SUNDAY 1ST MARCH, 2015 – UWI TODAY
11
under the Registration of Societies Act. Suffice it to say
that if the government not only allows an autonomous/
private body to discharge functions which it could in law
take over or regulate but even lends its assistance to such
a non-government body to undertake such functions
which by their very nature are public functions, it cannot
be said that the functions are not public functions or
that the entity discharging the same is not answerable
on the standards generally applicable to judicial review
of State action.”
The logic of this conclusion pervaded a separate
question with which the case was concerned, namely
the validity of an amendment to one of the BCCI’s
own rules. As will become apparent, this too has some
implications at the local level. The original rule stated that
“no administrators shall have, directly or indirectly, any
commercial interest in the matches or events conducted
by the Board,”but this was later amended by the addition
of the following words “excluding events like the IPL or
Champions League Twenty 20.”The permissive import of
this amendment was not lost on the Court who said that
the aimwas to allow the creation of commercial interests
in events organized by the Board. The court conceded
that the Board had the authority tomake the rule and the
amendment, but that was not the issue. The validity of the
amendment had to be examined, the Court insisted, in
relation to its congruence with ‘Public Policy’.
Here, the importance of the game in the national
context was uppermost in the Court’s calculation. It was
an important instrument of national consolidation; in
the words of the Court, “a great unifying force.” It was
not therefore something to be trifled with, but anyone
entrusted with its affairs must be able to withstand the
highest level of scrutiny. This, the Court underlined, is for
the public good and in the public interest.
As the Court stated, “All told whatever be the format
of the game and whatever be the commercial angles to
it, the game is what it is, only if it is played in its pristine
form free from any sporting fraud.”
While not suggesting that the BCCI administrators
were guilty of fraud, the Court reminded the BCCI that
because it was a very important institution discharging
important public functions, the demands of institutional
integritywere heavy andneeded tobe“met suitably in the
larger public interest.” Because the public interest was at
stake, “what was against public good and public interest
cannot be held to be consistent with Public Policy.”
Seen in this light, “any rule, contract or arrangement
that actually defeats or tends to defeat the high ideals
of fairness and objectivity in the discharge of public
functions nomatter by a private non-governmental body
will be opposed to public policy.” Thus, the rule under
question, to the extent that“it permits, protects and even
perpetuates situations where the administrators can have
commercial interests in breach of conflict with the duty
they owe to the BCCI or to the people at large must be
held to be against public policy, hence, illegal.”
These large questions of public good, public interest,
and public duty do figure in general discourse about
West Indian cricket but not in the clear-cut manner that
the Supreme Court of India has pronounced. The Woolf
Report, commissioned by the ICC and published in 2012,
tended to ignore these questions. Rather, it looked for a
device further to bury them, by suggesting that if the ICC
committed itself to good governance, then it would be
better able to withstand public scrutiny. Whether and if
an avenue involving litigation will be found to bring the
ideas ventilated in the Indian judgment to bear on the
local situation remains to be seen.
“As the court noticed, the BCCI has a
‘complete sway’
over the game of cricket
in India,
regulating and controlling
the game to the exclusion of all others.
It formulates rules, regulations, norms and standards over all aspects of the
game. It selects the national team and the umpires, and exercises the power of
disqualifying players, which could
end the sporting career
of a person.”
Abandoned
In October 2014,
the West Indies team’s tour of
India was abruptly cut short when the players
refused to continue playing. It was one of five
episodes in cricket history where tours were
aborted. The first also involved the West Indies
and was in 1939 when the final seven matches of
the England tour were cancelled because of the
outbreak of World War II. The other three tours
were in Pakistan. One (1968/69) involved England
and a riot, another involved India (1984/85) when
PrimeMinister IndiraGandhi was assassinatedand
the third, involved Sri Lanka (2008/09) when their
team bus was fired upon (ESPNCricinfo).
War, assassination, riot and violence were
followed by the West Indies team downing their
tools because of a contractual dispute with the
WICB.
Dr. Kusha Haraksingh is the Founding Dean of Law,
at UWI, St. Augustine. He appeared as attorney for
theWest Indies Players’ Association in their several
successful arbitration proceedings.
