Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J. dismissed an appeal which was filed by Board of Control for Cricket of India (‘BCCI’), being aggrieved by the impugned judgment and order passed by the Employees Insurance Court at Bombay (ESI Court) dated 09-09-2021 where BCCI was held to be under the ambit of Employees’ State Insurance Act, 1948.

In the month of April-May 2011, the Board office was surveyed by the Insurance Inspector and it was communicated that the BCCI is covered under the provisions of ESI Act with effect from 01-01-2007 and it was allotted a Code number, indicating applicability of the provisions of ESI Act, 1948 to the Board. Subsequently, a notice was sent in proforma C-18 dated 01-07-2014, claiming contribution amount to the tune of Rs 5,04,075 as Employees State Insurance Contribution for the period commencing from May 2007 to March 2014.

BCCI, a society registered under the provisions of Tamil Nadu Societies Registration Act, 1975 in Central Chennai claims to be a National Government Body for Cricketand that since it is a governing body for cricket in India and its primary object is to administer, promote and control the game of cricket throughout the country, including women’s cricket and to encourage formation of State, regional and other cricket associations and therefore, it is not covered or registered as ‘shop’ under the provisions of Mumbai Shop and Establishment Act, 1948. It was the claim of the appellant that it is not primarily engaged or involved in any trading or commercial activities and therefore, by no stretch of imagination, can it be covered within the meaning of Section 1(5) of the ESI Act, 1948.

The Court perused the ESI Act, 1948 and explained that it seeks to attain maintenance of health of an insured workman, recognizing the right to medical benefit as a fundamental right under the Constitution and confer certain benefits upon the employee in case of sickness, maternity and employment injury and to make provision for certain other benefits. Thus, the enactment is intended to operate as a beneficial piece of legislation to attain general welfare of the employees.

The Court opined that the nature of the Board can be very well discerned from its Memorandum of Association and Rules and Regulations. The Court noted that a specific admission had come on record from the witness that the Board is receiving income from the IPL matches and IPL franchise team is also making payment of fixed percentage/share of their respective income to the Board.

The Court applied the analogy that was used in the case of Bangalore Turf Club Ltd. v. ESI Corpn., (2014) 9 SCC 657 where judicial meaning was assigned to the term ‘shop’ and held that on ascertaining BCCI’s nature, functioning and object, it can be seen that the appellant is carrying out a business/commercial activity and earn money out of the said activity.

Though the Memorandum of Association prescribe that the income, funds and properties of the BCCI shall be utilized and applied solely for promotion of objects of BCCI, to aid and assist financially, or otherwise to promote, encourage, advance and develop the game of cricket, the fact that the Board engages itself in it’s various activities as indicated above, being purely commercial in nature, there is no reason why the test as laid down by the Hon’ble Apex Court in case of Bangalore Turf Club Ltd (supra), shall not be applied to it since the matches arranged and supervised by the Board enjoy future viewership of entertainment and that too, for a consideration, i.e. on purchase of the tickets.

The Court dismissed the appeal and held that the nature of activities conducted by the Board are commercial in nature and hence, covered under the term ‘shop’ for the purpose of ESI Act and notification issued thereunder. The Court upheld the decision of the ESI court to hold that BCCI falls under the ambit of ESI Act.

[Board of Control for Cricket  v. Employees State Insurance Corpn., 2022 SCC OnLine Bom 1368, decided on 24-06-2022]


Advocates who appeared in this case :

Mr Aditya Thakkar with Mr Ranjit Shetty and Mr Rahul Dev (Argus Partners), Advocate, for the Applicant;

Mr Shailesh Pathak a/w Mr Jay Vora, Advocate, for the Respondents.


*Suchita Shukla, Editorial Assistant has reported this brief.

Income Tax Appellate Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Income Tax Appellate Tribunal (ITAT), Mumbai: A two-Member Bench of Pramod Kumar (Vice President) and Ravish Sood (Judicial Member) allowed the Board of Control for Cricket in India (“BCCI”) to continue with its registration under Section 12-A of the Income Tax Act, 1961 making it eligible for income tax exemption benefits. The main controversy arose regarding the commercial nature of the Indian Premier League (“IPL”) organised by BCCI, however, there is significant discussion on substantive law in the decision of the Appellate Tribunal.

Factual Matrix

BBCI challenged correctness of the order passed by the Principal Commissioner of Income Tax, Mumbai (“CIT”), rejecting its application for registration under Section 12-A(1)(ab) read with Section 12-AA of the Income Tax Act, 1961.

Notably, BCCI was duly granted registration under Section 12-A in 1996, which is yet to be cancelled or withdrawn. However, BCCI applied for fresh registration in wake of the amendment in its ‘memorandum of association, and rules and regulations’, to implement the recommendations of Justice R.M. Lodha Committee.

While rejecting BCCI’s application, the CIT took note of the amended Memorandum of Association (“MoA”) and inter alia noted that a specific clause was inserted for conducting Indian Premier League (“IPL”) matches, and concluded that “it can be easily concluded that activities of the applicant specially in relation to the IPL are in the nature of trade, commerce or business, and therefore, the applicant is squarely covered by proviso to Section 2(15) and hence applicant’s claim of being covered by the last limb, i.e. advancement of any other object of general public utility cannot be held to be charitable purpose”.

BCCI on the other hand contented that its activities are wholly charitable and genuine, and the element of profit in organising the IPL event does not vitiate its predominant character.  It was submitted that BCCI was in fact under no obligation to approach the CIT for fresh registration as the amendments did not even remotely affect its basic objects for which the registration was earlier granted; nevertheless it approached the CIT in deference  to the observations made by another Bench of the Appellate Tribunal to the effect that “the assessee society should approach the registering authority with the changes and amendments so that the authorities could examine as to whether the amendments in question meet the requirement of law”.

Law, Analysis and Decision

Application of S. 12-A(1)(ab)

Referring first to Section 12-A(1)(ab), the Appellate Tribunal noted that the true trigger for an application under that section has to be the modification of objects “which do not conform to the conditions of the registration”. Therefore, unless such modifications are demonstrated, there is no occasion for CIT to assume jurisdiction. The registration granted to BCCI in 1996 was on the basis of MoA, 1940. Unless, therefore, there were significant amendments in that Memorandum of Association, the provisions of Section 12-A(1)(ab) will not come into play inasmuch these provisions come into play only when the assessee “has adopted or undertaken modifications of the objects which do not conform to the conditions of registration”.

The Appellate Tribunal then compared MoA, 1940 and the amended MoA, 2018, and found that the amended MoA does not show any change which is contrary to the corresponding clause in the earlier MoA. It was noted that there was nothing in the impugned order to even indicate that the modifications in the objects of the amended deed do not conform to the objects in the memorandum of association based on which the registration was granted. The Appellate Tribunal observed:

“It is also important to bear in mind the fact that Section 12-A(1)(ab) specifically refers to ‘objects’ of the assessee trust or institution, and, it cannot, therefore, be open to the Principal Commissioner to go beyond the ‘objects’ so far as jurisdiction under this Section 12-A(1)(ab) is concerned. It is only when there is such a modification in the object clause that it does not conform to the conditions of registration, i.e. objects clause in the documents based on which registration was granted – only the memorandum of association in this case, that Section 12-A(1)(ab) can come into play.”

It was also noted that any changes to bring out reforms in the functioning of BCCI and specifically approved by the Supreme Court to be for that purpose (by its order dated 9-8-2018), cannot be termed to be the changes that dilute the fundamental objective of promoting the game of cricket, or said to be “not in conformity” with the objects of promoting the game of cricket all along espoused by BCCI and as set out in the pre-amendment MoA. In this view of the matter also, the condition precedent for invoking Section 12-A(1)(ab), was not fulfilled.

Referring to the view of another Bench that the assessee society should approach the registering authority with the changes and amendments so that the authorities could examine as to whether the amendments in question meet the requirement of law, the Appellate Tribunal observed:

“[T]his requirement, in our humble understanding, does not necessarily extend to the filing of the fresh application of registration under Section 12-A(1)(ab) unless the amendments are such as not in conformity with the documents based on which registration was originally granted. There is a difference in these two situations, i.e. between keeping the registration authority [informed] about the changes in the memorandum of association etc., and between making an application for fresh registration which comes into play only when the amendments in question do not conform to the objectives in respect of which registration was granted or obtained. Unless that condition is satisfied, Section 12-A(1)(ab) [does not] come into play.”

It was observed that there is a vital distinction between “object” and “power”. It could not even be in dispute that the object of BCCI is the promotion of cricket game, and, at best, it has powers to hold IPL for achieving this object. Whether this power of conducting IPL is exercised with predominantly pecuniary gains in mind or not is a different aspect, but then this is a “power” not an “object”. The Appellate Tribunal was of the opinion that:

“So far as the provisions of Section 12-A(1)(ab) are concerned, the Principal Commissioner was only required to examine the objects of the institution and not to extend her considerations to the powers vested in the institution. Unless the bridge of finding variations in objects of pre-amendment or post-amendment objects is crossed, there is no occasion to examine anything else. “

Application of proviso to S. 2(15)

Next, it was noted that the entire basis of declining registration by CIT was invoking the proviso to Section 2(15) on the ground that IPL activities are in the nature of commercial activities and cross the threshold limit specified in exceptions to the proviso to Section 2(15). On this point, the Appellate Tribunal observed:

“It is, however, well-settled in law that so far as registration under section 12-AA is concerned, Section 2(15) has no application in the matter.”

Relying on its earlier decision in Kapurthala Improvement Trust v. CIT, 2015 SCC OnLine ITAT 8111, the Appellate Tribunal concluded that the remedy to the proviso to Section 2(15) coming into play is not denial of registration under section 12-A or 12-AA but denial of benefits of exemption under Section 11, under Section 13(8). That is the reason that along with the insertion of proviso to Section 2(15), effective from the same date, sub-section 13(8) was also inserted and these two provisions are thus clearly complementary in nature.

Indian Premier League

Interestingly, as to the question whether IPL can indeed be said to be commercial in nature in the sense that the entire orientation of these matches is aimed at making money in the garb of promotion of cricket, the Appellate Tribunal was of the view that it was not necessary to go into that aspect in the instant case. It however added:

“[O]n the face of it merely because a sports tournament is structured in such a manner so as to make it more popular, resulting in more paying sponsorships and greater mobilisation of resources, the basic character of the activity of popularising cricket is not lost. It is indeed possible that the predominant object remains the promotion of cricket but that activity is done in a more effective and financially optimal manner, and that there is no conflict in the cricket becoming more popular and the cricket becoming more entertaining. It results in providing significant economic opportunities to those associated with the holding of the IPL tournament and, in the process, enriching the resources of the assessee trust. As long as the object of promoting cricket remains intact, and that continues to be the predominant object, the assessee cannot be said to be not following the object of promoting cricket, just because the operational model of a cricket tournament, whether IPL or any other tournament, is more entertaining, more economically viable, provides greater economic opportunities to all those associated with that tournament, and mobilises greater financial resources for popularising cricket. The purpose for which all the funds at the disposal of the assessee trust, including the additional funds generated by holding the IPL tournament, are employed is certainly for promoting cricket, and that is what really matters. Improvising the rules of the game, adding entertainment value to it and making it economically attractive, may be a purist’s nightmare but the same factors can also be viewed as radical and innovative ideas to popularise a game –  the very raison d’être of an institution like this assessee, and that is how we view it.”

In such view of the matter, the Appellate Tribunal held that BCCI was entitled to continuance of its registration under Section 12-A dated 12-2-1996. Accordingly, the impugned order passed by the CIT was quashed. [BCCI v. CIT, ITA No. 3301/Mum/2019, dated 2-11-2021]

Hot Off The PressNews

Ministry of Civil Aviation (MoCA) and Directorate General of Civil Aviation (DGCA) have granted a conditional exemption to the Board of Control for Cricket in India (BCCI) for the deployment of drones for live aerial cinematography of the India Cricket Season in 2021.

The conditional exemption is valid till 31st December 2021 from the date of issue of the letter or until the full operationalization of Digital Sky Platform (Phase-1), whichever is earlier. This exemption shall be valid only if all conditions and limitations as stated below are strictly adhered to. In case of violation of any condition, this exemption shall become null and void.

       Conditions and limitations to the BCCI and Quidich for using Remotely Piloted Aircraft System (RPAS) for live Aerial Filming during cricket season 2021:

  1. This exemption to the BCCI from the paragraphs 5.2(b), 5.3, 6, 7, 8.4, 9.2, 11 (d), 11.2 (a), 12.3(a), 12.4 and 12.5 of CAR Section 3, Series X, Part I is subject to exemption from Rule 15A of the Aircraft Rules, 1937 by Ministry of Civil Aviation.
  2. The BCCI shall obtain necessary clearances from (a) Local Administration (b) Ministry of Defence (c) Ministry of Home Affairs (d) Air Defence Clearance from Indian Air Force and (e) Airport Authority of India (AAI) [as applicable] prior to operation of Remotely Piloted Aircraft System (RPAS).
  3. Quidich engaged by BCCI as RPAS operator shall only operate the RPAS models specified in the approved Standard Operating procedures (SOP) Doc No QIUSOP/2021/01 Rev 0 dated 8th January 2021. The operations of the RPAS having valid Drone Acknowledgement Number (DAN) [specified in the SOP] shall be operated as per the above-mentioned SOP in the area specified therein. Any change in the approved SOP for e.g. Change in procedures or RPAS or use case or personnel or area specified in the approved SOP shall be included in the SOP and submitted to DGCA for approval.
  4. BCCI shall ensure that only trained I experienced bona fide personnel operates the RPAS as per the approved SOP. Subsequently, the RPAS operator shall ensure that remote flight crew are trained through approved FTOs/ RPTOs.
  5. The RPAS Operator shall ensure that the RPAS is in working condition and maintained as mentioned in the approved SOP and shall be responsible for any eventualities due to malfunction I disorientation of equipment.
  6. The RPAS Operator shall maintain the records of each RPA flight and make such records available to the DGCA on demand.
  7. BCCI shall take necessary permission regarding Aerial Photography from Directorate of Regulations & Information, DGCA or Ministry of Defence (as applicable). The photographs/video graphs, taken through RPAS shall be used by BCCI only. BCCI shall be responsible for safety and security of RPAS and data collected through RPAS.
  8. The Operator shall ensure that the RPAS are made NPNT compliant [certified by QCI) as soon as the digital sky platform is made operational.
  9. BCCI shall ensure that each RPAS operated by Quidich has fire-resistant identification plate inscribed legibly with OAN, DAN and Model No. of the RPAS.
  10. The operation of RPAS shall be restricted to daylight or well-lit conditions (above 2000 lux), within Visual Line of Sight (VLOS) in uncontrolled airspace only and upto height of 200 ft (AGL) max only.
  11. RPAS shall not be operated in the vicinity of airport as per the provisions of the CAR. If required to operate near the airport/ in controlled airspace, approval from Airports Authority of India (AAI) shall be taken in advance regarding time and area of operations of RPAS.
  12. BCCI shall ensure that no items are discharged or dropped during flight of the RPAS. The BCCI shall also ensure that hazardous material or variable payload are not carried in I using the RPA under any circumstances.
  13. BCCI shall ensure that uninvolved persons are not allowed within the operation area [including Ground Control Station] and ensure safety conditions specified in the approved SOP and in this letter are adhered to.
  14. BCCI shall ensure safety, security, and privacy of public, property, operator etc. Further, in case of any eventuality, DGCA shall not be held responsible.
  15. The operator shall ensure the RPAS is not flown in a manner to cause danger to any person or property. In case of any injury to any person due to physical contact with the equipment, The Operator and BCCI shall be responsible for medico-legal issues. The BCCI shall ensure the insurance policy remains valid and of adequate level to cover any damage to third party resulting from accident I incident occurred during the operation of RPAS.
  16. The operator shall not operate the RPAS in no-fly zones specified in Para 13.1 of the CAR Section 3, Series X, Part I without the approval of concerned Ministries/ authorities.
  17. The BCCI and Quidich shall indemnify DGCA from any legal cases or any other issues arising due to these operations.
  18. This letter shall not override other restrictions I SOP on Remotely Piloted Aircraft System framed by other Government Agencies or any bye-laws.
  19. In case of incident/accident during at any phase of the operations, the operator shall generate a report with full details to Air Safety Directorate of DGCA within 24 hours of such event.
  20. The operator shall intimate the schedule of operation [location and date of operation] to DGCA [as and when available] well in advance for conducting safety oversight. In this regard, BCCI shall ensure access to DGCA are provided to perform this function.
  21. In case of violation of provision specified in the above-mentioned CAR and the conditions & limitations specified in this letter; the permission issued will become null and void and enforcement action as per Para 18 of the above-mentioned CAR will be initiated.

Ministry of Civil Aviation

[Press Release dt. 08-02-2021]

[Source: PIB]

Case BriefsSupreme Court

Supreme Court: In a huge relief to cricketer S. Sreesanth, the bench of Ashok Bhushan and KM Joseph, JJ has set aside the life ban imposed upon him by the BCCI for his involvement in the 2013 IPL spot-fixing and betting case.

Senior Advocate Salman Khurshid, representing Sreesanth, argued before the Court that Sreesath never agreed and was not part of spot fixing nor ever received amount of Rs.10 lakh as alleged. He also said that BCCI wasn’t able to prove that he bowled loose balls in the match in question.

When Parag P. Tiwari, appearing for BCCI, said that opportunity was given to Sreesanth but he wasn’t able to given any satisfactory explanation, Salman Khurshid, responded by saying that the burden to prove the allegation was on BCCI. He further said:

“In any view of the matter, at best, the appellant could have been charged with not disclosing to the BCCI of any information. … punishment of life ban was excessive and maximum, the punishment which could have been imposed on the appellant was upto five years.”

The Court, hence, reached the following conclusion:

“In cases where offences under Article 2.1.1, 2.1.2, 2.1.3 and 2.1.4 (of the Anti-Corruption Code) are proved, the disciplinary committee is not obliged to award a life time ban in all cases where such offences are proved. When range of ineligibility which is minimum five years, maximum life time ban is provided for, the discretion to which, either minimum or maximum or in between has to be exercised on relevant facts and circumstances.”

The Court also held that the disciplinary committee order dated 13.09.2013 did not advert to the aggravating and mitigating factors as enumerated in Articles 6.1.1 and 6.1.2 of the Code., the disciplinary committee has imposed a life time ban on the Sreesanth without considering the relevant provisions of Anti-Corruption Code.

The Court, hence, directed:

  • The order dated 13.09.2013 of the disciplinary committee only to the extent of imposing sanction of life time ban is set aside.
  • The disciplinary committee of the BCCI may reconsider the quantum of punishment/sanction which may be imposed on the appellant as per Article 6 of the Anti- Corruption Code. Sreesanth may be given one opportunity to have his say on the question of quantum of punishment/sanction.
  • The disciplinary committee may take decision as indicated above on the quantum of punishment/sanction at an early date preferably within a period of three months.
  • Sreesanth shall await the decision of the disciplinary committee and future course of action shall be in accordance with the decision of the disciplinary committee so taken. Parties shall bear their own costs.

[S. Sreesanth v. Board of Control for Cricket in India, 2019 SCC OnLine SC 383, decided on 15.03.2019]

Hot Off The PressNews

Supreme Court: The bench of SA Bobde and Abhay Manohar Sapre has appointed Senior Advocate PS Narsimha  as a mediator in all the matters relating to BCCI pending before the Court. Narsimha was the amicus curiae in the said matter. before being appointed as the mediator.

Narsimha will hear grievances of state associations regarding the non-release of funds. He will then make recommendations to CoA. and make recommendations to the Committee of Administration.

The Court said that if any party is not satisfied with the outcome of the mediation, it can come to Court.

(Source: ANI)

Central Information Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC):  The Commission recently dealt with an appeal seeking information on the provisions/guidelines under which BCCI represents INDIA also whether the players selected by BCCI, play for India or BCCI?

The above appeal constituted the facts that the appellant had sought information primarily on whether the players selected by BCCI play for India or BCCI? And if so, how BCCI being a ‘private association’ represents India in the National and International cricket tournaments? The appellant was not satisfied with the response filed by the CPIO, which led him to approach the Commission.

Further, on dealing with the appeal filed, the Commission considered the issue on the ‘status of the Cricket team’ to be addressed on priority. The Apex Court and High Courts have expressed several times that the BCCI is directly related to the public activity which makes it accountable to the general public and answerable under the Right to Information Act, 2005.

Therefore, on keeping the facts of the appeal in due consideration and in public interest, Commission considered its responsibility towards putting an end towards the prolonging dilemma on the non-transparency and unaccountability of the whole process.

On the same reasoning and grounds stated, Commission directed CPIO/authorised representative of BCCI to state an explanation on not declaring BCCI as ‘public authority’ even after several judicial pronouncements along with the recommendation in Law Commission’s 275th report. [Geeta Rani v. PIO, M/o Youth Affairs & Sports,2018 SCC OnLine CIC 1104, order dated 26-06-2018]

Hot Off The PressNews

The Law Commission of India’s (hereinafter ‘Commission’) 275th report, titled ‘Legal Framework: BCCI vis-à-vis Right to Information Act, 2005’, was recently submitted by the Commission to the Ministry of Law and Justice. The report was prepared in pursuance of compliance with the directions of the Supreme Court in the case of Board of Control for Cricket v. Cricket Association of Bihar, (2015) 3 SCC 251. The Commission’s objective was to examine the issue as to whether the Board for Control of Cricket in India (hereinafter ‘BCCI’) would be covered under the ambit of the Right to Information Act, 2005, and if so, then make appropriate recommendations to the Government of India.

The Commission concluded that the BCCI should indeed be classified as ‘State’ within the meaning of Article 12 of the Constitution. The minority view in Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649 played an instrumental role in establishing state functions to BCCI. Sinha J., on behalf of S.N. Variava J. had opined that interpretation of Article 12 with regard to exclusive control and management of the game needs to be looked at with a new approach. Keeping in mind, the minority view, the Commission went on to identify state functions the BCCI performs, opposing the previous judgments of Chander Mohan Khanna v. NCERT, (1991) 4 SCC 578 : AIR 1992 SC 76 and Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449 : AIR 1981 SC 212. The identified points were;

(i) BCCI is an entity permitted, de facto, by the State to represent the Country on the international stage;

(ii) ICC recognizes BCCI as the official body representing India;

(iii) Absence of any challenge by the BCCI or the Government to the aforesaid status;

(iv) BCCI enjoys a monopolistic status in controlling and regulating the game of cricket in India by controlling policy formulation and implementation affecting the country at large;

(v) BCCI and it’s actions/activities, directly and indirectly, affect the fundamental rights of citizens, players, and other functionaries.

Further, it was concluded that owing to the monopolistic character of BCCI coupled with it’s functions and ‘substantial financing’ from appropriate governments over the years, it can, within the existing legal framework, be termed to be a ‘public authority’ and be brought within the purview of the RTI Act.

Recommendations:

(1) Non-consideration of the role played by BCCI as monopolistic in regulation of the game of cricket has resulted in the Board flying under the radar of public scrutiny, encouraged an environment of opacity and non-accountability. In the past, this has probably given an impression in the minds of the general public that corruption and other forms of malpractices are adversely affecting one of the most popular sports played in India. BCCI exercises ‘State-like’ powers affecting the fundamental rights of the stakeholders, guaranteed under Part III of the Constitution. It is hereby recommended that 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.

(2) Human rights are sacrosanct and innately associated with the human personality. These rights are continually evolving, are to be respected by, and can be enforced against not only the ‘State’ but also private bodies/entities. Therefore, the BCCI should be held accountable, under all circumstances, for any violations of basic human rights of the stakeholders.

(3) BCCI virtually acts as a National Sports Federation (NSF). Its own Memorandum of Association states that the Board’s objects and purposes are to control, improve quality, lay down policies pertaining to the game of cricket in India as well as select teams to represent India at international fora. Moreover, as per the statement made in the Lok Sabha, the Central Government has already been regarding BCCI as a National Sports Federation and hence, it is recommended that, for the removal of any doubt, the same be explicitly mentioned in the list of NSFs available on the ministry’s website. This express mention would automatically bring BCCI within the purview of RTI Act. Other sports bodies listed as NSFs’ in Annual Report 2016-17,177 of the Ministry of Youth Affairs and Sports available on its website do attract the provisions of the RTI Act. This website also contains information regarding (Chief Public Information Officer) CPIOs and Appellate Authorities catering to RTI requests addressed to specific NSFs.178 In light of the above stated facts, since all other sports bodies which are listed as NSFs are covered under the RTI Act, it is inconceivable as to why BCCI should be an exception.

(4) Additionally, it is recommended that RTI Act be made applicable to BCCI along with all of it’s constituent member cricketing associations, provided they fulfil the criteria applicable to BCCI.

 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr DY Chandrachud, JJ directed the BCCI office bearers, namely, C.K. Khanna, Anirudh Chaudhry and Amitabh Choudhary to give suggestions in furtherance of the Court’s order wherein it accepted the Justice Lodha Committee report. The Court said that if the office bearers fail to give their suggestions within 3 weeks, “they shall face serious consequences”.

The Court said that the draft constitution shall include the suggestions given by Justice Lodha Committee in its entirety so that a holistic document comes before the Court. Hence, it was noticed that after the document is placed before the Court, it will consider the claims of Railways, Universities and Services and the other cricket Associations, who are of the view that concept of ‘one State one vote’ should not be applicable keeping in view their contribution to the game of cricket.

It was further directed that for the purpose of drafting out the constitution after taking note of the suggestions, to make it final for the purpose of approval by this Court, the Office Bearers of B.C.C.I. shall not hold a General Body Meeting.

Earlier, on 02.01.2017, the bench headed by then Chief Justice, Justice TS Thakur had accepted the Justice Lodha Committee Report on structural reforms in the BCCI in order to streamline the working of the BCCI and possibly prevent any aberrations or controversies in which it has been embroiled in the past. The Lodha Committee had, regarding the disqualification of the office bearers of BCCI, had recommended that a person shall be disqualified from being an Office Bearer if he or she:

  • Is not a citizen of India;
  • Has attained the age of 70 years;
  • Is declared to be insolvent, or of unsound mind;
  • Is a Minister or government servant;
  • Holds any office or post in a sports or athletic association or federation apart from cricket;
  • Has been an Office Bearer of the BCCI for a cumulative period of 9 years;
  • Has been charged by a Court of Law for having committed any criminal offence.

Last year, on 18.07.2016, the Court said:

“the game of Cricket does not flourishes in this country because any minister or civil servant holds office in the State Associations or BCCI.”

The Court will now hear the matter on 30.10.2017 when all the above-mentioned office bearers have been asked to be present before the Court. [Board of Control for Cricket v. Cricket Association of Bihar, 2017 SCC OnLine SC 1155 , order dated 21.09.2017]

Case BriefsSupreme Court

Supreme Court: In the matter relating rights of the cable operators and Direct-to-Home (DTH) operators to live telecast of cricket matches, the bench of Ranjan Gogoi and Navin Sinha, JJ held that  under Section 3 of the Sports Act, 2007 the live feed received by Prasar Bharati from content rights owners or holders is only for the purpose of re-transmission of the said signals on its own terrestrial and DTH networks and not to Cable Operators so as to enable the Cable TV operators to reach such consumers who have already subscribed to a cable network.

As per the facts of the case, the grant of telecasting rights of these events is a major source of revenue for the BCCI and as per the Media Rights Agreement by and between Star India Private Ltd. and BCCI effective from April 2012 till March 2018, Star India Private Limited and ESPN have been granted exclusive rights to telecast cricketing events that take place in the country during the currency of the period of the agreement. However, as per Section 3 of the Act, Star India & ESPN are obliged to share the live broadcasting signals of sporting events of national importance with the Prasar Bharati for retransmission of the same through its terrestrial and Direct-to-Home networks. They had challenged the retelecast of the signals shared with Prasar Bharati by Cable Operators to millions of other viewers, who may not necessarily be linked to the Prasar Bharati’s terrestrial and DTH networks but are subscribers of such cable operators or other DTH service providers. The cable operators, on the other hand, argued that Section 3 of the Act had to be read with Section 8 of the Cable Act, 1995 that imposes an obligation on the Cable Operators to carry/transmit such Doordarshan (Prasar Bharathi) channels or the channels operated by or on behalf of Parliament, as may be, notified in the Official Gazette.

The Court held that in Section 3 of the Act, there is no recognition of the requirement stipulated in Section 8 of the Cable Act, 1995 and the plain language of the said provision i.e. Section 3of the Sports Act, 2007 makes it clear that the obligation to share cast on the content rightsowner or holder, etc. with Prasar Bharati is to enable the Prasar Bharati to transmit the same on “its terrestrial and DTH networks”. If the legislative intent was to allow Section 3 of the Sports Act, 2007 not to operate on its own language but to be controlled by Section 8 of the Cable Act, 1995, there would have been some manifestation of such intent either in Section 3 of the Sports Act, 2007 or in Section 8 of the Cable Act, 1995. It was held that in the absence of any such legislative intent it will only be correct to hold that Section 3 of the Sports Act, 2007 operates on its own without being controlled by any of the conditions or stipulations contained in Section 8 of the Cable Act, 1995. Any other view may have the effect of introducing a fragility in Section 8 of the Cable Act, a consequence that must surely be avoided. [Union of India v. Board of Control for Cricket in India, 2017 SCC OnLine SC 991, decided on 22.08.2017]

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Supreme Court: Accepting the fresh unconditional apology tendered on 13.07.2017, the Court dropped the contempt charges against the former BCCI President Anurag Thakur. Listing the matter on 24.09.2017, the Court issued notice to the former BCCI President N. Srinivasan and Former Secretary Niranjan Shah for participating in the BCCI Annual General Meeting as a nominee of State Association after the Committee of Administrators brought to the Court’s notice that both were over 70 years of age and were disqualified as per the order dated 02.01.2017.

The bench of T.S. Thakur, former CJ and A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ  had, on 02.01.2017, removed Anurag Thakur, President of BCCI and Ajay Shirke, Secretary, BCCI from their offices and had said that the President and Secretary and office bearers of BCCI have obstructed the implementation of the final directions of this Court on the basis of a specious plea that its State Associations are not willing to abide by the directions.  The Court had, on 07.10.2016, asked Anurag Thakur, President of the BCCI to file a personal affidavit whether he had asked the President of the ICC to state that the appointment of Justice Lodha Committee was tantamount to Government interference in the working of the BCCI. It was noticed that the conduct of the President of BCCI in seeking a letter from the President of ICC in August 2016, after the final judgment and Order dated 18.07.2016, is nothing but an attempt on the part of the head of BCCI to evade complying, with the Order of this Court.

Source: ANI

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On 13.07.2017, the former BCCI President Anurag Thakur tendered a fresh unconditional apology before the Supreme Court after the Court rejected his earlier affidavit of apology and asked him to file a fresh one-page affidavit. In his affidavit, Anurag Thakur stated that it was never his intention to undermine the majesty of the Supreme Court and unintentionally some kind of misinformation and miscommunication has occured.

The bench of T.S. Thakur, former CJ and A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ  had, on 02.01.2017, removed Anurag Thakur, President of BCCI and Ajay Shirke, Secretary, BCCI from their offices and had said that the President and Secretary and office bearers of BCCI have obstructed the implementation of the final directions of this Court on the basis of a specious plea that its State Associations are not willing to abide by the directions.  The Court had, on 07.10.2016, asked Anurag Thakur, President of the BCCI to file a personal affidavit whether he had asked the President of the ICC to state that the appointment of Justice Lodha Committee was tantamount to Government interference in the working of the BCCI. It was noticed that the conduct of the President of BCCI in seeking a letter from the President of ICC in August 2016, after the final judgment and Order dated 18.07.2016, is nothing but an attempt on the part of the head of BCCI to evade complying, with the Order of this Court.

Source: PTI

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Supreme Court: Refusing to consider the earlier affidavit of apology filed by the former BCCI President Anurag Thakur, the 3-judge bench of Dipak Misra, A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ asked him to tender fresh unconditional apology.

The bench of T.S. Thakur, former CJ and A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ  had, on 02.01.2017, removed Anurag Thakur, President of BCCI and Ajay Shirke, Secretary, BCCI from their offices and had said that the President and Secretary and office bearers of BCCI have obstructed the implementation of the final directions of this Court on the basis of a specious plea that its State Associations are not willing to abide by the directions.

Source: ANI

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Supreme Court: The bench of Dipak Misra, A.M. Khanwilkar and Dr. DY Chandrachud, JJ directed Amitabh Chaudhary, who is presently the acting Secretary of the BCCI, to represent the BCCI in the ICC meeting which is scheduled to be held on 24.04.2017. The Court also asked Rahul Johri, the Chief Executive Officer, to accompany him and also attend the meeting of the Chief Executive Officers.

The Court will next take up the matter on 14.07.2017. [BCCI v. Cricket Association of Bihar, 2017 SCC OnLine SC 406, order dated 17.04.2017]

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Supreme Court: Considering the fact that there is a test match which is going to be played between India and Australia tomorrow i.e. 25th March, 2017, at Dharamsala Cricket Stadium, the Court directed that the B.C.C.I. shall honour the terms and conditions postulated in the contracts with the State Associations in letter and spirit so that there is no impediment in holding the test matches and ODIs

With regard to the IPL matches that are going to commence from 05.04.2017 on 10 venues in India, the Court said that there have to be tripartite contracts and some have been entered into while some shall be entered into in due course. After the contracts are executed, following the principle of parity, the B.C.C.I. shall also honour the contractual terms

Clearing the air over the disqualification as modified on 20.01.2017 where it was said that a person will be disqualified if he or she has been an Office Bearer of the BCCI or any State Cricket Association for a cumulative period of 18 years i.e. if he/she has served separate 9 years terms at BCCI and State Cricket Association, the Court said that what has been meant by the clarificatory order is that, if an office bearer has completed nine years in any post in the B.C.C.I., he shall stand disqualified to become an office bearer of the B.C.C.I. Similarly, if a person holds the post of office bearer in any capacity for any State Association for nine years, he shall stand disqualified for contesting or holding any post or office of the State Association. The bench of Dipak Misra, A.M. Khanwilkar and Dr. D.Y. Chandachud said that if a person has held the post of office bearer in respect of a State Association for a period of nine years, he will not be disqualified to contest for the post of office bearer of the B.C.C.I. [BCCI v. Cricket Association of Bihar, 2017 SCC OnLine SC 277, order dated 24.03.2017]

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Supreme Court: The 3-Judge Bench of Dipak Misra, A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ nominated the former Comptroller and Auditor General Vinod Rai, historian Ramachandra Guha, former captain of the Indian women’s cricket team Diana Edulji and  IDFC Managing Director Vikram Limaye as the members of the Committee of Administrators to supervise BCCI. Stating the the CEO of BCCI will report to the Committee, the Court directed the C.E.O. of B.C.C.I. to submit a compliance report of the recommendations of Lodha Comittee within a week. Further, the Committee was directed to scrutinize the compliance and submit a status report before the Court within four weeks.

Earlier, on 24.01.2017, the Court had asked Arvind Datar, appearing for the BCCI, to submit 3 names who can represent BCCI at the meeting of the Executive Committee of the ICC in the first week of February, 2017. The Court directed BCCI Joint-Secretary Amitabh Chaudhary, BCCI Treasurer Anirudh Chaudhry and Vikram Limaye to attend the said meeting. Rejecting the contention of BCCI that the members of the newly appointed Committed should not be paid remuneration, the Court directed BCCI to propose a respectable pay structure for the members. The Court will hear the matter on 27.03.2017. [BCCI v. Cricket Association of Bihar, 2017 SCC OnLine SC 72, order dated 30.01.2017]

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Supreme Court: The 3-judge bench of Dipak Misra, A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ also accepted the submission of Mukul Rohatgi, the Attornet General for India, that the Central Government be permitted to suggest certain names so that a Committee having a holistic approach can be constituted. The bench, however, made it clear that the names that will be suggested should be in consonance with the principal judgment and the subsequent orders passed thereafter.

Taking note of the fact that there is a meeting of the Executive Committee of the ICC in the first week of February, 2017 which needs to be attended by a nominee from the BCCI, the Court asked Arvind Datar, appearing for the BCCI, to submit 3 names in a sealed envelope by 27.01.2017.

Anil B. Dhawan and Gopal Subramaniam, the Amicus Curiae had already submitted certain names for the Committee of Administrators for the BCCI. The Court hence, directed Kapil Sibal, appearing or some State Associations, Mukul Rohatgi and Arvind Datar to submit the names, as directed by the Court, by 27.01.2017.

The matter is listed to be taken up on 30.01.2017. [BCCI v. Cricket Association of Bihar, 2017 SCC OnLine SC 72, order dated 24.01.2017]

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Supreme Court: Modifying the earlier order, the Court said that a person will now be disqualified if he or she has been an Office Bearer of the BCCI or any State Cricket Association for a cumulative period of 18 years i.e. if he/she has served separate 9 years terms at BCCI and State Cricket Association.

Earlier on 02.01.2017, the Court had laid down various grounds for disqualification which included serving a cumulative period of 9 years as an Office Bearer of the BCCI. On 03.01.2017, the Court modified this disqualification and said that serving a cumulative period of 9 years as an Office Bearer of the BCCI or any State Cricket Association would lead to disqualification.

The names of the members of the Committee of Administrators are likely to be announced on 24.01.2017.

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Supreme Court: Directing that Anurag Thakur, President of BCCI and Ajay Shirke, Secretary, BCCI shall forthwith cease and desist from being associated with the working of BCCI, the 3-Judge Bench of T.S. Thakur, CJ and A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ accepted the norms laid down by the Lodha Committee regarding the disqualification of the office bearers of BCCI which said that a person shall be disqualified from being an Office Bearer if he or she :

  • Is not a citizen of India;
  • Has attained the age of 70 years;
  • Is declared to be insolvent, or of unsound mind;
  • Is a Minister or government servant;
  • Holds any office or post in a sports or athletic association or federation apart from cricket;
  • Has been an Office Bearer of the BCCI for a cumulative period of 9 years;
  • Has been charged by a Court of Law for having committed any criminal offence.

The Bench said that tough sufficient opportunities have been granted to BCCI to comply with the judgment and order of this Court, it has failed to do so. The President and Secretary and office bearers of BCCI have obstructed the implementation of the final directions of this Court on the basis of a specious plea that its State Associations are not willing to abide by the directions. The Court had earlier, on 07.10.2016, asked Anurag Thakur, President of the BCCI to file a personal affidavit whether he had asked the CEO of the ICC to state that the appointment of Justice Lodha Committee was tantamount to Government interference in the working of the BCCI. It was noticed that the conduct of the President of BCCI in seeking a letter from the President of ICC in August 2016, after the final judgment and Order dated 18.07.2016, is nothing but an attempt on the part of the head of BCCI to evade complying, with the Order of this Court. The Court, hence, issued a show-cause notice to Anurag Thakur to explain why he should not be proceeded against under the provisions of Section 195 read with Section 340 of the Code of Criminal Procedure, 1973 and under the Contempt of Courts Act, 1971.

Stating that a Committee of administrators shall supervise the administration of BCCI through its Chief Executive Officer, the Court requested Mr Fali S Nariman, learned Senior Counsel and Mr Gopal Subramaniam, the learned Amicus Curiae to assist the Court in nominating the names of the administrators by suggesting names of persons with integrity and experience in managing a similar enterprise. Till then, the Court directed that the senior most Vice-President of BCCI shall perform the duties of the President, BCCI and the Joint Secretary shall perform the duties of Secretary. The matter was listed to be taken up on 19.01.2017 for nominating the names of the members of the committee of administrators. [BCCI v. Cricket Association of Bihar, 2017 SCC OnLine SC 4, order dated 02.01.2017]

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Supreme Court: The 3-Judge Bench of T.S. Thakur, CJ and A.M. Khanwilkar and D.Y. Chandrachud, JJ directed that BCCI shall forthwith cease and desist from making any disbursement of funds for any purpose whatsoever to any state association until and unless the state association concerned adopts a resolution undertaking to implement the recommendations of the Justice Lodha Committee as accepted by this Court in its judgment dated 18.07.2016.

The Court further directed that a copy of the resolution shall be filed before the Committee and before this Court, together with an affidavit of the President of the state association undertaking to abide by the reforms contained in the report of the Committee, as modified by this Court. Any transfer of funds shall take place to the state associations which have accepted these terms only after compliance as above is effected.  The Court also asked the President and Secretary of BCCI to file a statement on affidavit within 2 weeks, indicating compliance made by BCCI of those of the recommendations of the Committee which have been complied with, the manner of compliance and the steps adopted for securing compliance with the remaining recommendations. Also, in respect of some of the recommendations, where state associations have not agreed to implement the recommendations of the Committee, BCCI will make a genuine endeavor to persuade the state associations to effectuate compliance. Listing the matter on 05.12.2016, the Court said that an affidavit of compliance of the aforementioned directions is to be filed before the Court by 03.12.2016.

The other directions given by the Court were:

  • Appointment of an independent auditor by the Committee to scrutinise and audit the income received and expenditure incurred by BCCI and to oversee the tendering process that will hereinafter be undertaken by BCCI, as well as the award of contracts above a threshold value to be fixed by the Committee;
  • The award of contracts by BCCI above the threshold fixed by the Committee shall be subject to the prior approval of the Committee;
  • The Committee shall be at liberty to obtain the advice of the auditors on the fairness of the tendering process which has been adopted by BCCI and in regard to all relevant facts and circumstances;
  • The Committee will determine whether a proposed contract above the threshold value should or should not be approved; and
  • The Committee will be at liberty to formulate the terms of engagement and reference to the auditors having regard to the above directions. BCCI shall defray the costs, charges and expenses of the auditors.

The Court had earlier, on 07.10.2016, asked Anurag Thakur, President of the BCCI to file a personal affidavit whether he had asked the CEO of the ICC to state that the appointment of Justice Lodha Committee was tantamount to Government interference in the working of the BCCI. In the affidavit which has since been filed by the President of BCCI in pursuance of the Court’s directions of 07.10.2016 it has been accepted that he had made a request to the Chairman of ICC for issuing a letter clarifying the position which he had taken as BCCI President. The Court said that it is a matter of serious concern that the President of BCCI, even after the declaration of the final judgment and order of this Court dated 18.07.2016, requested the Chairperson of ICC for a letter “clarifying” (as he states) the position which he had taken as BCCI President to the effect that the induction of a CAG nominee would amount to governmental interference and may result in BCCI being suspended from ICC. There was no occasion for the President of BCCI to do so once the recommendation of the Committee for the induction of a CAG nominee was accepted in the final judgment of this Court. [BCCI v. Cricket Association of Bihar, , 2016 SCC OnLine SC 1162 , decided 21.10.2016]

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Supreme Court: In furtherance of the order dated 18.07.2016, where the Court, while accepting the report submitted by Justice Lodha Committee and the recommendations made therein, had requested the Committee to supervise the transition from the old to the new system in the wake of the reforms proposed by the Committee, the Court noticed that in the implementation of the recommendations of the Committee, the BCCI has been non-cooperative in its attitude.

BCCI has, despite directions issued by the Committee, released in favour of the State Cricket Associations substantial amounts running into crores of rupees without the permission of Justice Lodha Committee and in defiance of the direction issued by it. The Court said that the BCCI could and indeed ought to have avoided the disbursement of such a huge amount while Justice Lodha Committee was still examining the need for formulating a Disbursement Policy. Upon the argument advanced by Kapil Sibal, appearing for BCCI that the reason for the non-adoption of the Memorandum of Association (MOA) proposed by Justice Lodha Committee is the reluctance of the State Associations in subscribing to the same, the Court said that If that be the position, there is no reason why the State Associations that are opposed to the reforms suggested by Justice Lodha Committee and accepted by this Court should either expect or draw any benefit from the release of grants by the BCCI.

Listing the matter on 17.10.2016, the bench of T.S. Thakur, CJ and A.M. Khanwilkar and D.Y. Chandrachud, JJ, directed that no further amount shall be disbursed by the BCCI or its Working Committee to any State Association except where the State Association concerned passes a proper resolution to the effect that it is agreeable to undertake and to support the reforms as proposed and accepted by this Court in letter and spirit.  The Court also asked Anurag Thakur, President of the BCCI to file a personal affidavit whether he had asked the CEO of the ICC to state that the appointment of Justice Lodha Committee was tantamount to Government interference in the working of the BCCI. [Board of Control for Cricket v. Cricket Association of Bihar, 2016 SCC OnLine SC 1125, decided on 07.10.2016]