On Sunday, November 4, 2018, this honour was bestowed on former Indian national captain Mohammad Azharuddin. Eden Gardens has been a venue for many of Azhar’s batting high points, including a magical debut, and his career had quite a few of those. However, you would have to have been living beneath a rock for the better part of two decades if that is all you remember him for.
On November 2, 2000, noted cricket writer Mihir Bose started his essay titled Azhar confesses all in The Telegraph with the following: “For the first time in the near decade-long corruption scandal, one of the world's leading cricketers, Mohammad Azharuddin, has confessed that he took money to throw matches.” Here, Bose is reporting on the Central Bureau of Investigation’s investigation report (current woes notwithstanding, a major event of those days!).
It is another matter entirely that this CBI confession was eventually retracted and multiple legal challenges later the BCCI’s life-ban imposed on Azhar was lifted through the intervention of the Andhra Pradesh High Court in 2012. It is here where the picture seems to have got a bit hazy and it is important to clarify what exactly the Andhra Pradesh High Court said, and more importantly, what it did not.
Unpacking the High Court decision
On November 8, 2012, a division bench of the Andhra Pradesh High Court overturned the December 5, 2000 life-ban handed out to Azharuddin by the Disciplinary Committee of the Board of Control for Cricket in India for his alleged engagement in match-fixing. Upon the completion of the CBI investigation in October 2000, the BCCI had appointed a Commissioner to enquire into the alleged match-fixing.
On the basis of the Commissioner’s report, the Committee concluded that Azharuddin was involved in match-fixing and, through an order prohibited him, for life, from playing cricket matches conducted or authorised by the ICC or BCCI and holding any position in the ICC or BCCI, or any of their affiliate organisations.
In response to the Order, Azharuddin filed a civil petition in the City Civil Court, Hyderabad asking for the Order to be overturned as the constitution and operation of the Committee contravened the rules of the BCCI and the principles of natural justice. In August 2003, the City Civil Court ruled in favour of the BCCI and upheld the Order. Pursuant to this ruling, Azharuddin filed an appeal before the High Court against the City Civil Court’s order.
Holding in Azharuddin’s favour purely on procedural grounds, the High Court found that the BCCI’s Rules did not contemplate the appointment of a Commissioner to engage in an enquiry into allegations of misconduct and instead authorised the creation of a committee to enquire into the conduct of the player. It, therefore, held that the appointment of the Commissioner by the BCCI exceeded the authority granted by the Rules, in effect declaring that the enquiry lacked sanction and authority.
Further, the Court ruled that the enquiry undertaken by the Commission failed to respect principles of natural justice, including reliance on a preliminary enquiry report prepared by the CBI that was subject to finalisation, failure to re-examine any evidence or adduce additional material and failure to provide Azharuddin the opportunity to cross-examine witnesses or rebut witness testimony.
What the Court Did Not Say
Notably, the Court did not undertake the determination of whether or not Azharuddin engaged in match-fixing. As a result, it did not at any point opine on the merits of the substantive allegations of match fixing. This was also not a criminal appeal where a holding of criminal guilt was overturned by the Court. The Court only found that the procedures adopted by the BCCI in imposing the administrative life-ban did not pass procedural muster and that any conclusion of such procedures would be automatically vitiated as a result, regardless of their outcome.
Justice G. Krishna Mohan Reddy, while agreeing with his fellow judge’s detailed judgment, observed in his short judgment, “This case is one [sic] best example of a player wriggling out of the serious allegations of match fixing, betting etc. made against him mainly because of the inaction of the Board (BCCI) to take appropriate action as per the procedure established by law.”
He further stated on the infirmities of the BCCI’s procedures, “Non-proving of the allegations does not amount to whether guilty or not guilty of the charges whereas it only amounts to non-proving of the charges. However the ultimate decision of the Board, which does not have the support of sound evidence, is unwarranted.” He went on to lambast the BCCI for what he called “highly callous and arbitrary action”, also stating that inaction of the Board “may cause more damage than a player who involves [sic] in such serious activities can do to the game”.
In essence, the only party held guilty of anything was the BCCI – for failing to follow due process. The BCCI did not appeal this decision or deem it appropriate to reconstitute the Committee and complete the enquiry in accordance with its Rules. The innocence or guilt of Azharuddin on the allegation of match fixing was neither tested nor adjudicated on by the High Court. To state otherwise would be disingenuous at best. It is worth mentioning explicitly here that the High Court did not either “clear him of charges” or “declare him innocent” as has sometimes been suggested since.
For Whom the Bell Tolls
Even after all these years, India still lacks a specific law to criminalise match fixing. It has attempted to force fit various other general laws, including those on organised crime, and has repeatedly failed.
This, however, leads one to ask – is everything that is not criminal worth celebrating? Also, as recent events around sexual harassment have shown, “due process” can often stand in the way of what might widely be perceived as just, fair and appropriate remedies and outcomes.
The presumption of innocence must nonetheless always remain at the centre of our criminal laws. Today, Azharuddin is not a proven match fixer. But neither has he received a clean chit. We can respect the presumption of his innocence, but must we celebrate him? Those we choose to celebrate tell us about who we are and who we aspire to be. Indeed, it is for all of us that the bell tolls.
(Nandan Kamath is Principal Lawyer at LawNK, practising sports and intellectual property law, and also acts as Managing Trustee of GoSports Foundation.)
First Published: November 5, 2018, 8:39 PM IST