted that it is not a public authority in terms of Section 2(h) of the RTI Act. It has explained that BCCI is a Society registered under the Tamil Nadu Societies Registration Act, 1975, and is not established or constituted by or under the Constitution or by any other law made by parliament or any state legislature, nor has been constituted or established by notification issued, or order made by any government, nor it gets any funds directly or indirectly from any government and does not have any nominee on its board, nor is subject to audit by CAG.

It has also relied on the judgment of the Supreme Court in the Zee Telefilms Ltd vs Union of India (2005 4 SCC 649), wherein the Supreme Court has held that BCCI does not fall within the definition of an "authority" within the meaning of "state" under article 12 of the Constitution. In the rejoinder, the complainant has submitted that since BCCI is registered under the Societies Registration Act, it is a public authority in terms of the RTI Act. Further, since BCCI is getting a lot of tax benefits, it is answerable to the people of India. He has further stated that since the information sought is simple, BCCI should be directed to furnish the information.

Decision:
To bring any entity as a public authority within the ambit of the RTI Act, it has to satisfy at least one of the requirements of section 2(f). In the present case, the BCCI, as explained in its comments, does not fall under any of the categories stipulated in section 2(f). Registration under an act is different from being established under an act. Therefore, merely because BCCI is registered under the Societies Registration Act, does not bring BCCI under the purview of the RTI Act.

Accordingly, since BCCI is not a public authority in terms of section 2(f) of the Act, no direction can be given to the BCCI to furnish the information to the appellant and accordingly the appeal is dismissed.

Let a copy of this decision be sent to the appellant and CPIO.
Sd/-
(Padma Balasubramanian)
Information Commissioner

But there is a glimmer of hope for citizens. Subhash Agrawal and Alok Vashney had filed an RTI application to the BCCI early this year asking whether its officials are "public servants", beside seeking other information pertaining to the BCCI's functioning. When the BCCI did not respond, Mr Agrawal appealed to the CIC.

At the CIC hearing a few days back, advocate Rahul Mehra argued for the complainants that the BCCI was using several government-owned stadiums for cricket matches free of cost, or for a very nominal amount which amounted to "substantial funding" by the government. In the case of such substantial funding, this private body too should come under the purview of the RTI Act.
Interestingly, Amit Sibal, son of Kapil Sibal (one of the ministers who is vehemently opposed to the BCCI coming under the RTI Act as per the new Sports Bill), argued on behalf of the BCCI that various CIC decisions have declared that the BCCI is a private entity. The representative of the Ministry of Youth and Sports Affairs, though, cited the Kerala High Court case which ordered that since sport federations are required to perform public duties, they are also public servants. In fact, the Supreme Court has refused to interfere with the High Court's order. The CIC has put off a decision till 4th October, asking Mr Agrawal and Mr Vashney, as well as the BCCI to file written submissions.

Sports minister Ajay Maken, who presented the new sports bill that includes the BCCI under the RTI Act, has been criticised by ministers who have a conflict of interest as they head various sports federations. These include, Sharad Pawar, president of the International Cricket Council (ICC), Praful Patel, president of the All India Football Federation, CP Joshi, president of the Rajasthan Cricket Association, Farooq Abdulla, head of the J&K Cricket Association, Vilasrao Deshmukh, president of the Mumbai Cricket Association, and VK Malhotra, president of the Archery Association of India. During the historic peoples' movement steered by Anna Hazare, all these political leaders cried foul against the subversion of the supremacy of parliament. Now, where is parliamentary supremacy when transparency and public accountability are sacrificed for secrecy in the affairs of the BCCI? This is why we will require more leaders like Anna Hazare in the coming years to cleanse the system of corruption and nepotism.

(Vinita Deshmukh is consulting editor of Moneylife. She is also an RTI activist and convener of Pune Metro Jagruti Abhiyaan. She can be reached at vinitapune@gmail.com.)

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