Opinion Eye on the ball

For an offence under Section 409,there needs to be a breach of trust by a public servant or an agent. The BCCI,the franchisee and the players entered into a tripartite agreement for securing the services of the player for the team. Therefore,it would be very difficult to establish that the player was acting as an agent of the franchisee or the BCCI. In order to prove cheating under Section 420,one needs to establish that the accused,dishonestly and with an intention to defraud,induced a person to deliver property. Though cheating could be established as per the rules of cricket,the act of dishonestly inducing a person to deliver property is difficult to prove. Primarily,it is the punters who have been cheated of their property or security,which in itself is illegal in India. It is debatable whether the act of “fixing” a game or parts of it amounts to cheating (as defined in the IPC) audiences and fans.

Provisions in the existing regulations to address match-fixing and spot-fixing are not wholly absent. The ICC has an anti-corruption code for participants and the BCCI’s anti-corruption code contains similar provisions. But the power to take action under these codes is limited to the participants and cannot include the bookies and punters. This is because the code can be applied only after a contractual arrangement between the participants and the governing body. And bookies are (thankfully) not part of such an arrangement. Further,since the code is imposed by the governing body of the sport,the penal provisions are of disciplinary nature. Penalties range from bans to fines. Wrongdoers cannot be punished for criminal breach of law.

The inadequacy of the IPC provisions,the limited applicability and force of the anti-corruption codes of sporting bodies and the sweep of the illegal bookie network has prompted the Central government to deliberate on an anti-fixing law called the Prevention of Dishonesty in Relation to Sporting Events Bill.

Dishonest acts in sporting events range from deliberately manipulating the event,or a part of it,for gain to underperforming,or “tanking”,for a sporting advantage. Dishonesty could also include omitting to inform the authorities of an overture from a bookie or a punter. Many kinds of offences can be contemplated under the legislation; not all of them are committed for monetary gain. Therefore,the legislation would have to carefully address the quantum of punishment for these acts and the parties who fall within its purview. While deliberate manipulation for financial gain should be punished,the penalty for tanking to gain a sporting advantage should be addressed only under the rules of the sporting body. It should be excluded from the ambit of the draft legislation.

Though the anti-fixing legislation may have been spurred by the cricket controversy,it is imperative that it tackles corruption across all sports. Football,hockey,Formula 1 and badminton seem to be gaining commercial traction in India. It is important that the Central government takes into account all sports events,within and outside the country,in which Indian nationals are involved. Sports is a requisite for a healthy society and the government needs to ensure that it is not tainted by the corrupt practices of a few. It would be prudent for the government to deliberate longer and take into account all issues related to the prohibition of such practices. It should desist from rushing to enact a law that is defective or only partially addresses the problems linked to fixing in sport today.

The biggest concern that the anti-fixing legislation needs to address is the problem of detection and investigation of wrong practices. Worldwide detection of such corrupt practices are linked to legalised betting and the analysis of betting patterns. With betting being illegal in India,the detection of wrongdoing would be a problem. The difficulties in detection may even hamper the effective enforcement of the anti-fixing legislation. The lack of coordination among various agencies,such as the police departments of various states,income tax authorities,the enforcement directorate and the anti-corruption unit of the BCCI,spells disaster and ineffective implementation. This has to be tackled through regulation.

With inputs from Vidushpat Singhania

Sampath is senior partner and Singhania is principal associate at a Delhi-based law firm.

Views are personal

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