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
This proceeding is a sequel to the order and directions issued on
21 October 2016. In the previous order of this Court, the status report
submitted by the three member Committee (consisting of Justice R M Lodha,
Justice Ashok Bhan and Justice R V Raveendran) was taken up for
consideration.
2 The Committee was tasked with overseeing the implementation of the
judgment and order of this Court dated 18 July 2016. The judgment of this
Court has attained finality. Review and Curative petitions have also been
dismissed. By its judgment, this Court has accepted the recommendations
made by the Committee in a report dated 18 December 2015 providing for
reforms in the structure, organization and working of BCCI. Such an
exercise is necessary in order to make the functioning of BCCI transparent,
objective and accountable to the trust with which it is impressed, as a
body which presides over the affairs of a sport which has millions of
followers. This Court had by its judgment expressed the hope that the
process of implementing its directions would be completed within a period
of four months or, at best, six months. The status report submitted by the
Committee recorded that the directions of this Court were ignored, actions
were taken by BCCI to present a fait accompli to the Committee and the
directives issued by the Committee were breached. The Committee observed
that BCCI has repeatedly taken steps to undermine its authority and this
Court with several statements and actions which “are grossly out of order
and would even constitute contempt”.
3 On 7 October 2016, while taking note of the status report submitted
by the Committee, this Court recorded the following prima facie findings :
“… The sequence of events.. 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”.
4 On 7 October 2016, this Court took note of the fact that despite the
directions which the Committee issued on 21 August 2016 that the AGM of
BCCI may transact only routine business for 2015-2016 and that any business
or matter for 2016-2017 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 were
disbursed in favour of State Associations. BCCI had informed the court that
one of the reasons for its failure to adopt the proposed MoA was the
reluctance of its State Associations to subscribe to it. In this
background, the court was constrained to issue directions inter alia to the
effect that no further amounts shall be disbursed to the State Associations
except to those associations which undertake the reforms suggested by the
Committee and accepted by the court.
5 Another issue which was of concern was the conduct of the President
of BCCI (Mr Anurag Thakur) who, the Committee recorded as having asked the
CEO of ICC to state that the Committee appointed by this Court amounted to
‘governmental interference’. It may be noted here that in an interview to
the electronic media, the CEO of ICC stated that the President of BCCI
sought a letter from ICC that the appointment of a nominee of CAG (as
directed by this Court on 18 July 2016 in terms of the recommendations of
the Committee) would amount to ‘governmental interference’ inviting the
suspension of BCCI from the membership of ICC. By its order dated 7 October
2016, the President of BCCI was directed to file a personal affidavit
clarifying the position.
6 There were two versions before this Court in regard to what had
transpired between the President of BCCI and Mr Shashank Manohar, President
of ICC at a meeting that was held at Dubai on 6 and 7 August 2016 during an
ICC Governance Review Committee meeting. Mr. Ratnakar Shivaram Shetty,
General Manager of Admin and Game Development, BCCI had in his response
stated 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.” (emphasis supplied)
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”. (emphasis supplied)
On the other hand, the President of BCCI in his response (filed pursuant to
the directions of this Court) stated as follows :
“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.” (emphasis supplied)
7 In the response filed by Mr Shetty on behalf of BCCI there was a
specific denial that its President had requested ICC to issue a letter
stating that the Committee amounted to governmental interference. On the
other hand, in the affidavit which the President of BCCI filed in pursuance
of the directions of this Court dated 7 October 2016 he accepted having
made a request to the Chairman of ICC for issuing a letter “clarifying the
position which he had taken as BCCI President” (that the recommendation of
the Committee for appointment of a CAG nominee would amount to governmental
interference and may lead to a suspension of BCCI from ICC membership). Mr
Shetty had not disclosed that there was any such request for a letter made
by the President of BCCI whereas according to the latter he had made such a
request. Mr Shetty in fact denied that any request for a letter was made to
the ICC President by Mr Anurag Thakur.
8 This Court by its order dated 21 October 2016 observed as follows :
“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 leveled 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.”
In pursuance of the directions issued by this Court on 21 October 2016, a
response received by Mr Shashank Manohar, President of ICC has been placed
before this Court by the Amicus Curiae.
9 After reviewing whether due and adequate steps were taken by BCCI to
implement the final judgment of this Court, this Court in its order dated
21 October 2016 recorded the following findings :
“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.” (emphasis supplied)
10 A statement was made on behalf of the BCCI by learned Senior Counsel
that BCCI would establish its bonafides before the Committee by
establishing the compliance made of those of its recommendations which are
stated to have been fulfilled. Accordingly, in order to furnish BCCI with
an opportunity to demonstrate its compliance with the directions of this
Court, we desisted from issuing a direction at that stage for the
appointment of administrators (as sought by the Committee) in the hope that
BCCI would comply with the judgment and order of this Court in the
meantime. While doing so, this Court observed that :
“19….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.” (emphasis
supplied)
11 In pursuance of the previous directions issued by this Court, on 21
October 2016, the Committee filed another status report on 7 November 2016
on which orders were passed by this Court on 8 November 2016. The Committee
has filed another status report on 14 November 2016 seeking the following
directions :
That all office bearers of BCCI and State Associations who stand
disqualified by virtue of the norms contained in its report dated 4 October
2016 and accepted by this Court must cease to hold office forthwith;
All administrative and management matters be carried out by the CEO of BCCI
without advertence to the office bearers; and
Appointment of anamed observer to supervise the administration of BCCI by
the CEO.
The Committee has suggested that its own role may be confined to overall
policy and direction and not the actual administration of BCCI.
12 The President of BCCI has filed an affidavit in these proceedings on
3 December 2016. The affidavit states that neither the President nor the
Secretary of BCCI command voting rights in the meetings of the Working
Committee. The affidavit states in the following terms that the State
Associations have declined to accept the recommendations made by the
Committee and accepted by this Court :
“Accordingly the Hon Secretary convened the said meeting referred to above
of the General Body of the BCCI for the 30.9.2016….
The meeting resumed the next day i.e. on 1.10.2016….
I further state that I as Hon. President do not have a vote when I sit in
the general body meeting neither does the Hon. Secretary….
I further state that I as a Hon. President am in no position to force
members to adopt the full memorandum as recommended, even though armed with
an order of this Hon’ble Court, as the members are of the opinion that as
per the provisions of the Tamil Nadu Societies Registration Act, 1975 under
which the BCCI is registered, they can amend their memorandum only when
three fourths of the members present and entitled to vote, accept the
changes to the memorandum.
I further state that another informal meeting of the members was once again
held in New Delhi on 15.10.2016, wherein I along with the Hon. Secretary
again conveyed to all the members present that should they not adopt the
memorandum as proposed by the Lodha Committee, all the payments due to the
member state associations would be stopped….
The members stuck to their stand that they would abide by the new
memorandum only as approved by them with the changes as approved by them in
the adjourned meeting of the 30.9.2016, irrespective of the fact that no
further payments would be made to them. The members were of the view that a
few of the Lodha Committee recommendations were not in the interest of
Indian Cricket and would be a huge setback to the game in India and destroy
it completely…..
As Hon. President, I am rendered totally incapable and without any
authority to force the members, who are 30 in number and have voting rights
under the statute, to adopt the entire memorandum as proposed for adoption
by the Hon. Lodha Committee.” (emphasis supplied)
13 The position as it has emerged before the court is that despite the
fact that there is a judgment and final order dated 18 July 2016 accepting
the report submitted by the Committee, the implementation of the directions
issued by this Court has been obstructed and impeded. By the order of this
Court of 7 October 2016 and the subsequent directions that were issued on
21 October 2016, sufficient time was granted to BCCI to abide by the
judgment and order of this Court.
14 Initially, as the Committee informed this Court, BCCI appeared to
have taken the position that it was only if its Review Petition as well as
Curative Petition were dismissed, that the recommendations of the Committee
would be accepted. This statement of BCCI at a meeting of its Working
Committee held on 21 October 2016 was manifestly misconceived. Once this
Court had affirmed the recommendations of the Committee (with
modifications) in a final judgment and order dated 18 July 2016, the
judgment had to be implemented as it stands. By the Order of this Court
dated 21 October 2016, this Court made it clear, if indeed such a
clarification was at all warranted, that :
“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 As a matter of record, both the Review as well as Curative petitions
have also been dismissed. Yet, the intransigence of BCCI has continued. The
course of events indicates that though sufficient opportunities have been
granted to BCCI to comply with the judgment and order of this Court, it has
failed to do so. The President and Secretary and office bearers of BCCI
have obstructed the implementation of the final directions of this Court on
the basis of a specious plea that its State Associations are not willing to
abide by the directions. This Court having furnished sufficient
opportunities to BCCI to comply, it is constrained now to take recourse to
coercive steps to ensure that the directions contained in its final
judgment and order are not left to be a writ in sand.
16 The Committee consists of a former Chief Justice of India and two
former Judges of the Supreme Court. They have together been tasked with
overseeing implementation of the judgment of this Court. Yet, the Committee
has repeatedly been confronted with a barrage of unfortunate comments by
BCCI – in Press conferences and in correspondence with an intent that it
should be led to a situation where it throws up its arms in despair and
frustration.
17 Among the recommendations of the Committee that have been accepted by
this Court are the following disqualifications for being an office bearer
of BCCI and of the State Associations :
“A person shall be disqualified from being an Office Bearer if he or she :
Is not a citizen of India;
Has attained the age of 70 years;
Is declared to be insolvent, or of unsound mind;
Is a Minister or Government Servant;
Holds any office or post in a sports or athletic association or federation
apart from cricket;
Has been an Office Bearer of the BCCI for a cumulative period of 9 years;
Has been charged by a Court of Law for having committed any criminal
offence.”
18 The Committee has in its status report dated 14 November 2016 drawn
the attention of the court to the fact that several office bearers both of
BCCI and the State Associations continue to hold posts although they stand
disqualified in terms of the above norms which have been accepted by this
Court. Persons who have a vested interest in continuing in their positions
inspite of the norms noted above have ensured that the writ of the court is
obstructed and impeded. We need to emphasise that the turf of the cricket
field is not a personal turf or fiefdom. We must hence order and direct
that no person shall hereafter continue to be or be entitled for
appointment as office bearer of BCCI or a State Association in breach of
the above norms. All existing office bearers of BCCI and of the State
Associations who do not fulfill the above norms shall with effect from the
date of this Order stand disqualified.
19 That leads the court to the issue of the conduct of Shri Anurag
Thakur, President of BCCI. By the final judgment and order of this Court
dated 18 July 2016, the plea that the appointment of a nominee of CAG would
amount to governmental interference with the affairs of BCCI was
specifically negatived. By its judgment, this Court had 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 leveled against the recommendations of the Committee
is, therefore, unfounded and accordingly rejected.”
20 Once this position had been laid down by the court, there was no
occasion for the President of BCCI at the ICC Governance Review Committee
Meeting held at Dubai on 6 and 7 August 2016 to solicit a letter from the
Chairperson of ICC. Such a solicitation was but an effort to thwart the
implementation of the orders of the court. An attempt was made to build up
a record to indicate that implementing the orders of the Supreme Court of
India would run the risk of endangering the status of BCCI as a member of
ICC. In pursuance of the Order of this Court, Mr. Shashank Manohar
(President – ICC) has in an email dated 2 November 2016 addressed to
the Committee made the following disclosure :
“I would like to state that there was a meting of the Working Group of the
ICC held at Dubai on the 6th August, 2016 to consider the ICCs Governance
and Financial Structure. At the meeting, apart from myself and Mr Anurag
Thakur, Mr Giles Clarke, Mr David Peever and Mr Imran Khwaja, who are
all Directors of ICC were present. The ICC CEO, Mr David Richardson
and ICC COO Mr. Lain Higgins were also present..
During the meeting Mr Thakur pointed out to me that when I was the
President of BCCI a submission was advanced before the Supreme Court at my
behest that the appointment of a nominee of the CAG on the Apex Council
might amount to Governmental interference and would invoke an action of
suspension from the ICC. He therefore requested me to issue a letter to
that effect in my capacity as ICC Chairman..
I declined to issue such a letter and explained to him that the said
submission was advanced before the Hon Supreme Court when the court was
hearing the matter. However, on 18-7-2016 the Hon SC delivered its judgment
in the matter and rejected the submission that the appointment of a nominee
of the CAG would amount to governmental interference. The Hon SC further
held that the appointment of the CAG nominee on the Apex Council either
made by the BCCI on its own or under the orders of a competent court aimed
at bringing financial discipline and transparency cannot be seen as
governmental interference calling for suspension of the BCCI by the ICC..
The Hon SC further held that the ICC would appreciate the appointment of
such a nominee as the same would bring transparency in the finances of the
Board..
I therefore explained to Mr Thakur that the issue having been decided by
the Hon Supreme Court of India, which is the highest court of the country
and whose judgment binds everybody, I cannot give him any such letter.”
(emphasis supplied)
21 The response by Mr Shashank Manohar indicates that the President of
BCCI requested him on 6 August 2016 to issue a letter in his capacity as
ICC Chairman in terms of the position that he had adopted as the President
of BCCI
(“that the appointment of a CAG nominee would amount to governmental
interference and would invoke an action of suspension from ICC”). The
conduct of the President of BCCI in seeking a letter from the President of
ICC in August 2016, after the final judgment and Order of this Court, is
nothing but an attempt on the part of the head of BCCI to evade complying,
with the Order of this Court. That he sought a letter is clear even from
the affidavit of Mr Thakur dated 15 October 2016 (though he states that he
had requested the ICC Chairman to clarify the position which he had taken
as BCCI President). Even going by that version, we are constrained to note
that there was absolutely no occasion for the President of BCCI to solicit
any such clarification from the Chairperson of ICC in the teeth of the
judgment that was delivered by this Court. Moreover, we find adequate
reasons to doubt the veracity of the explanation which has been tendered by
Mr Thakur about the sequence of events. It must be noted that in the
response which was filed by Mr Ratnakar Shivaram Shetty to the status
report of the Committee there was a reference to a discussion which took
place between Mr Manohar and Mr Thakur in Dubai and to a clarification
sought by the latter on what “the exact status would be” if a CAG nominee
was inducted by BCCI. Mr Shetty specifically denied that Mr Thakur
had requested the ICC Chairperson to issue a letter. Mr Shetty’s response
was based on records. This reference to some “clarification” was evidently
not on the basis of the minutes of the purported meeting of BCCI Working
Committee held on 22 August 2016 which were placed on record by learned
Senior Counsel for BCCI during the course of the hearing prior to the Order
of this Court dated 21 October 2016. If those minutes were before Mr
Shetty, he would have made a disclosure in their terms. The purported
minutes read as follows :
“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”.
(emphasis supplied)
22 Prima facie it would appear that these minutes had not seen the light
of the day when the response by Mr Shetty to the status report of the
Committee was filed, and have been fabricated subsequently to lend credence
to the version of Mr Thakur. The statement that Mr Manohar was requested to
clarify the position which he had taken as BCCI President is falsified by
Mr Manohar’s disclosure that he was asked to give a letter in his capacity
as ICC Chairman.The version of Mr Thakur that he had requested Mr Manohar
that “he being ICC Chairman can a letter be issued clarifying the position”
which he had taken as BCCI President is belied by the disclosure which has
been made by Mr Shashank Manohar. Mr Manohar’ s response dated 2
November 2016 clearly indicates that during the course of the meeting at
Dubai on 6 August 2016, Mr Thakur requested him to issue a letter in his
capacity as ICC Chairperson that the appointment of a nominee of CAG in
BCCI might amount to governmental interference, leading to action of
suspension from ICC. Prima facie, it emerges from the record that
Mr Thakur did seek such a letter from the ICC Chairperson as
stated by Mr Manohar. The disclosure which Mr Thakur has
made in his affidavit dated 15 October 2016 is prima facie false to his
knowledge. Prima facie, we also find that the minutes of the meeting of the
Working Committee of BCCI which were produced before this Court have been
made up to lend support to the version of Mr Thakur.
23 We accordingly have arrived at the conclusion that Mr Thakur has by
his actions and conduct rendered himself unfit for continuance as President
of BCCI, for the following reasons :
Firstly, he has obstructed and impeded the implementation of the directions
contained in the judgment and order of this Court dated 18 July 2016. His
own version is that he has been “rendered totally incapable and without any
authority” to compel the members to comply with the orders of this Court.
This is indicative of his having washed his hands off a duty and obligation
to ensure compliance.
Secondly, we are prima facie of the view that Mr Thakur is liable to be
proceeded with for contempt of court for having obstructed and impeded the
orders of this Court.
Thirdly, prima facie we are of the view that Mr Thakur has made statements
on affidavit before this Court which are false to his knowledge. A notice
to show cause should be issued to Mr Thakur why he should not be proceeded
with under Section 195 read with Section 340 of the Code of Criminal
Procedure, 1973 for having made false statements before this Court.
24 In determining the modalities to be followed, we have drawn
sustenance from an order dated 28 March 2014 passed by a Bench of two
learned Judges of this Court consisting of Hon’ble Mr Justice A K Patnaik
and Hon’ble Mr Justice F M I Kalifulla. In view of the circumstances which
had then arisen resulting in the President of BCCI being unable to perform
his duties, this Court appointed a distinguished cricket sportsperson, as
an interim measure, to exercise the powers of the President in relation to
IPL 2014. With regard to all other matters, the senior most Vice-President
of BCCI was under the orders of the Court permitted to discharge the
functions of the President, BCCI.
25 For the above reasons, we order and direct as follows :
All the office bearers of BCCI and of its affiliated State Associations
who fail to meet the norms recommended by the Committee and accepted by
this Court, shall forthwith demit and cease to hold office namely:
“A person shall be disqualified from being an Office Bearer if he or she :
Is not a citizen of India;
Has attained the age of 70 years;
Is declared to be insolvent, or of unsound mind;
Is a Minister or government servant;
Holds any office or post in a sports or athletic association or federation
apart from cricket;
Has been an Office Bearer of the BCCI for a cumulative period of 9 years;
Has been charged by a Court of Law for having committed any criminal
offence.”
Shri Anurag Thakur, President of BCCI and Shri Ajay Shirke, Secretary, BCCI
shall forthwith cease and desist from being associated with the working of
BCCI;
A notice to show cause shall issue to Mr Anurag Thakur to explain why he
should not be proceeded against under the provisions of Section 195 read
with Section 340 of the Code of Criminal Procedure, 1973;
A notice to show cause shall issue to Mr Anurag Thakur to explain why he
should not be proceeded with under the Contempt of Courts Act, 1971;
A Committee of administrators shall supervise the administration of BCCI
through its Chief Executive Officer;
This Court shall by a separate order nominate the persons who shall form
part of the Committee of administrators. In order to enable the Court to
have the benefit of objective assistance in making the nominations, we
request Mr Fali S Nariman, learned Senior Counsel and Mr Gopal Subramaniam,
the learned Amicus Curiae to assist the Court by suggesting names of
persons with integrity and experience in managing a similar enterprise. We
request the learned Counsel appearing on behalf of the parties to also
place their suggestions before the Court so as to facilitate a considered
decision;
In addition to the function assigned in (v) above, the Committee of
administrators shall also ensure that the directions contained in the
judgment of this Court dated 18 July 2016 (which accepted the report of the
Committee with modifications) are fulfilled and to adopt all necessary and
consequential steps for that purpose;
In view of the directions contained in (ii) above, the senior most Vice-
President of BCCI shall perform the duties of the President, BCCI and the
Joint Secretary shall perform the duties of Secretary. Those of the office
bearers of BCCI who are not disqualified in terms of clause (i) above
(other than the President and Secretary) may continue subject to their
filing an unconditional undertaking before this Court within four weeks of
the date of this order to abide by and implement the directions contained
in the judgment dated 18 July 2016. Upon the Committee of administrators as
nominated by this Court assuming charge, the existing office bearers shall
function subject to the supervision and control of the Committee of
administrators. The Committee of administrators would have the power to
issue all appropriate directions to facilitate due supervision and control;
and
The remuneration payable to the members of the Committee of Administrators
shall be fixed in consultation with the Committee consisting of Mr Justice
R M Lodha, Mr Justice Ashok Bhan and Mr Justice R V Raveendran.The role of
the Justice R M Lodha Committee shall hereafter be confined to overall
policy and direction on such matters as may be referred by this Court.
We would request the leaned Senior Counsel and the learned Amicus Curiae to
endeavour to submit their suggestions to this Court within two weeks. The
proceedings shall be listed before this Court on 19 January 2017 for
pronouncement of directions in regard to the names of the administrators.
26 There shall accordingly be an order in these terms.
..............................................CJI
[T.S. THAKUR]
…...............................................J
[A.
M. KHANWILKAR]
..................................................J
[Dr D Y CHANDRACHUD]
New Delhi
January 02, 2017
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
This proceeding is a sequel to the order and directions issued on
21 October 2016. In the previous order of this Court, the status report
submitted by the three member Committee (consisting of Justice R M Lodha,
Justice Ashok Bhan and Justice R V Raveendran) was taken up for
consideration.
2 The Committee was tasked with overseeing the implementation of the
judgment and order of this Court dated 18 July 2016. The judgment of this
Court has attained finality. Review and Curative petitions have also been
dismissed. By its judgment, this Court has accepted the recommendations
made by the Committee in a report dated 18 December 2015 providing for
reforms in the structure, organization and working of BCCI. Such an
exercise is necessary in order to make the functioning of BCCI transparent,
objective and accountable to the trust with which it is impressed, as a
body which presides over the affairs of a sport which has millions of
followers. This Court had by its judgment expressed the hope that the
process of implementing its directions would be completed within a period
of four months or, at best, six months. The status report submitted by the
Committee recorded that the directions of this Court were ignored, actions
were taken by BCCI to present a fait accompli to the Committee and the
directives issued by the Committee were breached. The Committee observed
that BCCI has repeatedly taken steps to undermine its authority and this
Court with several statements and actions which “are grossly out of order
and would even constitute contempt”.
3 On 7 October 2016, while taking note of the status report submitted
by the Committee, this Court recorded the following prima facie findings :
“… The sequence of events.. 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”.
4 On 7 October 2016, this Court took note of the fact that despite the
directions which the Committee issued on 21 August 2016 that the AGM of
BCCI may transact only routine business for 2015-2016 and that any business
or matter for 2016-2017 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 were
disbursed in favour of State Associations. BCCI had informed the court that
one of the reasons for its failure to adopt the proposed MoA was the
reluctance of its State Associations to subscribe to it. In this
background, the court was constrained to issue directions inter alia to the
effect that no further amounts shall be disbursed to the State Associations
except to those associations which undertake the reforms suggested by the
Committee and accepted by the court.
5 Another issue which was of concern was the conduct of the President
of BCCI (Mr Anurag Thakur) who, the Committee recorded as having asked the
CEO of ICC to state that the Committee appointed by this Court amounted to
‘governmental interference’. It may be noted here that in an interview to
the electronic media, the CEO of ICC stated that the President of BCCI
sought a letter from ICC that the appointment of a nominee of CAG (as
directed by this Court on 18 July 2016 in terms of the recommendations of
the Committee) would amount to ‘governmental interference’ inviting the
suspension of BCCI from the membership of ICC. By its order dated 7 October
2016, the President of BCCI was directed to file a personal affidavit
clarifying the position.
6 There were two versions before this Court in regard to what had
transpired between the President of BCCI and Mr Shashank Manohar, President
of ICC at a meeting that was held at Dubai on 6 and 7 August 2016 during an
ICC Governance Review Committee meeting. Mr. Ratnakar Shivaram Shetty,
General Manager of Admin and Game Development, BCCI had in his response
stated 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.” (emphasis supplied)
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”. (emphasis supplied)
On the other hand, the President of BCCI in his response (filed pursuant to
the directions of this Court) stated as follows :
“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.” (emphasis supplied)
7 In the response filed by Mr Shetty on behalf of BCCI there was a
specific denial that its President had requested ICC to issue a letter
stating that the Committee amounted to governmental interference. On the
other hand, in the affidavit which the President of BCCI filed in pursuance
of the directions of this Court dated 7 October 2016 he accepted having
made a request to the Chairman of ICC for issuing a letter “clarifying the
position which he had taken as BCCI President” (that the recommendation of
the Committee for appointment of a CAG nominee would amount to governmental
interference and may lead to a suspension of BCCI from ICC membership). Mr
Shetty had not disclosed that there was any such request for a letter made
by the President of BCCI whereas according to the latter he had made such a
request. Mr Shetty in fact denied that any request for a letter was made to
the ICC President by Mr Anurag Thakur.
8 This Court by its order dated 21 October 2016 observed as follows :
“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 leveled 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.”
In pursuance of the directions issued by this Court on 21 October 2016, a
response received by Mr Shashank Manohar, President of ICC has been placed
before this Court by the Amicus Curiae.
9 After reviewing whether due and adequate steps were taken by BCCI to
implement the final judgment of this Court, this Court in its order dated
21 October 2016 recorded the following findings :
“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.” (emphasis supplied)
10 A statement was made on behalf of the BCCI by learned Senior Counsel
that BCCI would establish its bonafides before the Committee by
establishing the compliance made of those of its recommendations which are
stated to have been fulfilled. Accordingly, in order to furnish BCCI with
an opportunity to demonstrate its compliance with the directions of this
Court, we desisted from issuing a direction at that stage for the
appointment of administrators (as sought by the Committee) in the hope that
BCCI would comply with the judgment and order of this Court in the
meantime. While doing so, this Court observed that :
“19….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.” (emphasis
supplied)
11 In pursuance of the previous directions issued by this Court, on 21
October 2016, the Committee filed another status report on 7 November 2016
on which orders were passed by this Court on 8 November 2016. The Committee
has filed another status report on 14 November 2016 seeking the following
directions :
That all office bearers of BCCI and State Associations who stand
disqualified by virtue of the norms contained in its report dated 4 October
2016 and accepted by this Court must cease to hold office forthwith;
All administrative and management matters be carried out by the CEO of BCCI
without advertence to the office bearers; and
Appointment of anamed observer to supervise the administration of BCCI by
the CEO.
The Committee has suggested that its own role may be confined to overall
policy and direction and not the actual administration of BCCI.
12 The President of BCCI has filed an affidavit in these proceedings on
3 December 2016. The affidavit states that neither the President nor the
Secretary of BCCI command voting rights in the meetings of the Working
Committee. The affidavit states in the following terms that the State
Associations have declined to accept the recommendations made by the
Committee and accepted by this Court :
“Accordingly the Hon Secretary convened the said meeting referred to above
of the General Body of the BCCI for the 30.9.2016….
The meeting resumed the next day i.e. on 1.10.2016….
I further state that I as Hon. President do not have a vote when I sit in
the general body meeting neither does the Hon. Secretary….
I further state that I as a Hon. President am in no position to force
members to adopt the full memorandum as recommended, even though armed with
an order of this Hon’ble Court, as the members are of the opinion that as
per the provisions of the Tamil Nadu Societies Registration Act, 1975 under
which the BCCI is registered, they can amend their memorandum only when
three fourths of the members present and entitled to vote, accept the
changes to the memorandum.
I further state that another informal meeting of the members was once again
held in New Delhi on 15.10.2016, wherein I along with the Hon. Secretary
again conveyed to all the members present that should they not adopt the
memorandum as proposed by the Lodha Committee, all the payments due to the
member state associations would be stopped….
The members stuck to their stand that they would abide by the new
memorandum only as approved by them with the changes as approved by them in
the adjourned meeting of the 30.9.2016, irrespective of the fact that no
further payments would be made to them. The members were of the view that a
few of the Lodha Committee recommendations were not in the interest of
Indian Cricket and would be a huge setback to the game in India and destroy
it completely…..
As Hon. President, I am rendered totally incapable and without any
authority to force the members, who are 30 in number and have voting rights
under the statute, to adopt the entire memorandum as proposed for adoption
by the Hon. Lodha Committee.” (emphasis supplied)
13 The position as it has emerged before the court is that despite the
fact that there is a judgment and final order dated 18 July 2016 accepting
the report submitted by the Committee, the implementation of the directions
issued by this Court has been obstructed and impeded. By the order of this
Court of 7 October 2016 and the subsequent directions that were issued on
21 October 2016, sufficient time was granted to BCCI to abide by the
judgment and order of this Court.
14 Initially, as the Committee informed this Court, BCCI appeared to
have taken the position that it was only if its Review Petition as well as
Curative Petition were dismissed, that the recommendations of the Committee
would be accepted. This statement of BCCI at a meeting of its Working
Committee held on 21 October 2016 was manifestly misconceived. Once this
Court had affirmed the recommendations of the Committee (with
modifications) in a final judgment and order dated 18 July 2016, the
judgment had to be implemented as it stands. By the Order of this Court
dated 21 October 2016, this Court made it clear, if indeed such a
clarification was at all warranted, that :
“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 As a matter of record, both the Review as well as Curative petitions
have also been dismissed. Yet, the intransigence of BCCI has continued. The
course of events indicates that though sufficient opportunities have been
granted to BCCI to comply with the judgment and order of this Court, it has
failed to do so. The President and Secretary and office bearers of BCCI
have obstructed the implementation of the final directions of this Court on
the basis of a specious plea that its State Associations are not willing to
abide by the directions. This Court having furnished sufficient
opportunities to BCCI to comply, it is constrained now to take recourse to
coercive steps to ensure that the directions contained in its final
judgment and order are not left to be a writ in sand.
16 The Committee consists of a former Chief Justice of India and two
former Judges of the Supreme Court. They have together been tasked with
overseeing implementation of the judgment of this Court. Yet, the Committee
has repeatedly been confronted with a barrage of unfortunate comments by
BCCI – in Press conferences and in correspondence with an intent that it
should be led to a situation where it throws up its arms in despair and
frustration.
17 Among the recommendations of the Committee that have been accepted by
this Court are the following disqualifications for being an office bearer
of BCCI and of the State Associations :
“A person shall be disqualified from being an Office Bearer if he or she :
Is not a citizen of India;
Has attained the age of 70 years;
Is declared to be insolvent, or of unsound mind;
Is a Minister or Government Servant;
Holds any office or post in a sports or athletic association or federation
apart from cricket;
Has been an Office Bearer of the BCCI for a cumulative period of 9 years;
Has been charged by a Court of Law for having committed any criminal
offence.”
18 The Committee has in its status report dated 14 November 2016 drawn
the attention of the court to the fact that several office bearers both of
BCCI and the State Associations continue to hold posts although they stand
disqualified in terms of the above norms which have been accepted by this
Court. Persons who have a vested interest in continuing in their positions
inspite of the norms noted above have ensured that the writ of the court is
obstructed and impeded. We need to emphasise that the turf of the cricket
field is not a personal turf or fiefdom. We must hence order and direct
that no person shall hereafter continue to be or be entitled for
appointment as office bearer of BCCI or a State Association in breach of
the above norms. All existing office bearers of BCCI and of the State
Associations who do not fulfill the above norms shall with effect from the
date of this Order stand disqualified.
19 That leads the court to the issue of the conduct of Shri Anurag
Thakur, President of BCCI. By the final judgment and order of this Court
dated 18 July 2016, the plea that the appointment of a nominee of CAG would
amount to governmental interference with the affairs of BCCI was
specifically negatived. By its judgment, this Court had 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 leveled against the recommendations of the Committee
is, therefore, unfounded and accordingly rejected.”
20 Once this position had been laid down by the court, there was no
occasion for the President of BCCI at the ICC Governance Review Committee
Meeting held at Dubai on 6 and 7 August 2016 to solicit a letter from the
Chairperson of ICC. Such a solicitation was but an effort to thwart the
implementation of the orders of the court. An attempt was made to build up
a record to indicate that implementing the orders of the Supreme Court of
India would run the risk of endangering the status of BCCI as a member of
ICC. In pursuance of the Order of this Court, Mr. Shashank Manohar
(President – ICC) has in an email dated 2 November 2016 addressed to
the Committee made the following disclosure :
“I would like to state that there was a meting of the Working Group of the
ICC held at Dubai on the 6th August, 2016 to consider the ICCs Governance
and Financial Structure. At the meeting, apart from myself and Mr Anurag
Thakur, Mr Giles Clarke, Mr David Peever and Mr Imran Khwaja, who are
all Directors of ICC were present. The ICC CEO, Mr David Richardson
and ICC COO Mr. Lain Higgins were also present..
During the meeting Mr Thakur pointed out to me that when I was the
President of BCCI a submission was advanced before the Supreme Court at my
behest that the appointment of a nominee of the CAG on the Apex Council
might amount to Governmental interference and would invoke an action of
suspension from the ICC. He therefore requested me to issue a letter to
that effect in my capacity as ICC Chairman..
I declined to issue such a letter and explained to him that the said
submission was advanced before the Hon Supreme Court when the court was
hearing the matter. However, on 18-7-2016 the Hon SC delivered its judgment
in the matter and rejected the submission that the appointment of a nominee
of the CAG would amount to governmental interference. The Hon SC further
held that the appointment of the CAG nominee on the Apex Council either
made by the BCCI on its own or under the orders of a competent court aimed
at bringing financial discipline and transparency cannot be seen as
governmental interference calling for suspension of the BCCI by the ICC..
The Hon SC further held that the ICC would appreciate the appointment of
such a nominee as the same would bring transparency in the finances of the
Board..
I therefore explained to Mr Thakur that the issue having been decided by
the Hon Supreme Court of India, which is the highest court of the country
and whose judgment binds everybody, I cannot give him any such letter.”
(emphasis supplied)
21 The response by Mr Shashank Manohar indicates that the President of
BCCI requested him on 6 August 2016 to issue a letter in his capacity as
ICC Chairman in terms of the position that he had adopted as the President
of BCCI
(“that the appointment of a CAG nominee would amount to governmental
interference and would invoke an action of suspension from ICC”). The
conduct of the President of BCCI in seeking a letter from the President of
ICC in August 2016, after the final judgment and Order of this Court, is
nothing but an attempt on the part of the head of BCCI to evade complying,
with the Order of this Court. That he sought a letter is clear even from
the affidavit of Mr Thakur dated 15 October 2016 (though he states that he
had requested the ICC Chairman to clarify the position which he had taken
as BCCI President). Even going by that version, we are constrained to note
that there was absolutely no occasion for the President of BCCI to solicit
any such clarification from the Chairperson of ICC in the teeth of the
judgment that was delivered by this Court. Moreover, we find adequate
reasons to doubt the veracity of the explanation which has been tendered by
Mr Thakur about the sequence of events. It must be noted that in the
response which was filed by Mr Ratnakar Shivaram Shetty to the status
report of the Committee there was a reference to a discussion which took
place between Mr Manohar and Mr Thakur in Dubai and to a clarification
sought by the latter on what “the exact status would be” if a CAG nominee
was inducted by BCCI. Mr Shetty specifically denied that Mr Thakur
had requested the ICC Chairperson to issue a letter. Mr Shetty’s response
was based on records. This reference to some “clarification” was evidently
not on the basis of the minutes of the purported meeting of BCCI Working
Committee held on 22 August 2016 which were placed on record by learned
Senior Counsel for BCCI during the course of the hearing prior to the Order
of this Court dated 21 October 2016. If those minutes were before Mr
Shetty, he would have made a disclosure in their terms. The purported
minutes read as follows :
“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”.
(emphasis supplied)
22 Prima facie it would appear that these minutes had not seen the light
of the day when the response by Mr Shetty to the status report of the
Committee was filed, and have been fabricated subsequently to lend credence
to the version of Mr Thakur. The statement that Mr Manohar was requested to
clarify the position which he had taken as BCCI President is falsified by
Mr Manohar’s disclosure that he was asked to give a letter in his capacity
as ICC Chairman.The version of Mr Thakur that he had requested Mr Manohar
that “he being ICC Chairman can a letter be issued clarifying the position”
which he had taken as BCCI President is belied by the disclosure which has
been made by Mr Shashank Manohar. Mr Manohar’ s response dated 2
November 2016 clearly indicates that during the course of the meeting at
Dubai on 6 August 2016, Mr Thakur requested him to issue a letter in his
capacity as ICC Chairperson that the appointment of a nominee of CAG in
BCCI might amount to governmental interference, leading to action of
suspension from ICC. Prima facie, it emerges from the record that
Mr Thakur did seek such a letter from the ICC Chairperson as
stated by Mr Manohar. The disclosure which Mr Thakur has
made in his affidavit dated 15 October 2016 is prima facie false to his
knowledge. Prima facie, we also find that the minutes of the meeting of the
Working Committee of BCCI which were produced before this Court have been
made up to lend support to the version of Mr Thakur.
23 We accordingly have arrived at the conclusion that Mr Thakur has by
his actions and conduct rendered himself unfit for continuance as President
of BCCI, for the following reasons :
Firstly, he has obstructed and impeded the implementation of the directions
contained in the judgment and order of this Court dated 18 July 2016. His
own version is that he has been “rendered totally incapable and without any
authority” to compel the members to comply with the orders of this Court.
This is indicative of his having washed his hands off a duty and obligation
to ensure compliance.
Secondly, we are prima facie of the view that Mr Thakur is liable to be
proceeded with for contempt of court for having obstructed and impeded the
orders of this Court.
Thirdly, prima facie we are of the view that Mr Thakur has made statements
on affidavit before this Court which are false to his knowledge. A notice
to show cause should be issued to Mr Thakur why he should not be proceeded
with under Section 195 read with Section 340 of the Code of Criminal
Procedure, 1973 for having made false statements before this Court.
24 In determining the modalities to be followed, we have drawn
sustenance from an order dated 28 March 2014 passed by a Bench of two
learned Judges of this Court consisting of Hon’ble Mr Justice A K Patnaik
and Hon’ble Mr Justice F M I Kalifulla. In view of the circumstances which
had then arisen resulting in the President of BCCI being unable to perform
his duties, this Court appointed a distinguished cricket sportsperson, as
an interim measure, to exercise the powers of the President in relation to
IPL 2014. With regard to all other matters, the senior most Vice-President
of BCCI was under the orders of the Court permitted to discharge the
functions of the President, BCCI.
25 For the above reasons, we order and direct as follows :
All the office bearers of BCCI and of its affiliated State Associations
who fail to meet the norms recommended by the Committee and accepted by
this Court, shall forthwith demit and cease to hold office namely:
“A person shall be disqualified from being an Office Bearer if he or she :
Is not a citizen of India;
Has attained the age of 70 years;
Is declared to be insolvent, or of unsound mind;
Is a Minister or government servant;
Holds any office or post in a sports or athletic association or federation
apart from cricket;
Has been an Office Bearer of the BCCI for a cumulative period of 9 years;
Has been charged by a Court of Law for having committed any criminal
offence.”
Shri Anurag Thakur, President of BCCI and Shri Ajay Shirke, Secretary, BCCI
shall forthwith cease and desist from being associated with the working of
BCCI;
A notice to show cause shall issue to Mr Anurag Thakur to explain why he
should not be proceeded against under the provisions of Section 195 read
with Section 340 of the Code of Criminal Procedure, 1973;
A notice to show cause shall issue to Mr Anurag Thakur to explain why he
should not be proceeded with under the Contempt of Courts Act, 1971;
A Committee of administrators shall supervise the administration of BCCI
through its Chief Executive Officer;
This Court shall by a separate order nominate the persons who shall form
part of the Committee of administrators. In order to enable the Court to
have the benefit of objective assistance in making the nominations, we
request Mr Fali S Nariman, learned Senior Counsel and Mr Gopal Subramaniam,
the learned Amicus Curiae to assist the Court by suggesting names of
persons with integrity and experience in managing a similar enterprise. We
request the learned Counsel appearing on behalf of the parties to also
place their suggestions before the Court so as to facilitate a considered
decision;
In addition to the function assigned in (v) above, the Committee of
administrators shall also ensure that the directions contained in the
judgment of this Court dated 18 July 2016 (which accepted the report of the
Committee with modifications) are fulfilled and to adopt all necessary and
consequential steps for that purpose;
In view of the directions contained in (ii) above, the senior most Vice-
President of BCCI shall perform the duties of the President, BCCI and the
Joint Secretary shall perform the duties of Secretary. Those of the office
bearers of BCCI who are not disqualified in terms of clause (i) above
(other than the President and Secretary) may continue subject to their
filing an unconditional undertaking before this Court within four weeks of
the date of this order to abide by and implement the directions contained
in the judgment dated 18 July 2016. Upon the Committee of administrators as
nominated by this Court assuming charge, the existing office bearers shall
function subject to the supervision and control of the Committee of
administrators. The Committee of administrators would have the power to
issue all appropriate directions to facilitate due supervision and control;
and
The remuneration payable to the members of the Committee of Administrators
shall be fixed in consultation with the Committee consisting of Mr Justice
R M Lodha, Mr Justice Ashok Bhan and Mr Justice R V Raveendran.The role of
the Justice R M Lodha Committee shall hereafter be confined to overall
policy and direction on such matters as may be referred by this Court.
We would request the leaned Senior Counsel and the learned Amicus Curiae to
endeavour to submit their suggestions to this Court within two weeks. The
proceedings shall be listed before this Court on 19 January 2017 for
pronouncement of directions in regard to the names of the administrators.
26 There shall accordingly be an order in these terms.
..............................................CJI
[T.S. THAKUR]
…...............................................J
[A.
M. KHANWILKAR]
..................................................J
[Dr D Y CHANDRACHUD]
New Delhi
January 02, 2017
