Anatomy of an injustice

Allegations and analysis have proliferated in the aftermath of the Mike Denness controversy. As regards what actually happened, however, there remains a vacuum.

Interestingly, ICC chairman Mr Malcolm Gray in course of a television interview 48 hours after the events of SuperSport Park told the interviewer that he had been speaking to all member countries. The follow-up question was, 'Have you spoken to Mr Jagmohan Dalmiya?'. And the answer was 'No'.

On the face of it, that would seem to indicate that the ICC does not consider the Indian board, and its president, to be part of the organisation. However, international officials who in the past have dealt with the BCCI president point out that when Dalmiya wishes to, he has the habit of making himself unavailable.

Assume you give Gray the benefit of doubt on this. There still remains a written communication, prepared and sent by BCCI secretary Niranjan Shah to the ICC's chief executive officer, Malcolm Speed, and acknowledged by the latter.

The letter attempts to set out the sequence of events, and is the first official clue to what actually transpired at SuperSport Park, in course of the second Test.

The issue really began on the evening of November 18, when match referee Mike Denness handed over four Breach of Conduct forms to the Indian players.

As per the rules, the players were expected to report, with the forms, for hearings that were scheduled for the following morning. The hearings were timed to take place before start of play on November 19 and the schedule read: Sachin Tendulkar on charges of ball tampering, at 8.30 am; Virender Sehwag on charges of intimidating the umpire and using foul language at 8.45 am; Deep Dasgupta, Shiv Sunder Das, Harbhajan Singh and Virender Sehwag on charges of excessive appealing at 9:00 a.m. and captain Saurav Ganguly on charges of not controlling his team, at 9.15 am.

The players reported on time, for hearings at which the umpires were present. In the first hearing, Mike Denness asked Tendulkar why he was seen tampering with the ball, and Tendulkar replied that he was cleaning mud and grass from the seam, and pointed out that rain had made the ground wet and soggy.

Denness, in response to questions by the Indian players, stated that he had not received any complaints from the umpires or anyone else, and further, that he had inspected the ball after 75 overs.

Niranjan Shah in his letter points out that close of play on November 18 occured after 71 overs, not 75.

The Indians, meanwhile, asked the umpires present whether they had seen any change in the shape or character of the ball. The umpires said they had inspected the ball at regular intervals, as per the rules, and had not noticed anything unusual either in its shape, or behaviour, at any point of time.

The players and manager then requested Denness to inform them who had lodged a complaint against Tendulkar with reference to ball-tampering.

Mike Denness abruptly adjoured the meeting concerning Tendulkar, and also the others, until later in the day.

"Denness provided no answer and suddenly adjourned the meeting suo moto until the later part of the day without providing any valid or bona fide reason for such an adjournment, even though it is mandatory on the part of the ICC referee to inform the reason for adjournment as per clause F15 in the ICC Code of Conduct," says Shah, in the letter signed by himself and BCCI president Jagmohan Dalmiya.

Further, the BCCI secretary argues that since the adjournment of the hearing without assigning valid reasons is a clear lapse in procedure, legally any decision taken after that point has no validity or force.

Shah's letter states that Denness then called the players for another meeting, the same evening. On this occasion, he stated -- going back on what he had said earlier -- that he inspected the ball after 22 overs, in other words, during the lunch break.

He further said that he had reported the incident to the umpires immediately, and further that the umpires agreed that there were scratch marks on the ball.

The Indian players pointed out that in the morning, the umpires had categorically denied having seen any signs that the ball had been tampered with, and asked Denness to summon the umpires.

Denness refused to call the umpires, on the grounds that the Indians had not given him prior notice that their presence was required.

The Indians further asked Denness why, if he and the umpires had noticed evidence as early as the 22nd over that the ball had been interfered with, the ball had not been immediately changed. Denness did not provide an answer. Instead, he again adjourned the meeting.

Shah in his letter points out that banning a player in his second Test without the player having ever been warned, even informally, is unfair. That in ignoring the even more vociferous appealing of the South Africans as also other breaches in on-field discipline, the match referee had acted with obvious bias. And on the subject of Saurav Ganguly, he points out that since none of the umpires had either on the field of play or off it warned the players or complained of their behaviour, it was unfair that Ganguly was punished for failure to control his team, when there was no evidence that the umpires felt the team had gone out of control at any point.

In this connection, it is interesting to read the ICC's own document, incorporated within its Code of Conduct, that is titled Principles of Natural Justice

A relevant clause is 1 (c) which states, inter alia, "Generally when an oral hearing is conducted the parties must be allowed to call witnesses and cross examine the witnesses called by others."

Every single system of jurisprudence in the world grants the accused the right to examine the evidence against him, to be confronted by his accusers, and to summon witnesses in his own defence. Thus, when Mike Denness refused to permit the Indian players, in course of the second hearing, to summon the umpires as witnesses, he was flouting both the principles of justice as applies worldwide, as also the grandiloquently titled Principles of Natural Justice put out by the ICC itself.

Equally, it is interesting to read the actual Rules and Regulations concerning play.

Pay particular attention to Item E, 1.1, which lays down who can report a breach of rules. And more particularly, to sections 2.2 and 2.3.

As per these clauses, if any person lodges a report with the match referee about any player, the Match Referee should notify the captain and/or team manager (if the complaint involves a player) and the vice captain and/or team manager (if the complaint relates to the captain himself).

In other words, it is not enough for Mike Denness to say in a written statement that the umpires had complained -- as per the ICC's own laws, Denness had to have informed the concerned persons about the written complaint ahead of time. Similarly, it is not enough for the ICC's publicity wing to put out media reports "pointing out" that four Indian players had been reported by the umpires (at some point in time, the ICC will have to produce those reports, by the way) -- as per the ICC's own laws, the filing of any such report should have been reported to the captain/vice captain/manager ahead of the hearings.

That no such intimation was made is clearly evident from the fact that during the hearing, the Indian players repeatedly asked Mike Denness who had filed the report.

And Denness did not even respond to the question.

At a time when brinkmanship is being taken to extremes by all parties, and respective stands are being set in stone, it is perhaps relevant to ask one final question -- if push ever does come to shove, and the BCCI decides to take the issue to court (remember that besides the financial damages, a young cricketer has been banned from earning his livelihood by playing in a Test, and another senior cricketer, whose name is of enormous commercial value, has been branded a cheat), will the ICC have a legal leg to stand on, given that its official has gone against every single norm he is supposed to be governed by?

Till date, the ICC has consistently said one thing -- that the referee's decision is final. The ICC, perhaps, needs to understand one further thing -- that the primacy of the referee can and will be accepted only if that official acts as per the letter and spirit of the law.

Has he?

One final thought -- every time the name Sehwag is mentioned, the ICC hastily cobbles together another press release, setting out its point of view that Sehwag will be banned at Mohali. We've had three of those so far.

Given that the ICC is not exactly silent on the issue, would it be too much to expect that it similarly puts out a press release answering Niranjan Shah and the BCCI?

The Mike Denness Controversy -- The Complete Coverage

India's tour of South Africa: Complete coverage

Mail Prem Panicker/Faisal Shariff