REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4235 OF 2014
BOARD OF CONTROL FOR CRICKET IN INDIA ....APPELLANT
VERSUS
CRICKET ASSOCIATION OF BIHAR &ORS. .....RESPONDENTS
WITH
CIVIL APPEAL No. 4236 OF 2014
WITH
CIVIL APPEAL No. 1155 OF 2015
O R D E R
Dr D Y CHANDRACHUD,J
1 On 7 October 2016, directions were issued by this Court pursuant to a
status report dated 26 September 2016, submitted by the Committee
consisting of Justice R M Lodha, Justice Ashok Bhan and Justice RV
Raveendran. The status report filed by the Committee set out the sequence
of events that had taken place after the final judgment and order of this
Court dated 18 July 2016, which accepted the report submitted by the
Committee on 18 December 2015 with certain modifications. A gist of the
status report has been set out in the earlier order dated 7 October 2016.
After adverting to the sequence of events, the Committee has concluded that
BCCI has violated its directions:
“…Directions of this Hon’ble Court have been ignored, actions have been
taken to present a fait accompli to the Committee, the directives of the
Committee have been breached, and member associations have not been duly
intimated about the directions of the Committee and the timelines fixed by
it.”
The Committee has observed that “BCCI has repeatedly taken steps to
undermine the Committee and this Court”, with several statements and
actions which “are grossly out of order and would even constitute
contempt”. The Committee noted that despite several e-mails, as well as a
direction to appear before it on 9 August 2016, the President of BCCI did
not furnish even a single response to the Committee. The Committee also
observed that the President of BCCI had even gone to the extent of
requesting ICC to issue a letter that “this Committee amounts to
governmental interference” besides making several objectionable statements
in the press which undermined both the Court and the Committee.
2 The Committee submitted the above status report in pursuance of the
directions contained in the judgment of this Court dated 18 July 2016. This
Court had by its judgment, while accepting the recommendations made in the
earlier report of the Committee, assigned to the Committee a supervisory
role for ensuring the transition from the old to the new system recommended
by the Committee. While this Court in its judgment expressed a hope that
the process of implementing the directions contained in the judgment would
be completed within a period of four months or at best six months, the
Committee was requested to draw appropriate timelines for the
implementation of the recommendations and to supervise the implementation
process. The Committee, while moving the status report observed that
though the office bearers of BCCI had furnished assurances to it on 9
August 2016, 25 August 2016 and 20 September 2016, that they would
cooperate with the Committee in fulfilling the directions of this Court
(subject to any modification or review) these assurances had not been
fulfilled.
3 In the previous Order of this Court dated 7 October 2016, the
following prima facie, findings were recorded:-
“… The sequence of events that have been taken place since 18th July, 2016
and referred to in the status report prima facie give an impression that
BCCI has far from lending its fullest cooperation to the Committee adopted
an obstructionist and at times a defiant attitude which the Committee has
taken note of and described as an impediment undermining not only the
Committee but even the dignity of this Court with several statements and
actions which according to the Committee are grossly out of order and may
even constitute contempt”.
This Court has noted that in spite of a direction issued by the Committee
on 21 August 2016 that the AGM of BCCI which was to be held on 21 September
2016, may transact only routine business for 2015-16 and that any business
or matter relating to 2016-17 may be dealt with only after the adoption of
the Memorandum of Association and rules in pursuance of the recommendations
of the Committee, substantial amounts running into crores of rupees have
been disbursed in favour of state associations. This Court expressed the
view that BCCI could and indeed ought to have avoided the disbursement of
such a huge amount while the Committee was still examining the need for
formulating a disbursement policy.
4 During the course of the hearing which resulted in the earlier order
dated 7 October 2016, BCCI stated that one of the reasons for its failure
to adopt the proposed MOA was the reluctance of the state associations to
subscribe to it. In this background, this Court observed that if that be
the position, there is no reason why the state associations that are
opposed to the reforms suggested by the Committee and accepted by this
Court should either expect or draw any benefit from the release of grants
by BCCI. The following directions have been issued by this Court on 7
October 2016:-
“i) No further amount in terms of the Resolution passed in AGM on
09.11.2015 or any subsequent resolution by the BCCI or its Working
Committee shall be disbursed to any State Association except where the
State Association concerned passes a proper resolution to the effect that
it is agreeable to undertake and to support the reforms as proposed and
accepted by this Court in letter and spirit. Upon such a Resolution being
passed, a copy of the same shall be filed before Justice Lodha Committee
with an affidavit of the President of the State Association concerned
unequivocally undertaking to abide by the reforms as proposed by the
Committee and accepted and modified by this Court. A similar affidavit
with a copy of the Resolution shall be filed before this Court also. It is
only after such affidavits are filed, that BCCI may transfer the balance
amount of Rs.16.73 crores each payable to the State Association.
As regards the 13 State Associations to whom the payment has already been
disbursed, we direct that the State Association concerned shall not
appropriate the said amount except after they have passed a resolution and
filed an affidavit as mentioned above before Justice Lodha Committee and
before this Court. In case the affidavits are not filed, the amount
disbursed to the State Associations shall be invested by the Associations
in a term deposit subject to further directions of this Court.
ii) Mr. Ratnakar Shivaram Shetty, General Manager, Admin and Game
development shall, in the meanatime, place on record a copy of the
authorization/resolution passed by the BCCI on the basis of which he has
filed the affidavit supporting the response of the BCCI to the status
report.
iii) Mr. Anurag Thakur, President of the BCCI shall file a personal
affidavit whether he had asked the CEO of the ICC to state that the
appointment of Justice Lodha Committee was tantamount to Government
interference in the working of the BCCI.
iv) Mr. Arvind Datar, learned Senior Counsel to produce the original
record on the basis of which the affidavit by Mr. Ratnakar Shivaram Shetty
on behalf of BCCI has been filed”.
5 In pursuance of these directions, Mr Anurag Thakur, President of BCCI
has filed an affidavit specifically with reference to direction (iii)
above. Before we consider the affidavit that has been filed by the
President of BCCI, it is necessary to advert to the response to the status
report of the Committee filed by Mr Ratnakar Shivaram Shetty, General
Manager, Admn. & Game Development, BCCI. In the sequence of events set out
in his response to the status report, Mr Shetty has dealt with the
statement made in an interview given to the electronic media by Mr David
Richardson, CEO of ICC. Mr Richardson stated that the President of BCCI
sought a letter from ICC that the appointment of a nominee of CAG (which
has been directed by this Court on 18 July 2016 in terms of the Committee’s
recommendations) would amount to ‘governmental interference’ thereby
inviting the suspension of BCCI from the membership of ICC. Mr Shetty’s
response was as follows:
“It appears that an interview was given by Mr David Richardson the
ICC CEO falsely stating that the BCCI President had requested the ICC to
issue a letter stating that the intervention by this Hon’ble Court amounted
to Governmental interference. It is submitted that no such letter or oral
request was ever made to the said gentleman either by the BCCI President or
any office bearer of the BCCI. It is apparent that Mr. Richardson has
confused himself in relation to the issue. This issue is required to be
considered in the light of the fact that Mr. Shashank Manohar Senior
Advocate had clearly opined as the BCCI President that appointment of the
CAG in the BCCI shall result in suspension of the BCCI as it would
constitute governmental interference. In fact the same had been submitted
on affidavit before this Hon’ble Court. However, as Chairman of the ICC,
Mr. Manohar had taken a contrary stand and stated that it would not amount
to governmental interference. It was in this context that a discussion
took place between Mr. Shashank Manohar and Mr. Anurag Thakur during a
meeting in Dubai wherein a clarification as sought by Mr. Anurag Thakur
during an informal discussion on what the exact status would be if the CAG
was inducted by the BCCI as part of its management and whether it would
amount to governmental interference as had been advised and affirmed by Mr.
Manohar during his stint as BCCI President.”
Paragraph 7(d) of the response contains a statement that:
“It is being incorrectly alleged that the President BCCI made a
request to the ICC to issue a letter stating that this Committee amounts to
Governmental interference. This suggestion is denied”.
6 In the affidavit which has been filed by the President of BCCI
on 15 October 2016, there is a denial that any such request was made by
him to the CEO of ICC. Paragraph 3 of the affidavit contains the version
of the President of what transpired at Dubai on 6/7 August 2016 during the
course of a meeting convened by ICC:
“In this context it is respectfully submitted that there was an ICC
governance review committee meeting scheduled to be held in Dubai on 6th &
7th August 2016. There were certain issues relating to financial model for
which my inputs were required and as such I was invited by ICC for the said
meeting. During the meeting with regard to the review of the
constitutional provisions of ICC, I pointed out to the Chairman of the ICC,
Mr. Shashank Manohar that when he was the President of BCCI he had taken a
view that the recommendations of the Justice Lodha committee appointing the
nominee of the CAG on the Apex Council would amount to governmental
interference and might invoke an action of suspension from ICC. I
therefore requested him that he being the ICC Chairman can a letter be
issued clarifying the position which he had taken as BCCI President. Mr.
Manohar explained to me at the meeting that when the stand was taken by
him, the matter was pending before this Hon’ble Court and had not been
decided. However, on 18.07.2016 this Hon’ble Court delivered its judgment
in the matter. In the said judgment, this Hon’ble Court has rejected the
submission that the appointment of the nominee of CAG on Apex council would
amount to Governmental interference and had also held that the ICC would
appreciate the appointment as it would bring transparency in the finances
of the Board.”
7 Mr Kapil Sibal, learned senior counsel appearing on behalf of the
BCCI has tendered during the course of hearing draft minutes of a Working
Committee meeting of BCCI held on 22 August 2016. The draft minutes
purportedly contain a record of what is stated to have transpired between
Mr Shashank Manohar, the Chairperson of ICC and the President of BCCI at
the meeting on 6 and 7 August 2016. The relevant part is extracted below:-
“Mr. Anurag Thakur was in the Chair and called the meeting to order and
welcomed the members. He briefed the members about his meeting with the
ICC Chairman at Dubai during the ICC governance review committee meeting on
6th & 7th August 2016. Certain financial mode inputs were required during
the said meeting which he gave. During the meeting with regard to the
review of the constitutional provisions of ICC it was informed by Mr.
Thakur that he asked Chairman ICC Mr. Shashank Manohar that when he was the
President of BCCI he had taken a view that the recommendations of Justice
Lodha committee appointing the nominee of the CAG on the Apex Council would
amount to governmental interference and might invoke an action of
suspension from ICC. It was therefore requested from him that he being the
ICC Chairman could a letter be issued clarifying the position which he had
taken as BCCI President. Mr. Manohar thereafter explained that when the
stand was taken by him the matter was pending before the Supreme Court and
was not decided. However on 18th of July 2016 the Hon. Supreme Court of
India delivered its judgment and the Court has rejected the submission that
the appointment of the nominee of CAG on Apex council will amount to
Governmental interference and had also held that the ICC would appreciate
the appointment as it would bring transparency in the finances of the
Board. The discussion stopped in view of his explanation on this issue”.
8 Prima facie, it appears from the response that was filed by BCCI to
the status report, that a clarification was sought by Mr Anurag Thakur from
Mr Shashank Manohar on what the exact status would be if a nominee of CAG
was inducted by BCCI as part of its management and whether it would amount
to governmental interference. The statement made by BCCI in its response
to the status report contains a denial that its President made a request to
ICC to issue a letter stating that the Committee amounted to governmental
interference. However, in the affidavit which has since been filed by the
President of BCCI in pursuance of the Court’s directions of 7 October 2016,
it has been accepted that he had made a request to the Chairman of ICC for
issuing a letter “clarifying the position which he had taken as BCCI
President” (to the effect that the recommendations of the Committee for
appointing a nominee of CAG would amount to governmental interference and
might invoke an action for suspension from ICC). Significantly, Mr Shetty
did not in the response filed earlier by BCCI to the status report disclose
that there was a request for a letter by its President to the Chairman,
ICC.
9 The draft minutes of the Working Committee purportedly dated 22
August 2016, a copy of which has been placed on the record, are in tandem
with the statement made by Mr Thakur on affidavit. Prima facie, it appears
that the draft minutes were not before Mr Shetty when he made a statement
on behalf of BCCI in his response to the status report. If the draft
minutes were before him, it would be natural to assume that the disclosure
which has now emerged in pursuance of the order of this Court dated 7
October 2016 would have been contained in the response submitted by Mr
Shetty to the status report. Mr Shetty has stated that the response filed
by BCCI to the status report was based on information derived from the
records. If that be so, the purported draft minutes of the Working
Committee could not have missed his attention or knowledge.
10 Be that as it may, it is a matter of serious concern that the
President of BCCI, even after the declaration of the final judgment and
order of this Court dated 18 July 2016, requested the Chairperson of ICC
for a letter “clarifying” (as he states) the position which he had taken as
BCCI President to the effect that the induction of a CAG nominee would
amount to governmental interference and may result in BCCI being suspended
from ICC. There was no occasion for the President of BCCI to do so once
the recommendation of the Committee for the induction of a CAG nominee was
accepted in the final judgment of this Court. In the judgment of this
Court dated 18 May 2016, this Court observed as follows:-
“77. There is, in our view, no basis for the argument that any measure
taken by the BCCI on its own or under the direction of a competent court
specially when aimed at streamlining its working and ensuring financial
discipline, transparency and accountability expected of an organization
discharging public functions such as BCCI may be seen as governmental
interference calling for suspension/derecognition of the BCCI. Far from
finding fault with presence of a nominee of the Accountant General of the
State and C&AG, the ICC would in our opinion appreciate any such step for
the same would prevent misgivings about the working of the BCCI especially
in relation to management of its funds and bring 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 levelled against the recommendations of the
Committee is, therefore, unfounded and accordingly rejected”.
11 This finding which is contained in the final judgment and order of
this Court binds BCCI. Prima facie, an effort has been made by the
President of BCCI to create a record in order to question the legitimacy of
the recommendation of the Committee for the appointment of a CAG nominee
after the recommendation was accepted by this Court on 18 July 2016. We
presently defer further consideration of the action to be taken with
reference to his conduct. Mr Shetty in his response to the status report
claims that the CEO of ICC had “falsely” stated in his interview that the
President of BCCI had requested ICC to issue a letter stating that the
intervention of this Court amounted to governmental interference. The
version of Mr Shetty is at variance to what is alleged to have been stated
by the CEO of ICC. It may also become necessary for this Court to assess
the veracity of the version of Mr Shetty and that of Mr Richardson. Mr
Shashank Manohar, the then President of BCCI is presently the Chairman of
ICC. A copy of this order shall be forwarded to him by the Secretary to
the Committee in order to enable him to consider filing a response setting
out his version, to set the record straight and assist this Court. Mr
Manohar is at liberty to obtain a report from Mr Richardson before filing
his response.
12 During the course of hearing, a grievance has been made on behalf of
BCCI that though in the judgment of this Court dated 18 July 2016, it had
been hoped that the process of implementing the reforms suggested by the
Committee “should be completed within a period of four months or at best
six months from today”, the Committee has hastened the process by
indicating timelines for completion even within the said period. We find
that the criticism of the Committee is not justified for more than one
reason. Though this Court expressed the hope that the process of transition
and implementation be completed within four months or at best within six
months, this Court left it open to the Committee to draw “appropriate
timelines for implementation of the recommendations” and to supervise the
implementation thereof. The Committee which was entrusted with the task of
supervising the implementation process was permitted to lay down suitable
timelines. The process of implementation requires a continuous process of
monitoring and supervision and it would be only reasonable to assume, as
did the Committee, that the process could not be completed in one
instalment. Hence, the Committee laid down timelines for implementation.
13 Hence, the broad framework of time prescribed by this Court does not
preclude the Committee from specifying timelines. On the contrary, the
Committee was specifically allowed to do so to implement the judgment. The
status report contains a record of proceedings before the Committee dated 9
August 2016 which indicates that when the first set of timelines was
handed over to BCCI’s Secretary on 9 August 2016, he stated before the
Committee that a report of compliance would be furnished by 25 August 2016.
Despite this, in the report dated 25 August 2016, submitted by the
Secretary, BCCI to the Committee there appears the following statement
furnished by BCCI by way of a clarification at the Working Committee
meeting held on 22 August 2016:
“2 The Members queried as regards to the status of the review petition
filed by the BCCI. It was clarified to the members that if the review
petition as well as curative petition was dismissed, the recommendations of
the Lodha Committee, save those as amended by the court would become
binding”.
14 The statement made on behalf of BCCI to the Working Committee that it
was only if the Review Petition, as well as Curative Petition were to be
dismissed that the recommendations of the Committee would be binding is
patently misconceived. The recommendations of the Committee were endorsed
in a final judgment and order of this Court dated 18 July 2016, subject to
certain modifications. The judgment of this Court has to be implemented as
it stands. A party to a litigation cannot be heard to say that it would
treat a judgment of this Court as not having binding effect unless the
Review or Curative Petitions that it has filed are dismissed.
15 For the reasons which have weighed with us in the earlier order of
this Court dated 7 October 2016 and for those which we have adduced above,
we are inclined to take a serious view of the conduct of BCCI in the
present case. Despite the prima facie findings which were arrived at in
the previous order, the further hearing was deferred. There has been no
change in the position of BCCI. The intransigence continues. If BCCI had
any difficulties about adhering to the timelines laid down by the
Committee, the appropriate course would have been to move the Committee.
Even the grievance which was urged during this proceeding by BCCI, that
some of the directions of the Committee have travelled beyond the
parameters set by this Court can and ought to be urged before the Committee
in the first instance.
16 During the course of the hearing, Shri Kapil Sibal, learned senior
counsel appearing on behalf of BCCI has agreed to a course of action
whereby in the first instance, BCCI would establish its bona fides before
the Committee by demonstrating the compliance made by it of those
recommendations which are stated to have been fulfilled. The Committee as
the body appointed by this Court to monitor and supervise implementation of
the judgment will verify whether there has been full compliance with the
directions which are stated by BCCI to have been fulfilled.
17 The President and Secretary of BCCI shall (within two weeks) file
before the Committee on affidavit their statements of the compliance
effected by BCCI thus far of those recommendations which have been
fulfilled. The statement shall contain an elaboration of the manner in
which compliance has been made and the steps proposed to be taken to fulfil
the remaining directions of this Court. The Committee is at liberty to
verify the compliance statements filed on behalf of BCCI by its President
and Secretary. Both the President and the Secretary shall appear before the
Committee in person, and explain the steps taken for compliance and the
course of action to be adopted hereafter.
18 Learned senior counsel appearing on behalf of BCCI has stated that in
respect of some of the recommendations, where state associations have not
agreed to implement the recommendations of the Committee, as accepted by
this Court, BCCI will make a genuine endeavour to persuade the state
associations to effectuate compliance. Though BCCI is in default and
breach of the directions of this Court, in order to enable it to have an
additional opportunity to establish its bona fides and to secure compliance
with the judgment of this Court dated 18 July 2016, we grant time until 3
December 2016 for the purpose. Besides complying with the direction set
out above of filing statements and appearing before the Committee, BCCI
shall report compliance before this Court on 5 December 2016.
19 For the reasons which have been contained in the present order of the
Court, we are of the view that the issuance of certain additional
directions has become inevitable, over and above those that are contained
in the previous order dated 7 October 2016. We have presently come to the
conclusion that, prima facie, there is substance in the status report
submitted by the Committee. Implementation of the final judgment of this
Court dated 18 July 2016 has prima facie been impeded by the intransigence
of BCCI and its office bearers. However, having due regard to the
submission made on behalf of BCCI that it would make every genuine effort
to persuade the state associations to secure compliance with the judgment
of this Court, and having regard to the larger interests of the game of
cricket, we are desisting from issuing a direction at this stage in terms
of the request made by the Committee for appointment of administrators so
as to enable BCCI to demonstrate its good faith and the steps taken for
compliance both before the Committee in the first instance and before this
Court by the next date of hearing. However, certain additional directions
are warranted in the interest of maintaining transparency in the
functioning of BCCI, having regard to the sequence of events after 18 July
2016.
20 We accordingly issue the following additional directions:-
(i) BCCI shall forthwith cease and desist from making any disbursement of
funds for any purpose whatsoever to any state association until and unless
the state association concerned adopts a resolution undertaking to
implement the recommendations of the Committee as accepted by this Court in
its judgment dated 18 July 2016. After such a resolution is passed and
before any disbursement of funds takes place to the state association
concerned, a copy of the resolution shall be filed before the Committee and
before this Court, together with an affidavit of the President of the state
association undertaking to abide by the reforms contained in the report of
the Committee, as modified by this Court. Any transfer of funds shall take
place to the state associations which have accepted these terms only after
compliance as above is effected. This direction is in addition to the
previous direction of 7 October 2016 in regard to the disbursement to and
appropriation by the state associations;
(ii) (a) The Committee appointed by this Court is requested to appoint an
independent auditor to scrutinise and audit the income received and
expenditure incurred by BCCI; (b) The auditor shall also oversee the
tendering process that will hereinafter be undertaken by BCCI, as well as
the award of contracts above a threshold value to be fixed by the
Committee; (c) The award of contracts by BCCI above the threshold fixed by
the Committee shall be subject to the prior approval of the Committee; (d)
The Committee shall be at liberty to obtain the advice of the auditors on
the fairness of the tendering process which has been adopted by BCCI and in
regard to all relevant facts and circumstances; (e) The Committee will
determine whether a proposed contract above the threshold value should or
should not be approved; and (f) The Committee will be at liberty to
formulate the terms of engagement and reference to the auditors having
regard to the above directions. BCCI shall defray the costs, charges and
expenses of the auditors.
(iii) The President and Secretary of BCCI shall within two weeks from today
file a statement on affidavit indicating compliance made by BCCI of those
of the recommendations of the Committee which have been complied with, the
manner of compliance and the steps adopted for securing compliance with the
remaining recommendations. They shall appear before the Committee to
explain the manner of compliance. The President and Secretary, BCCI shall
also keep the Committee apprised about the steps taken pursuant to the
statement recorded in paragraph 18 above.
(iv) An affidavit of compliance shall be filed before this Court on or
before 3 December 2016 by the President and Secretary to BCCI in terms of
paragraphs 17 and 18 above; and
(v) The Secretary to the Committee appointed by this Court shall forward a
copy of this order to Mr Shashank Manohar, Chairman ICC to facilitate the
observations contained in paragraph 11 of this order.
BCCI shall cooperate with the Committee and with the auditors by granting,
in particular, full access to records, accounts and other information as
required to facilitate implementation of these directions.
21 The hearing of the proceedings shall stand over to 5 December 2016.
............................................CJI
[T.S. THAKUR]
................................................J
[A.M. KHANWILKAR]
................................................J
[Dr D Y
CHANDRACHUD]
New Delhi
October 21, 2016
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4235 OF 2014
BOARD OF CONTROL FOR CRICKET IN INDIA ....APPELLANT
VERSUS
CRICKET ASSOCIATION OF BIHAR &ORS. .....RESPONDENTS
WITH
CIVIL APPEAL No. 4236 OF 2014
WITH
CIVIL APPEAL No. 1155 OF 2015
O R D E R
Dr D Y CHANDRACHUD,J
1 On 7 October 2016, directions were issued by this Court pursuant to a
status report dated 26 September 2016, submitted by the Committee
consisting of Justice R M Lodha, Justice Ashok Bhan and Justice RV
Raveendran. The status report filed by the Committee set out the sequence
of events that had taken place after the final judgment and order of this
Court dated 18 July 2016, which accepted the report submitted by the
Committee on 18 December 2015 with certain modifications. A gist of the
status report has been set out in the earlier order dated 7 October 2016.
After adverting to the sequence of events, the Committee has concluded that
BCCI has violated its directions:
“…Directions of this Hon’ble Court have been ignored, actions have been
taken to present a fait accompli to the Committee, the directives of the
Committee have been breached, and member associations have not been duly
intimated about the directions of the Committee and the timelines fixed by
it.”
The Committee has observed that “BCCI has repeatedly taken steps to
undermine the Committee and this Court”, with several statements and
actions which “are grossly out of order and would even constitute
contempt”. The Committee noted that despite several e-mails, as well as a
direction to appear before it on 9 August 2016, the President of BCCI did
not furnish even a single response to the Committee. The Committee also
observed that the President of BCCI had even gone to the extent of
requesting ICC to issue a letter that “this Committee amounts to
governmental interference” besides making several objectionable statements
in the press which undermined both the Court and the Committee.
2 The Committee submitted the above status report in pursuance of the
directions contained in the judgment of this Court dated 18 July 2016. This
Court had by its judgment, while accepting the recommendations made in the
earlier report of the Committee, assigned to the Committee a supervisory
role for ensuring the transition from the old to the new system recommended
by the Committee. While this Court in its judgment expressed a hope that
the process of implementing the directions contained in the judgment would
be completed within a period of four months or at best six months, the
Committee was requested to draw appropriate timelines for the
implementation of the recommendations and to supervise the implementation
process. The Committee, while moving the status report observed that
though the office bearers of BCCI had furnished assurances to it on 9
August 2016, 25 August 2016 and 20 September 2016, that they would
cooperate with the Committee in fulfilling the directions of this Court
(subject to any modification or review) these assurances had not been
fulfilled.
3 In the previous Order of this Court dated 7 October 2016, the
following prima facie, findings were recorded:-
“… The sequence of events that have been taken place since 18th July, 2016
and referred to in the status report prima facie give an impression that
BCCI has far from lending its fullest cooperation to the Committee adopted
an obstructionist and at times a defiant attitude which the Committee has
taken note of and described as an impediment undermining not only the
Committee but even the dignity of this Court with several statements and
actions which according to the Committee are grossly out of order and may
even constitute contempt”.
This Court has noted that in spite of a direction issued by the Committee
on 21 August 2016 that the AGM of BCCI which was to be held on 21 September
2016, may transact only routine business for 2015-16 and that any business
or matter relating to 2016-17 may be dealt with only after the adoption of
the Memorandum of Association and rules in pursuance of the recommendations
of the Committee, substantial amounts running into crores of rupees have
been disbursed in favour of state associations. This Court expressed the
view that BCCI could and indeed ought to have avoided the disbursement of
such a huge amount while the Committee was still examining the need for
formulating a disbursement policy.
4 During the course of the hearing which resulted in the earlier order
dated 7 October 2016, BCCI stated that one of the reasons for its failure
to adopt the proposed MOA was the reluctance of the state associations to
subscribe to it. In this background, this Court observed that if that be
the position, there is no reason why the state associations that are
opposed to the reforms suggested by the Committee and accepted by this
Court should either expect or draw any benefit from the release of grants
by BCCI. The following directions have been issued by this Court on 7
October 2016:-
“i) No further amount in terms of the Resolution passed in AGM on
09.11.2015 or any subsequent resolution by the BCCI or its Working
Committee shall be disbursed to any State Association except where the
State Association concerned passes a proper resolution to the effect that
it is agreeable to undertake and to support the reforms as proposed and
accepted by this Court in letter and spirit. Upon such a Resolution being
passed, a copy of the same shall be filed before Justice Lodha Committee
with an affidavit of the President of the State Association concerned
unequivocally undertaking to abide by the reforms as proposed by the
Committee and accepted and modified by this Court. A similar affidavit
with a copy of the Resolution shall be filed before this Court also. It is
only after such affidavits are filed, that BCCI may transfer the balance
amount of Rs.16.73 crores each payable to the State Association.
As regards the 13 State Associations to whom the payment has already been
disbursed, we direct that the State Association concerned shall not
appropriate the said amount except after they have passed a resolution and
filed an affidavit as mentioned above before Justice Lodha Committee and
before this Court. In case the affidavits are not filed, the amount
disbursed to the State Associations shall be invested by the Associations
in a term deposit subject to further directions of this Court.
ii) Mr. Ratnakar Shivaram Shetty, General Manager, Admin and Game
development shall, in the meanatime, place on record a copy of the
authorization/resolution passed by the BCCI on the basis of which he has
filed the affidavit supporting the response of the BCCI to the status
report.
iii) Mr. Anurag Thakur, President of the BCCI shall file a personal
affidavit whether he had asked the CEO of the ICC to state that the
appointment of Justice Lodha Committee was tantamount to Government
interference in the working of the BCCI.
iv) Mr. Arvind Datar, learned Senior Counsel to produce the original
record on the basis of which the affidavit by Mr. Ratnakar Shivaram Shetty
on behalf of BCCI has been filed”.
5 In pursuance of these directions, Mr Anurag Thakur, President of BCCI
has filed an affidavit specifically with reference to direction (iii)
above. Before we consider the affidavit that has been filed by the
President of BCCI, it is necessary to advert to the response to the status
report of the Committee filed by Mr Ratnakar Shivaram Shetty, General
Manager, Admn. & Game Development, BCCI. In the sequence of events set out
in his response to the status report, Mr Shetty has dealt with the
statement made in an interview given to the electronic media by Mr David
Richardson, CEO of ICC. Mr Richardson stated that the President of BCCI
sought a letter from ICC that the appointment of a nominee of CAG (which
has been directed by this Court on 18 July 2016 in terms of the Committee’s
recommendations) would amount to ‘governmental interference’ thereby
inviting the suspension of BCCI from the membership of ICC. Mr Shetty’s
response was as follows:
“It appears that an interview was given by Mr David Richardson the
ICC CEO falsely stating that the BCCI President had requested the ICC to
issue a letter stating that the intervention by this Hon’ble Court amounted
to Governmental interference. It is submitted that no such letter or oral
request was ever made to the said gentleman either by the BCCI President or
any office bearer of the BCCI. It is apparent that Mr. Richardson has
confused himself in relation to the issue. This issue is required to be
considered in the light of the fact that Mr. Shashank Manohar Senior
Advocate had clearly opined as the BCCI President that appointment of the
CAG in the BCCI shall result in suspension of the BCCI as it would
constitute governmental interference. In fact the same had been submitted
on affidavit before this Hon’ble Court. However, as Chairman of the ICC,
Mr. Manohar had taken a contrary stand and stated that it would not amount
to governmental interference. It was in this context that a discussion
took place between Mr. Shashank Manohar and Mr. Anurag Thakur during a
meeting in Dubai wherein a clarification as sought by Mr. Anurag Thakur
during an informal discussion on what the exact status would be if the CAG
was inducted by the BCCI as part of its management and whether it would
amount to governmental interference as had been advised and affirmed by Mr.
Manohar during his stint as BCCI President.”
Paragraph 7(d) of the response contains a statement that:
“It is being incorrectly alleged that the President BCCI made a
request to the ICC to issue a letter stating that this Committee amounts to
Governmental interference. This suggestion is denied”.
6 In the affidavit which has been filed by the President of BCCI
on 15 October 2016, there is a denial that any such request was made by
him to the CEO of ICC. Paragraph 3 of the affidavit contains the version
of the President of what transpired at Dubai on 6/7 August 2016 during the
course of a meeting convened by ICC:
“In this context it is respectfully submitted that there was an ICC
governance review committee meeting scheduled to be held in Dubai on 6th &
7th August 2016. There were certain issues relating to financial model for
which my inputs were required and as such I was invited by ICC for the said
meeting. During the meeting with regard to the review of the
constitutional provisions of ICC, I pointed out to the Chairman of the ICC,
Mr. Shashank Manohar that when he was the President of BCCI he had taken a
view that the recommendations of the Justice Lodha committee appointing the
nominee of the CAG on the Apex Council would amount to governmental
interference and might invoke an action of suspension from ICC. I
therefore requested him that he being the ICC Chairman can a letter be
issued clarifying the position which he had taken as BCCI President. Mr.
Manohar explained to me at the meeting that when the stand was taken by
him, the matter was pending before this Hon’ble Court and had not been
decided. However, on 18.07.2016 this Hon’ble Court delivered its judgment
in the matter. In the said judgment, this Hon’ble Court has rejected the
submission that the appointment of the nominee of CAG on Apex council would
amount to Governmental interference and had also held that the ICC would
appreciate the appointment as it would bring transparency in the finances
of the Board.”
7 Mr Kapil Sibal, learned senior counsel appearing on behalf of the
BCCI has tendered during the course of hearing draft minutes of a Working
Committee meeting of BCCI held on 22 August 2016. The draft minutes
purportedly contain a record of what is stated to have transpired between
Mr Shashank Manohar, the Chairperson of ICC and the President of BCCI at
the meeting on 6 and 7 August 2016. The relevant part is extracted below:-
“Mr. Anurag Thakur was in the Chair and called the meeting to order and
welcomed the members. He briefed the members about his meeting with the
ICC Chairman at Dubai during the ICC governance review committee meeting on
6th & 7th August 2016. Certain financial mode inputs were required during
the said meeting which he gave. During the meeting with regard to the
review of the constitutional provisions of ICC it was informed by Mr.
Thakur that he asked Chairman ICC Mr. Shashank Manohar that when he was the
President of BCCI he had taken a view that the recommendations of Justice
Lodha committee appointing the nominee of the CAG on the Apex Council would
amount to governmental interference and might invoke an action of
suspension from ICC. It was therefore requested from him that he being the
ICC Chairman could a letter be issued clarifying the position which he had
taken as BCCI President. Mr. Manohar thereafter explained that when the
stand was taken by him the matter was pending before the Supreme Court and
was not decided. However on 18th of July 2016 the Hon. Supreme Court of
India delivered its judgment and the Court has rejected the submission that
the appointment of the nominee of CAG on Apex council will amount to
Governmental interference and had also held that the ICC would appreciate
the appointment as it would bring transparency in the finances of the
Board. The discussion stopped in view of his explanation on this issue”.
8 Prima facie, it appears from the response that was filed by BCCI to
the status report, that a clarification was sought by Mr Anurag Thakur from
Mr Shashank Manohar on what the exact status would be if a nominee of CAG
was inducted by BCCI as part of its management and whether it would amount
to governmental interference. The statement made by BCCI in its response
to the status report contains a denial that its President made a request to
ICC to issue a letter stating that the Committee amounted to governmental
interference. However, in the affidavit which has since been filed by the
President of BCCI in pursuance of the Court’s directions of 7 October 2016,
it has been accepted that he had made a request to the Chairman of ICC for
issuing a letter “clarifying the position which he had taken as BCCI
President” (to the effect that the recommendations of the Committee for
appointing a nominee of CAG would amount to governmental interference and
might invoke an action for suspension from ICC). Significantly, Mr Shetty
did not in the response filed earlier by BCCI to the status report disclose
that there was a request for a letter by its President to the Chairman,
ICC.
9 The draft minutes of the Working Committee purportedly dated 22
August 2016, a copy of which has been placed on the record, are in tandem
with the statement made by Mr Thakur on affidavit. Prima facie, it appears
that the draft minutes were not before Mr Shetty when he made a statement
on behalf of BCCI in his response to the status report. If the draft
minutes were before him, it would be natural to assume that the disclosure
which has now emerged in pursuance of the order of this Court dated 7
October 2016 would have been contained in the response submitted by Mr
Shetty to the status report. Mr Shetty has stated that the response filed
by BCCI to the status report was based on information derived from the
records. If that be so, the purported draft minutes of the Working
Committee could not have missed his attention or knowledge.
10 Be that as it may, it is a matter of serious concern that the
President of BCCI, even after the declaration of the final judgment and
order of this Court dated 18 July 2016, requested the Chairperson of ICC
for a letter “clarifying” (as he states) the position which he had taken as
BCCI President to the effect that the induction of a CAG nominee would
amount to governmental interference and may result in BCCI being suspended
from ICC. There was no occasion for the President of BCCI to do so once
the recommendation of the Committee for the induction of a CAG nominee was
accepted in the final judgment of this Court. In the judgment of this
Court dated 18 May 2016, this Court observed as follows:-
“77. There is, in our view, no basis for the argument that any measure
taken by the BCCI on its own or under the direction of a competent court
specially when aimed at streamlining its working and ensuring financial
discipline, transparency and accountability expected of an organization
discharging public functions such as BCCI may be seen as governmental
interference calling for suspension/derecognition of the BCCI. Far from
finding fault with presence of a nominee of the Accountant General of the
State and C&AG, the ICC would in our opinion appreciate any such step for
the same would prevent misgivings about the working of the BCCI especially
in relation to management of its funds and bring 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 levelled against the recommendations of the
Committee is, therefore, unfounded and accordingly rejected”.
11 This finding which is contained in the final judgment and order of
this Court binds BCCI. Prima facie, an effort has been made by the
President of BCCI to create a record in order to question the legitimacy of
the recommendation of the Committee for the appointment of a CAG nominee
after the recommendation was accepted by this Court on 18 July 2016. We
presently defer further consideration of the action to be taken with
reference to his conduct. Mr Shetty in his response to the status report
claims that the CEO of ICC had “falsely” stated in his interview that the
President of BCCI had requested ICC to issue a letter stating that the
intervention of this Court amounted to governmental interference. The
version of Mr Shetty is at variance to what is alleged to have been stated
by the CEO of ICC. It may also become necessary for this Court to assess
the veracity of the version of Mr Shetty and that of Mr Richardson. Mr
Shashank Manohar, the then President of BCCI is presently the Chairman of
ICC. A copy of this order shall be forwarded to him by the Secretary to
the Committee in order to enable him to consider filing a response setting
out his version, to set the record straight and assist this Court. Mr
Manohar is at liberty to obtain a report from Mr Richardson before filing
his response.
12 During the course of hearing, a grievance has been made on behalf of
BCCI that though in the judgment of this Court dated 18 July 2016, it had
been hoped that the process of implementing the reforms suggested by the
Committee “should be completed within a period of four months or at best
six months from today”, the Committee has hastened the process by
indicating timelines for completion even within the said period. We find
that the criticism of the Committee is not justified for more than one
reason. Though this Court expressed the hope that the process of transition
and implementation be completed within four months or at best within six
months, this Court left it open to the Committee to draw “appropriate
timelines for implementation of the recommendations” and to supervise the
implementation thereof. The Committee which was entrusted with the task of
supervising the implementation process was permitted to lay down suitable
timelines. The process of implementation requires a continuous process of
monitoring and supervision and it would be only reasonable to assume, as
did the Committee, that the process could not be completed in one
instalment. Hence, the Committee laid down timelines for implementation.
13 Hence, the broad framework of time prescribed by this Court does not
preclude the Committee from specifying timelines. On the contrary, the
Committee was specifically allowed to do so to implement the judgment. The
status report contains a record of proceedings before the Committee dated 9
August 2016 which indicates that when the first set of timelines was
handed over to BCCI’s Secretary on 9 August 2016, he stated before the
Committee that a report of compliance would be furnished by 25 August 2016.
Despite this, in the report dated 25 August 2016, submitted by the
Secretary, BCCI to the Committee there appears the following statement
furnished by BCCI by way of a clarification at the Working Committee
meeting held on 22 August 2016:
“2 The Members queried as regards to the status of the review petition
filed by the BCCI. It was clarified to the members that if the review
petition as well as curative petition was dismissed, the recommendations of
the Lodha Committee, save those as amended by the court would become
binding”.
14 The statement made on behalf of BCCI to the Working Committee that it
was only if the Review Petition, as well as Curative Petition were to be
dismissed that the recommendations of the Committee would be binding is
patently misconceived. The recommendations of the Committee were endorsed
in a final judgment and order of this Court dated 18 July 2016, subject to
certain modifications. The judgment of this Court has to be implemented as
it stands. A party to a litigation cannot be heard to say that it would
treat a judgment of this Court as not having binding effect unless the
Review or Curative Petitions that it has filed are dismissed.
15 For the reasons which have weighed with us in the earlier order of
this Court dated 7 October 2016 and for those which we have adduced above,
we are inclined to take a serious view of the conduct of BCCI in the
present case. Despite the prima facie findings which were arrived at in
the previous order, the further hearing was deferred. There has been no
change in the position of BCCI. The intransigence continues. If BCCI had
any difficulties about adhering to the timelines laid down by the
Committee, the appropriate course would have been to move the Committee.
Even the grievance which was urged during this proceeding by BCCI, that
some of the directions of the Committee have travelled beyond the
parameters set by this Court can and ought to be urged before the Committee
in the first instance.
16 During the course of the hearing, Shri Kapil Sibal, learned senior
counsel appearing on behalf of BCCI has agreed to a course of action
whereby in the first instance, BCCI would establish its bona fides before
the Committee by demonstrating the compliance made by it of those
recommendations which are stated to have been fulfilled. The Committee as
the body appointed by this Court to monitor and supervise implementation of
the judgment will verify whether there has been full compliance with the
directions which are stated by BCCI to have been fulfilled.
17 The President and Secretary of BCCI shall (within two weeks) file
before the Committee on affidavit their statements of the compliance
effected by BCCI thus far of those recommendations which have been
fulfilled. The statement shall contain an elaboration of the manner in
which compliance has been made and the steps proposed to be taken to fulfil
the remaining directions of this Court. The Committee is at liberty to
verify the compliance statements filed on behalf of BCCI by its President
and Secretary. Both the President and the Secretary shall appear before the
Committee in person, and explain the steps taken for compliance and the
course of action to be adopted hereafter.
18 Learned senior counsel appearing on behalf of BCCI has stated that in
respect of some of the recommendations, where state associations have not
agreed to implement the recommendations of the Committee, as accepted by
this Court, BCCI will make a genuine endeavour to persuade the state
associations to effectuate compliance. Though BCCI is in default and
breach of the directions of this Court, in order to enable it to have an
additional opportunity to establish its bona fides and to secure compliance
with the judgment of this Court dated 18 July 2016, we grant time until 3
December 2016 for the purpose. Besides complying with the direction set
out above of filing statements and appearing before the Committee, BCCI
shall report compliance before this Court on 5 December 2016.
19 For the reasons which have been contained in the present order of the
Court, we are of the view that the issuance of certain additional
directions has become inevitable, over and above those that are contained
in the previous order dated 7 October 2016. We have presently come to the
conclusion that, prima facie, there is substance in the status report
submitted by the Committee. Implementation of the final judgment of this
Court dated 18 July 2016 has prima facie been impeded by the intransigence
of BCCI and its office bearers. However, having due regard to the
submission made on behalf of BCCI that it would make every genuine effort
to persuade the state associations to secure compliance with the judgment
of this Court, and having regard to the larger interests of the game of
cricket, we are desisting from issuing a direction at this stage in terms
of the request made by the Committee for appointment of administrators so
as to enable BCCI to demonstrate its good faith and the steps taken for
compliance both before the Committee in the first instance and before this
Court by the next date of hearing. However, certain additional directions
are warranted in the interest of maintaining transparency in the
functioning of BCCI, having regard to the sequence of events after 18 July
2016.
20 We accordingly issue the following additional directions:-
(i) BCCI shall forthwith cease and desist from making any disbursement of
funds for any purpose whatsoever to any state association until and unless
the state association concerned adopts a resolution undertaking to
implement the recommendations of the Committee as accepted by this Court in
its judgment dated 18 July 2016. After such a resolution is passed and
before any disbursement of funds takes place to the state association
concerned, a copy of the resolution shall be filed before the Committee and
before this Court, together with an affidavit of the President of the state
association undertaking to abide by the reforms contained in the report of
the Committee, as modified by this Court. Any transfer of funds shall take
place to the state associations which have accepted these terms only after
compliance as above is effected. This direction is in addition to the
previous direction of 7 October 2016 in regard to the disbursement to and
appropriation by the state associations;
(ii) (a) The Committee appointed by this Court is requested to appoint an
independent auditor to scrutinise and audit the income received and
expenditure incurred by BCCI; (b) The auditor shall also oversee the
tendering process that will hereinafter be undertaken by BCCI, as well as
the award of contracts above a threshold value to be fixed by the
Committee; (c) The award of contracts by BCCI above the threshold fixed by
the Committee shall be subject to the prior approval of the Committee; (d)
The Committee shall be at liberty to obtain the advice of the auditors on
the fairness of the tendering process which has been adopted by BCCI and in
regard to all relevant facts and circumstances; (e) The Committee will
determine whether a proposed contract above the threshold value should or
should not be approved; and (f) The Committee will be at liberty to
formulate the terms of engagement and reference to the auditors having
regard to the above directions. BCCI shall defray the costs, charges and
expenses of the auditors.
(iii) The President and Secretary of BCCI shall within two weeks from today
file a statement on affidavit indicating compliance made by BCCI of those
of the recommendations of the Committee which have been complied with, the
manner of compliance and the steps adopted for securing compliance with the
remaining recommendations. They shall appear before the Committee to
explain the manner of compliance. The President and Secretary, BCCI shall
also keep the Committee apprised about the steps taken pursuant to the
statement recorded in paragraph 18 above.
(iv) An affidavit of compliance shall be filed before this Court on or
before 3 December 2016 by the President and Secretary to BCCI in terms of
paragraphs 17 and 18 above; and
(v) The Secretary to the Committee appointed by this Court shall forward a
copy of this order to Mr Shashank Manohar, Chairman ICC to facilitate the
observations contained in paragraph 11 of this order.
BCCI shall cooperate with the Committee and with the auditors by granting,
in particular, full access to records, accounts and other information as
required to facilitate implementation of these directions.
21 The hearing of the proceedings shall stand over to 5 December 2016.
............................................CJI
[T.S. THAKUR]
................................................J
[A.M. KHANWILKAR]
................................................J
[Dr D Y
CHANDRACHUD]
New Delhi
October 21, 2016
