The Board of Control for Cricket in India (BCCI) has been avoiding accountability under the Right to Information Act, 2005. Fresh attempts have been made by minister of sports Ajay Maken. Also, the known BCCI baiter plans to request the finance ministry to expedite investigations into ongoing Foreign Exchange Regulation Act (FERA) violation cases.

Irrespective of their politics, here’s what the legal position is.

The board has been leaning on the supreme court ruling that BCCI was not “state” within the meaning of Article 12 of the constitution. Thus far, courts have dismissed Zee TV’s writ petition (challenging the scrapping of four-year telecast rights for domestic cricket matches) under Article 32G and Article 12, even while maintaining it under Article 226 in the high court.

This means that the supreme court has not completely let BCCI off the hook. In simplest terms: though BCCI may not be an instrument of the state, it is still answerable to the public.

Even here, after the split verdict delivered by a two-judge bench on a petition filed by former BCCI president AC Muthiah, challenging the amendment made in BCCI rules to enable N Srinivasan to contest elections for the post of BCCI secretary, the matter is now being heard afresh by a larger bench.

The bench may take a relook at the earlier judgment that BCCI is not “state” under Article 12 of the constitution.

That said, the supreme court has still held BCCI to be a public body discharging public functions. This means it comes under the purview of the RTI Act.

Section 2 (h) of the RTI Act provides for definition of the term "public authority", which means and connotes:

a) an authority or a body or an institution of self-government established or constituted by or under the constitution,

b) an authority or a body or an institution of self-government established or constituted by a law made by parliament,

c) an authority or a body or an institution of self-government established or constituted by a law made by the state legislature,

d) an authority or a body or an institution of self-government established or constituted by a notification issued or order made by the appropriate government.

BCCI is a society registered under the Societies Registration Act, 1860 and an autonomous body. However, the undeniable fact is that it still discharges some functions which partake nature of public duties or state actions and therefore even if it is held not to be “state”, it cannot deny being a “public authority” under the RTI Act.

The Delhi high court in the case of Indian Olympic Association & others vs Veeresh Malik and others, 2010 (Indlaw Del 489), held that the country is in the midst of a continuing task to ensure social justice and equity to all the people on the one hand; and on the other, the imperative of economic growth and development, as well as the spread of its benefits to all.

Educating, clothing and providing shelter, employment and basic health care to all the people are non-derogable priorities. The model chosen by the government of ensuring spread of welfare and its benefits, include functioning through non-government agencies, which are tasked and assisted for this purpose. The crucial role of access to information here cannot be understated. It is in this context that Section 2 (h) recognises that non-state actors may have responsibilities of disclosing information which would be useful, and necessary for the people they serve, as it furthers the process of empowerment, assures transparency, and makes democracy responsive and meaningful.

BCCI has argued before the chief information commissioner (CIC) that it is not a public authority because it does not get funds from the government. However, the sports ministry had responded, saying that BCCI was receiving benefits like exemptions in customs duty and is seen as a national sports body.

BCCI joint secretary Anurag Thakur defended the stand taken before the Central Information Commission (CIC) that the board has written to the sports ministry why it is against the sports bill.

Maken, in his bid to tame BCCI, and to bring it within the purview of the National Sports Federations (NSFs) and ensure transparency in the functioning of all sports bodies, made a failed attempt to introduce the National Sports (Development) Bill 2011, which also recommended that sports bodies should be brought under the RTI Act. The sports ministry's move to include cricket along with other sports in the Bill and bring it under the RTI fell flat and it is argued that the men behind BCCI run Indian cricket with an iron fist.

For the present the BCCI is happy merely placing its audited account on their website. It finds solace from the fact that even the supreme court has not held it to be 'the state', then why RTI? This has been adequately answered by the Delhi high court in IFCI vs. Ravinder Balwani’s case, where it has held that given the fact that there is a specific definition of what constitutes a 'public authority' for the purposes of the RTI Act, there is no warrant for incorporating the tests evolved by the supreme court in Pradeep Kumar Biswas for the purposes of Article 12 of the constitution. While it is possible that an authority within the meaning of Article 12 is likely to be a 'public authority' under the RTI Act, the converse need not be necessarily true.

Given the purpose and object of the RTI Act, the only consideration is whether the body in question answers the description of a 'public authority' under Section 2 (h) of the RTI Act. There is no need to turn to the constitution for this purpose, particularly when there is a specific statutory provision for that purpose. Even for the purposes of Section 2(h)(d) (i) or (ii) RTI Act for determining if the body is "owned", "controlled" or "substantially financed" directly or indirectly by the appropriate government whereas the Article 12 tests, which talk of "deep and pervasive" control or "dominance", are not helpful.

Therefore, it is in the fitness of things that BCCI graciously accepts its position of being a “public authority” under the RTI Act, 2005 in order to maintain its dignity and allow fair probe in to the allegations of benami equity, tax dodges, cooked up balance sheets, related-party transactions and conflicts of interest (particularly the Indian Premier League) in a fair and transparent manner. If there’s nothing to hide, why hesitate?