Cricket Controversies –
A Legal Perspective
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
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
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.
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.
Thacheril Sanjay, The author is a practicing advocate in
the High Court of Kerala and can be contacted at
The opinions expressed in this article are that of the writer.
www.contentwriter.in is not responsible for the independent
views of the writer.