How SC verdict on BCCI has pushed Indian sports towards accountability

With its much-awaited verdict in the case on IPL spot-fixing and conflicts of interest in the BCCI, the Supreme Court has gently guided India’s notoriously misgoverned sports governing bodies towards more accountability. Almost universally, the governance of sport is pulled in different directions by the need to be autonomous and the pressure to be accountable. [caption id=“attachment_2060473” align=“alignleft” width=“380”] The Supreme Court has gently guided India’s notoriously misgoverned sports governing bodies towards more accountability: Reuters[/caption] While autonomy of sport from the state (and religion and commerce too) has been a prized virtue, it has often been used to shield some abysmal governance. This is difficult to countenance because several important rights are at stake, including the basic livelihood of many athletes. This is especially true when a single body controls all the professional activity in a sport. The BCCI is just one of many governing bodies that have a monopoly over a sport. In that sense, they perform some ‘state-like’ functions and today, not for the first time, the Supreme Court had to place these bodies in the spectrum between completely private bodies (full autonomy) and completely public bodies (no autonomy). One suspects it might not be the last time. Governing sport, a public function? Nearly a decade ago, five judges of the Supreme Court held in Zee Telefilms and Another v. Union of India, that the BCCI did not come within the definition of ‘state’ in the Constitution of India as it was financially, functionally, and administratively independent of the government. While this ruling meant that the BCCI was not subject to the writ jurisdiction of the Supreme Court, the Court also observed that since many of the BCCI’s activities were similar to “public duties” or “state functions”, an aggrieved person could always seek a remedy under the writ jurisdiction of the high courts. Today, the Supreme Court probably went a step further. It extended the writ jurisdiction of high courts over such “non-state” bodies and held that the actions of the BCCI, as a body that fulfills public functions, would have to be judged by the same standards used to judge the actions of an instrumentality of the state, standards such as the principles of natural justice including the principle that no one can be a judge in his own cause. This Court used this principle to strike down the controversial amendment to some BCCI regulations that permitted N Srinivasan to be the President of the BCCI and have an interest in an IPL franchise at the same time. The writ jurisdiction of courts has roots in the need to maintain a balance between legislative, executive, and judicial powers. The constitutional courts have a duty to ensure that the exercise of power by public bodies is lawful. Writs enable the courts to fulfill their duty to annul any exercise of power by public bodies, which is incompatible with a higher authority such as the Constitution. It is an integral part of the system of checks and balances in a democratic form of government where there is a separation of powers. Over the past few decades, courts have had to calibrate this power to come to terms with an environment where private bodies are increasingly operating in areas of activity that were once considered the sole domain of sovereign power. The exercise of writ jurisdiction has in response, slowly expanded beyond bodies that were clearly instrumentalities of the state. Accountability through law In sport, the pressure to reform and become more accountable can come from various sources. Football for example has undertaken a slow process of reform, heeding calls for reform from the media and the fans of the sport. It could also arise from something we can call the “private law of sport”, that is, the relationship of mutual recognition between governing bodies at different levels - local, national, and global - and the international Olympic movement. Values exalted in the Olympic Charter and in the constitutional documents governing various sports - values such as non-discrimination and the human right to practice a sport - can thus inspire reform in the governing bodies of sport. Sport in India however, has not responded to calls for reform either from the public or from the network of agreements that bind it to the international Olympic movement. There is rampant corruption and administrative apathy and in cricket, which is probably among the best-governed sports in the country, there are glaring conflicts of interest at the very top of the administration. This is why the pressure to reform has come from a third direction - the law of the land. Of course, governing bodies who want to be autonomous will resist the introduction of greater accountability by force of law. [caption id=“attachment_2060475” align=“alignleft” width=“380”] With Indian sports bodies ignoring the usual pressures to reform, the SC had to step in[/caption] Opposition to the Sports Ministry’s National Sports Code, which among other things set out tenure and age limits for the office bearers of national sports federations, probably led to India’s suspension from the International Olympic Committee a couple of years ago. The BCCI had also refused to agree to come under the ambit of the Right to Information Act. Courts however, with their reputation for judiciousness and independence from the government of the day, have shown a different path to reform. In exercise of their writ jurisdiction, courts are expected to use a light touch, never substituting their decision-making for the decision-making of sports governing bodies and only checking the correctness of the decision-making process and not the correctness of the decision itself. The questions that the Supreme Court framed on the issue of the controversial amendment to the BCCI regulations are instructive – (1) whether the amendment was brought about by a competent body, (2) whether the amendment was brought about through the right process, and (3) whether the amendment fell foul of any statute or principle of law. Only on the last of these questions did the Court strike the regulation down, finding it to be in conflict both with the principles of natural justice and with “public policy”. On the evidence of today, constitutional courts acting in exercise of their writ jurisdiction seem like a useful device for pushing sports governing bodies towards better governance. Aju John is part of the faculty at myLaw.net, where he teaches courses on Sports Law and Media Law.