TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 1238
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....o change stems partly from people getting used to status quo and partly because any change is perceived to affect their vested interest in terms of loss of ego, status, power or resources. This is true particularly when the suggested change is structural or organizational which involves some threat, real or perceived, of personal loss to those involved. No wonder, therefore, that the portents of change which the recommendations made by the Committee appointed by this Court symbolizes are encountering stiff resistance from several quarters interested in continuance of the status quo. The fact that the recommendations for change come from a body whose objectivity, fairness, sense of justice, equity and understanding of the problems that are crying for a solution are beyond any doubt or suspicion has made little or no difference to those opposing the recommendation. 2. These proceedings are a sequel to our order dated 22nd January, 2015 [BCCI vs. Cricket Association of Bihar and Ors., (2015) 3 SCC 251]. We had by that order answered seven distinct questions formulated in para 20 thereof. Six out of those questions related to allegations of sporting fraud, conflict of interest leveled....
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....interests, streamlining the working of BCCI to make it more responsive to the expectations of the public at large and to bring transparency in practices and procedures followed by BCCI." 3. The Committee accordingly heard the individuals and the Franchisees found guilty by Mudgal Committee and by an order dated 14th July, 2015 awarded punishments considered just and proper. The Committee also by a separate report dated 18th December, 2015 examined the role of Mr. Sundar Raman and exonerated him of the charges levelled against him. By a separate report dated 18th December, 2015, the Committee has recommended several steps and measures that would in its opinion streamline the working of the BCCI and possibly prevent any aberrations or controversies in which it has been embroiled in the past. We shall presently refer to the findings and the recommendations of the Committee in greater detail, but before we do so, we must mention that on receipt of the Committee's report and the recommendations, we had issued notice to the parties to give them an opportunity to respond to the same. The BCCI has, accordingly, submitted its reply to the reports and the recommendations made therein. In ad....
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....ction (c) Offices, committees and elections (d) Commercial engagements, contracts and services (e) Audit, accounts and finances (f) Player welfare and dispute resolution (g) Conflict of interest (h) Oversight and transparency. 7. The Committee conducted over 35 days of sittings at Mumbai, Bangalore, Chennai, Kolkata, Hyderabad and New Delhi in the process providing ease of access to respective representatives from various zones and primary Test Centres. The Committee also interacted with 75 persons in India including Former Captains, International and First Class Players, Coaches, Managers, Administrators, Journalists, Talent scouts, Authors, Lawyers, Club Owners, Selectors and a Former Chief Justice of a High Court. Suggestions made by those who responded to the questionnaire and those who interacted with the Committee were summarized. The Committee also researched media reports, documentaries, published material, draft legislations, books and articles, apart from several unsolicited missives from Cricket fans, local experts and administrators about how maladministration was rife in cricket all over the country. The Committee appears to have received complaints of defalcation and....
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.... condoned, but those in the management of the Board had made ex-post facto amendments to facilitate the same. Having said that the Committee did not hesitate to recognise the hardwork of BCCI staff members and match officials who had ensured that hundreds of matches are organized annually at all levels and that updates are provided to keep the BCCI fully informed. Charity matches for national causes and humanitarian assistance is another area in which BCCI has been applauded by the Committee while stating that the Committee has consciously ensured that no measures are recommended that would limit or interfere with the good work being done on behalf of the BCCI. The report submitted by the Committee further indicates that while the Committee was still in the process of hearing the concerned, the newly elected President of the BCCI had even without waiting for the Committee's report adopted and projected the Committee's views as his roadmap for improving the functioning of the BCCI. Some of those measures like uploading of the Constitution and Bye Laws on the BCCI website, creating a policy for avoidance of Conflict of interest and appointment of Ombudsman had also been taken. The Co....
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....ucture and Constitution It was nearly 200 years after the British first brought cricket to India that its governing body was created. At a time of communal Gymkhanas and the occasional touring team from England, the princely families and other cricket patrons came together to create the Board of Control for Cricket in India, which was registered as a not-for-profit society in Madras (now Chennai). The BCCI has grown from its original composition of less than half a dozen provincial members to have five times that number representing various groups and territorial divisions. The Structure The BCCI at the moment consists of 30 Full Members some of whom do not field teams, while others do not represent any territory. Twenty States and one Union Territory are included and ten States and six Union Territories remain either excluded or disenfranchised. In addition, officially there are Associate and Affiliate Members as well as so-called Future Members. The Services Sports Control Board, the Railways Sport Promotion Board and All India Universities represent particular national service groups, who traditionally constituted the largest employers of Indian sportsmen before the advent o....
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....on Territory with a Chief Minister and ought to be made a Full Member. This issue is sub judice before the Madras High Court but nonetheless, there seems that some artificial distinction exists in the extant rules between Delhi and Puducherry. f. Ad-hoc creation of Membership categories The Regulations of the BCCI only speak of three categories of members - Full, Associate and Affiliate. However, we find that there is a list of six "Future Members", a category that does not have a legal basis. This consists of Uttarakhand, Mizoram, Telangana, Chandigarh, Puducherry and Andaman & Nicobar. Such a classification seems a half-way house with no real purpose except to give the association an illusion that it will be promoted at some vague point in the future. g. Arbitrary addition and removal of associations For reasons best known to the BCCI, despite being a Full Member, the Rajasthan Cricket Association has been treated as disenfranchised, resulting in the players of the State being forced to move elsewhere to compete. The non-addition of the Bihar Cricket Association or an equivalent has also led to such a denial to the players from Bihar. Solutions Almost universally, apart fr....
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....changes are being suggested in the interest of the game as a whole and also having regard to BCCI's role as a national body to promote and control cricket in India. Governance of cricket being the central theme, the changes in membership in the BCCI are inevitable and must be seen by all concerned in the right spirit of fair representation and for the betterment of cricket administration. While there are seven Union Territories, it was found that only Delhi and Puducherry have a Chief Minister and are treated as substantially independent governing entities. At first glance, there seems no rationale for a distinction between the two, but what cannot be denied is the fact that Delhi, apart from being the national capital, is also a major Test Centre with an international stadium and has nearly 20 times the population of Puducherry. There may thus be some merit for Puducherry not immediately being included as a Full Member, especially when the issue is sub judice. Among the Union Territories, it would however be appropriate for Puducherry to be now inducted by the BCCI as an Associate Member which will retain rights to field a team and compete. The consequence of the above realignme....
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.... of Members, inter alia, provides that Membership of the Board shall be confined to Full Members and Associate Members. It further provides that each State shall be represented by a State Cricket Association duly recognized by the BCCI and that such associations shall be Full Members. No State shall have more than one Full Member according to Rule 3 of the proposed Rules. Rule 3-B enumerates 30 States in the country including Delhi and Goa as Full Members of the BCCI. Rule 3-C provides for recognition of only one Member out of multiple Existing Members for a State while proposing to convert the remaining as Associate Members. Rule 3-C reads as under: "3-C. In states with multiple Existing Members, the BCCI shall recognize one of them to represent the State, while the remaining shall become Associate Members." 12. Equally important is the Rule 3(b)(1) which enumerates grounds for sanction and de-recognition of a Full Member and reads as under: "3 (b) Grounds for sanction and derecognition of a Full Member (1) No Member shall be entitled to any grant from the BCCI if its Constitution fails to provide for, or comply with the following within One year after the Effective Date: (i)....
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....s recorded a finding that with an individual-centric constitution the reins of cricket's richest and arguably most powerful national body remains mired in controversy and seems to have strayed from its chosen path. 16. The Committee takes the view that BCCI finds it difficult to control and manage the IPL and its most successful venture threatens its existence in its present form. There seems to be no collective interest in the game being promoted and cricket stands without a custodian for its protection and propagation in its most passionately followed nation. 17. The Committee then identifies the problems under different headings and suggests solutions forthe same in the following words: a. Concentration of power From overall superintendence of the Board and its affairs to taking action against players and even approving the composition of the team chosen by the Selectors, the President is all-powerful. In practice, this power was even abused with the exercise of veto over the changes in captaincy and selection of ICC representatives. Incumbents were also known to turn a blind eye when issues of corruption and mismanagement were brought to their notice, even going as far as p....
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.... the affairs of the very body towards which they are the primary contributors. f. No representation to women The BCCI has never seen a woman in the Working Committee, and for a body that runs the sport in the country, the BCCI ought to have bestowed greater attention to the women's game. Australia, New Zealand, England and even Pakistan are seen to regularly play the women's game with only governance apathy responsible for the Indian women's team playing few and far between in all forms of the game. Greater support and promotion is required so that youngsters may also be attracted to it. g. No independent voice The BCCI has not embraced the modern principles of open governance, which is all the more necessary when discharging such far reaching public functions. The Working Committee consists entirely of representatives of the Full Members, thereby making it's functioning a closed-door affair with no representation of players or audit experts to act as checks on governance. h. Unlimited terms and tenures Many individuals occupy various posts in the BCCI for multiple terms and on multiple occasions, without any ceiling limit. There has even been an instance of a former Presid....
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....fact that they do not have a voice in the governance of the sport that has a 'billion hearts' beating for it is now rectified. d. The nominee of the C&AG also brings financial and audit experience which would bring in much required oversight into monitoring the finances of the BCCI. e. It continues to ensure a strong say for the Full Members, as it provides that two-thirds' strength on the Council is made up of their representatives. In order to ensure that the posts are not treated as permanent positions of power, each term should be for three years. The total period for which a person can be a member of the Apex Council shall be nine years regardless of the capacity in which such position was or is occupied. However, in order to ensure that there is an appropriate cooling-off period, no person shall be a member of the Apex Council for two consecutive terms. Any elected Councillor shall stand automatically disqualified after nine years as an office bearer, and shall also be disqualified from contesting or holding the post if he has completed the age of 70 years, is charged under the penal law, is declared to be of unsound mind, is a Minister or government servant or holds any ....
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....ort recommends two initiatives viz. (i) An Association of Players and (ii) a strict set of procedures to govern players' Agents. The Committee notes that while almost all Test playing nations have a Players' Association, there has been some reluctance on the part of the BCCI to initiate such a move, ostensibly due to the apprehension of unionisation. Similarly, both England and Australia have agents' accreditation systems in place to ensure that only those professionals who qualify through a rigorous knowledge and ethics selection process alone represent the players. These systems are administered by the National Board in conjunction with the respective Players' Associations. The Committee accordingly recommends setting up of a Players' Association with a Steering Committee comprising four persons named in the Report. It has also proposed norms for agent's registration to be administered by BCCI in consultation with the Cricket Players' Association. 22. In Chapter six the Committee deals with Conflict of Interest and Issues Central to the Regulation of Ethical Conduct in sport. The Committee has spelt out specific types of Conflict of Interest, and applied them to individuals e....
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....ard of warnings, fines, reprimands, suspensions or other action as may be recommended to the BCCI. According to the recommendation all non-IPL ethics issues shall be administered and adjudicated by the Ethics Officer who shall be a former Judge of the High Court to be appointed by the Board. Recommendation for appointment of an Electoral Officer for conducting elections of the Committee under the Rules has also been made by the Committee. The Committee has recommended that in order to ensure competence and to distance the entity from any suspicion or bias, a former Election Commissioner for India could be appointed as the Electoral Officer for the BCCI, whose decision on any subject relating to elections shall be final and conclusive. 24. In Chapter eight of the report, the Committee has dealt with issues touching transparency and oversight and has noted that BCCI in its website did not carry the existing constitution or the bye-laws of BCCI. The Committee has taken cognizance of complaints of many stakeholders that very little of the functioning of the BCCI is done in a fair and transparent manner and that those who seek greater information are either rebuffed by the Board or wo....
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....nd office orders of the BCCI, the Constitution of the various committees, their resolutions, their expenditures on the various heads, the reports of the Ombudsman, Auditor, Electoral Officer, Ethics Officer and the annual reports and balance sheet be uploaded on the BCCI Website. 27. The Committee further recommends that norms and procedures ought to be laid down for the engagement of service professionals and contractors, and full transparency of all tenders floated and bid invited by or on behalf of the BCCI will also be maintained. The Website shall also have links to the various stadia with seating capacities and transparent direct ticketing facilities. 28. The Committee has opined that people of the country have a right to know the details about the functions of the BCCI and its activities and recommends to the legislature to bring BCCI within the purview of the RTI Act as a public authority. 29. More importantly, the Committee has recommended that the auditors engaged by the BCCI should be tasked to not only undertake a financial analysis but also a performance audit (Compliance Report) to determine whether State associations have actually expended their grants towards the....
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.... Chapter Ten of the Report the Committee identifies several other problem areas that call for reform. These problems have been identified and elaborated under the headings 'Membership and Privileges, Posts and Tenures, Voting, Compliance, Expenditure and Infrastructure, Lack of Professionalism, Dual Posts, Interference in Selection and Transparency. The Committee has, after an elaborate discussion under each one of the above headings, proposed solutions to the same in the following words: "Solutions There was a consistent view among respondents to the queries that many of the ills befalling Indian cricket find their roots in the State Associations and their lack of administration. The root cause for the problem is that the BCCI is making substantial annual grants regarding which there is no oversight, and so the status quo remained as it was, with little effort by the provincial administrators. Therefore, it is necessary that there is uniformity in the constitution and functioning of the various associations (without any office being created for life), that membership of social clubs be divorced from the administration of cricket which is a sombre task, that cricketers be made ....
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....ted shall be an eminent person well versed in adjudicatory processes and it will be his/her task to decide all disputes between the Association and any of its constituents (Districts, Clubs, etc.), or between the constituents, or complaints of any player or member of the public, by following the principles of natural justice before rendering a decision. As Ethics Officer, it shall be his duty to administer the principles of Conflict of Interest and recommend such action as may be deemed fit as far as an Office Bearer, Employee, Player, Team Official or other individual connected to the State Association is concerned. Needless to say, if it is an issue that concerns the BCCI as well, the Ethics Officer of the BCCI shall proceed to decide the issue. The Ethics Officer shall also decide all issues concerning the violation of the Agents' Registration norms as far as players of the State are concerned. Each State Association will necessarily have a website that carries the following minimum details: a. The Constitution, Memorandum of Association and Rules & Regulations, Bye-Laws and Office Orders and directions that govern the functioning of the Association, its Committees, the Om....
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.... generated and there would be all round development of sport, care being taken not to damage the pitch. But they should not be used for public functions where thousands will stomp on the ground. The above recommendations relating to State Associations (Full Members) will also be applicable to the 4 associations relegated to the category of Associate Members and who are entitled to disbursement of the grant from the BCCI." 34. The reforms recommended by the Committee have been finally summed up under the heading "End of the Innings" in the following words: "END OF THE INNINGS If there has been one unifying factor in India, it has been cricket. From C.K.Nayudu to Virat Kohli, the 32 captains of India and the men they have led have been equally deified and vilified by the masses, for such is the ability of the game to inflame passions. It is on behalf of these devotees of willow and leather that this Committee submits this effort to edify the BCCI. In an effort to present the recommendations made by the Committee in brief, the following synopsis of our proposals are set out: 1. Membership 'One State, One Vote' Only cricket Associations representing the States would have vot....
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....ring are to be handled by Cricket Committees manned only by former professionals. Specific provisions have been made to encourage cricket for women and the differently-abled. 7. The IPL 'Limited Autonomy for IPL' The Governing Council of the IPL is reduced to 9, but includes 2 representatives of the Franchisees and nominees of the Players' Association and the C&AG's office. 8. Players 'A voice for Players' There shall be a Cricket Players' Association affording membership to all international and most first class men and women retired cricketers. This Association shall discharge assigned functions with the financial support of the BCCI. It shall be brought into existence by an independent steering committee. 9. Agents 'Arms length for agents' Players' interests are protected by ensuring that their Agents are registered under the prescribed norms administered by the BCCI and the Players' Cricket Association. 10. Conflict of Interest 'Avoidance of conflicts' Detailed norms have been laid down to ensure there is no direct or indirect, pecuniary or other conflict or appearance thereof in the discharge of the functions of those persons associated or employed by the BCCI....
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....ccepted and implemented several recommendations made by the Committee. In Para 6 of the Affidavit the deponent has identified the recommendations accepted by BCCI and the steps already taken by it or those being taken for implementation, in the following words: "6. Of the recommendations contained in the Report, BCCI has accepted and has either implemented or is implementing the following recommendations: (a) Appointment of an Ombudsman: The BCCI has amended its Rules and Regulations to provide for the appointment of an Ombudsman at every Annual General Meeting to deal with complaints of conflicts of interest and any act of indiscipline or misconduct or violation of any rules and regulations of the BCCI by an administrator. Thus, the Ombudsman now contemplated by the amended Rules and Regulations of the BCCI effectively combine the functions of the Ethics Officer and the Ombudsman within the scope of the Ombudsman's functions whilst omitting disputes between the BCCI and IPL franchisees, which are covered by existing arbitration agreements. The Hon'ble Mr. Justice A.P. Shah, Former Chief Justice of the Delhi High Court, has been appointed as the Ombudsman and has taken cognizance....
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....ependent auditor to scrutinize the statements of accounts of members with regard to payments made by BCCI to such member and all further payments due to such member shall be released after the receipt of diligence reports by the BCCI. BCCI immediately engaged agencies like PricewaterhouseCoopers, Deloitte and Grant Thorton to carry out due diligence of State Associations. As part of this process, a financial due diligence exercise is currently underway in respect of financial years ending 31st March 2014 and 31st March 2015. (f) Measures to prevent match-fixing/ spot fixing: Although BCCI has implemented the Anti Corruption Code since 2012, the biggest obstacle that has been faced by BCCI in its endeavour to prevent match-fixing/ spot-fixing has been the absence powers to gather intelligence on the subject and/ or policing powers with the BCCI's Anti Corruption Unit. For this reason, the BCCI has requested the Government of Maharashtra to establish a sports integrity intelligence gathering unit under the joint aegis of the BCCI and Maharashtra Police whilst offering to fund the costs of doing so, if required. A copy of the letter dated 18th November 2015 addressed by the BCCI to ....
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....m being relegated as an associate member, the remaining full members from that State will no longer be in-charge of cricketing activities, cricket teams, stadia and players within their respective erstwhile jurisdictions. It would thereby disable them to field teams to participate in BCCI tournaments. 40. BCCI also apprehends that infrastructure available with the three full members each from Maharashtra and Gujarat will be wasted if the recommendation of the Committee is accepted. It is contended that Regulations 6(A) and 6(B) of BCCI's existing Rules and Regulations lay down the procedures and criteria for admitting any new members based on levels of cricketing activity in their respective territories apart from provisions that provide for promotion of an Affiliate Member to an Associate Member as well as for promotion of an Associate Member to a Full Member to take care of the interests of all concerned. This method is in tune with the method followed by International Cricket Council (for short, "the ICC") where a member has to reach a certain level in performance and infrastructure before it may be promoted to the next level. 41. BCCI has also faulted the proposed reduction i....
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.... their counterparts in law, judiciary, public life, Parliament etc. As regards Players Association and Board representation, the BCCI has welcomed the suggestion of formation of a Players' Association but opposed any funding by the BCCI as recommended by the Committee. It has also not favored players' representation in the Board on the ground that several players have in the past served as Office Bearers in the BCCI and State Association on their own merit. Dissolution of existing Committees too has been opposed by the BCCI. In conclusion, the affidavit filed on behalf of the BCCI submits that while the report seems to have achieved a very laudable objective the same is only recommendatory and ought not to be imposed on a society formed by private individuals who enjoy constitutional protection under Article 19 of the Constitution of India. It has also raised an issue that the Committee did not give a hearing to BCCI regarding the proposed recommendations. Although a questionnaire was sent to the office bearers of the BCCI including the honorary President, honorary Secretary and the honorary Treasurer and even when the office bearers of the BCCI had appeared before the Committee to....
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....ve a questionnaire upon the stakeholders soliciting information, apart from holding several interactive sessions with them and all those who wished to be heard in the matter including representatives from the State Associations, Journalists, Academicians, Jurists, Public Figures etc. The Committee has on the basis of the said interactions arrived at certain conclusions to which we have made reference at great length in the earlier part of this judgment. Based on the said findings the Committee has recommended certain steps which, in its opinion, are necessary to usher in structural and other reforms in the working of the BCCI. What is significant is that the Committee was not called upon nor has it adjudicated upon any right of the applicant finally. It has simply enquired into the working of the BCCI, identified its fault, its weaknesses, failures and shortcomings and suggested ways and means by which the same can be rectified. The report submitted by the Committee is recommendatory in nature and does not ipso facto oblige BCCI to accept the changes suggested therein unless so directed by the Court. That being so, any grievance based on the alleged violation of the principles of n....
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.... Court and before we accept the same with or without modification, we have heard not only the BCCI but everyone who has come forward to be heard. We, therefore, see no reason to remand the matter nor do we see any legal flaw in the procedure adopted by the Committee. 46. It was then argued by Mr. Venugopal that although several of the recommendations made by the Committee were sound and useful for improving the working of the BCCI and bringing greater efficiency and transparency, yet, several others were either legally impermissible or unnecessary apart from being impracticable keeping in view the ground realities and the historical perspective in which the BCCI was founded. Mr. Venugopal, in particular, assailed the recommendations made by the Committee that each State in the country must be represented in the BCCI by an association as a full member. It was urged that while the BCCI was not averse to conceding full membership to an association duly recognized from each State in the country to give to the BCCI a truly national character, the Committee's recommendations that multiple full members from the States of Gujarat and Maharashtra should be discontinued and two members each....
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....sociation, Chandigarh contended that the recommendations made by the Committee are well meaning and could go a long way in reforming the BCCI structurally as well as professionally. It was urged that findings of the Committee regarding the ills affecting the BCCI have not been questioned by the BCCI or by any intervenor. If those findings were correct as they indeed are, the proposed reforms become inevitable and ought to be introduced to save the game from losing its popularity in the Indian sub continent. It was argued by Mr. Mehta that Article 19(1)(c), is in no way violated in case the recommendations made by the Committee in regard to the reform and the composition of the BCCI are accepted and directed to be implemented. 49. We have given our anxious consideration to the submissions made at the Bar. We may, before adverting to the rival submissions urged before us, point out two distinct aspects that need to be kept in mind while addressing the issues raised before us. The first is that the proceedings that led to the setting-up of the Committee arose out of a public interest petition. The directions issued by this Court proceeded on a clear finding recorded by this Court tha....
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....f the State. The Union of India has tried to make out a case that the Board discharges these functions because of the de facto recognition granted by it to the Board under the guidelines framed by it but the Board has denied the same. In this regard we must hold that the Union of India has failed to prove that there is any recognition by the Union of India under the guidelines framed by it and that the Board is discharging these functions on its own as an autonomous body. xxx xxx xxx 31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of....
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....y affect the citizens who have come together to form such State associations. It was contended that this Court could in its discretion lift the veil to determine whether the right of any citizen/citizens was affected and grant suitable relief if the answer was in the affirmative. It was contended that once this Court decides to do so it will find that citizens comprising the State Cricket Associations are the ones actually affected by the recommendations in question. 54. We regret our inability to accept the submission so vehemently urged before us by learned Counsel for the BCCI and the State Cricket Associations. We say so, firstly because no citizen has come forward in the present proceedings or in the earlier round to complain of the violation of any fundamental right guaranteed under Article 19(1)(c) of the Constitution. Secondly and more importantly because the recommendations do not, in our opinion, affect the composition of the State Cricket Associations in any manner. Citizens who have come together to form the State Associations continue to associate as before with no change in their internal composition. If that be so as it indeed is the right guaranteed under Article 1....
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....(2) to (6) of Article 19 as might be appropriate in the context. It is one thing to interpret each of the freedoms guaranteed by the several articles in Part III in a fair and liberal sense, it is quite another to read each guaranteed right as involving or including concomitant rights necessary to achieve the object which might be supposed to underlie the grant of each of those rights...." 56. In Tata Engineering and Locomotive Company Ltd. v. State of Bihar, AIR 1965 SC 40 this Court reiterated that Article 19 applies to citizens and not persons as was the position with Article 14 of the Constitution. The effect is that the provisions of Article 19 can be claimed by citizens only and not by corporations. This Court held that the fundamental right to form an association or Union cannot be coupled with the fundamental right to carry on any trade or business. As soon as citizens formed a company, the right guaranteed to them by Article 19(1)(c) stood exercised. After the incorporation of the company the business carried on by it is the business of the corporation and not the business of the citizen. The Court held: "28. That being the position with regard to the doctrine of the ve....
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....tention of Parliament to treat corporations as citizens. Therefore, it seems to us that in view of the decision of this Court in the case of State Trading Corporation of India Ltd. 1, the petitioners cannot be heard to any that their shareholders should be allowed to file the present petitions on the ground that, in substance, the corporations and companies are nothing more than associations of shareholders and members thereof. In our opinion, therefore, the argument that in the present petition we would be justified in lifting the veil cannot be sustained. 29. Mr Palkhivala sought to draw a distinction between the right of a citizen to carry on trade or business which is contemplated by Article l9(1)(g) from his right to form associations or unions contemplated by Article l9(1)(c). He argued that Article 19(1)(c) enables the citizens to choose their instruments or agents for carrying on the business which it is their fundamental right to carry on. If citizens decide to set up a corporation or a company as their agent for the purpose of carrying on trade or business, that is a right which is guaranteed to them under Article 19(1)(c). Basing himself on this distinction between the ....
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....t under Article 32, even though in each of these petitions one or two of the shareholders of the petitioning companies or corporation have joined." (emphasis supplied) 57. In D.A.V. College v. State of Punjab, 1971 (2) SCC 269 this Court was examining the validity of a legislation that provided for compulsory affiliation of religious or linguistic minority institutions to the University. It was contended that the requirement of compulsory affiliation was in violation of their right of freedom of association guaranteed under Article 19(1)(c). This court, however, rejected that contention and held that the notification providing for compulsory affiliation with the University did not in any manner interfere or attempt to interfere with the petitioners' right to form an association under Article 19(1)(c). This Court said : "29. It is contended that the compulsory affiliation of the petitioners to the University affects their fundamental right of freedom of association as guaranteed under Article 19(1)(c), therefore the notification under Section 5(3) affiliating them to the University is bad. It is also urged that since the words "associated with and admitted to any privileges....
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....iation. This Court affirmed the view taken in its earlier decision in O.K. Ghosh and another v. E.X. Joseph, AIR 1963 SC 812, and observed: "6. It was argued that the right guaranteed by Article 19(1)(c) is only to form an association and, consequently, any regulation of the affairs of the Association, after it has been formed, will not amount to a breach of that right. It is true that it has been held by this Court that, after an Association has been formed and the right under Article 19(1)(c) has been exercised by the members forming it, they have no right to claim that its activities must also be permitted to be carried on in the manner they desire. Those cases are, however, inapplicable to the present case. The Act does not merely regulate the administration of the affairs of the Society; what it does is to alter the composition of the Society itself as we have indicated above. The result of this change in composition is that the members, who voluntarily formed the Association, are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. Such alteration in the composition of th....
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....se (supra), (five-Judges Bench), the following principles emerge : (i) a right to form associations or unions does not include within its ken as a fundamental right a right to form associations or unions for achieving a particular object or running a particular institution, the same being a concomitant or concomitant to a concomitant of a fundamental right, but not the fundamental right itself. The associations or unions of citizens cannot further claim as a fundamental right that it must also be able to achieve the purpose for which it has come into existence so that any interference with such achievement by law shall be unconstitutional, unless the same could be justified under Article 19(4) as being a restriction imposed in the interest of public order or morality; (ii) A right to form associations guaranteed under Article 19 (1) (c) does not imply the fulfillment of every object of an association as it would be contradictory to the scheme underlying the text and the frame of the several fundamental rights guaranteed by Part III and particularly by the scheme of the guarantees conferred by sub-clauses (a) to (g) of clause (1) of Article 19; (iii) While right to form an associati....
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....position of the State Cricket Associations who are complaining of the breach of their right under Article 19(1)(c) remains unaffected, there is no violation of what is guaranteed by Article 19(1)(c). 61. Seen in the backdrop of the above, the recommendations made by the Committee in the instant do not interfere with or alter the composition of the State Associations. Individual citizens who came together to form the State Associations have not been asked to discontinue their association nor do the recommendations impose upon their members an obligation to associate with others with whom they do not wish to associate. Composition of the State Cricket Associations remain unaffected, and so does the right of those forming such Associations under Article 19(1)(c). That being so, the grievance sought to be made on behalf of citizens who have formed the State Associations does not stand scrutiny no matter none of those on whose behalf the argument is advanced is before this Court to make any such grievance. We have, in the light of the above, no difficulty in rejecting the first limb of the submissions made by learned counsel opposing the recommendation of the committee that BCCI shall ....
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.... to make it more responsive and accountable having regard to the aspiration of different regions for an equal opportunity to participate in the growth and promotion of the game in the country. The fact that clubs including the Railways Sports Promotion Board, Association of Indian Universities and Services Sports Control Board do not represent any region nor do they receive any monetary benefit is, in our view, a good enough reason for converting their full membership to associate membership. The conversion notwithstanding they shall continue to be associated with the growth and promotion of the game, the right to vote remaining confined to full members, representing definite geographical regions or territories. The recommendation made by the committee regarding the conversion of the status of the above mentioned clubs and associations are, therefore, sound and are hereby accepted. 64. Coming to the second aspect of "One State One Vote", it was argued by learned counsel appearing for the intervening clubs from the States of Maharashtra and Gujarat that the six clubs/associations three each from the two States viz. Mumbai Cricket Association, Maharashtra Cricket Association, Vidarb....
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....s, if it would be possible for the three associations to sync and unify their associations into a single entity. There were serious reservations expressed on that front and rightly so as each association is entitled today to field a team and receive monetary assistance. In the process of unification, the prospects of budding cricketers of these regions would go down substantially. That being so, the only reasonable and rational answer to the problem within the broad principle of One State One Vote would be to allow the full membership of BCCI to rotate among the three clubs on an annual basis. During the period one of the associations would exercise rights and privileges of a full member, the other two associations would act as associate members of BCCI. This rotational arrangement would give each member a right to vote at its turn without violating the broader principle of one State one vote recommended by the Committee. This would also respect the historical aspect in which these associations grew to promote the game and form BCCI as a national body. Needless to say that the right of the association to field teams as before will remain unaffected subject to any changes that BCCI ....
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.... Cricketers who play competitive cricket generally fall in the age group of 18 to 35 years. This implies that even after retirement from active cricket anyone who has the potential to contribute to the game can do so for over three decades till he attains the age of 70 years. The upper age limit recommended by the Lodha Committee is not, therefore, unreasonable or irrational by any standard. That apart, as rightly pointed out by the counsel supporting the recommendation, the Government of India have in the National Sports Development Code of India, 2011, inter alia, stipulated that the President, Secretary and the Treasurer of any recognized National Sports Federation including the Indian Olympic Association (IOA) shall cease to hold that post on attaining the age of 70 years. The upper age limit of 70 years is not, therefore, an unusual or unacceptable norm so as to warrant our interference with the same. The recommendation made by the Lodha Committee regarding upper age limit for office bearers is accordingly accepted. 69. Mr.Venugopal, learned counsel appearing for BCCI and counsel for some of the interveners opposing the recommendations of the Committee also assailed the Commi....
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....ehalf of the BCCI that the restriction placed on the Ministers and Public Servants holding office would, in any manner, damage the cause of the game is, therefore, without any basis. 71. The Lodha Committee has, in its meetings, held extensive interactive sessions and deliberations with a cross section of stakeholders. The recommendations made by the Committee are based on the impressions which the Committee has gathered from such interactions and deliberations. In the ordinary course and in the absence of any patent perversity in what has been recommended by the Committee, this Court would be slow in interfering, especially when the Committee has recommended comprehensive restructuring of the management at different levels by proposing modification of the relevant rules and regulations. The Committee has in its wisdom found that the holding of office by the Ministers and Civil Servants in the State Associations or in the BCCI is not conducive to the health and promotion of the game. The Committee has taken the view that the game would be better managed, promoted and developed if politicians and civil servants who otherwise occupy positions of responsibility in the Government that....
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.... BCCI or the State Associations. The contention that favours which the BCCI receives will disappear just because a Minister or Civil Servant is not an office bearer in the State Association or BCCI has no real basis to commend itself to us. So also, the contention that it should be permissible to hold office simultaneously in BCCI and the State Association has not commended itself to us. The Committee has while recommending abolition of dual posts observed: g. Dual posts Strangely, while conflict of interest issues have been at the heart of recent controversies, virtually all office bearers of the BCCI continue to be office bearers in their respective State Associations at the same time. Presidents and Secretaries of State Associations are to discharge functions with the primary interest of the State in mind, but as BCCI office bearers, these interests would have to be subordinated to that of national interest. Often, with powers centred on an office bearer, that individual has been found to appoint his State associates to critical posts in the BCCI, thereby creating an imbalance. 73. There is nothing irrational about the view taken by the Committee. The argument that individua....
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....id down for the engagement of service professionals and contractors, and there shall be full transparency of all tenders floated and bids invited by or on behalf of the BCCI. The website shall also have links to the various stadia with seating capacities and transparent direct ticketing facilities. xxx xxx xxx xxx xxx xxx The Committee also believes that the Auditor be tasked not only with a financial analysis, but also specifically carry out a performance audit (Compliance Report) to determine whether the State associations have actually expended their grants towards the development of the game and mark them on a report card which will be utilized to determine the due they deserve the following year. This oversight also needs to consider the high and unreasonable expenditures by the Board on various heads, which would have to be limited and streamlined." 76. While dealing with the question of governance in Chapter Two of the Report the Committee has recommended a Nine-Member Body as the Apex Council out of whom five shall be elected office bearers of the BCCI while four shall be Councillors one of them to be nominated by the C&AG. The nominee of C&AG, shall, in the opinion of t....
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....ring transparency and objectivity necessary to inspire public confidence in the fairness and the effective management of the affairs of the BCCI and the State Associations. The nominees recommended by the Committee would act as conscience keepers of the State Association and BCCI in financial matters and matters related or incidental thereto which will in no way adversely impact the performance or working of the BCCI for the promotion and development of the game of cricket. The criticism leveled against the recommendations of the Committee is, therefore, unfounded and accordingly rejected. 78. That brings us to the recommendation made by the Committee regarding the formation of a Players' Association. To the extent the recommendation provides for establishment of a Players' Association neither the BCCI nor any other association who has intervened has found fault with the view taken by the Committee. What has come under criticism by the BCCI and its supporting associations is the financial assistance which the BCCI is required to give to such an association. On behalf of the BCCI it was contended that cricket players can indeed form an association which they are in any case entitle....
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....ence. Players' Association, it is obvious, would represent a very significant and important segment of the stakeholders in the game. Those who have played the game and are, therefore, better equipped to understand its nuances, its challenges and concerns relevant to its development and promotion cannot be left out from the management. The Committee has recommended two positions in the Apex Council as Councillors one of whom must be a female. Keeping in view the numerical strength of the Apex Council, two nominees representing the Players' Association will not unfavorably tilt the power balance within the Apex Council nor bring in any undesirable or extraneous element into the management of the BCCI. We have, therefore, no hesitation in rejecting the argument against the recommendation. 81. That leaves us with three other recommendations of the Committee to which we may advert at this stage. Of these, two recommendations are in the nature of an appeal to the Parliament to enact suitable statutory provisions which the Committee considers essential in public interest. The first of these recommendations relates to the BCCI being under the purview of Right to Information Act and to car....
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....ate at the bar touches the broadcast/ telecasting of sporting events hosted by the BCCI. The Committee appears to have taken the view that commercial expediency has overtaken the need for a neat telecast of the events for the benefit of the viewers. The Committee has observed : "Commerce has also overtaken the enjoyment of the sport, with advertisement continuing many a time, even after the first ball and again commencing even before the last ball of the over is played, thereby interrupting the full and proper broadcast of the game. Regardless of the wicket that has fallen, century having been hit or other momentous event, full liberty is granted to maximize the broadcaster's income by cutting away to a commercial, thereby robbing sport of its most attractive attribute - emotion. It is recommended that all existing contracts for international Test & One-Day matches be revised and new ones ensure that only breaks taken by both teams for drinks, lunch and tea will permit the broadcast to be interrupted with advertisements, as is the practice internationally. Also, the entire space of the screen during the broadcast will be dedicated to the display of the game, same for a small spons....
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....the over and limiting the commercial advertisement in terms of time and space to an extent that will not deprive the viewers of the pleasure of watching the game in full. We make it clear that we have not expressed any opinion in this regard and leave it for the BCCI to examine the matter from all possible angles and take a considered decision having regard to the recommendations made by the Committee and the feasibility of any modification in the existing contracts. 87. Last but not the least is the recommendation made by the Committee that the Governing Council of the IPL ought to be reconstituted so as to comprise three ex-officio members of the BCCI namely; the Secretary, the Treasurer and the CEO. Two representatives of the Members of BCCI to be elected by the General Body, two nominees of the IPL franchisees and one nominee each to be nominated by the C&AG and from the Players' Association. The BCCI has objected to the recommendation in so far as same pertains to induction of two nominees of the franchisees. The BCCI contends that the induction of the nominees from the franchisees is impermissible because important matters like players retention policy, posting of umpires fo....
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....e a member of the apex council. The recommendation also provides for cooling off period between two terms. It also prescribes grounds for disqualification of office bearer which were otherwise absent in the existing rules and regulations of the BCCI. These recommendations come in the wake of a finding by the Committee that under the present dispensation office bearers could continue for any number of terms. It was also noticed that no grounds for disqualifying an office bearers were prescribed. The Committee found both of these to be unacceptable and, in our opinion, rightly so. Given the problems that often arise on account of individuals holding office for any number of consecutive terms, the Committee was, in our opinion, justified in recommending the length of a term in office. A three year term recommended by the Committee is, in our opinion, reasonable. So also, the prescription of cooling off period between two terms cannot be faulted. Similarly, an optimum period of 9 years as a member of the apex council cannot also be termed as unreasonable. Grounds for disqualification like unsoundness of mind, the member becoming a minister or holding a membership in any sporting body a....