Due Process: Case Comment on Azharuddin v. Board of Control for Cricket in India
By Abhinava Shrivastava
On November 8, 2012, the Andhra Pradesh High Court (“Court”) overturned the life-ban handed out to former Indian cricket captain, Mohammad Azharuddin (“Azharuddin”) by the Disciplinary Committee (“Committee”) of Board of Control for Cricket in India (“BCCI”) in 2000 for his alleged engagement in match-fixing.
In response to allegations of match-fixing and upon the completion of the Central Bureau of Investigation’s (“CBI”) investigation in October 2000, the BCCI appointed a Commissioner to enquire into the conduct of cricketers alleged to have been involved in match-fixing. Thereafter, on the basis of the Commissioner’s report (“Report”), on December 5, 2000, the Committee concluded that Azharuddin was involved in match- fixing and through an order (“Order”) prohibited him, for life, from:
(i) playing cricket matches conducted or authorised by the International Cricket Council (“ICC”) or BCCI; and
(ii) holding any position in the ICC or BCCI, or any of their affiliate organisations.
In response to the Order, Azharuddin filed a civil petition in the City Civil Court, Hyderabad asking for the Order to be overturned as the constitution and operation of the Committee contravened the rules of the BCCI and the principles of natural justice.
In August 2003, the City Civil Court ruled in favour of the BCCI and upheld the Order. Pursuant to this ruling, Azharuddin filed an appeal before the High Court against the order of the City Civil Court.
The Andhra Pradesh High Court framed 11 issues, relating amongst others to the maintainability of the suit filed before the City Civil Court, Hyderabad, the competence and authority of the Committee, and the validity of the Order of the Committee. The key issues considered by the Court were:
(1) Whether the BCCI’s rules permitted the appointment of the Commissioner to undertake the enquiry into the allegations of match-fixing; and
(2) Whether the Committee and the BCCI had followed the principles of natural justice in the course of the enquiry.
Decision of the Court
Issue 1: Whether the BCCI’s rules permitted the appointment of the Commissioner to undertake the enquiry into the allegations of match-fixing
With respect to the first issue, the Court examined the rules of the BCCI (“Rules”), in particular Rule 38, which concerned the procedure for the conduct of proceedings in case of misconduct. In this regard, Azharuddin’s counsel argued that the appointment of the Commissioner to undertake the enquiry into the allegations of misconduct against Azharuddin was in excess of the authority granted by the Rules. As on the date of appointment of the Commissioner, Rule 38 of the BCCI Rules enabled the BCCI President to frame, or direct the Secretary to frame charges against the player who allegedly engaged in misconduct, and authorised the President to form a committee (comprising of three persons) to engage in an enquiry into the allegations of misconduct.
The Court in this respect noted that this Rule, as existing on the date of the appointment of the Commissioner, did not contemplate the appointment of a Commissioner to engage in an enquiry into allegations of misconduct and instead authorised the creation of a committee to enquire into the conduct of the player. Further, the Court while holding that the Rules contemplate strict compliance with the provisions of Rule 38, noted that any non-compliance with the terms of Rule 38 would entail severe penalties, including expulsion. Furthermore, the Court noted that while Rule 38 was amended by the BCCI to enable the appointment of a Commissioner to undertake the enquiry, such amendment was subsequent to the appointment of the Commissioner to enquire into Azharuddin’s conduct. Since a subsequent appointment letter was not issued under the amended Rule 38, the Court ruled that the un-amended Rule 38 would govern the enquiry proceeding in relation to Azharuddin’s conduct. Thus, by strictly applying the provision of Rule 38 of the Rules, the Court held that the appointment of the Commissioner by the BCCI to enquire into Azharuddin’s conduct was in excess of the authority granted by the Rules, and thereby contravened the provisions of the Rules. In effect, by declaring the appointment of the Commissioner as being without the authority of the Rules, the Court dismissed the charges framed and the conduct of the enquiry as lacking the sanction of the Rules.
Issue 2: Whether the Committee and the BCCI has followed the principles of natural justice in the course of the enquiry?
In relation to this issue, Azharuddin’s counsel argued that the Commissioner relied on the preliminary enquiry report (“PE Report”) prepared by the CBI and did not re-examine any evidence or adduce additional material in support of its findings in the Order. In this respect, the counsel argued that the PE Report was an investigative report published at a preliminary stage of the process, and was not meant to be employed for the purpose of a definitive finding of guilt. Further, the counsel added that Azharuddin was not provided the opportunity to cross-examine any witnesses whose statements were used to prepare the PE Report, and thus its usage without re-examination of evidence amounted to a breach of principles of natural justice.
At the outset, the Court noted the Supreme Court’s finding in Zee Telefilms Limited v. Union of India [(2005) 4 SCC 649] (“Zee Telefilms”) that the BCCI, by engaging in the the game of cricket in India, was discharging functions that were akin to public duties, and thus, in the case its practices violate the constitutional or statutory right of any person, that person would be entitled to avail of remedies provided in the ordinary course of law. In the present context, the Court employed this finding of the Supreme Court to add that its discharge of duties akin to public duties restrained it from acting in an arbitrary manner and infringing Azharuddin’s fundamental rights, including the right of live with dignity as contained in Article 21 of the Constitution.
In relation to this issue, the Court noted that the terms of the PE Report made it subject to the final enquiry to be undertaken in the matter. Furthermore, the Court distinguished between a ‘preliminary enquiry’ and a ‘regular enquiry’, stating that a preliminary enquiry is generally an enquiry that examines and collects the facts relating to an issue as is not intended to be used to inflict punishment, whereas a regular enquiry engages in the examination of allegations in compliance with principles of natural justice for the purpose of determining guilt. Thus, the Court opined that the PE Report, by reason of being in the nature of a ‘preliminary enquiry’ could not be used as the basis of a definitive finding by the Commissioner or Committee, without examination of additional material. Further, the Court noted that in the preparation of the PE Report, Azharuddin was not provided an opportunity to provide evidence in defence or to cross-examine witnesses, which are constituents of the principles of natural justice and fairness. The Court also noted that subsequently the PE Report was employed by the Commissioner to record its finding of guilt, without engaging in an independent enquiry or offering Azharuddin an opportunity to rebut the witness testimony in the PE Report.
Thus, the Court ruled that the enquiry undertaken by the Commission failed to respect principles of natural justice, and thus its finding against Azharuddin was not enforceable.
In the examination of the issues, the Court expressly concerned itself with the conduct of the enquiry by the BCCI and not the matter of determining whether Azharuddin engaged in the match-fixing or not. This distinction is important as the Court overturned the decision of the BCCI to debar Azharuddin for life on the ground that the Commissioner’s appointment and enquiry undertaken was illegal by reason of being excessive of the powers of the BCCI and failing to respect principles of natural justice and fairness respectively, and has not offered an opinion on the merits of the allegations of match fixing.
The Court adopted a doctrinaire approach in this case and sought strict adherence to the principles of fair enquiry as established by judicial precedents in employment and service law. Also noteworthy is the Court’s opinion that the performance of duties ‘akin to public duties’ by the BCCI renders it accountable to a party’s constitutional rights (particularly the right to life and liberty in Article 21 of the Constitution).
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