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Cricket Controversies – A Legal Perspective

By Thacheril Sanjay

Cricket is known as the gentleman’s game. Englishmen used to play cricket to unwind themselves and have fun on a sunny day. However, today the game is fought – not played with all fury. Earlier Indians used to be at the receiving end in cricket. The soft and suave Indian players used to be abused and snubbed by the Aussies, English and even by the Pakistani teams. Suddenly things changed. Youngsters like Dhoni, Harbhajan, Sreeshant, and Ishant have made the team a formidable team which is not afraid to stare into the eyes of its opponents. The Indian cricket team’s visit to Down Under a few months back is an interesting study.

Sydney Cricket Ground (SCG) evokes different memories for different persons. The centuries scored, the five-wicket haul, innings defeats or the Ashes matches, all faded into oblivion when our own “Turbanator” – Harbhajan Singh was accused for calling Andrew Symonds – a monkey.

The ICC panel headed by Mike Procter immediately indicted Harbhajan for his remarks and subsequently served him a three Test ban. All hell broke out in India. People wanted to know whether calling anybody a monkey was so ‘unparliamentary’ that the Aussies could not stomach it. Others wanted to know how the bad mouthed and sledging Aussies could react when in the heat of the game somebody calls a player a monkey. Lawyers began discussing the ‘grave and sudden provocation’ that led Harbhajan to call Symonds a monkey. At the end of the day, a Judge was appointed to settle the seething dispute, before it snowballed into an acrimonious debate. 

Justice John Hansen, a New Zealander, heard the matter in detail. All the Australian players including Captain Ricky Ponting and the Indian players including Sachin Tendulkar and Harbhajan Singh were heard. Justice Hansen held that it was a case of miscommunication and that Harbhajan had only uttered the words – ‘t*&^ m*# k*’ and not ‘monkey’. He did not find that Harbhajan committed any serious offence to warrant a violation under level 3.3 of the ICC Code. It is another matter that in India you could be thrashed for uttering the words ‘teri maa ki’. Anyway, Harbhajan had a narrow escape and we all sighed a sense of relief.

At the height of the issue, could the Australian expel, banish or deport a foreigner who had racially abused one of its citizens?

 

Indians are certainly not unaware about what happens to our citizens if the Aussie authorities do not like the colour of your skin. What would have happened if the authorities there found that the very presence of Harbhajan was opposed to peace, order and social harmony? Symonds was after all a member of the local aboriginal community, who though slaughtered by the early British; are now the downtrodden there.

Article 13 of the International covenant of 1966 on Civil and Political Rights which provides that an alien lawfully in the territory of a State which is party to the Covenant may be expelled only pursuant to a decision reached by law and except where compelling reasons of national security otherwise require, is to be allowed to submit the reasons against his expulsion and to have his care reviewed buy and to be represented for the purpose before the competent authority. Oppenheim’s International Law (9th edition) in paragraph 400, 401 and 413 also express a similar view.

But would the aggressive posturing of the Indian cricket team would amount to aggression on Australian soil? The Aussie team members raised this issue at the time of hearing of the Harbhajan case. In the present times, aggression doesn’t mean war or armed hostility. The so-called animus belligerendi is a decisive factor. Harbhajan Singh was accused of racially abusing Symonds. Instead of Symonds proving the charges, it was left to poor Harbhajan to prove that he did not call Symonds a monkey. Though in Criminal Jurisprudence the general rule is that the burden of proof is on the prosecution but if any fact is especially within the knowledge of the accused, he has to lead evidence to prove the said fact. Harbhajan, if at all called Symonds a Monkey, did not refer to his community, race or creed but only to his antics on the cricket field, his athleticism, his vigour and endless energy. If he had called Jayasurya, an ‘Asura’ as referred to in the Ramayana, then he would have racially abused Jayasurya.

The respect with which we hold monkeys in India is unparalled. Thousands of temples of Hanuman across India bear testimony to this fact. Harbhajan certainly would never thought of the fact that Symonds was an aboriginal, who are known around Australia as monkeys. Harbhajan himself hails from the minority Sikh community in India. The million-dollar question is whether Symonds sledged or racially abused Harbhajan Singh by hauling him up unnecessarily in the ICC proceedings.

 

 Every passionate Indian fan would have noticed how the umpires punish the Asian players especially the Indians and Pakistanis for the slightest fault but let-off the Australian or English players very lightly. For the same offending incident recently the Aussie player was fined only 10% of his match fee, but Gautam Gambhir was banned for a match. Cricket a gentleman’s game? You decide.

Contributing Writer -  Thacheril Sanjay, The author is a practicing advocate in the High Court of Kerala and can be contacted at thacheril@gmail.com

Note: The opinions expressed in this article are that of the writer. www.contentwriter.in is not responsible for the independent views of the writer.

 

 



 

 

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