Indian cricket needs to look within4 min read . Updated: 20 Jun 2013, 06:12 PM IST
Devoting India's stretched criminal justice system to check corruption in cricket is a misguided effort
In response to the match and spot-fixing allegations that have embroiled the Indian Premier League (IPL), a common refrain has been a demand for a law criminalizing such actions. Union law minister Kapil Sibal said a draft legislation, which treats “any act, signal or contact through technology or otherwise, which changes the course or outcome of a game," as an offence is already in the works. This change, it is believed, will plug the vacuum in prevailing legislation under which it is nearly impossible to prosecute players for fixing games, as the recent order granting bail to Sreesanth and others revealed. But regardless of the perceived immorality of these acts, will it not be irresponsible to deploy a flailing criminal justice system to prosecute such acts when there are other effective solutions to mend the problem?
Criminal law generally focuses only on wrongs that should be condemned as opposed to wrongs that can be compensated and, therefore, the government before criminalizing an act must showcase that the act involves such wrongdoing. It is equally essential that the government demonstrate that these wrongs are of a kind as to concern the entire citizenry. It must not be left to individual victims to pursue the matter as a civil claim. The father of Indian criminal law, Lord Macaulay, noted that: “In general, a mere breach of contract ought not to be an offence, but only to be the subject of a civil action." He added that, “some breaches of contract are very likely to cause evil such as no damages, or only very high damages, can repair, and are also very likely to be committed by persons from whom it is exceedingly improbable that any damages can be obtained."
It is a good question to ask if sportspersons ought to be criminally punishable for either infringing contracts with their owners or for acting contrary to a supposed trust instilled in them by society. In considering a contractual infringement, it is clear that civil claims are sufficient to compensate any damage suffered by their team mates or owners from their wrongdoing. Hypothetically, if the Rajasthan Royals thought Sreesanth had breached the contract, it could sue him in civil court for appropriate compensation. The Board of Control for Cricket in India (BCCI) could also impose such other punishments, as it thinks necessary. The societal ramifications of these acts, though, make for more interesting analysis.
Sport is today considered a publicly significant activity, even if players and officials are only involved in it as a commercial pursuit. Fixing a game by taking money from bookies or bettors is undoubtedly morally devious: it amounts to not only playing a fraud on one’s team, but also on spectators. But every moral transgression cannot be brought within the purview of the criminal justice system. To trigger a country’s criminal law, a contravention must be such that only a penal sanction can act as deterrent.
But such considerations have gone completely unaddressed in the ruckus for a new law. Equally, claims that match-fixers ought to be criminally sanctioned as they perpetrate a fraud on society as a whole are specious. It is by no means the law’s responsibility to espouse confidence by criminalizing acts that can be redressed by other means. Terming an act a crime and using the criminal justice system to investigate and prosecute this is a public policy decision of grave ramifications. As a society we are faced with many evils requiring the full attention of our police and investigative forces. When this is so, it is incongruous to extend these resources to curb relatively inconsequential menaces.
Cricket, and more generally sports, in India ought to look towards stronger, more accountable, internal governance. It is wrong to assume that match-fixing requires the cooperation of law enforcement agencies to be assuaged. It is also wrong to assume that merely because the anti-corruption units of BCCI and IPL have failed that any such entity will be incompetent in checking this menace. A tougher body modelled on the Tennis Integrity Unit (and for that matter, the International Cricket Council’s existing anti-corruption unit) comprising retired police and intelligence officials, with broad powers to regulate player-agent relationships, analyse telecommunications records, and with the ability to conduct such other checks that go towards investigation of these offences must be put in place.
Establishing such a unit will no doubt be an act in futility unless there is a more accountable BCCI. Cricket’s governing body must be considered as an authority of the state amenable to part III of our Constitution (which guarantees fundamental rights) and must be brought within the purview of the Right to Information Act. An independent commission—perhaps comprising retired Supreme Court or high court judges—ought to be appointed to oversee the board’s activities, including any apparent conflicts of interest. A strong anti-corruption body independent of BCCI with expansive investigative powers, akin to what exists in tennis, ought to be instituted. Cricket cannot rely on an already floundering criminal justice system to solve a mess of its own making. It needs to look within.
Suhrith Parthasarathy and Goutham Shivshankar are practising lawyers at Madras high court.