Explained: Should BCCI Come Under the RTI Act?

Why has the Law Commission of India recommended that BCCI be brought within the purview of the RTI Act?

The Law Commission of India recommended that BCCI be brought within the purview of the RTI Act.

(Photo: Shruti Mathur/The Quint)

The Law Commission of India has been recommending legal reforms since 1834. In its 275th report, released in April 2018, the commission recommended that the Board of Control for Cricket in India (BCCI) be brought within the purview of the Right to Information Act 2005.

The RTI Act applies to ‘public authorities.’

Before understanding how the Law Commission came to the conclusion that the BCCI falls within that definition of ‘public authority,’ and hence the purview of the RTI Act, let us understand the chain of events that led to the commission looking into this issue.

How it Began

In 2015, the Supreme Court passed a judgment where it found the functions of the BCCI to be, by their very nature, ‘public functions’ but held that the BCCI may not be a ‘state’ under Article 12 of the Constitution. It was the same judgment vide which the Lodha Committee – formed to suggest reforms in the BCCI – came to be constituted (paras 117-120).

The Lodha Committee came out with a report (dated 18 December 2015) recommending several steps and measures to streamline the working of the BCCI.

The Committee found the BCCI to be lacking in fairness and transparency and proposed measures to ensure transparency. It felt that the people of the country have a right to know the details about the BCCI’s functions and activities.

Thus, it recommended to the legislature to consider bringing BCCI within the purview of the RTI Act.

In July 2016, the SC passed another judgment accepting most recommendations of the Lodha Committee. With respect to the recommendation to bring BCCI within the purview of the RTI Act, the SC had the following to say:

“We are not called upon in these proceedings to issue any direction in so far as the above aspect 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.” (emphasis supplied)

“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.” (para 93)

It is in this context that the Law Commission has come out with the 275th Report that analyses the legal status of BCCI. The following are the questions that then arise.

What is the Legal Status of BCCI According to the Law Commission?

BCCI Should Be 'State' Within the Meaning of Article 12

As mentioned above, the SC held that BCCI may not be a “state” under Article 12 of the Constitution of India.

The Law Commission has however, described BCCI as a “‘state-like’ entity” wielding “‘State-like’ powers”. They arrived at this conclusion because of the BCCI’s power to select the Indian cricket team and formulate policy related to cricket, BCCI’s status as the official body representing India at the ICC, BCCI’s political significance, etc.

The Law Commission has noted that an analysis of the functioning of the BCCI also shows that the government does exercise control over its activities and functioning.

BCCI Performs 'Public Functions'

Consistent with the finding of the Supreme Court, the Law Commission has found that the nature and character of the functions performed by the BCCI are public. With respect to regulation of cricket in India, no such legislation exist. The BCCI regulates the game and makes laws to that effect.

The BCCI’s actions/decisions impact the fundamental rights of the players, umpires and the citizenry in general.

The body enjoys a monopoly status in the cricketing domain, which is recognised by the Union government as well as the ICC, the international governing body of cricket.

BCCI is a National Sports Federation

The Law Commission has found that the BCCI operates and functions as the NSF for cricket. The Law Commission notes that NSFs organise national/international tournaments in the country, select sportspersons/teams, send them for training and participation in international tournaments abroad, organise training/coaching under renowned Indian and foreign coaches and in relation to cricket, BCCI exclusively performs/undertakes these activities on behalf of India.

The BCCI’s Memorandum of Association also states that its objects and purposes are to control, improve quality and lay down policies pertaining to the game of cricket in India as well as to select teams to represent India at international fora. The Law Commission thus concludes that the BCCI should also be treated as a ‘public authority’ in terms of the RTI Act.

BCCI Is Substantially Financed by the Government

The central government and state governments do not extend any direct financial assistance to BCCI.

However, the Law Commission found that, they have been giving financial assistance in other forms and manner such as granting concessions in income tax, customs duty etc, providing land at excessively subsidised rates, and allowing the use of their infrastructure among others.

According to the Commission, if the government is foregoing a significant amount of money (in the form of tax or other levy) – which otherwise would have been deposited in the National/State Exchequer, and would have been ‘public money’ – it would qualify as indirect “substantial funding” by the government.

Further, allowing the BCCI to have monopoly in the game of cricket – authorising BCCI to raise funds/generate resources from numerous other sources, funds and resources, which otherwise could have been directed to the national/ state Exchequer – also amounts to ‘substantial financing’ according to the Law Commission.

How or Why Does BCCI Come Within the Purview of the RTI Act?

As explained above, as per the Law Commission’s analysis, the BCCI ought to be classified as ‘State’ within the meaning of Article 12 of the Constitution. The threshold for ‘public authority’ being lower than that of ‘State’ under Article 12, the Law Commission recommends that BCCI should be covered under the RTI regime.

The RTI Act applies to ‘public authorities’, which includes any “non-government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government” (S.2(h) of the RTI Act). Thus, even if BCCI is continued to be regarded as a private body, BCCI can be a ‘public authority’ within the purview of the RTI Act in view of the Law Commission’s findings regarding BCCI’s monopolistic character, the public nature of its functions and the ‘substantial financing’ it has received from appropriate Governments over the years (in the form of tax exemptions, land grants et al).

The other relevant factors considered by the Commission are as follows:

• The uniform of the players of the Indian team (as selected by BCCI) contains the national colours and their helmets display the Ashok Chakra.
• BCCI, though not a NSF, nominates cricketers for the Arjuna Awards etc.

• The Parliament and the State Legislatures chose not to enact a legislation to govern the sport of cricket reflecting tacit recognition on the issue afforded to BCCI. The SC has also reaffirmed that BCCI is the “approved” national level body holding virtually monopoly rights to organise cricketing events in the country.

What Has the Law Commission Recommended?

• BCCI be viewed as an agency or instrumentality of State, under Article 12 of the Constitution, thereby making it amenable to the writ jurisdiction of the Supreme Court under Article 32 (This means that an aggrieved person can approach the SC directly against BCCI and BCCI will be held to the higher standards that Government bodies are held to).
• BCCI should be held accountable, under all circumstances, for any violations of basic human rights of the stakeholders. 

• BCCI should be listed as a NSF covered under the RTI Act.
• RTI Act be made applicable to BCCI along with all of its constituent member cricketing associations, provided they fulfill the criteria applicable to BCCI, as discussed in the Law Commission’s Report.

Does This Mean BCCI Has Now Come Under the Purview of the RTI Act?

No. The Law Commission merely recommends reforms. In view of the Law Commission Report, the Legislature may consider listing BCCI as a NSF or bringing any other legislative reforms consistent with the Law Commission’s recommendations.

As explained above, in 2015 the Supreme Court held that BCCI may not be “State” under Article 12 of the Constitution of India.

On the issue of the applicability of the RTI Act to BCCI, in 2016 the SC did not consider it necessary to say anything beyond suggesting that the Law Commission of India examine the issue and make a suitable recommendation to the Government.

The Law Commission has examined the issue and given its recommendations to the Government. The Courts may take into consideration the Law Commission’s report the next time the issue of whether BCCI is “State” under Article 12 of the Constitution of India and whether BCCI comes within the purview of the RTI Act comes up before the Courts. In this regard, it is worth noting that the BCCI matter is still pending before Supreme Court and last year the Supreme Court set up a Committee of Administrators to supervise and control the functioning of office bearers.

However, until such time as any legislation is brought into force or the Courts decide that the BCCI is “State” under Article 12 of the Constitution of India or comes within the purview of the RTI Act, the BCCI will neither be considered “State” under Article 12 of the Constitution of India nor will it fall within the purview of the RTI Act.

What Will Be the Consequences If BCCI Comes Within the Purview of the RTI Act?

If BCCI comes within the purview of the RTI Act, all its decisions – whether regarding team selection, organisation of events, team trainings or sending teams for competitions, can be the subject of RTI enquiries. Records, board meeting minutes, documents, opinions, emails, contracts etc would be subject to such enquiry. The consequence may be greater transparency in the functioning of the BCCI which was the objective of the Lodha Committee Report.

(The author is a Delhi High Court advocate.)