Asia Times: Cricket's whistle-blowers and phone-ringers


	December 2, 2000	atimes.com

India/Pakistan

Cricket's whistle-blowers and phone-ringers

15) The legal position

The important question that arises now is whether the findings of the enquiry into allegations of match fixing and related malpractices connected with the game of cricket constitute any offences under the penal laws of India and whether facts as disclosed in the enquiry are sufficient to institute a case for any criminal offence.

This matter has been examined in detail within the CBI. The legal position arising out of the facts of enquiry was also discussed with Justice Monoj Kumar Mukherjee, former Judge, Supreme Court of India and with Shri Harish Salve, Solicitor General of India, and their written opinion has been obtained.

The Legal Adviser/CBI has analysed the provisions of section 120-A IPC dealing with criminal conspiracy and section 415 IPC dealing with cheating and has come to the conclusion that the facts of enquiry in the instant case do not constitute an offence under the aforesaid sections of law. He has also examined the possibility of application of provisions of Prevention of Corruption Act, 1998 and opined that technically a case u/s 13(1)(d)(i) (criminal misconduct) and section 13(1)(e) (disproportionate assets) can be made out against some of the players who are public servants. Justice Monoj Kumar Mukherjee has discussed at length the provisions of various penal laws including the Indian Penal Code, the Public Gambling Act and the Prevention of Corruption Act, 1988, and the excerpts of opinion of Justice Mukherjee on aforesaid laws are as follows:

The Indian Penal Code

"To seek answers to the questions raised, the Indian Penal Code has to be first looked into. The only sections of the Code which need consideration are sections 415, 417 and 420. Section 415, which defines 'cheating' reads as under:-

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

Explanation -- A dishonest concealment of facts is a deception within the meaning of this section. On an analysis of the section, it is seen that it consists of two parts. First comes the main part which speaks of deceiving a person and is common to both the modes of deceiving as specified in the second part. The modes are: i) by fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property; or ii) by intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. It is thus seen that 'deceiving' is the quintessence of the offence of cheating; and, when a person deceives another person to induce him to act in any of the manners stated above, the offence is complete. To put it differently, the inducement must be by the deceit.

The words 'deceit' and deceive', however, have not been defined in the Penal Code and hence their dictionary meaning needs be looked into. Culling the meaning of the above words from the various dictionaries, it is seen that a false representation or a misleading statement, express or implied, pertaining to a present or past existing fact, is the sine qua non of 'deceit'. The deceit can be practised by expressly or impliedly making a false representation or misleading statement (suggestio falsi), or by dishonest concealment of facts while making the representation/statement (suppressio veri), as explained in section 415, or by conduct. Needless to say, what will be sufficient to constitute deceit has got to be decided on the facts of a given case.

As noticed earlier, the offence of cheating encompasses cases in which there is delivery/retention of property as also cases in which there is no such element. Since section 417 provides for 'Punishment for cheating', it may apparently seem that it covers both those categories; but, as section 420 specifically provides for punishment of cases relating to delivery of property and to valuable security, it is to be legitimately inferred that the former relates to simple cases of cheating by the second mode enumerated in section 415. This inference is reinforced by the fact that whereas offence under 417 is non-cognizable and punishable with imprisonment for one year only or fine, section 420 is a cognizable offence and punishable with imprisonment for seven years and fine. Judged in the light of the above principles of law, it is difficult to hold, on the basis of the materials collected during inquiry, that a case of cheating has been made out. There is no material from which it can be said, even prima facie, that the delinquent players induced the BCCI to select them, by practising deceit upon it in any of the manners enumerated earlier so as to bring them within the ambit of section 417. I am told that for selection of players, no prior declaration or undertaking relating to the code of conduct to be followed by them is taken. If it was so taken and if there was any misleading statement or false representation or suppression of relevant facts made by the player concerned therein, it might be said that the offence punishable under section 417 was made out. I hasten to add that offence under section 420 IPC would not have been still made out for the money (property) which the players received was for a consideration, that is, for participation in the tournament concerned.

While on this point, it is pertinent to mention that in the letters intimating the players about their selection, the BCCI writes "we are sure, you will put up your best efforts in the interest of the country" and wilful non-performance/under performance inspite thereof amounts not only to breach of faith and of sporting ethics but also of undermining the prestige of the country and people at large. Nonetheless, however reprehensible the conduct of the players concerned may be, it cannot be brought within the parameters of 'cheating', as defined in the Code."

Public Gambling Act 1867

"Thus said, the law relating to gambling in India may be looked into. As far back as in 1867, Public Gambling Act, (Central Act III of 1867) was enacted to provide for the punishment of public gambling and keeping of common gaming houses. Though this antiquated law is still in the Statute Book, it has lost its utility as, later on, most of the States of India, including Bombay and Delhi, enacted their own laws for the self-same purpose. Since the provisions of the Bombay Prevention of Gambling Act, 1887 and the Delhi Public Gambling Act, 1955 are similar, reference to the relevant provisions of one of them will suffice.

In the Delhi Act, 'gaming' is defined in section 2(c) to include betting (except upon a horse race in certain contingencies) and 'common gaming house' in 2(iii) to mean any house or room or tent or enclosure or vehicle or vessel or any place whatsoever in which any instruments of gaming are kept or used for gaming purposes. Section 3 of the Act lays down the penalty for owning or keeping or having charge of a gaming house; and the penalty is imprisonment for a term which may extend to six months and a fine which may extend to one thousand rupees. Section 5 lays down that an officer below the rank of a Superintendent of Police needs a warrant or an authority to take into custody all persons found in a place used as common gaming house.

In the instant case, even if cogent materials are made available to prove that any of the persons arraigned is guilty of the offence under section 3 of the above Act or similar provision or other State Acts, and if it is decided to take steps for launching prosecution in a competent Court of Law, the following facts and circumstances need be considered:

(i) The question of limitation under Chapter XXXVI of the Code of Criminal Procedure; and

(ii) The punishment provided for the offence is lenient and is not at all commensurate with the magnitude of the crime."

Prevention of Corruption Act 1988

As most of the players under scrutiny do not come within the definition of 'Public Servants' as defined in Section 2(c) of the Act, this law is not applicable to them. However, two of the cricketers under scrutiny, viz., Mohd Azharuddin who is working with the State Bank of India and Ajay Sharma who is working with the Central Warehousing Corporation, are 'public servants' as defined in Section 2(c) of the Act. The opinion of Justice Monoj Kumar Mukherjee in respect of these players vis-a-vis the Prevention of Corruption Act, 1988 is :-

"In view of their such employment, the above two players are undoubtedly 'public servants' within the meaning of section 2(c) of the Act, but as they have accepted/obtained money by using/abusing their position as cricketers and not as 'public servants', they would not be liable for prosecution for those offences in which acceptance/obtainment of money by a public servant has a nexus with his official position/act/function; and these offences are enumerated in sections 7, 11 and 13 (1) (a), (b), (c) and d (ii). That necessarily means, those who offered money to them also cannot be prosecuted under section 12 of the Act, for abetment.

However, the other offences under the Act, namely, sections 13(1) (d)(i) and (iii) and l3(1)(e) do not lay down that in committing those offences the public servant has to use/abuse his official position. Indeed, simply being a public servant or while holding office as a public servant, he can be liable for prosecution if the acts mentioned therein are committed by him. This distinction can be best understood when section 13(1) (d)(i) is read in juxtaposition with section 13(1)(d)(ii). While, under the former, a 'public servant' becomes liable for prosecution for committing the offence of criminal misconduct if he obtains ... (the subsequent words are identical in both clauses) 'by corrupt or illegal means', in the latter, 'by abusing his position as a public servant'. In view of the above provisions of the Act and the materials collected during enquiry, the two players may be said to have committed offences under section 13(1) (d)(i). Needless to say, the question whether the materials so far collected will/can be ultimately translated into legal evidence for a successful prosecution has to be kept in mind. For the self same reason, the two players concerned may also be proceeded against under section 13(1)(e) of the Act, if and when sufficient materials are collected to fulfill the requirements thereof."

This report was discussed in detail with the Solicitor General of India, Shri Harish Salve, who has scanned the evidence and is in broad agreement that no criminal charges under cheating or under the Gambling Act can be filed against anyone because of the nebulous position of law in this regard, as well as the improbability of investigating agency being able to obtain sufficient legal evidence.

Thus, from the opinions expressed above, it is evident that, the facts as disclosed in the enquiry do not constitute any offence under the provisions of Indian Penal Code. Similarly, it is not possible to prosecute anyone under the Public Gambling Act due to the restrictions imposed as per Sec. 468 of Chapter XXXVI of the CrPC. In so far as a case u/s 13(1)(e) (disproportionate assets) of the Prevention of Corruption Act, 1988 is concerned, it may be clarified that the CBI enquired only into the issue of match-fixing and related malpractices and did not conduct detailed investigation into the assets of the players. However, relevant information available with the CBI was shared with Income Tax authorities for appropriate action.

Technically, an offence u/s 13(1)(d)(i) and (iii) (criminal misconduct) of the Prevention of Corruption Act, 1988 can be registered against the two players (Mohd Azharuddin and Ajay Sharma) answering the definition of public servants. However, looking at the issue in its totality, the question of registration of a case under the aforesaid sections of Prevention of Corruption Act is under evaluation.

Functioning of the BCCI

The natural corollary to the fact that disclosures during the CBI enquiry have revealed a thriving player-bookie nexus in India for nearly a decade, begs the question: what was the BCCI doing all these years? CBI has enquired into the role and functioning of BCCI to evaluate whether it could have prevented the malpractices.

CBI enquiry into the affairs of BCCI has not disclosed any direct evidence of nexus of any past or present office bearers of BCCI with the betting syndicate. However, a perusal of statements of present and past officials of the Board like S/Shri I.S. Bindra, Sunil Dev and Jaywant Lele has indicated that there were definite rumours/reports about match fixing and related malpractices from time to time. It is also quite clear that the BCCI never seriously addressed this problem till the lid was blown after Hansie Cronje affair.

It is obvious that, in spite of their public posturing now, all the office-bearers of BCCI over the past decade or so have been negligent in looking at this problem in spite of clear indications of this malaise making inroads into Indian Cricket. The primary reason behind this is the lack of accountability of BCCI to anyone. The structure of BCCI is such that it is very difficult for any person who has not previously held a post in BCCI or affiliate units to get into Cricket administration in India. This not only prevents infusion of fresh blood and ideas but also perpetuates a system of self-aggrandisement. Even in the State Units, it is extremely difficult to become a Member or an Office- Bearer for any person even with good cricketing credentials. Most of the State Units are perpetually in the control of a family or a group since its inception. A case in point is the Rajasthan Cricket Association which is being run by the family of Rungtas since its inception and, at present, even includes 10 employees of Rungta's as Members of RCA. Such members are basically incorporated to ensure that the unchallenged supremacy of a particular group is not threatened during elections. It is also interesting to note that one Ayub Gauri of Jaipur, with suspected underworld links, was in charge of security for a particular gate in a match between India and Pakistan at Sawai Mansingh Stadium, Jaipur in 1999.

One of the important sources of revenue of affiliate units is grant of in-stadia rights for advertising for domestic and international matches. In most instances, in-stadia rights are granted without following a uniform system, thus promoting arbitrariness. There is a need for greater transparency in this area. The system of zonal representation in BCCI and it's Selection Committee also needs to be reviewed since this basically attempts at distributing the fishes and loaves of office which also breeds parochialism. The functioning of BCCI at present reflects a dichotomy between running the affairs of the Board and administering Cricket, in which only the first aspect receives overwhelming primacy.

There are quite a few who believe that player selection at the lower levels, such as Under 19, Ranji Trophy, etc., is not always on merit. Patronage and nepotism operate rather blatantly. A more transparent system based on performance revealed by devices such as the Ceat ratings and ratings as devised by ESPN would greatly enhance the cricket administration's credibility in respect of promotion of talent. There is no transparency even in the appointment of Coaches, Managers, Physiotherapists, etc. who are elected in the AGM after their names are suggested by some of the members. There is no panel available with BCCI, from which names can be discussed and thereafter ratified on merit. Basically, these appointments are an extension of patronage system to persons who curry favour with the office bearers of BCCI.

CBI enquiry has disclosed that, consequent to the commercial success of Reliance World Cup in 1987, the coffers of the Board started overflowing with big money coming in through sponsorship and television rights. A perusal of the Board's financial statement discloses that from a profit of Rs 5.06 lakhs in the financial year 1987-88, the profits soared to Rs 8.37 Crores in the financial year 1998-99. In normal circumstances, this happy situation should have been reflected in the performance of Indian team in the international arena. The argument here is that swelling coffers of BCCI should have resulted in better coaching facilities, better maintenance of cricket stadiums, infusion of more money into domestic matches, building up of a reserve pool of players and use of professionals, like sports physicians, dietitians, etc. This has not, however, happened in the Indian context. On the other hand, BCCI started a process of commercialisation of cricket without any vision as to how this money could be ploughed back to ensure better performance on the field.

Some of the policies of BCCI during the past decade which have directly contributed to match fixing and related malpractices are --

(a) frequent tours to controversial venues like Sharjah, Singapore, Toronto, etc.; (b) thoughtless increase in One Day Internationals.

CBI enquiry into match fixing allegations has indicated that matches in non-regular venues such as Toronto & Singapore may be more prone to fixing/betting as there is carnival-like atmosphere of non- seriousness at these venues. India is the only country which plays regularly in these arenas even at the cost of not touring regular Test playing nations like Australia, West Indies, South Africa, etc. which makes more sense in cricketing terms. The ostensible reason put forth by BCCI for touring these lesser venues is globalisation of cricket. It is difficult to understand why India should shoulder this burden when countries with a longer cricketing history like England and Australia are not doing so. In addition to this, is the disproportionate increase in One Day matches being played by India vis-a-vis other Test playing nations. For example, in 1999 India played nearly 40 ODIs and is scheduled to play 53 ODIs in the first 13 months of year 2000-2001, which is one of the highest by a Test-playing nation.

The aforesaid factors have contributed to malpractices in two ways: (a) the players are more exposed to betting syndicates in non-regular venues; and (b) a surfeit of ODIs result in lower levels of motivation for players who may get a feeling that there is nothing wrong in throwing an occasional match.

Moreover, due to the extremely busy schedule charted out for the national players, they hardly get any time to participate in domestic cricket matches. This has led to a decline in the standards of domestic cricket, as a result of which hardly any players of International standards are being thrown up. The off-shoot is that the reserve strength of the Indian bench is pathetic when compared to countries like Australia who can put up a world class side from their reserve strength itself. With their positions in the national side not being threatened by the reserve bench strength or fresh talent, it is only natural for members of the Indian team to become complacent and more susceptible to the lure of match fixing, etc. as their position would not be under threat for lack of performance in a few matches.

During this enquiry, no evidence has come forth to prove that office-bearers of the BCCI over the years have received any money to ensure India's participation in any tournament. However, a study of guarantee money received by BCCI in some of the tournaments shows an interesting trend which indicates that it is not commensurate with India's standing in the cricketing world. Today, every second person in the world watching cricket 'live' on television is probably an Indian which gives an enormous clout in financial terms to the BCCI. In view of this, BCCI can fix its own terms to tour any country to ensure its participation in an event since the television rights for any tournament featuring India can be sold for a heavy amount. But this position is not reflected in the guarantee money received by BCCI. The figures indicate that India has undersold itself due to reasons not satisfactorily explained by BCCI office-bearers during their examination by CBI. This enquiry has not looked into the matter of grant of television rights since this issue is being dealt with separately.

In conclusion, the BCCI has been negligent in not preventing match-fixing and related malpractices in cricket in spite of clear signals about the malaise. This is mainly due to the fact that, for most office-bearers of BCCI, running the Board is an end in itself and the future of cricket is only incidental. However, the solution does not lie in the creation of a new administrative structure or overriding bureaucratic control on the existing structure. It, perhaps, lies in making the functioning of BCCI more professional, transparent and accountable to a non-bureaucratic autonomous authority.

16) Conclusions

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