These are questions that have been the subject of recent debate after Central Information Commission’s order earlier this week to bring the BCCI and its state affiliates under the Right to Information (RTI) regime. Questions asked, couched in the alarmist rhetoric of TMI and presented in shrill debate. Questions for which there are perfectly good answers.
In reality, the RTI Act has safeguards for the balancing of competing interests, with adequate protections and exemptions, but more about those later. It is another matter entirely that every other major sports federation in India has been subject to the RTI regime for the better part of the last decade. In any context, the attempt to present transparency as a threat to the undertaking of a public function does not come from a position of good faith.
The allergic reaction to the RTI and the prospect of TMI as anathema are both natural positions for the BCCI of yore. After all, smoke and mirrors aren’t friends of transparency, just as sunlight has nothing to offer unwashed laundry. Many will argue that the public interest was always represented in the BCCI’s boardroom, that it is impossible for it not to be a voice at the table, either through representation of public voices or via the dialectics of groupism that has historically characterised the BCCI’s leadership.
However, that was always left to conjecture rather than being capable of independent verification or evaluation. The post-reform BCCI is an entirely different animal. Endorsing the Lodha Committee Report on Reforms in Cricket of 2015, the Supreme Court had held that the BCCI was carrying out “public functions”. The necessary corollary to this is that the BCCI is subject to the rigours of public law.
From a purely legal standpoint, the extension of the RTI Act to the BCCI and the state cricket bodies is an entirely appropriate extension of the new institutional structure that is being put in place with respect to the sport’s governance. From a broader perspective, rather than a threat, it presents an opportunity – one that the BCCI must, in fact, grasp with both hands in its own interest.
Of the many things capable of being lost by a sports body, public credibility will always be the most valuable. It is also something that is capable of being recovered rather quickly, without the permission of the Supreme Court, the Committee of Administrators (CoA) or anyone else for that matter. It is not only necessary to do the right thing but also to be seen doing the right thing.
Graciously accepting the applicability of the RTI comes as an opportunity for the BCCI at a crucial time in its relationship with its primary constituency – the public.
Situating the BCCI in the RTI debate
The RTI Act was passed in 2005 and provides the regime under which citizens can secure access to information that is under the control of public authorities. The objective is to promote transparency and accountability in the functioning of these bodies – encouraging the adoption of good practices and protocols through obligatory disclosures at the back end.
The Act does recognise that the revelation of information in actual practice is likely to conflict with other public interests including the preservation of confidentiality of sensitive information. By providing relevant exemptions from disclosure, it seeks to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal.
Pursuant to the Supreme Court’s judgement adopting the Lodha Committee Report in most material respects, the Court requested the Law Commission of India to examine the issue of bringing BCCI under the RTI Act and to make a suitable recommendation to the government. The Law Commission undertook the task and issued to the government in April 2018 a report recommending that the BCCI and all state cricket associations be brought under the purview of the RTI Act given that it ought to be considered “State”, for the purpose of Articles 12 and 32 of the Indian Constitution, by virtue of being “an agency or instrumentality of the state” and, regardless, as a “public authority” given “state control”, its monopolistic character, its impact on human rights and, most specifically, the "substantial financing" it has received “directly or indirectly” from the central and state governments through large tax exemptions, discounts on prime real estate for stadium construction, etc. The recent order merely takes this process to what ought to be its natural conclusion.
Consequences of RTI
Coming under the RTI Act would require the BCCI to establish protocols, procedures and practices with respect to record maintenance, public disclosures of its governance structure, operations and decisions and to designate a Public Information Officer to provide information to persons requesting for the information under the RTI Act.
The result would be that all Indian citizens would have the right, subject only to the RTI Act’s limitations, to inspection of the BCCI work, documents, records; to take notes, extracts or certified copies of the BCCI documents or records; to take certified samples of the BCCI material; and to access the BCCI’s electronic records. The scope of “information” covered is expansive and includes any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form, etc.
In summary, the BCCI and each state association would be opened up to and for public scrutiny in a manner that all other public authorities (including all significant National Sports Federations recognised by the Ministry of Youth Affairs & Sports) already are.
The desirability of applying public transparency norms to the BCCI has been questioned on various grounds. Historically, the argument has been that the BCCI is a purely private and autonomous body that owes no public obligations. That is no longer a sustainable legal stand after the judgment of the Supreme Court. The other prevailing objection is that the BCCI performs strategic functions and handles personal information; that competitive advantage would be lost and privacy impinged on should all information relating to its functioning be available to citizens and competitors (international, national and individual) alike.
However, this alarm is unfounded given that the RTI Act itself has explicit protections and exemptions for national strategic interests, commercial confidences, trade secrets, intellectual property, the privacy of personal information and information received in a fiduciary capacity. In such cases an application for information can be rejected, the only exclusions to such exemptions being where disclosure of such information outweighs in importance any possible harm or injury to the interests of the party to whom it relates.
To bring these protective provisions into a sporting context, the National Sports Development Bill, 2013 (which has remained in cold storage and has not been passed, thanks partly to the BCCI’s objections) had provided sports-specific exceptions for matters relating to “(a) selection, appointment or exclusion of an athlete, coach, trainer or physiotherapist for participation in an athletic competition; (b) quality of performance of an athlete at athletic competitions; (c) injuries suffered by an athlete; (d) medical health and fitness of an athlete; (e) the whereabouts of an athlete; (f) test results and information that are treated as confidential under the National Anti-Doping Agency Code; and (g) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party.”
It is apparent that concerns relating to strategic information and privacy are capable of redressal through using or including appropriate exemptions without diluting the essence of the public’s right to know and the sports organisation’s obligation to operate transparently in material aspects of its administration and governance. And no, not every selection matter and legal matter will be exposed threadbare. If anything, battles will be fought over whether the exemptions are being read to widely and whether or not disclosure is adequate in response to applications and requests.
It has been suggested that the recent order on the applicability of the RTI will likely be challenged by the BCCI in the courts. This would be a strategic error. It would simply provide further evidence in the court of public opinion that the BCCI rejects the public as a stakeholder in cricket governance. It would signal that the BCCI still believes it is the private “owner” of cricket rather than its public “custodian” and “trustee”. The BCCI derives its stature (and fills its coffers) as a direct result of the public at large acting as fans, viewers and passionate followers of the game. It has the perfect opportunity to respect this reality. It will reject it at its own peril.
(Nandan Kamath is Principal Lawyer at LawNK, practising sports and intellectual property law, and also acts as Managing Trustee of GoSports Foundation.)
First Published: October 5, 2018, 11:17 AM IST