N Srinivasan is under tremendous pressure to resign as the BCCI president © IANS
By Deepak Chari
In the last couple of days, a lot has been written about, spoken about and ‘expert’ views have been voiced on the social media about Board of Control for Cricket in India (BCCI) President N Srinivasan after the Supreme Court (SC) bench made certain observations. Former players, former BCCI chiefs and even some current members of the board have voiced their “strong” views as did cricket fans across cyberspace. A website also ran a “poll” where one could vote on whether Srinivasan should resign or not.
What is missing from the reams of newsprint and sound bytes is the legal aspects of the case. Hardly any journalist bothered to delve into this aspect of the matter. This is a case before the top most court of the country. This is an attempt to look at the legal aspects of the case, on a day when the Court resumed hearing and presumably give its ruling. At the outset, these are not the views of a qualified lawyer but thoughts stemming from accumulated knowledge, if one could term it that, from the experience of years of dealing with legal cases in a Corporate Finance environment.
Firstly, what is the legal sanctity of oral observations made by judges during the hearing of the case? Unless these observations find a place in the final order that is passed, they have no legal sanction. In a court hearing, when lawyers of both sides are arguing, the judges pose questions, make comments (sometimes sarcastic) and express opinions contrary to what the lawyer is arguing about. When the judgment is finally passed, many of the conversations, even expressed opinions of the judges, do not figure in the Order that is passed.
Secondly, the case before the SC is for doing a proper probe on the betting and match-fixing issue. The petitioner, one of the members of this private body [BCCI], complained that the earlier probe was improper and inconsistent with the body’s rules and was not impartial. So the SC asked for a different person to conduct the probe. This person [Justice Mudgal] has found some merit that the Bihar member’s allegation cannot be dismissed and has submitted a report. By law, the SC can ask for a police or CBI investigation and prescribe that the report be given to them. Unless such a report indicts and proves that the BCCI President was guilty, there is no question of a private body’s duly elected official to resign on moral grounds. Moral grounds are only applicable to “public officials” as defined, and BCCI is not one of those. This being election season, readers will recall how the SC-appointed a Special Investigation Team (SIT) to probe into the allegation of government connivance during the Gujarat riots and asked the SIT to report directly to the SC. That SIT gave a clean chit to the Gujarat CM. Therefore, legally one can take the stand that just as an elected CM did not resign when allegations were thrown (in a case which involved loss of life, as compared to this case where the loss is only that of money and alleged activities that were against the law of the land – activities that are legal in some other countries by earlier probes and he was finally absolved by the SIT appointed by the SC, so too an elected President of a private body does not have to resign and can wait for a probe by SIT.
Thirdly, in the conduct and composition of BCCI, it varies substantially from the structure of India. For example, some states of the Union do not have membership at all whereas some states have multiple memberships. The BCCI operations and activities do not get any financial subsidy from the Indian government. So how can it be anything but a private body? And if it settled law that Bangalore Club can have its own rules for memberships or even a dress code that is at variance, then by the same premise BCCI’s officials do not have to be answerable to public and resign on moral grounds.
Full coverage of Supreme Court hearing on IPL 2013 spot-fixing and betting scandal
Fourthly, the SC held recently that Lalit Modi cannot be barred from standing for or being elected or holding office as Rajasthan CA’s President against the BCCI even though he was a ‘proclaimed offender’ for some tax law violations by the Govt. of India. How then can the same SC order that BCCI President should resign when he is not been proven guilty or even had charges filed against him for a criminal or civil offence?
Fifthly, this is to the disadvantage of BCCI. The BCCI is registered as an Association of Persons under the Societies Act in Tamil Nadu. The case filed against Srinivasan by AC Muthiah, former BCCI President, has already established that. Under that Act, there have been instances where the Courts have ordered the appointment of administrators where it has found that the elected management were guilty of mismanagement and illegally siphoned off the members monies. Perhaps the lawyers of the Bihar Cricket Association could take this plea and argue in Court on today.
We are set for an interesting day in Supreme Court indeed. The Court’s website could well have more hits than on sports and social media websites today!
(Deepak Chari is a cricket enthusiast who had the unique distinction of umpiring on both sides of the pitch in the quarterfinal of the state senior schools championship even though he was a member of his school team which played and lost that match. Nowadays, he demonstrates that trait by taking contrarian views. When not doing that, he works as the CFO of a Bangalore-based technology company)