Charges against Sreesanth and co dropped: Make match-fixing a crime for just investigation
India needs a law that makes it a crime to fix matches or passages of play. Such a law will make it much easier to investigate and prosecute these acts.
More than two years and two months after Sreesanth, Ankeet Chavan and Ashok Chandila of the Rajasthan Royals were paraded before the media by the Delhi police, a Delhi trial court on Saturday dropped all charges against the three cricketers.
It had always seemed pretty far-fetched that cricketers accused of fixing matches or passages of play could be prosecuted under the Maharashtra Control of Organised Crime Act (MCOCA), a law meant to combat organised crime and terrorism.
This law conferred on the police investigative powers that they did not have under ordinary criminal law. But even with these enhanced abilities, the prosecution was not able to establish any of the main ingredients of a crime under this law - "continued unlawful activity" or membership in an "organised crime syndicate".
Match-fixing under Indian criminal law
Establishing charges under the MCOCA bears some similarity with establishing a criminal conspiracy under the Indian Penal Code. Both require the prosecution to first establish some "crime". The problem however, is that no Indian criminal statute specifically defines any of the acts involved in fixing a match or a passage of play as a crime.
The CBI, in its report about the match-fixing scandal in 2000, had said that only the Prevention of Corruption Act could conceivably be used to prosecute match-fixing. Prosecution under this anti-corruption law hinges on whether the accused person performed a "public duty". Perhaps cricketers representing the country can come within its ambit but its use in the context of a cricketer representing a franchise is quite likely to be futile.
The offences of "cheating" and "cheating and dishonestly inducing delivery of property", which are defined in Sections 415 and 420 of the IPC respectively, have also been put forward in the context of match-fixing and spot-fixing.
Both offences however, require the prosecution to show that a victim, (1) on being deceived by the accused, (2) parted with some property, and (3) that the accused had a "guilty intention" at the time that the victim parted with the property. It would need a very convincing prosecutor and a credulous judge to establish all these elements of these crimes in relation to allegations of match-fixing or spot-fixing.
This is a serious gap in our criminal statutes. Match-fixing and spot-fixing threaten the unpredictability that is the very soul of sport. The criminal justice system plays a key role in the fight against match-fixing because there is very little that governing bodies like the BCCI can do to investigate and punish the organised crime syndicates involved.
However, as far as errant players are concerned, cricket’s governing bodies can punish very effectively by truncating careers and expunging records. Sreesanth and Chavan remain suspended from representative cricket for life following an order of the BCCI’s disciplinary committee, comprised of then president N. Srinivasan and then vice-presidents Arun Jaitley and Niranjan Shah. The committee’s order was based on a report by the BCCI’s anti-corruption chief Ravi Sawani.
It is not entirely clear from the media reports of September 2013 whether the disciplinary committee made its order under the BCCI’s anti-corruption code. The code defines offences such as "corruption" and "betting", outlines the procedure using which these offences have to be established, and the maximum punishments that may be awarded once they have been established.
Saturday’s trial verdict, which only establishes the trio’s innocence under MCOCA, will not automatically influence the suspensions meted out by the BCCI. Those punishments originate from BCCI’s position as the top governing body for cricket in India and its power to lay down the conditions under which the sport is played professionally. These are parallel jurisdictions.
In 1980, when a match-fixing scandal broke out in Italian football, the football federation opened an inquiry through a magistrate named Corrado De Biase. Not long after, courts in Rome received information about matches fixed during the previous year and a nationwide police operation followed. Several footballers, including Paolo Rossi, the golden boy of Italian football, were arrested.
A month after the arrests, Rome’s chief prosecutor charged 38 people, including 33 players, with aggravated fraud. On the same day, Mr. De Biase found 21 people and 11 clubs guilty of various offences under the football federation’s rules.
After these sentences were confirmed on appeal, football teams Lazio and A.C. Milan were relegated to a lower division. In the state trial however, all the accused were acquitted because Italian law did not provide for the offence of 'sporting fraud' at that time.
Different sport, different country, but thirty-three years later, history may have repeated itself to underline the folly of not having a criminal statute to deal with match-fixing and spot-fixing.
Italy legislated to make "fraud in sports competitions" a crime in 1989. Not long after the scandal broke in 2013, the Union Law Minister at that time promised a new law to tackle match-fixing and spot-fixing. That never materialised. The new government too, it would seem, has other priorities.
India needs a law that makes it a crime to fix matches or passages of play. Such a law will make it much easier to investigate and prosecute these acts. If this were not reason enough, the injustice of three cricketers spending time in jail under a statute that was never meant to be used to fight match-fixing should motivate the government to act.
(Aju John is part of the faculty at myLaw.net, where he teaches courses on Sports Law and Media Law)
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