The stance of the Board of Cricket Control of India (BCCI) as regards the ‘whereabouts’ clause of the WADA just doesn’t make sense. According to latest reports, the players and the BCCI have stated that the said clause violates their right to privacy as guaranteed under the Indian Constitution and Article 19 (1)(d) that guarantees the right to every person to move freely within India.
These rights are guaranteed and there’s no denying that. But these rights are guaranteed by the STATE and not any private organization. In Zee Telefilms v. Union of India, the Supreme Court clearly held that the BCCI is not a state under Article 12 of the Constitution. What then comes out of this judgment is that the BCCI cannot say that they would be violating the rights of its players by this clause because they are not an ‘authority’ under the Constitution that guarantees them.
Rights are to be guaranteed by the State and not any private body. So when a private body like the BCCI says that it is obliged to provide for these rights under the Constitution, the statement doesn’t make sense. Are we then looking at an admission that the BCCI is a ‘state’ under the Constitution ?
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Aditya nd Arun,
I thank both of u from the bottom of my heart for bringing out such an interesting case and analysis…
Arun,
precisely my point. one cannot go one citing rights and the constitution when it is not applicable to them.
the point i tried to bring out was that the argument that the right to privacy of the players will be violated is flawed; only because it is not being enforced by a state organ but the ICC or the BCCI as the case may be.
so basically we are on the same plane on this issue. and yes, I did read some other news articles saying that the respective associations would be charged with enforcing the clauses which in our case is the BCCI.
Swarup, many thanks for providing this insight into the said issue. However, I am stretched to understand as to how the question of the BCCI being a ‘state’ or not is of concern here. Firstly, the Anti-Doping Code is not a government-ratified document/statute/custom and by no means, can fall under the purview of ‘law’ vis-a-vis Art. 13 of the Constitution. Hence, at the threshold level, the question of constitutional violation does not arise. On the other hand, a case may be made against the Anti-Doping Treaty of UNESCO to which India is a party (which is irrelevant in this case).
Second, if the players have to sign the WADA whereabouts clause, it is enforced by the ICC, and not the BCCI. The ICC had unanimously resolved (BCCI was a part of this resolution) to enforce the Code and therefore, the sanctions will be enforced by the ICC. The BCCI has no control over the matter; hypothetically, it can still select and send the non-abiding players to an int’l match, just that the ICC will not allow it. Therefore, the issue has to be legally enforced against the ICC. Which is probably why the BCCI is looking for a mutually acceptable solution.
Third, fundamental rights with the generic exception of Art. 21 in this context, are enforceable AGAINST the state. Even if one were to assume that the BCCI is ‘state’ the players, in addition to the aforementioned reasons, cannot argue for the BCCI to guarantee it. I am citing this off the cuff really, and would stand corrected if the position is not tenable.
It would be interesting to see the basis of G. Vahanvati’s report as to the alleged constitutional implications. It is, unfortunately, not available on the Web.