Zee Telefilms Ltd. & Anr Vs. Union
of India & Ors  Insc 72 (2 February 2005)
Variava & S.B. Sinha
W I T
H SPECIAL LEAVE PETITION (CIVIL) NO.20186 OF 2004 S.B. SINHA, J:
matter calls for an authoritative pronouncement as to whether the Board of
Control for Cricket in India (Board) which is a cricket controlling authority
in terms of the ICC Rules answers the description of "Other
Authorities" within the meaning of Article 12 of the Constitution of
First Petitioner is one of the largest vertically integrated media
entertainment groups in India. The Board, the second Respondent
herein, is a Society registered under the Tamil Nadu Societies Registration Act
which is said to be recognized by the Union of India, Ministry of Youth Affairs
and Sports. The Third and Fourth Respondents are President and Secretary
respectively of the Second Respondent. The Fifth Respondent, "ESPN Star
Sports", known as "ESS" is a partnership firm of the United States of America having a branch office in Singapore. The Sixth Respondent is a firm of
Chartered Accountants which was engaged by Board in relation to the tender
floated on 07.08.2004. Pursuant to or in furtherance of a notice inviting
tender for grant of exclusive television rights for a period of four years,
several entertainment groups including the Petitioners and the Fifth Respondent
herein gave their offers. For the purpose of this matter, we would presume that
both the Petitioners and the said Respondent were found eligible therefor. The
First Petitioner gave an offer for an amount of US $ 260,756,756.76 (INR
equivalent to Rs.12,060,000,000/- (Rupees twelve thousand sixty million only -
@ INR 46.25/US $) Or US $ 281,189,189.19 (INR equivalent to Rs.13,005,000,000/-
(Rupees thirteen thousand five million only - @ INR 46.25/US $).
holding negotiations with the First Petitioner as also the Fifth Respondent,
the Board decided to accept the offer of the former; pursuant to and in
furtherance whereof a sum of Rs. 92.50 crores equivalent to US $ 20 millions
was deposited in the State Bank of Travancore. In response to a draft letter of
intent sent by the Board, the First Petitioner agreed to abide by the terms and
conditions of offer subject to the conditions mentioned therein.
Fifth Respondent in the meanwhile filed a writ petition before the Bombay High
Court which was marked as Writ Petition (L) No. 2462 of 2004. The parties
thereto filed their affidavits in the said proceeding. In its affidavit, the
Board justified its action in granting the contract in favour of the First
Petitioner. The matter was taken up for hearing on day to day basis.
of the Fifth Respondent as also the First Petitioner had been advanced. On
21.9.2004, however, the Board before commencing its argument stated that it
purported to have cancelled the entire tender process on the premise that no
concluded contract was reached between the parties as no letter of intent had therefor
been issued. The First Petitioner, however, raised a contention that such a
concluded contract in fact had been arrived at. The Fifth Respondent, in view
of the statements made by the counsel for the Board, prayed for withdrawal of
the writ petition, which was permitted.
same day i.e. on 21.9.2004 itself, the Board terminated the contract of the
First Petitioner stating :
the larger interest of the game of cricket and due to the stalemate that has
been created in the grant of Television Rights for the ensuing Test Series
owing to litigation and as informed before the Hon'ble High Court at Bombay
this day, the Board of Control for Cricket in India (BCCI) hereby cancels the
entire process of tender by invoking Clause 5.3, 5.4 (c) and 5.4 (d) of the
invitation to tender (ITT) dated 7 August, 2004, the terms of which were
accepted and acknowledged by you.
Security in the form of Bank Guarantee and/or money deposited by you is being
returned immediately." WRIT PETITION:
order of the Board dated 21.9.2004 terminating the contract is in question in
this writ petition contending that the action on the part of the Board in
terminating the contract is arbitrary and, thus, violative of Article 14 of the
Constitution of India.
writ petition, the Petitioners have, inter alia, prayed for setting aside the
said communication as also for issuance of a writ of or in the nature of
mandamus commanding upon the Board to act in tems of the decision arrived on
order dated 27.9.2004, a three-Judge Bench of this Court referred the matter to
a Constitution Bench stating :
petitions involve a question related to the interpretation of the Constitution
of India which will have to be heard by a Bench not less than 5 Judges as
contemplated under Article 145(3) of the Constitution.
this matter before Hon'ble the Chief Justice for further orders.
the matter involved requires urgent consideration, we request the Chief Justice
to place this matter before the Constitution Bench for further orders on
direct the Attorney General to take notice on behalf of first respondent. The
petitioner shall take steps to serve respondent no.6 dasti. The same shall be
served today indicating that the matter will be heard tomorrow."
commencement of hearing, Mr. K.K. Venugopal, learned Senior Counsel appearing
on behalf of the Second Respondent raised an issue as regard maintainability of
the writ petition on the premise that the Board is not a 'State' within the
meaning of Article 12 of the Constitution of India.
said issue having been treated as a preliminary issue, the learned counsel were
heard thereupon. This judgment is confined to the said issue alone.
OF THE PARTIES:
factors pleaded by the writ petitioners herein which would allegedly
demonstrate that the Board is an authority that would be subject to the
constitutional discipline of Part III of the Constitution of India, are as under
It undertakes all activities in relation to Cricket including entering into the
contracts for awarding telecast and broadcasting rights, for advertisement
revenues in the Stadium etc.
team fielded by the BCCI plays as "Indian Team" while playing One Day
Internationals or Test Matches it cannot be gainsaid that the team purports to
represent India as a nation, and its wins are matters of national prestige.
They wear uniform that carries the national flag, and are treated as sports
ambassadors of India.
sportsmen of today are professionals who devote their life to playing the game.
They are paid a handsome remuneration by the BCCI for their participation in
the team. Thus, they are not amateurs who participate on an honorary basis.
Consequently they have a right under Article 19(1)(g) to be considered for
participation in the game. The BCCI claims the power to debar players from
playing cricket in exercise of its disciplinary powers. Obviously, it is
submitted, a body that purports to exercise powers that impinge on the
fundamental rights of citizens would constitute at least an
"authority" within the meaning of Art. 12 of the Constitution it can
hardly contend that it has the power to arbitrarily deny players all rights to
even be considered for participation in a tournament which they are included as
a team from "India".
This Hon'ble Court has already, by its interim orders.,
directed a free to air telecast of the matches that were played in Pakistan in which a team selected by the
Respondent BCCI participated. This was done, it is respectfully submitted,
keeping in view the larger public interest involved in telecasting of such a
sport. Surely, the regulatory body that controls solely and to the exclusion of
all others, the power to organize such games, and to select a team that would
participate in such games is performing a public function that must be
discharged in a manner that complies with the constitutional discipline of Part
III of the Constitution.
events organized are public events, then it is submitted that the body that is
the controlling authority of such public events would surely be subject to the
discipline of Art. 14 and 19 of the Constitution.
is also submitted that even domestically, all representative cricket can only
be under its aegis. No representative tournament can be organized without the
permission of BCCI or its affiliates at any level of cricket.
BCCI and its affiliates are the recipients of State largesse, inter alia, in
the form of nominal rent for stadia. It is submitted that the BCCI is
performing one of the most important public functions for the country with the
authorization and recognition by the Govt. of India, is amenable to the writ
jurisdiction of this Hon'ble
Court under the
provisions of the Constitution of India." Union of India:
of India contends that the Board is a State. In support of the said plea an
affidavit affirmed by Deputy Secretary to the Government of India, Ministry of
Youth Affairs and Sports has been filed. A large number of documents have also
been filed to show that the Board had all along been acting as a recognized
body and as regard international matches has always been seeking its prior
permission. The Board had also been under the administrative control of the
Government of India.
support of its plea that it is not a 'State', the Second Respondent in its
Counter Affidavit asserted:
Board of Control of Cricket in India, the
Respondent No.2 is an autonomous non-profit making Association limited and
restricted to its Members only and registered under the Tamil Nadu Societies
Registration Act. It is a private organization whose objects are to promote the
game of Cricket. Its functions are regulated and governed by its own Rules and
Regulations independent of any statute and are only related to its members. The
Rules and Regulations of the Respondent no.2 have neither any statutory force
nor it has any statutory powers to make rules or regulations having statutory
The Working Committee elected from amongst its members in accordance with its
own Rules controls the entire affairs and management of the Respondent No.2.
is no representation of the Government or any Statutory Body of whatsoever
nature by whatever form in the Respondent No.2. There exists no control of the
Government over the function, finance, administration, management and affairs
of the Respondent No.2.
Respondent No.2 does not discharge or perform any public or statutory duty.
The Respondent no.2 receives no grant of assistance in any form or manner from
the Government in this context. It may be stated that in a writ petition in the
case of Rahul Mehra vs. Union of India in the Hon'ble High Court at Delhi. "Union of India" filed
Affidavits stating categorically that there is no Government control of any
nature upon the Board of Control for Cricket in India and as it does not follow
the Government Guidelines which have been consolidated and issued under the
title "Sports India Operation Excellence" vide Circular
No.F.1-27/86-DESK-1 (SP- IV) dated 16th February, 1988 issued by the Department
of Youth Affairs and Sports, Government of India has neither extended any
financial assistance to the Board of Control for Cricket in India nor has any
relationship of whatsoever nature with it and no financial assistance is also
extended for participation of any tournament, competition or otherwise
organized by the Respondent No.2. Copies of the said Affidavits are annexed
hereto as Exhibits "A" and "B" respectively.
The Respondent no.2 organizes cricket matches and/or tournaments between the
Teams of its Members and with the Teams of the members of International Cricket
Council (ICC) which is also an autonomous Body dehors any Government control.Matches
that are organized are played at places either belonging to Members in India or
at the places of either belonging to its Members of ICC only. Only when for the
purpose of organizing any match or tournament with foreign participants, the
Respondent no.2 requires normal and scheduled permissions from the Ministry of
Sports for travel of foreign teams, it obtains the same like any other private
organization, particularly in the subject matter of foreign exchange. The
Respondent No.2 is the only autonomous sporting body which not only does not
obtain any financial grants but on the contrary earns foreign exchange.
Organizing Cricket Matches and/or Tournaments between the Teams of the Members
of the Respondent No.2 and/or with the co-members of International Cricket
Council cannot be said to be a facet of public function or government in
character. No monopoly status has been conferred upon the Respondent No.2
either by Statute or by the Government. Any other body could organize any
matches on its own and neither the Respondent no.2 nor the Government could
oppose the same. As a matter of fact, number of cricket matches including
International matches are played in the Country which have nothing to do with
the Respondent No.2. Respondent No.2 has no monopoly over sending teams
overseas for the game of cricket and to control the entire game of cricket in India.
which are sanctioned or recognized by the ICC are only known as Official Test
matches or One day International Matches. Respondent no.2 is entitled to invite
teams of other members of ICC or send teams to participate in such matches by
virtue of its membership of ICC." ESS :
as noticed hereinbefore, ESS itself filed a writ petition before the Bombay
High Court on the ground that the same was violative of Article 14 of the
Constitution, it now contends that although a writ petition under Article 226
of the Constitution before the High Court would be maintainable but not one
under Article 32 thereof as the Board is not a 'State'.
OF THE LEARNED COUNSEL:
K.K. Venugopal, the learned senior counsel appearing in support of the
preliminary issue would submit that as the Board does not come within the
purview of any of the six legal tests laid down by this Court in Pradeep Kumar Biswas
vs. Indian Institute of Chemical Biology and Others [(2002) 5 SCC 111], it
would not be a `State'. Our attention, in this behalf, has been drawn to
paragraphs 25, 27, 30, 31, 38, 42 to 45, 48, 49, 50, 51, 52 to 55 of the said judgment
. It was contended that the Board is an autonomous body and the Central
Government does not have any control thereover either financially or
administratively or functionally. It was urged that neither the Central
Government gives any monetary grant nor nominates any member in the Governing
Body of the Board nor has anything to do with its internal affairs. It was
pointed out by the learned counsel that even the Union of India had agreed
before the Bombay High Court that the Board had the exclusive telecasting
rights as owner of the events. The Board furthermore does not exercise any
sovereign or governmental functions; Mr. Venugopal would argue that furthermore
the Board has not even been recognized by the Union of India nor has it any
role to play as regard framing of its rules and regulations.
A.M. Singhvi, learned Senior Counsel appearing on behalf of the Third
Respondent herein, would supplement the arguments of Mr. Venugopal contending
that the activity of a body like Board does not involve any public duty or
public function and although its action is public in nature, the same would not
amount to a governmental action. Reliance, in this connection, has been placed
on R. vs. Football Association Ltd, ex parte Football League Ltd. [1993 (2) AER
833] and R. vs. Disciplinary Committee of the Jockey Club, ex parte Aga Khan
[1993 (2) AER 853].
leaned counsel has also drawn our attention to a decision of this Court in
Federal Bank Ltd. vs. Sagar Thomas and Others [(2003) 10 SCC 733].
to Dr. Singhvi, there exists a distinction between Articles 32 and 226 of the
Constitution of India. Reliance in this behalf has been placed on a decision of
this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust and Others vs. V.R. Rudani and Others [(1989) 2 SCC 691].
J. Sorabjee, the learned Senior Counsel appearing on behalf the fifth
Respondent, would contend that the nature of the function of the concerned
authority plays an important role in determining the question and only where
the function is governmental in nature or where the authority is vested under a
statute, it would attract the definition of "other authorities"
within the meaning of Article 12 of the Constitution and not otherwise. The
learned counsel would, however, submit that in Aga Khan (supra), the Court of
Appeal has accepted that there may be some cases where the judicial review
would be maintainable. Drawing our attention to a decision of this Court in G. Bassi
Reddy vs. International Crops Research Institute and Another [(2003) 4 SCC
225], the learned counsel would urge that Board does not fulfil the tests laid
Salve, learned Senior Counsel appearing on behalf of the Writ Petitioners, on
the other hand, would take us through the Memorandum and Articles of
Association of the Board as also the rules and regulations framed by it and
contend that from a perusal thereof it would be manifest that it exercises
extensive power in selecting players for the Indian National team in the
international events. The Board, also exercises stringent disciplinary powers
over players, umpires, members of the team and other officers. It is the
contention of Mr. Salve that the activities of the Board in effect and
substance are governmental functions in the area of sports. An exclusive right
has been granted to it to regulate the sport in the name of the country
resulting in exercise of functions of larger dimension of public entertainment.
When a body like the Board has received recognition from the Union of India to
allow it to represent India as a country, its character must be held to have
changed from private body to a public authority. It was submitted that the
players put on colours of National Flag on their attire.
of the nature of its actions the International Cricket Council has recognized
the Board not in its capacity as a cricket playing club but as a representative
of India, a cricket playing country. By its disciplinary action, Mr. Salve
would argue, the Board may debar a player from representing the country as a
result whereof his fundamental right under Article 19(1)(g) of the Constitution
of India would be affected. He would submit that the Board, therefore, is not
an autonomous body discharging a private function only and in fact it deals
with sporting events of the country. The learned counsel would argue that the
Board acts strictly in terms of the foreign policy of the country as it refused
to recognize a player who played in South Africa, as apartheid was being
practiced therein which was consistent with India's foreign policy. It was
further submitted that the cricket match between India and Pakistan could be
held only with the permission of the Union of India as and when the
relationship between the two countries improved.
Salve, therefore, submits that the Board is a 'State' within the meaning of
Article 12 of the Constitution of India as:
It has a virtual monopoly;
seeks to put restrictions on the fundamental rights of the players and umpires
to earn their livelihood as envisaged under Article 19(1)(g) of the
Constitution of India;
The cricket events managed by the third Respondent have a definite concept,
connotation and significance which have a bearing on the performance of
individual players as also the team as a national team representing the country
in the entire field of cricket.
Mohan Parasaran, learned counsel appearing on behalf of Union of India would
contend that the functions of the Board are of public importance and closely
related to governmental functions. Functions of the Board, the learned counsel
would urge, also control free speech rights of citizens within a public forum
which is essentially a governmental function. 276 F.3d 550.
Constitution is an ongoing document and, thus, should be interpreted liberally.
Interpretation of Article 12, having regard to the exclusive control and
management of sport of cricket by the Board and enormous power exercised by it
calls for a new approach. The Constitution, it is trite, should be interpreted
in the light of our whole experience and not merely in that of what was the
state of law at the commencement of the Constitution.
Missouri vs. Holland (252 US 416 (433) and Kapila Hingorani vs. State of Bihar
[(2003) 6 SCC 1]. 2003 (6) SC 37] while referring to an amendment made in U.K.
in relation to a provision which was in pari materia with Section 118 of the
Indian Succession Act, 1925, this Court observed:
constitutionality of a provision, it is trite, will have to be judged keeping
in view the interpretive changes of the statute effected by passage of
time." Referring to the changing scenario of the law and having regard to
the declaration on the right to development adopted by the World Conference on
Human Rights and Article 18 of the United Nations Covenant on Civil and
Political Rights, 1966, this Court held:
is trite that having regard to Article 13(1) of the Constitution, the
constitutionality of the impugned legislation is required to be considered on
the basis of laws existing on 26th January, 1950, but while doing so the court
is not precluded from taking into consideration the subsequent events which
have taken place thereafter.
further trite that that the law although may be constitutional when enacted but
with passage of time the same may be held to be unconstitutional in view of the
Cardoze said :
law has its epochs of ebb and flow, the flood tides are on us. The old order
may change yielding place to new; but the transition is never an easy
Campus stated :
wheel turns, history changes". Stability and change are the two sides of
the same law-coin. In their pure form they are antagonistic poles; without
stability the law becomes not a chart of conduct, but a gare of chance: with
only stability the law is as the still waters in which there is only stagnation
and death." In any view of the matter even if a provision was not
unconstitutional on the day on which it was enacted or the Constitution came
into force, by reason of facts emerging out thereafter, the same may be
rendered unconstitutional." In Liverpool & London S.P. & I
Association Ltd. vs. M.V. Sea Success I and Another, (2004) 9 SCC 512, this Court observed:
to Motor General Traders and Another vs. State of Andhra Pradesh and Others
[(1984) 1 SCC 222], Rattan Arya and Others vs. State of Tamil Nadu and Another
[(1986) 3 SCC 385] and Synthetics and Chemicals Ltd. and Others vs. State of
U.P. and Others [(1990) 1 SCC 109], this Court held: (SCC p. 608, para 49)
"There cannot be any doubt whatsoever that a law which was at one point of
time constitutional may be rendered unconstitutional because of passage of
time. We may note that apart from the decisions cited by Mr. Sanghi, recently a
similar view has [JT 2003 (5) SC 1] and John Vallamattom and Constitution of
India is an ongoing document. It must be interpreted accordingly.
Francis Bennion's 'Statutory Interpretation', Fourth Edition at page 762, it is
is presumed that Parliament intends the court to apply to ongoing Act a
construction that continuously updates its wording to allow for changes since
the Act was initially framed (an updating construction). While it remains law,
it is to be treated as always speaking. This means that in its application on
any date, the language of the Act, though necessarily embedded in its own time,
is nevertheless to be construed in accordance with the need to treat it as
page 764, it is commented:
construing an ongoing Act, the interpreter is to presume that Parliament
intended the Act to be applied at any future time in such a way as to give
effect to the true original intention. Accordingly, the interpreter is to make
allowances for any relevant changes that have occurred, since the Act's
passing, in law, social conditions, technology, the meaning of words, and other
matters. Just as the US Constitution is regarded as 'a living Constitution', so
an ongoing British Act is regarded as 'a living Act'. That today's construction
involves the supposition that Parliament was catering long ago for a state of
affairs that did not then exist is no argument against that construction.
Parliament, in the wording of an enactment, is expected to anticipate temporal
developments. The drafter will try to foresee the future, and allow for it in
we will advert to various rival contentions raised at the Bar at some details a
litter later but suffice it to notice at this stage that encouragement of games
and sports is State function in terms of Entry 33 of List II of the Seventh
Schedule of the Constitution of India which reads thus:
Theaters and dramatic performances; cinemas subject to the provisions of entry
60 of List 1; sports, entertainments and amusements." The State by reason
of a legislative action cannot confer on it extra territorial jurisdiction in
relation to sports, entertainment etc. Education, however, is in Concurrent
List being Item No.25 of List III. Sport is considered to be a part of
Education (within its expanded meaning). Sport has been included in the Human
Resource Development as a larger part of education. The Ministry of Youth
Affairs and Sports was earlier a department of the Ministry of Human Resource
Development. Now a separate Ministry of Youth Affairs and Sports has come into
being, in terms of the Allocation of Business Rules.
Secretary, Ministry of Information & Broadcasting, Government of India and
Others etc. vs. Cricket Association of Bengal and Others etc. [(1995) 2 SCC
161], this Court held :
may be true that what is protected by Article 19(1)(a) is an expression of
thought and feeling and not of the physical or intellectual prowess or skill.
It is also true that a person desiring to telecast sports events when he is not
himself a participant in the game, does not seek to exercise his right of
self-expression. However, the right to freedom of speech and expression also
includes the right to educate, to inform and to entertain and also the right to
be educated, informed and entertained. The former is the right of the
telecaster and the latter that of the viewers. The right to telecast sporting
event will therefore also include the right to educate and inform the present
and the prospective sportsmen interested in the particular game and also to
inform and entertain the lovers of the game. Hence, when a telecaster desires
to telecast a sporting event, it is incorrect to say that free- speech element
is absent from his right. The degree of the element will depend upon the
character of the telecaster who claims the right. An organizer such as the BCCI
or CAB in the present case which are indisputably devoted to the promotion of
the game of cricket, cannot be placed in the same scale as the business
organizations whose only intention is to make as large a profit as can be made
by telecasting the game." [Emphasis supplied] It was held that sport is a
form of expressive conduct.
notice at this juncture that the Union of India in exercise of its executive
functions in terms of the Allocation of Business Rules framed under Article 77
of the Constitution of India created a separate Ministry of Youth Affairs and
Sports for the said purpose. One of the objects of the Ministry is to work in
close coordination with national federations that regulate sports. Keeping in
view the fact that the Union of India is required to promote sports throughout
India, it, as of necessity is required to coordinate between the activities of
different States and furthermore having regard to the International arena, it
is only the Union of India which can exercise such a power in terms of Entry
10, List I of the Seventh Schedule of the Constitution of India and it may also
be held to have requisite legislative competence in terms of Entry 97, List I
of the Seventh Schedule of the Constitution of India.
adverting to the core issues at some length we may take a look at Article 12 of
the Constitution of India which reads as under:
In this part, unless the context otherwise requires, "the State"
includes the Government and Parliament of India and the Government and the
Legislature of each of the States and all local or other authorities within the
territory of India or under the control of the Government of India." In this
Article, the 'State' has not been defined. It is merely an inclusive
definition. It includes all other authorities within the territory of India or under the control of the Government of India. It does
not say that such other authorities must be under the control of the Government
word 'or' is disjunctive and not conjunctive.
expression "Authority" has a definite connotation. It has different
dimensions and, thus, must receive a liberal interpretation. To arrive at a
conclusion, as to which "other authorities" could come within the
purview of Article 12, we may notice the meaning of the word
word "Other Authorities" contained in Article 12 is not to be treated
as ejusdam generis.
Concise Oxford English Dictionary, 10th Edition, the word 'authority' has been
defined as under :
the power or right to give orders and enforce obedience. 2. a person or
organization exerting control in a particular political or administrative
sphere. 3. the power to influence others based on recognized knowledge or
expertise." Broadly, there are three different concepts which exist for
determining the question which fall within the expression "other
The Corporations and the Societies created by the State for carrying on its
trading activities in terms of Article 298 of the Constitution wherefor the
capital, infrastructure, initial investment and financial aid etc. are provided
by the State and it also exercises regulation and control thereover.
Bodies created for research and other developmental works which is otherwise a
governmental function but may or may not be a part of the sovereign function.
A private body is allowed to discharge public duty or positive obligation of
public nature and furthermore is allowed to perform regulatory and controlling
functions and activities which were otherwise the job of the government.
cannot be same standard or yardstick for judging different bodies for the
purpose of ascertaining as to whether it fulfills the requirements of law therefor
Kumar Biswas (supra), a Seven-Judge Bench held :
an "inclusive" definition is generally not exhaustive is a statement
of the obvious and as far as Article 12 is concerned, has been so held by this
Court (Ujjam Bai v. State of U.P., AIR 1962 SC 1621: (1963) 1 SCR 778 at 968).
The words "State" and "authority" used in Article 12
therefore remain, to use the words of Cardozo (Benjamin Cardozo : The Nature of
the Judicial Process), among "the great generalities of the
Constitution" the content of which has been and continues to be supplied
by courts from time to time." [See also Black Diamond Beverages and
Another vs. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta
and Others (1998) 1 SCC 458] What is necessary is to notice the functions of
the Body concerned. A `State' has different meanings in different context. In a
traditional sense, it can be a body politic but in modern international
practice, a State is an organization which receives the general recognition
accorded to it by the existing group of other States. Union of India recognizes
the Board as its representative. The expression "other authorities"
in Article 12 of the Constitution of India is 'State' within the territory of India as contradistinguished from a State within the control of
the Government of India. The concept of State under Article 12 is in relation
to the fundamental rights guaranteed by Part-III of the Constitution and
Directive Principles of the State Policy contained in Part-IV thereof. The
contents of these two parts manifest that Article 12 is not confined to its
ordinary or constitutional sense of an independent or sovereign meaning so as
to include within its fold whatever comes within the purview thereof so as to
instill the public confidence in it.
feature that the Board has been allowed to exercise the powers enabling it to
trespass across the fundamental rights of a citizen is of great significance.
In terms of the Memorandum of Association even the States are required to
approach the Board for its direction. If the Constitution Bench judgment of
this Court in Sukhdev Singh & Ors. vs. Bhagatram Sardar Singh [(1975) 1 SCC
421] and development of law made therefrom is to be given full effect,. it is not
only the functions of the Government alone which would enable a body to become
a State but also when a body performs governmental functions or
quasi-governmental functions as also when its business is of public importance
and is fundamental for the life of the people. For the said purpose, we must
notice that this Court in expanding the definition of State did not advisedly
confine itself to the debates of Constitutional Assembly. It considered each
case on its own merit. In Sukhdev Singh (supra), Mathew, J. stated that even
big industrial houses and big trade unions would come in the purview thereof.
While doing so the courts did not lose sight of the difference between the
State activity and the individual activity. This Court took into consideration the
fact that new rights in the citizens have been created and if any such right is
violated, they must have access to justice which is a human right. No doubt,
there is an ongoing debate as regard the effect of the globalization and/or
opening up of market by reason of liberalization policy of the Government as to
whether that the notion of sovereignty of the State is being thereby eroded or
not but we are not concerned with the said question in this case. "Other
authorities", inter-alia, would be there which inter alia function within
the territory of India and the same need not necessarily be the Government of
India, the Parliament of India, the Government of each of the States which
constitute the Union of India or the legislation of the States.
12 must receive a purposive interpretation as by reason of Part III of the
Constitution a charter of liberties against oppression and arbitrariness of all
kinds of repositories of power have been conferred the object being to limit
and control power wherever it is found. A body exercising significant functions
of public importance would be an authority in respect of these functions. In
those respects it would be same as is executive government established under
the Constitution and the establishments of organizations funded or controlled
by the Government. A traffic constable remains an authority even if his salary
is paid from the parking charges inasmuch as he still would have the right to
control the traffic and anybody violating the traffic rules may be prosecuted
at his instance.
not that every body or association which is regulated in its private functions
becomes a 'State'. What matters is the quality and character of functions
discharged by the body and the State control flowing therefrom.
Daniel Lee (supra), it was held:
OAC's functionally exclusive regulation of free speech within.a public forum,
is a traditional and exclusive function of the State"
development of law in this field is well-known. At one point of time, the
companies, societies etc. registered under the Indian Companies Act and
Societies Registration Act were treated as separate corporate entities being
governed by its own rules and regulations and, thus, held not to be 'States'
although they were virtually run as department of the Government, but the
situation has completely changed. Statutory authorities and local Mohan Lal
& Ors. - (1967) 3 SCR377.
court, however, did not stop there and newer and newer principles were evolved
as a result whereof different categories of bodies came to be held as State.
concept that all public sector undertakings incorporated under the Indian
Companies Act or Societies Registration Act or any other Act for answering the
description of State must be financed by the Central Government and be under
its deep and pervasive control has in the past three decades undergone a sea
change. The thrust now is not upon the composition of the body but the duties
and functions performed by it. The primary question which is required to be
posed is whether the body in question exercises public function.
Singh (supra), a Constitution Bench of this Court opined that the expression
'other authority' should not be read on the touchstone of the principle of 'ejusdem
J. in his concurring but separate judgment raised a question as to for whose
benefit the Corporations were carrying on the business and in answering the
same came to the conclusion that the Respondents therein were 'States' within the
meaning of Article 12 of the Constitution of India. [SCC para 109].
observed that even big companies and trade unions would answer the said
description as they exercise enormous powers.
State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey & Ors.
[AIR 1999 SC 753], the land development bank was held to be a State. This Court
upon analyzing various provisions of Act and the rules framed thereunder
is not necessary for us to quote various other sections and rules but all these
provisions unmistakably show that the affairs of the appellant are controlled
by the State Government though it functions as a cooperative society and it is
certainly an extended arm of the State and thus an instrumentality of the State
or authority as mentioned under Article 12 of the Constitution." However,
when the law provides for a general control over a business in terms of a
statute and not in respect of the body in question, it would not be a 'State'. [See
Federal Bank Ltd. (supra) K.R. Anitha and Others vs. Regional Director, ESI
Corporation and Another [(2003) 10 SCC 303] and Bassi Reddy (supra)].
J. in Central Inland Water Transport Corporation Limited and questioned : -
"Should then our courts not advance with the times ? Should they still
continue to cling to outmoded concepts and outworn ideologies ? Should we not
adjust our thinking caps to match the fashion of the day? Should all
jurisprudential development pass us by, leaving us floundering in the sloughs
of 19th century theories ? Should the strong be permitted to push the weak to
the wall ? Should they be allowed to ride roughshod over the weak? Should the
courts sit back and watch supinely while the strong trample underfoot the
rights of the weak ? It was opined :
The law exists to serve the needs of the society which is governed by it. If
the law is to play its allotted role of serving the needs of the society, it
must reflect the ideas and ideologies of that society. It must keep time with
the heartbeats of the society and with the needs and aspirations of the people.
As the society changes, the law cannot remain immutable. The early nineteenth
century essayist and wit, Sydney Smith, said : 'When I hear any man talk of an unaltelrable
law, I am convinced that he is an unalterable fool." The law must,
therefore, in a changing society march in tune with the changed ideas and
ideologies" Pradeep Kumar Biswas (supra) and Bassi Reddy (supra) were
recently considered in Gayatri De vs. Mousumi Cooperative Housing Society Ltd.
and Others [(2004) 5 SCC 90], wherein a mandamus was issued against a
Cooperative Society on the ground that the order impugned therein was issued by
an "administrator" appointed by the High Court who had also no
statutory role to perform.
Singh vs. Mata Vaishno Devi Shrine Board & Anr. [2004 (8) SCALE 348], it
was contended that a religious board was a 'State'.
Mata Vaishno Devi Shrine Board was constituted under a statute, it was per se
not a State actor. It was observed that the decisions of this Court in Bhuri Nath
and Others vs. State of J & K and Others [(1997) 2 SCC 745] requires
reconsideration in the light of the principles laid down in Pradeep Kumar Biswas
Kumar Srivastava vs. U.P. Rajya Karmachari Kal. Nigam and Another [2004 (9)
SCALE 623], a Division Bench of this Court while applying the tests laid down
in Pradeep Kumar Biswas (supra) observed that there exists a distinction
between a 'State' based on its being a statutory body and a one based on the
principles propounded in the case of Ajay Hasia & Ors. vs. Khalid Mujib Sehravardi
& Ors. [(1981) 1 SCC 722] Recently a Division Bench of the Rajasthan High
Court in Santosh 39) issued a direction to Pepsi Company and Coca-Cola and
other manufacturers of carbonated beverages or soft drinks to disclose the
composition and contents of the product including the presence of the
pesticides and chemicals on the bottle, package or container, as the case may
be, observing :
view of the aforesaid discussion we hold that in consonance with the spirit and
content of Article 19(1)(g) and 21 of the Constitution the manufacturers of
beverages namely Pepsi-Cola & Coca-Cola and other manufacturers of
beverages and soft drinks, are bound to clearly specify on the bottle or
package containing the carbonated beverages or soft drink, as the case may be,
or on a label or a wrapper wrapped around it, the details of its composition
and nature and quantity of pesticides and chemicals, if any, present
therein." Pepsi Company and Coca-Cola are multinational companies. They
are business concerns but despite the same this Court in Hindustan Coca- Cola
Beverages (P) Ltd. vs. Santosh Mittal & Ors. [2004 (10) SCALE 360] by an
order dated 6.12.2004 dismissed the Special Leave Petitions, stating:
Harish N. Salve, learned senior counsel appearing for the petitioner in SLP(C)
No. 24266-24268/2004 and Mr. Arun Jaitley, learned senior counsel appearing for
the petitioners in SLP(C) Nos. 24413/2004 and 24661- 24663/2004 state that the
petitioners will be advised to approach the High Court to seek clarification of
exactly what kind of disclosure the High Court requires them to make. We record
the statement and dismiss the special leave petitions giving liberty to the
petitioners to approach the High Court for that purpose. In case the
petitioners feel aggrieved by the order passed by the High Court on the
clarification application, the dismissal of these special leave petitions will
not come in their way in challenging the said order.
may, however, place on record that the learned senior counsel for the
petitioners intended to argue larger constitutional issues touching Articles 19
and 21 of the Constitution which have not been raised on a second thinking and
we leave them open to be decided in some other appropriate case.
the special leave petitions are dismissed, but the operation of the order dated
3.11.2004 passed by the High Court suspending the operation of its judgment for
six weeks, is extended by another two weeks from today." The expansion in
the definition of State is not to be kept confined only to business activities
of Union of India or other State Governments in terms of Article 298 of the
Constitution of India but must also take within its fold any other activity
which has a direct influence on the citizens. The expression
"education" must be given a broader meaning having regard to Article
21A of the Constitution of India as also Directive Principles of the State
Policy. There is a need to look into the governing power subject to the
fundamental Constitutional limitations which requires an expansion of the
concept of State action.
have to evolve the mode for welfare of their citizens.
is the hallmark of our Constitution. The growth of the Constitution shall be
organic, the rate of change glacial. (See R. Stevens, the English Judges: Their
Role in the Changing Constitution (Oxford 2002), p. xiii) [Quoted by Lord Woolf
in 'The Rule of Law and a Change in the Constitution, 2004 Cambridge Law Journal 317] A school would be
a State if it is granted financial aid. (See Jiby P. and Anr. 2002 (2) ALD 827)
An association performing the function of Housing Board would be performing a
public function and would be bound to comply with Human Rights Act, 1998. [See
Poplar Housing and Regeneration Community by a private body may not. [See R (on
the application of Heather and others) v. Leonard Cheshire Foundation and
another (2002) 2 All ER 936] A school can be run by a private body without any
State patronage. It is permissible in law because a citizen has fundamental
right to do so as his occupation in terms of Articles 19(1)(g) and 26.
once a school receives State patronage, its activities would be State
activities and thus would be subject to judicial review. Even otherwise it is
subjected to certain restrictions as regard its right to spend its money out of
the profit earned. [See T.M.A. Pai Foundation and Others vs. State of Karnataka
and Others (2002) 8 SCC 481 and Islamic Academy of 697].
or the nature thereof would vary depending upon the fact of each case.
must, however, remember that only because another authority would be an agency
or instrument of the State, the same would not mean that there exists a
relationship of "Principal and Agent" between the Government of the
State and the Corporation or the society. Only its actions of promoting the
sport making a law of cricket for the entire country, representing the country
in international forum, appointing India's representative and the all pervasive
control over players, managers and umpires are State actions.
all autonomous bodies having some nexus with the Government by itself would not
bring them within the sweep of the expression 'State'.
case must be determined on its own merits.
for determining the question have a look at the relevant decisions rendered in
& Anr. [(1964) 1 SCR 656], it was held that the expressions "under the
control of the Government of India" do not qualify the word
"territory" and the expressions "under the control of the
Government of India" and "within the territory of India" are
J. in Sukhdev Singh (supra) referring to various authorities observed:
so far as public corporations fulfill public tasks on behalf of government,
they are public authorities and as such subject to control by government."
(SCC Para 87) International Airport Authority of India and Others [(1979) 3 SCC
489] laying down the factors which would enable the Court to determine as to
whether a company or a society would come within the purview of "other
authorities". [SCC paras 16, 18, 19 & 20].
Ajay Hasia (supra), Sukhdev Singh (supra) and Ramana Dayaram Shetty (supra)
were noticed with approval. [SCC Paras 8, 14 & 15]. See also Som Prakash Rekhi
vs. Union of India and another [(1981) 1 SCC 449] The conflict between Ajay Hasia
(supra) and Sabhajit Tewary vs. Union of India and Others [(1975) 1 SCC 485]
has been resolved in Pradeep Kumar Biswas (supra) by overruling Sabhajit Tewary
(supra) and, thus, there does not exist any conflict. The principles laid down
in Ajay Hasia (supra) are not rigid ones and, thus, it is permissible to
consider the question from altogether a different angle.
interesting to note that Bhagwati, J. in Ramana Dayaram Shetty Metropolitan
Edison Company [42 L.Ed. (2d) 477] as against the majority opinion of
Rehnquist, J. which was specifically noticed in M.C. Mehta and Another vs.
Union of India and Others [(1987) 1 SCC 395]. [SCC para 29] Union and Others [(1997) 9 SCC 377], (since overruled on
another point) in Workers and Others [(2001) 7 SCC 1] this Court deliberated
upon the distinction between the Private Law and Public Law. [SCC para 26].
KINGDOM was entitled
to issue licence enabling the persons to train horses meant for races. The
Respondent's application for grant of licence was rejected on the ground that
she was a woman. The action of the Club which was otherwise a private club was
struck down holding that it exercises the function of licensing authority and
controls the profession and, thus, its actions are required to be judged and
viewed by higher standards. It was held that it cannot act arbitrarily.
& Others vs. Insole & Others [1978 (3) All ER 449], a Chancery Division
considered in great details the rules framed by the ICC as also the Test and
County Cricket Board of United Kingdom. The question which arose therein was as
to whether the ICC and consequently the TCCB could debar a cricketer from
playing official cricket as also county cricket only because the plaintiffs
therein, who were well-known and talented professional cricketers and had
played for English County Club for some years and tests matches, could take
part in the World Series Cricket which promoted sporting events of various
kinds. another [1987 (1) All ER 564] the Court exercised the power of the
judicial review over a private body.
grounds on which judicial review was given are:
Panel, although self-regulating, do not operate consensually or voluntary but
had imposed a collective code on those within its ambit;
The Panel had been performing a public duty as manifested by the government's
willingness to limit legislation in the area and to use the Panel as a part of
its regulatory machinery. There had been an "implied devolution of
power" by the Government to the Panel in view of the fact that certain
legislation presupposed its existence.
Its source of power was partly moral persuasive. Such a power would be
exercised under a statute by the Government and the Bank of England.
LJ. in his separate speech opined :
the policy level, I find myself unpersuaded. Counsel for the panel made much of
the word 'self-regulating'.
doubt self-regulation has many advantages. But I was unable to see why the mere
fact that a body is self- regulating makes it less appropriate for judicial
course there will be many self-regulating bodies which are wholly inappropriate
for judicial review. The committee of an ordinary club affords an obvious
example. But the reason why a club is not subject to judicial review is not
just because it is self-regulating.
panel wields enormous power. It has a giant's strength. The fact that it is
self regulation, which means, presumably, that it is not subject to regulation
by others, and in particular the Department of Trade and Industry, makes it not
less but more appropriate that it should be subject to judicial review by the courts."
(Emphasis supplied) [See also Aston Cantlow, Wilmcote and Billesley Parochial
Church In Poplar Housing and Regeneration Community Association Ltd. of the
defendant therein by a housing association known as Poplar Housing and
Regeneration Community Association from one of the premises violated the
provisions of the Human Rights Act. Lord Woolf CJ upon considering the
provisions thereof as also a large number of decisions held that the
Association discharges public function stating:
emphasis on public functions reflects the approach adopted in judicial review
by the courts and text books since the decision of the Court of Appeal (the
judgment of Lloyd LJ) in R v Panel on Take-overs and Mergers, ex p Datafin plc
(Norton Opax plc intervening)  1 All ER 564,  QB 815. (ii) Tower
Hamlets, in transferring its housing stock to Poplar, does not transfer its
primary public duties to Poplar. Poplar is no more than the means by which it
seeks to perform those duties" [Emphasis supplied] Donoghue (supra) was,
however, distinguished in Leonard Cheshire Foundation (supra) holding that the
respondent therein having regard to its activities did not perform any public
function. [See also R (on the application of West) v. Lloyd's of London, (2004)
3 All ER 251] Despite the same it was held that a judicial review cannot be
refused at the threshold.
evolved by the courts have, thus, been expanded from time to time and applied
having regard to the factual matrix obtaining in each case.
in this branch of law as in others has always found differences.
of law had never been an easy task and probably would never be.
different note, however, was struck in Football Association Ltd. (supra) and Aga
Football Association Ltd. (supra), the Football Association was the governing
authority for football and all clubs had to be affiliated to it. With a view to
facilitate the top clubs breaking away from the Football league, the
Association declared void certain rules of the League and made it difficult for
the clubs to terminate their relationship with it. The League sought judicial
review wherein an argument of exercise of monopoly for the game by the
Association was advanced but Rose, J. held that it was not susceptible to
Khan (supra), the applicant was an owner of the racehorses and, thus, made himself
bound to register with the Jockey Club. His horse was disqualified although it
had won a major race whereafter he sought judicial review. The Court of Appeal
opined that the Club could not be Greyhound Racing Club Ltd.'  1 WLR 1302
in preference to Datafin (supra). The Court therein, however, acknowledged that
the Club regulated a national activity. Sir Thomas Bingham M.R., however,
opined therein that if it did not regulate the sport then the government would
in all probability be bound to do so.
held that private power although may affect the public interest and livelihood
of many individuals but a sporting body would not be subject to public law
remedy. One of the factors which appears to have influenced the court in
arriving at the said decision was that if these bodies are deemed to fall
within the public law then "where should we stop"? It is interesting
to note that despite the same it held that judicial review would lie in certain
with great respect to the learned Judges do not find ourselves in agreement
with the aforementioned views for the reasons stated in the later part of this
judgment. Chancery Division and Court of Appeal, in our opinion, were not
correct in not applying the law laid down in Jockey Club (supra) and Datafin
(supra) to the sporting bodies.
Football Association (supra) and Aga Khan (supra) earlier decisions were not
followed. We have noticed that when an action of such a body infringed the
right of work of a citizen or was in restraint of trade, the same had been
struck down by the English Courts. In England, there are statutory rights; but in India a right to carry on an occupation is a fundamental right. Right to work
although is not a fundamental right but a right to livelihood is in terms of
Article 21 of the Constitution of India. This Court, it may be recorded, need
not follow the decisions of the English Courts. [See Liverpool & London S.P.
& I Association Ltd. (supra)] A CRITIQUE OF ENGLISH DECISION IN FOOTBALL
ASSOCIATION (SUPRA) AND AGA KHAN (SUPRA) Michael J. Beloff in his article
'Pitch, Pool, Rink, Court? Judicial Review in the Sporting World' reported in
1989 Public Law 95 while citing several instances as to when no relief was
granted in case of arbitrary action on the part of such strong and essential
sport bodies advocated for a judicial review stating:
for the argument that the sports bodies know best, experience may perpetuate,
not eliminate error; and Wilberforce J. indicated in Eastham that the rules of
sporting bodies cannot be treated as the Mosaic or Medan law.
I suspect, the floodgates argument that is the unspoken premise of the Vice-Chancellarial
observations, the fear that limited court time will be absorbed by a new and
elastic category of case with much scope for abusive or captious litigation. It
is an argument which intellectually has little to commend it, and pragmatically
is usually shown to be ill-founded.
is often the case that, once the courts have shown the willingness to
intervene, the standards of the bodies at risk of their intervention tend to
improve. The threat of litigation averts its actuality.
is therefore no reason why the field of sport cannot define law's new, or at
any rate next, frontier; and if Britain can no longer head the world in sport itself, perhaps it can do so in
sporting litigation. Members of the bar, on your marks!" (Emphasis
supplied) P.P. Craig in his Administrative Law at page 817 noticing the
aforementioned judgments and upon enumerating the reasons therefor, observed:
is no doubt that people will differ as to the cogency of these reasons. The
line drawn by the cases considered within this section has, not surprisingly,
been contested. Pannick has argued that the exercise of monopolistic power
should serve to bring bodies within the ambit of judicial review. To speak of a
consensual foundation for a body's power is largely beside the point where those
who wish to partake in the activity will have no realistic choice but to accept
that power. Black has argued that the emphasis given to the contractual
foundations for a body's power as the reason for withholding review are
misplaced. She contends that the courts are confusing contract as an instrument
of economic exchange, with contract as a regulatory instrument. She argues
further that the reliance placed on private law controls, such as restraint of
trade and competition law, may also be misplaced here. Such controls are
designed for the regulation of economic activity in the market place, and they
may not be best suited to control potential abuse of regulatory power
itself." (Emphasis added)
Limited [1965 SLT 171], a Scottish Court
held the Council with regard to its nature of function to the effect that it
can impose fine or expel a member would be amenable to judicial review. If they
attempt to exercise upon a member a power or authority which he by becoming a
member did not give them, i.e., acting ultra vires or if by so acting they have
done him injury, he will not be precluded from seeking redress, nor the Court
of law hold themselves precluded from giving him redress. It was emphasized
that in a case of this nature they are bound by the rules of natural justice.
159, the Court noticed the factors which carry weight in entertaining judicial
review, stating inter alia :
As the wrong body argument fails, the sole issue is whether the New Zealand (179) Union has acted against its objects of promoting,
fostering and developing the game. This cannot be dismissed as only a matter of
internal management or administration; it goes to fundamentals.
its bearing on the image, standing and future of rugby as a national sport, the
decision challenged is probably at least as important as if not more important
than any other in the history of the game in New Zealand.
decision affects the New
Zealand community as
a whole and so relations between the community and those, like the plaintiffs,
specifically and legally associated with the sport. Indeed judicial notice can
be taken of the obvious fact that in the view of a significant number of
people, but no doubt contrary to the view of another significant number, the
decision affects the international relations or standing of New Zealand.
While technically a private and voluntary sporting association, the Rugby Union
is in relation to this decision in a position of major national importance, for
the reasons already outlined. In this particular case, therefore, we are not
willing to apply to the question of standing the narrowest of criteria that
might be drawn from private law fields. In truth the case has some analogy with
public law issues. This is not to be pressed too far. We are not holding that,
nor even discussing whether, the decision is the exercise of a statutory power although
that was argued. We are saying simply that it falls into a special area where,
in the New Zealand context, a sharp boundary between
public and private law cannot realistically be drawn." It was opined that
the petitioner therein had the necessary standing to seek judicial review. The
Court observed that the floodgate argument advanced against entertaining judicial
review could not be accepted as the case was so special that the argument
carries even less conviction than it is usually apt to do when invoked against
some moderate advance in the common law.
72 ALJR 208], Kirby J. noticed that in the arena of liability of public
authority declaring the limits of the common law liability of the public
authority has been criticized as unsatisfactory and unsettled, as lacking
foreseeable and practical outcomes and as operating ineffectively and inefficiently.
a question arose as to whether the public authorities have a duty to care
envisaging reasonable possibility of damage. The learned Judge opined :
again this Court has been asked to declare the limits of the common law
liability of a public authority.
is an area of the law which has been much criticized as unsatisfactory and
unsettled, as lacking foreseeable and practical outcomes and as operating
ineffectively and inefficiently. Particular decisions, such as Nagle v. Rottnest
Island Authority, have been said to have caused "a degree of consternation
in public authorities and their insurers". It is claimed that they have
occasioned great uncertainty amongst the officers of such authorities as to the
steps which they can take to reduce their potential liability for injuries to
visitors, brought about largely by the visitors' own conduct. In response to
what is described as "judicial paternalism" the Local Government
Ministers of Australia and New Zealand
have commissioned a report on policy options to provide statutory limitations
on the liability of local authorities." ALJR 1263] the court was concerned
with the Australian Wheat Board (International) Ltd. (AWBI) a private
corporation established in terms of Wheat Marketing Act, 1989 which had the
sole right to export wheat. It had also the responsibility for the commercial
aspects of wheat marketing through operating wheat pools. The Appellant therein
who was a competitor of AWBI applied for grant of permit for the bulk export of
wheat but the same was declined whereupon it was contended that the AWBI was
contravening the Trade Practices Act, 1974. The decision of AWBI was questioned
contending that it involved an improper exercise of discretionary power in
accordance with a rule or policy without regard to the merit of the case. The
following interesting observation was made therein:
appeal presents an opportunity for this Court to reaffirm that principle in
circumstances, now increasingly common, where the exercise of public power,
contemplated by legislation, is "outsourced" to a body having the
features of a private sector corporation. The question of principle presented
is whether, in the performance of a function provided to it by federal
legislation, a private corporation is accountable according to the norms and
values of public law or is cut adrift from such mechanisms of accountability
and is answerable only to its shareholders and to the requirements of
corporations law or like rules." [Emphasis supplied] As regards monopoly,
it was opined:
It may be that the statutory conferral of monopoly status on AWBI as a private
corporation, in itself (particularly when viewed with the added fact that it
was formed from what was once a public body) could impose obligations to
observe the norms and values of public law, adapted by analogy, in particular
instances of its decision-making. In such circumstances, quite apart from
administrative law, it has sometimes been viewed as appropriate to impose
duties to the community upon such corporations out of recognition of the
particular powers they enjoy." In Datafin (supra) also, as was noticed,
there did not exist ample statutory provisions relating to regulation of the
trade. In Romeo (supra), the functioning of the corporation apart from grant of
monopoly was also not controlled and regulated by any statute. It is in that
sense, we presume, the expression "outsourcing" had been used by
STATES OF AMERICA:
Committee and International Olympic Committee [483 US 522 : 97 L.Ed. 2d 427] stating that the USOC
performs a distinctive traditional government function representing the nation
to the International Olympic Committee observed:
athletes will go into these same [1980 Olympic] games as products of our way of
life. I do not believe that it is the purpose of the games to set one way of
life against another. But it cannot be denied that spectators, both in Moscow and all over the world, certainly
will have such a thought in mind when the events take place. So it would be
good for our nation and for the athletes who represent us if the cooperation,
spirit of individuality, and personal freedom that are the great virtues of our
system are allowed to exert their full influence in the games. 124 Cong. Rec.
31662 (1978)." Association [531 US
288], the issue was as to whether the respondent "which was incorporated
to regulate interscholastic athletic competition among public and private
secondary schools" is engaged in state action when it enforced one of its
rules against a member school. It was held that the pervasive entwinement of
state school officials in the structure of the association would make it a
state actor. The Court acknowledged that the analysis of whether state action
existed was a "necessarily fact-bound inquiry" and noted that state
action may be found only where there is "such a close nexus between the
State and the challenged action that seemingly private behavior may be fairly
treated as that of the State itself".
In Brentwood Academy (supra), it was held:
cases have identified a host of fact that can bear on the fairness of such an
attribution. We have, for example, held that a challenged activity may be state
action when it results from the State's exercise of "coercive power,"
Blum, 457 US 1004, 73 L Ed 2d 534, 102 S Ct 2777 when the State provides
"significant encouragement, either overt or covert," ibid., or when a
private actor operates as a "willful participant in joint activity with
the State or its agents," Lugar, supra, at 941, 73 L Ed 2d 482, 102 S Ct
2744 (internal quotation marks omitted). We have treated a nominally private
entity as a state actor when it is controlled by an "agency of the
State," Pennsylvania v Board of Directors of City Trusts of Philadelphia,
353 US 230, 231, 1 L Ed 2d 792, 77 S Ct 806 (1957) (per incuriam), when it has
been delegated a public function by the State, cf., e.g., West v Atkins, supra
at 56, 101 L Ed 2d 40, 108 S Ct 2250; Edmonson v Leesville Concrete Co., 500 US
614, 627-628, 114 L Ed 2d 660, 111 S Ct 2077 (1991), when it is "entwined
with governmental policies," or when government is "entwined in [its]
management or control," Evans v Newton, 382 US 296, 299, 301, 15 L Ed 2d
373, 86 S Ct 486 (1966).
such variety, examples may be the best teachers, and examples from our cases
are unequivocal in showing that the character of a legal entity is determined
neither by its expressly private characterization in statutory law, nor by the
failure of the law to acknowledge the entity's inseparability from recognized
government officials or agencies" Thus, seven tests have been laid down
for fulfilling the requirements of a public body in becoming a state actor. We,
however, may notice that in United States of America a public body would answer
the description of a state actor if one or the other tests laid down therein is
satisfied on a factual consideration and therefor the cumulative effect of all
or some of tests is not required to be taken into consideration. (See also
Communities for Equity
notice that Wade in his Administrative Law at page 633 commented that while the
English law creates a gap, the Scottish, New Zealand and other courts seeks to fill up the gap. Under the
heading 'Realms Beyond the Law' at page 627, the learned Author states:
law has been driven from these familiar moorings by the impetus of expanding
judicial review, which has been extended to two kinds of non-statutory action.
One is where bodies which are unquestionably governmental do things for which
no statutory power is necessary, such as issuing circulars or other forms of
information" Lord Woolf in an Article "Judicial Review: A Possible Programme
for Reform"  P.L. 221 at 235 advocated a broader approach by
extending review to cover all bodies which exercise authority over another
person or body in such a manner as to cause material prejudice to that person
controls could, on principle, apply to bodies exercising power over sport and
religion. (See also Craig's Administrative Law, (5th Edn. page 821) In an
instructive Article "Contracting Out, the Human Rights Act and the Scope
of Judicial Review" published in 118 L.Q.R. 551, Paul Craig noticed a
large number of decisions and considered the question from several angles. He
opined at pages 567-568:
is not fortuitous that the public bodies have stood shoulder to shoulder with
the private contractors in resisting the application of the HRA, and ordinary
judicial review, to the contractors.
will under the existing law, be difficult to maintain an action against the
public body itself, either under the HRA, or via ordinary judicial review,
where there has been contracting out. The public body will still be subject to
the HRA and to judicial review. This should not mask the reality that
contracting out will serve to preclude any meaningful action against the public
body. Claims that could have been made against the public body if it had
performed the service in house will no longer be possible where it has contracted
been argued in this article that the judicial conclusions as to the
applicability of the HRA and judicial review in cases of contracting out were
neither legally inevitable, nor desirable in normative terms. The contractualisation
of government is not a transient phenomenon. It is here to stay for the
courts have in the past developed doctrinal tools to meet challenges posed by
changing pattern of government. They should not forget this heritage."
Craig in his treatise 'Administrative Law' at page 821 also made an interesting
observation as regards future prospects, stating :
the scope of review is extended thus far then careful attention will have to be
given to whether the procedural and substantive norms applied against
traditional public bodies should also be applied against private bodies.
of the cases within this section are concerned with the application of
procedural norms. If we were to follow Lord Woolf's suggestion then we would
also have to consider whether substantive public law should be applied to such
bodies. Would we insist that sporting bodies with monopoly power, or large
companies with similar power, take account of all relevant considerations
before deciding upon a course of action? Would we demand that their actions be
subject to a principle of proportionality, assuming that it becomes an accepted
part of our substantive control? If there is an affirmative answer, then the
change would be significant to say the very least. It would have ramifications
for other subjects, such as company law, commercial law and contract. It would
increase the courts' judicial review case load. It would involve difficult
questions as to how such substantive public law principles fit with previously
accepted doctrines of private law. This is not to deny that similar broad
principles can operate within the public and private spheres. It is to argue
that the broader the reach of "public law", the more nuanced we would
have to be about the application of public law principles to those bodies
brought within the ambit of judicial review." In an interesting article
'Sports, Policy and Liability of Sporting Administrators' by Jeremy Kirk and
Anton Trichardt published in 75 ALJ 504, the learned authors while analyzing a
recent decision of the High Court Rugby players to ask for amendment of the
rules of International Rugby Football Board (which was disallowed) opined:
High Court's decision in Agar is not without its difficulties, but it is
well-founded in so far as it established that there is generally no liability
in negligence for the creation or amendment of the rules of amateur sports
played by adults. Even so, there is still room for argument that sporting
administrators will be liable in negligence in relation to the nature and
conduct of their sports. It is conceivable that there could be liability for
employers in relation to the rules of professional sports. Any type of
administrator could be liable for misrepresentations. And liability could potentially
arise for failing to fulfil a duty to warn in situations where controllers
become aware of new information pointing to a higher level of risk than was
be that the judgments in Agar, to use the words of Gowans J in Carlton Cricket
and Football Social Club v Joseph, "are not going to be very interesting
to those who have more familiarity with the rules of [rugby] football than they
have with the rules of law". Nevertheless, the decision is an important
one for sporting administrators.
is more, the potential for legal liability to be imposed on sporting
administrators has been but partially resolved by the High Court's decision.
The ball is, one might say, still in play." The opinion of the learned
authors to say the least provides a new insight.
OF CASE LAW:
have noticed hereinbefore that the Courts of Scotland and New Zealand differ with the English and
American majority approach.
approach of the court as regard judicial review has undergone a sea change even
in England after the Human Rights Act, 1998
came into force as doctrine of incompatibility is being applied more frequently
even in determining the validity of legislations.
English Courts despite their reluctance to exercise power of judicial review
over the activities of sports association noticed in the context of Human
Rights Act, 1998 that there are public bodies which are hybrid in nature who
have functions of public and private nature but they would be public
authorities. [See Donoghue (supra)] However, in San Francisco Arts &
Athletics, Inc.(supra) the minority view clearly states that the governmental
function of the USOC in that they represent the nation. Justice Blackmun, J.
had agreed with the said view.
minority view in Jackson (supra) was noticed in Ramana Dayaram
Shetty (supra). We agree with the said view.
interesting to note that even English Courts have imposed high standard of
fairness in conduct in relation to such bodies in sharp contrast to purely
private bodies. As noticed hereinbefore, availability of judicial review has
been accepted by the English courts. [See M.C. Mehta (supra)] The right of
Indian players, having regard to the observations made in Greig & Ors. (supra)
is comparable to their constitutional right contained in Article 19(1)(g) of
the Constitution of India which would include a right to work and a right to
pursue one's occupation.
Board while enjoying monopoly in cricket exercises enormous power which is
neither in doubt nor in dispute. Its action may disable a person from pursuing
his vocation and in that process subject a citizen to hostile discrimination or
impose an embargo which would make or mar a player's career as was in the case
of Greig & Ors. (supra). The right to pursue an occupation or the right of
equality are embedded in our Constitution whereby citizens of India are granted much higher right as
compared to common law right in England. A body although self- regulating, if performs public duty by way of
exercise of regulatory machinery, a judicial review would lie against it as was
in the case of Datafin (supra). The question has since been considered from a
slightly different angle, viz., when such action affects the human right of the
person concerned holding that the same would be public function. [See Donoghue
(supra)]. If the action of the Board impinges upon the fundamental or other
constitutional rights of a citizen or if the same is ultra vires or by reason
thereof an injury or material prejudice is caused to its member or a person
connected with cricket, judicial review would lie. Such functions on the part
of the Board being public function, any violation of or departure or deviation
from abiding by the rules and regulation framed by it would be subject to
judicial review. Time is not far off when having regard to globalization and
privatization the rules of administrative law have to be extended to the
private bodies whose functions affect the fundamental rights of a citizen and
who wield a great deal of influence in public life.
FUNCTION AND PUBLIC DUTY:
law is a term of art with definite legal consequences. (See The concept of
public law function is yet to be crystalised.
however, the power of judicial review can be exercised by this Court under
Article 32 and by the High Courts under Article 226 of the Constitution of
India only in a case where the dispute involves a public law element as
contradistinguished from a private law dispute. (See Dwarka (2003) 6 SCC 230 at
page 242) General view, however, is that whenever a State or an instrumentality
of a State is involved, it will be regarded as an issue within the meaning of
public law but where individuals are at loggerheads, the remedy therefor has to
be resorted in private law filed. Situation, however, changes with the
advancement of the State function particularly when it enters in the fields of
commerce, industry and business as a result whereof either private bodies take
up public functions and duties or they are allowed to do so. The distinction
has narrowed down but again concededly such a distinction still exists. Drawing
an inspiration from the decisions of this Court as also other courts, it may be
safely inferred that when essential governmental functions were placed or
allowed to be performed by the private body; they must be held to have
undertaken public duty or public functions.
would be a public function has succinctly been stated in American
Constitutional Law by Laurence H. Tribe at page 1705 in the following terms:
The "Public Function" Cases:
the state "merely" authorizes a given "private" action imagine
a green light at a street corner authorizing pedestrians to cross if they wish that
action cannot automatically become one taken under "state authority"
in any sense that makes the Constitution applicable. Which authorizations have
that Constitution triggering effect will necessarily turn on the character of
the decision-making responsibility thereby placed (or left) in private hands.
However described, there must exist a category of responsibilities regarded at
any given time as so "public" or "governmental" that their
discharge by private persons, pursuant to state authorization even though not
necessarily in accord with state direction, is subject to the federal
constitutional norms that would apply to pubic officials discharging those same
responsibilities. For example, deciding to cross the street when a police
officer says you may is not such a "public function;" but
authoritatively deciding who is free to cross and who must stop is a
"public function" whether or not the person entrusted under state law
to perform that function wears a police uniform and is paid a salary from state
revenues or wears civilian garb and serves as a volunteer crossing guard"
In the instant case, there does not exist any legislation made either by any
State or by the Union of India regulating and controlling the cricketing
activities in the country. The Board authorized itself to make law regulating
cricket in India which it did and which it was
allowed to do by the States either overtly or covertly. The States left the
decision making responsibility in the hands of the Board, otherwise so-called
private hands. They maintain silence despite the Board's proclamation of its
authority to make law of sports for the entire country.
of a public function in the context of the Constitution of India would be to
allow an entity to perform the function as an authority within the meaning of
Article 12 which makes it subject to the constitutional discipline of
fundamental rights. Except in the case of disciplinary measures, the Board has
not made any rule to act fairly or reasonably. In its function, the ICC does.
Board as a member of ICC or otherwise also is bound to act in a reasonable
manner. The duty to act fairly is inherent in body which exercises such
enormous power. Such a duty can be envisioned only under Article 14 of the
Constitution and not under the Administrative Law. The question of a duty to
act fairly under administrative law apart from Article 14 of the Constitution
of India, as has been noticed in Ramana Dayaram Shetty (supra) (page 503),
would not, thus, arise in the instant case.
functions are multifacial. There cannot be a single test for defining public
functions. Such functions are performed by variety of means.
even when public duties are conferred by statute, powers and duties do not thereunder
limit the ambit of a statute as there are instances when the conferment of powers
involves the imposition of duty to exercise it, or to perform some other
incidental act, such as obedience to the principles of natural justice. Many
public duties are implied by the courts rather than commanded by the
legislature; some can even be said to be assumed voluntarily. Some statutory
public duties are 'prescriptive patterns of conduct' in the sense that they are
treated as duties to act reasonably so that the prescription in these cases is
indeed provided by the courts, not merely recognized by them.
Harding in his book 'Public Duties and Public Law' summarized the said
definition in the following terms:
There is, for certain purposes (particularly for the remedy of mandamus or its
equivalent), a distinct body of public law.
Certain bodies are regarded under that law as being amenable to it.
Certain functions of these bodies are regarded under that law as prescribing as
opposed to merely permitting certain conduct.
These prescriptions are public duties." In Donoghue (supra), it is stated:
We agree with Mr. Luba's submissions that the definition of who is a public
authority, and what is a public function, for the purposes of s 6 of the 1998
Act, should be given a generous interpretation" There are, however, public
duties which arise from sources other than a statute. These duties may be more
important than they are often thought to be or perceived. Such public duties
may arise by reason of
the duties in each of the categories are regarded as relevant in several cases.
(See A.J. Harding's Public Duties and Public Law, Pages 6 to 14) The functions
of the Board, thus, having regard to its nature and character of functions
would be public functions.
public and statutory authorities are authorities. But an authority in its
etymological sense need not be a statutory or public authority. Public
authorities have public duties to perform.
Aston Cantlow and Wilmcote with Billesley Parochial Church albeit in the context of Human Rights Act, 1998, it was
feature, that a core public authority is incapable of having Convention rights
of its own, is a matter to be borne in mind when considering whether or not a
particular body is a core public authority." Trout Farm  EWCA Civ
1056 and Parochial Church Council of the There, however, exists a distinction
between a statutory authority and a public authority. A writ not only lies
against a statutory authority, it will also be maintainable against any person
and a body discharging public function who is performing duties under a
statute. A body discharging public functions and exercising monopoly power
would also be an authority and, thus, writ may also lie against it.
REVIEW UDNER ARTICLES 32 & 226 OF THE CONSTITUTION OF INDIA:
Review forms basic structure of the Constitution.
inalienable. Public law remedy by way of judicial review is available both
under Articles 32 and 226 of the Constitution. They do not operate in different
fields. Article 226 operates only on a broader horizon.
courts exercising the power of judicial review both under Articles 226, 32 and
136 of the Constitution of India act as a "sentinel on the qui 564 at 577)
A writ issues against a State, a body exercising monopoly, a statutory body, a
legal authority, a body discharging public utility services or discharging some
public function. A writ would also issue against a private person for the
enforcement of some public duty or obligation, which ordinarily will have
Review castes a long shadow and even regulating bodies that do not exercise
statutory functions may be subject to it. (Constitutional and Administrative
Law; by A.W. Bradley and K.D. Ewing (13th Edn) Page 303).
regard to the modern conditions when Government is entering into business like
private sector and also undertaking public utility services, many of its
actions may be a State action even if some of them may be non- governmental in
the strict sense of the general rule. Although rule is that a writ cannot be
issued against a private body but thereto the following exceptions have been
introduced by judicial gloss:
Where the institution is governed by a statute which imposes legal duties upon
Where the institution is 'State' within the meaning of Article 12.
Where even though the institution is not 'State' within the purview of Article
12, it performs some public function, whether statutory or otherwise.
of the questions involved in this matter have recently been considered in an
instructive judgment by High Court Delhi in Rahul Mehra 2000) disposed of on 4th October, 2004. Having regard to the discussions
made therein, probably it was not necessary for us to consider the question in
depth but its reluctance to determine as to whether the Board is a State within
the meaning of Article 12 of the Constitution necessitates further and deeper
power of the High Court to issue a writ begins with a non- obstante clause. It
has jurisdiction to issue such writs to any person or authority including in
appropriate cases any Government within its territorial jurisdiction,
directions, orders or writs specified therein for the enforcement of any of the
rights conferred by Part III and for any other purpose. Article 226 confers an
extensive jurisdiction to the High Court vis-`-vis this Court under Article 32
in the sense that writs issued by it may run to any person and for purposes
other than enforcement of any rights conferred by Part III but having regard to
the term 'authority' which is used both under Article 226 and Article 12, we
have our own doubts as to whether any distinction in Rohtas Industries Staff
Union and others, AIR 1976 SC 425) This aspect of the matter has been
considered in Andi Mukta Sadguru (supra). It has clearly been stated that a
writ petition would be maintainable against other persons or bodies who perform
public duty. The nature of duty imposed on the body would be highly relevant
for the said purpose. Such type of duty must be judged in the light of the
positive obligation owed by a person or authority to be the affected party.
Exports Ltd. & Anr. v. Export Credit Guarantee Corpn. of India Ltd. & Ors., AIR 1998 Cal 1, it has been held that public law remedy would be
available when determination of a dispute involving public law character is
necessary. The said decision has been affirmed by this Corporation of India
Limited & Ors. [JT 2003 (10) SC 300]. [See also Tata Cellular vs. Union of India
AIR 1996 SC 1 Paras 101 & 102] and State of U.P.and Another vs. Johri Mal [(2004) 4 SCC 714].
recent development in the field of judicial review vis-`-vis human rights also
deserves a mention, although in this case, we are not directly concerned
therewith. noticed that Article 13 of Convention for the Protection of Human
Rights and Fundamental Freedoms envisages constitution of forums where
complaint of violation of human rights can be adjudicated. No such forum was
provided for before enactment of Human Rights Act, 1998. A policy decision
adopted in the year 1993 by the British Government that more planes will land
in Heathrow Airport during night led to filing of a complaint by the nearby
residents alleging violation of their right of privacy but judicial review was
denied to them on the ground that the same was a policy decision. The European
Court of Human Rights, however, observed that prior to coming into force of the
Human Rights Act, 1998 the Government failed to provide a forum for adjudication
of violation of human rights. The petitioners therein were held entitled to
compensation in view of Article 13 of Convention for the Protection of Human
Rights and Fundamental Freedoms.
2 W.L.R. 1351, the Court of Appeal held that judicial review in certain
circumstances is maintainable even on facts. (See also Judicial Review, Appeal
and Factual Error by Paul Craig Q.C., Public Law, Winter 2004, page 788) HUMAN
in television have a role to play in terms of the statute of the City of
Jerusalem, approved by the Trusteeship Council on 4th April, 1950 which
provides for special protective measures for ethnic, religious, or linguistic
groups in articles dealing with human rights and fundamental freedoms but also
the legislative council, the judicial system, official and working languages,
the educational system and cultural and benevolent institutions, and
broadcasting and television. Right to development in developing countries in
all spheres is also human right. [See Kapila Hingorani (supra), para 62] and
Islamic Academy of Education and Another (supra) Paras 211 to 215].
achieve this, the promotion of human development and the preservation and
protection of human rights proceed from a common platform. Both reflect the commitment
of the people to promote freedom, the well-being and dignity of individuals in
society. Human development as a human right has a direct nexus with the
increase in capabilities of human beings as also the range of things they can
do. Human development is eventually in the interest of society and on a larger canvas,
it is in the national interest also. Progress and development in all fields
will not only give a boost to the economy of the country but also result in
better living conditions for the people of India.
hybrid body is bound to protect human rights as it cannot be violated even by
such a body. The Board which has the pervasive control over the entire sport of
cricket including the participants as well as spectators cannot apparently act
in violation of human rights.
traditional tests which had impelled this Court to lay down the tests for
determining the question as to whether a body comes within the purview of
"Other Authorities" in Ajay Hasia (supra), inter alia are :
It may also be a relevant factor ... whether the corporation enjoys monopoly
status which is State- conferred or State-protected.
the functions of the corporation are of public importance and closely related
to governmental functions, it would be a relevant factor in classifying the
corporation as an instrumentality or agency of Government.
six tests laid down there are not exhaustive.
this case, moreover, are required to proceed on the premise that some other
tests had also been propounded by Mathew, J. in Sukhdev Singh (supra), wherein
it was observed:
growing power of the industrial giants, of the labour unions and of certain
other organized groups, compels a reassessment of the relation between group
power and the modern State on the one hand and the freedom of the individual on
the other. The corporate organisations of business and labour have long ceased
to be private phenomena." (Emphasis supplied) The learned Judge stated:
governing power wherever located must be subject to the fundamental
constitutional limitations. The need to subject the power centers to the
control of Constitution requires an expansion of the concept of State
action." "Although private in the property sense, it was public in
the functional sense. The substance of the doctrine there laid down is that
where a corporation is privately performing a 'public function' it is held to
the constitutional standards regarding civil rights and equal protection of the
laws that apply to the State itself. The Court held that administration of
private property of such a town, though privately carried on, was,
nevertheless, in the nature of a 'public function', that the private rights of
the corporation must therefore be exercised within constitutional limitations,
and the conviction for trespass was reversed." Referring to Article 13(2),
it was held:
other words, it is against state action that fundamental rights are guaranteed.
Wrongful individual acts unsupported by State authority in the shape of laws,
customs, or judicial or executive proceedings are not prohibited." As
regards public function tests, it was held:
factor which might be considered is whether the operation is an important
public function. The combination of State aid and the furnishing of an
important public service may result in a conclusion that the operation should
be classified as a State agency. If a given function is of such public
importance and so closely related to governmental functions as to be classified
as a governmental agency, then even the presence or absence of State financial
aid might be irrelevant in making a finding of State action. If the function
does not fall within such a description, then mere addition of State money
would not influence the conclusion." Conversely put, if the functions of
the body falls within the description of the public function, absence of State
financial aid would not influence the conclusion to the contrary. As regards,
governmental aid, it was noticed:
State may aid a private operation in various ways other than by direct
financial assistance. It may give the organization the power of eminent domain,
it may grant tax exemptions, or it may give it a monopolistic status for
certain purposes." The legal position in America in this behalf was also noticed in the following terms:
America, corporations or associations,
private in character, but dealing with public rights, have already been held
subject to constitutional standards. Political parties, for example, even
though they are not statutory organisations, and are in form private clubs, are
within this category. So also are labour unions on which statutes confer the
right of collective bargaining." (Emphasis supplied) Drawing the contrast
between the governmental activities which are private and private activities
which are governmental, Mathew, J. noticed that besides the so-called
traditional functions, the modern State operates a multitude of public
enterprises. What is, therefore, relevant and material is the nature of the
view, the complex problem has to be resolved keeping in view the following
further tests :
When the body acts as a public authority and has a public duty to perform;
When it is bound to protect human rights.
When it regulates a profession or vocation of a citizen which is otherwise a
fundamental right under a statute or its own rule..
When it regulates the right of a citizen contained in Article 19(1)(a) of the
Constitution of India available to the general public and viewers of the game
of cricket in particular.
When it exercises a de facto or a de jure monopoly;
When the State out-sources its legislative power in its favour;
When it has a positive obligation of public nature.
tests as such had not been considered independently in any other decision of
thus, would have to proceed to determine the knotty issues involved therein on
a clean slate.
traditional tests of a body controlled financially, functionally and
administratively by the Government as laid down in Pradeep Kumar Biswas (supra)
would have application only when a body is created by the State itself for
different purposes but incorporated under the Indian Companies Act or Societies
tests may not be applicable in a case where the body like the Board was
established as a private body long time back. It was allowed by the State to
represent the State or the country in international fora. It became a
representative body of the international organizations as representing the
country. When the nature of function of such a body becomes such that having
regard to the enormity thereof it acquires the status of monopoly for all
practical purposes; regulates and control the fundamental rights of a citizen
as regard their right of speech or right of occupation, becomes representative
of the country either overtly or covertly and has a final say in the matter of
registration of players, umpires and other connecting with a very popular sport.
The organizers of competitive test cricket between one association and another
or representing different States or different organizations having the status
of a state are allowed to make laws on the subject which is essentially a State
function in terms of Entry 33 List II of the Seventh Schedule of the
Constitution of India. In such a case, different tests have to be applied.
question in such cases may, moreover, have to be considered as to whether it
enjoys the State patronage as a national federation by the Central Government;
whether in certain matters a joint action is taken by the body in question and
the Central Government; its nexus with the Governments or its bodies, its
functions vis-`-vis the citizens of the country, its activities vis-`- vis the
government of the country and the national interest/ importance given to the
sport of cricket in the country. The tests, thus, which would be applicable are
coercion test, joint action test, public function test, entertainment test,
nexus test, supplemental governmental activity test and the importance of the
entity or organization constituting a State for the purpose of Part III of the
Constitution would not necessarily continue to be so for all times to come.
Converse is also true. A body or an organization although created for a private
purpose by reason of extension of its activities may not only start performing
governmental functions but also may become a hybrid body and continue to act
both in its private capacity or as public capacity. What is necessary to answer
the question would be to consider the host of factors and not just a single
factor. The presence or absence of a particular element would not be
determinative of the issue, if on an overall consideration it becomes apparent
that functionally it is an authority within the meaning of Article 12 of the
Constitution of India.
significant funding by the Government may not by itself make a body a State, if
its functions are entirely private in character.
absence of funding for the functioning of the body or the organization would
not deny it from its status of a State; if its functions are public functions
and if it otherwise answers the description of "Other Authorities".
The Government aid may not be confined only by way of monetary grant. It may
take various forms, e.g., tax exemptions, minimal rent for a stadia and
recognition by the State, etc. An over emphasis of the absence of the funding
by the State is not called for.
true that regulatory measures applicable to all the persons similarly situated,
in terms of the provisions of a statute would by itself not make an
organization a State in all circumstances. Conversely, in a case of this nature
non-interference in the functioning of an autonomous body by the Government by
itself may also not be a determinative factor as the Government may not
consider any need therefor despite the fact that the body or organization had
been discharging essentially a public function.
non-interference would not make the public body a private body.
CRICKET MEANS TO INDIA:
have laid down the tests aforesaid and the approach which needs to be adopted
in determining the issue as to whether the Board is a State or not. Before we
embark on this enquiry, it would be necessary to keep in mind as to what
cricket means to the citizens of this country.
in India is the most popular game. When India plays in international fora, it
attracts the attention of millions of people. The win or loss of the game
brings 'joy' or 'sorrow' to them. To some lovers of the game, it is a passion,
to a lot more it is an obsession, nay a craze. For a large number of viewers,
it is not enthusiasm alone but involvement.
OF ASSOCIATION OF BOARD:
Board is a society under the Tamil Nadu Societies Registration Act, 1975. In
terms of its Memorandum of Association, its objects, inter alia, are to control
the game of Cricket in India and to resolve the disputes and to give its
decision on matters referred to it by any State, Regional or other Association,
to promote the game, to frame the laws of cricket in India, to select the teams
to represent India in Test Matches and various others and to appoint India's
representative or representatives on the International Cricket Conference and
other Conferences, Seminars, connected with the game of cricket;
Board has framed rules and regulations in exercise of its power under the
Memorandum of Association. Such rules and regulations are also filed with the
Registrar of Societies under the Tamil Nadu Societies Registration Act, 1975.
The relevant rules and regulations are as under :
"REPRESENTATIVE" of a Member or an Associate Member means a person
duly nominated as such by the Member or the Associate Member.
"TOURNAMENT RULES" means the Rules governing the conduct of
Tournaments such as Irani, Duleep, Ranji, Deodhar, CoochBehar, C.K. Nayudu,
M.A. Chidambaram, Vijay Hazare, Vijay Merchant Trophy and Madhavrao Scindia
Trophy- Tournaments and such other Tournaments conducted by the Board from time
DISCIPLINARY COMMITTEE : The Board shall at every Annual General Meeting
appoint a Committee consisting of three persons of whom the President shall be
one of them to inquire into and deal with the matter relating to any act of
indiscipline or misconduct or violation of any of the Rules or Regulation by
any Player, Umpire, Team Official, Administrator, Selector or any person
appointed or employed by BCCI. The Committee shall have full power and
authority to summon any person(s) and call for any evidence it may deem fit and
necessary and make and publish its decision including imposing penalties if so
required, as provided in the Memorandum and Rules and Regulations." It has
thirty full members including the State Cricket Associations representing the
States. Apart from the said Associations, any direct affiliation therewith is
prohibited. In terms of clause 3(iii) the Central controlling body for cricket in
any State within the territory of India may be affiliated and shall be an Associate Member. Even
the organization at the district level and the State level had to become its
member for effective participation in the game. Rule 8 empowers the Board to nominate
distinguished persons by invitation to be Patron in Chief or Patrons of the
Board. The powers and duties of the Board have been referred to in Rule 9; some
of which are as under :
grant affiliations as provided in the Rules or to disaffiliate Members on
arrange, control and regulate visits of foreign cricket teams to India and visits of Indian teams to
foreign countries and to settle the terms on which such visits shall be
lay down conditions on which Indian players shall take part in a tour to any
foreign country and by which such players shall be governed, including terms of
payments to such players.
frame bye-laws and lay down conditions including those of travel, accommodation
and allowances under which Indian players shall take part in Cricket
Tournaments/Matches or Exhibition, Festival and Charity matches organized by
the Board or by a Member under the authority of the Board in the course of a
visit or tour of a foreign Cricket team to India.
permit under conditions laid down by the Board or refuse to permit any visit by
a team of players to a foreign country or to India.
frame the Laws of Cricket in India and to
make alteration, amendment or addition to the laws of Cricket in India whenever desirable or necessary.
take disciplinary action against a player or a Member of Board.
appoint Manager and/or other official of Indian teams.
10 provides for complete power and control over players within the jurisdiction
of a member or an associate member.
12 provides that an inquiry into conduct of players shall be in the manner as
specified in Rule 38 of the Rules. Rule 32 provides for Standing Committees
which include an All India Selection Committee, All India Junior Selection
Committee, Umpires Committee, Senior Tournament Committee, Vizzy Trophy
Committee, Tour, Programme and Fixtures Committee, Technical Committee, Junior
Cricket Committee and Finance Committee. Rule 32(A)(ii) provides for constitution
of All India Selection Committee inter alia when Indian Team goes on a foreign
33 provides that no tournaments by any club affiliated to a member or any other
organization be held without permission of the Board.
34 imposes ban on participation in tournaments stating :
club or player shall participate in any tournament or a match for which the
permission of the Board has not been previously obtained. A player contravening
this Rule shall be dealt with in accordance with the procedure laid down in
Rule 38." Rule 35 provides for an exclusive right in the Board to organize
foreign tours and invite teams from abroad, in the following terms :
organization other than a Member or Associate Member, Clubs or Institutions
affiliated to such members shall organize foreign tours to or invite teams from
abroad. Members or Associate Members or such clubs or institutions, desirous of
undertaking tours abroad or inviting foreign teams shall obtain the previous
permission of the Board. Such permission may be given in accordance with the
Rules framed by the Board." The procedure for dealing with the misconduct
on the part of players, umpires, team officials, administrators, referees and
selector is contained in Rule 38 which also empowers it to frame Bye-laws
regarding their discipline and conduct.
Articles of Association of the ICC, the words "Cricket Authority",
Full Member Country(ies)" and "Member Country(ies)" have been
defined as under:
Authority" a body (whether incorporated or not) which is recognized by the
Council as the governing body responsible for the administration, management
and development of cricket in a Cricket Playing Country (being at the date of
incorporation of the Council the bodies of that description shown in the names
and addresses of subscribers to the Memorandum of Association);
Member Country (ies)" any Member Country whose Cricket Authority is a Full
Member and shall, when the context requires, include the Cricket Authority of
that Member Country;
Country (ies)" any country or countries associated for cricket purposes or
geographical area, the governing body for cricket of which is a Full Member, an
Associate Member or an Affiliate Member, as the context may require;" GUIDELINE
CRITERIA FOR FULL MEMBERSHIP OF ICC "A country applying for admission as a
Full Member of ICC should use the following criteria." Paragraph 1 inter alia
provides for playing. Paragraphs 1.2, 4 and 5 provide for Cricket Structure,
Financial and Standing respectively.
membership guidelines relating to one day international matches speaks of test
playing nation and formation of national association.
to One Day International (ODI) Status reads as under:
status is not an ICC membership category, but rather a sub-category of
Associate Membership. ODI status was created to provide a vehicle by which
leading Associate Members could play official One Day International matches
against Full Members in order to better equip them to apply for Full Membership
at the appropriate time.
Criteria for ODI status are extremely demanding and ODI status will only be
conferred when the applicant country has a history of excellence in both
playing and administration. As a precondition the applicant must be a leading
Associate Member and meet all the criteria of Associate Membership.
Rules for International Cricket Council Matches, Series and Competitions read
cricketer is qualified to play Representative Cricket for a Member Country of
which he is a national or, in cases of non-nationals, in which he was born
player who has resided for a minimum of 183 days in a Member Country in each of
the 4 immediately preceding years shall be a "deemed national" of
that country for the purpose of these Rules.
*** *** (c) Transfer of "Playing Nationality"
Cricketers qualified to play for a Member Country can continue to represent
that country without negating their eligibility or interrupting their
qualification period for another Member Country up until the stage that the
cricketer has played for the first Member Country at under 19 level or above
Each Member Country shall require each player to certify his eligibility to
represent that Member Country.
*** (f) Register of Cricketers and Proof of Qualification
Each Member Country shall, prior to the Effective Date, establish and
thereafter maintain a register of cricketers which shall record the name,
address and nationality of those cricketers who shall in each year commencing
at the beginning of that Member Country's domestic cricket season be seeking to
play first-class cricket in that Member Country (or the equivalent national
competition in those countries which do not have first-class cricket) for any
local club or team including any State or Country Team.
Each Member Country shall from time to time provide to the Chief Executive ICC
on request and at the expense of that Member Country details as to any entries
made in its register of cricketers in respect of any year, including copies of
the register or of the relevant extracts therefrom.
Each Member Country shall from time to time provide to the Chief Executive ICC
on request and at the expense of that Member Country, any relevant information
as to the fulfillment by a particular player or players of any one or more of
the applicable qualification criteria (including as appropriate the Development
Criteria) under these Rules." As per ICC Rules and Guidelines for
classification of official cricket, the definition of a Test Match in clause
1(a)(i) is as follows:
cricket match of not more than 5 days scheduled duration played between two
teams selected by full members as representatives of their member countries and
accorded the status of test match by the Council."
ISSUED BY UNION OF INDIA:
the Union of India had issued guidelines which had been reviewed from time to
time. The Ministry of Youth Affairs and Sports issued the revised guidelines
and forwarded the same to the Presidents/Secretary General, Indian Olympic
Association and the Presidents/Hony. General Secretaries of all recognized
Sports Federations incorporating therein the amended provisions. Cricket is
included in Annexure-I within the category [Others (C)].
issuing the Guidelines, it has been asserted that the Government attaches
considerable importance to development of sports in general and achieving
excellence in the Olympics and other international events in particular, as
also the unsatisfactory performance of the Indian Team(s) in important
international sports events. It was recorded that over the years the Government
had been actively supporting the National Sports Federations in the matter of
development of specific games/sports discipline.
objective of the said guidelines was to define the areas of responsibility of
various agencies involved in the promotion and development of sports, to
identify National Sports Federations eligible for coverage thereunder and to
state the conditions for eligibility which the Government would insist upon
while releasing grants to Sports Federations.
III speaks of role and responsibility of the Ministry of Youth Affairs and
Sports, National Sports Federations and the Sports Authority. Para IV provides
for priority sports which have been categorized as:
'General Category' and
Para 8 refers to grants given to
National Federations under different sub-heads. Clause 8.8 specifies the funds
with which the National Sports Federations would be assisted for holding the
international tournaments. Clause 8.9 provides for cultural exchange.
Para 9 provides for clubbing and
dovetailing of schemes of SAI and the Ministry. Para XI provides for long term
development plans. Para XII deals with miscellaneous matters.
appended to the said guidelines provides for recognition of National Sports
Federations, inter alia, by laying down the eligibility therefor and the
necessity of filing of applications in that behalf. Clause 3.12 reads as under
would be only one recognized Federation for each discipline of sport,
irrespective of the fact that the particular sport caters to youngsters, men,
women or veterans. However, this condition shall not apply to Federations
already recognized by the Department." Clause 5 provides for grant of
recognition. Annexure-III appended to the said guidelines provides for the
procedure for suspension/withdrawal of recognition and consequences thereof.
The said guidelines also prescribe forms required to be used by the federations
for different purposes.
Board for all intent and purport was a recognized body. Probably in that view
of the matter, the Board did not think it necessary to apply for grant of such
recognition of the Union of India asking it for passing a formal order.
However, the Board had all along been obtaining the requisite permission for
sending an Indian team abroad or for inviting a foreign team in India in the prescribed form.
RECOGNITION ESSENTIAL ?
of India has issued certain guidelines evidently in exercise of its power
conferred on it under Article 73 of the Constitution of India for regulating
sports in India. The said guidelines have been
issued having regard to objects it sought to achieve including the poor
performance of Indian Team abroad. The said guidelines have been moreover
issued in exercise of its control over the National Sports Federations. The
sport of Cricket was not included within the said guidelines. Both mens' and womens'
cricket had been brought within the purview of the said guidelines in the year
2001. They provide for grant of recognition. The Board contends that it had
never applied for recognition nor had it asked for financial aid or grant of
any other benefit. Factually the Union of India has not been able to controvert
this position although in its affidavit affirmed by a Deputy Secretary to the
Government of India, Ministry of Youth Affairs and Sports, it has stated that
Board is a recognized National Federation. It is true that no document has been
produced establishing grant of such recognition; but in its additional
affidavit affirmed by Mrs. Devpreet A. Singh, Deputy Secretary to the Government
of India, Ministry of Youth Affairs and Sports, a number of documents have been
annexed which clearly go to show that from the very beginning the Board had
been asking for permission of the Ministry of Human Resource Development either
to go abroad or to play or participate in other countries or for inviting the
others to play in India. Such permission had been sought for in the form
prescribed in terms of the said regulations. The said documents leave no manner
of doubt that the Board had asked for and the Union of India had granted de
affidavit dated 8th
October, 2004 affirmed
by a Deputy Secretary to the Government of India, Ministry of Youth Affairs and
Sports, it is stated:
I am informed that this Hon'ble
Court required to be
apprised as to whether it was mandatory for all sporting bodies including
private entities or clubs to seek permission and to obtain the same for playing
in tournaments abroad.
response to the issue raised before this Hon'ble Court, it is respectfully
submitted that only the recognized National Sports Federations are required to
apply in the prescribed format for seeking permission to go abroad to play as a
Team representing India. There have been instances where club teams,
organizations engaged in sports activities etc. have applied for such
permission but the Ministry has considered their request only when they were
received through the National Sports Federation BCCI in this case." It is
not disputed that the Union of India has not recognized any other national
sports body for regulating the game of cricket in India. It is the categorical stand of the
Union of India that only by such recognition granted by the Union of India, the
team selected by the Board is the Indian cricket team which it could not do in
absence thereof. We cannot accept the submission of Mr. Venugopal to the effect
that even while playing abroad, the Board sends its own team. It is evident
from the records which fact has also been noticed by the Delhi High Court in its
judgment in Rahul Mehra (supra) that the Board fields its team as Indian Team
and not as Board Eleven, which without having any authority from the Union of India,
it will not be able to do. The stand that the cricket team selected by the
Board only represents it and not the country is incorrect. Having regard to the
rules of the ICC, its own rules as also various documents placed before this
Court by the Union of India, the conduct of both the Board and the Union of
India clearly go to show that sub silentio both the parties had been acting on
the premise that the Board is recognized as the only recognized National
Federation for the purpose of regulating the game of cricket in India.
Board is a society registered under the Tamil Nadu Societies Act.
not created under a Statute but it is an acknowledged fact that in terms of its
Memorandum of Association and rules framed by it, it has not only the monopoly
status as regard the regulation of the game of cricket but also can lay down
the criteria for its membership and furthermore make the law of sport of
cricket. The Board for all intent and purport is a recognized national
federation recognized by the Union of India. By reason of said recognition
only, an enormous power is exercised by the second Respondent which from
selection and preparation of players at the grass root level to organize Daleep
Trophy, Ranji Trophy etc. select teams and umpires for international events.
The players selected by the second Respondent represent India as their citizen. They use the
national colour in their attire. The team is known as Indian team. It is
recognized as such by the ICC. For all intent and purport it exercises the
Board is in a position to expend crores of rupees from its own earnings. The
tender in question would show that what sort of amount is involved in
distributing its telecasting right for a period of four years, inasmuch as both
the First Petitioner and the Fifth Respondent offered US $ 308 millions therefor.
status need not always be created by a law within the meaning of clauses 2 to 6
of Article 19 of the Constitution of India.
which carries on the monopolistic function of selecting team to represent the
nation and whose core function is to promote a sport that has become a symbol
of national identity and a medium of expression of national pride, must be held
to be carrying out governmental functions. A highly arbitrary or capricious
action on the part of such a powerful body would attract the wrath of Article
14 of the Constitution of India. The Board itself acted as a representative of
the Government of India before the international community. It makes
representations to the effect that it was entitled to select a team which
represents the nation as a cricket playing country, and, thus, the same would,
without anything more, make its action a State action. For the said purpose,
actual control of the Board or issuing any direction in that behalf by the
Government of India is not of much significance but the question as to whether
the Government, considering the facts and circumstances, should control the
actions of the Board as long as it purports to select a team to represent India
would be a matter of great significance. The guidelines issued by the Union of
India clearly demonstrate its concern with the fall in standard of Indian Team
in sports in important international sports events. It would not be correct to
draw a comparison between an event of international sport as significant as
cricket with beauty pageants and other such events as the test necessary to be
evolved in this behalf is the qualitative test and not the quantitative test.
The quality and character of a sport recognized as a measure of education and
nation building (as a facet of human resources development) cannot be confused
with an event that may be a form of entertainment. Cricket, as noticed
hereinbefore, has a special place in the hearts of citizens of India.
monopoly status of the Board is undisputed. The monopoly enjoyed by the Board
need not be a statutory one so as to conform to the tests contained in Clause
(6) of Article 19 of the Constitution. It can be a de facto monopoly which has
overtly or covertly received the blessings of Union of India. The de facto monopoly
of the Board is manifest as it, as a member of ICC (even if it is technically
possible to float any other association), can send an Indian Team abroad or
invite a foreign team onto India. In
absence of recognition from the ICC, it would not be possible for any other
body including the Union of India to represent India in the international Cricket events featuring competitive
would be the position in domestic cricket. The Board in view of enormity of
powers is bound to follow "the doctrine of fairness and good faith in all
its activities". [See Board of Control for Cricket, India & Anr.
object of Part III of our Constitution is to curtail abuse of power and if by
reason of the Board's activities, fairness in action is expected, it would answer
the description of "Other Authorities".
decisions rendered in different jurisdictions including those of this Court
clearly suggest that a body like the Board would come within the purview of the
expression "Other Authorities" contained in Article 12 of the
Constitution of India. For the said purpose, a complete new look must be
bestowed on the functions and structures of the Board. A public authority, in
my opinion, would be an authority which not only can regulate and control the
entire sports activities in relation to cricket but also the decisive character
it plays in formulating the game in all aspects. Even the Federations
controlled by the State and other public bodies as also the State themselves,
in view of the Board's Memorandum of Association and the Rules and Regulations
framed by it, are under its complete control. Thus, it would be subject to a
history of ICC has been noticed by the Court of Appeal in Greig (supra) and,
thus, it may not be necessary to retrace it over again.
not disputed that the Government in terms of its guidelines recognizes only the
Board. Its recognition whether formal or informal is evident as both the Union
of India and the Board proceeded on that basis. In international arena the regulated
cricket is also known as official cricket.
rules of the ICC suggest that a domicile of one country can play in county
clubs but only citizens or other persons who come within the purview of the
said rules must play for their country in test or other official matches in
terms of the ICC Rules. The tournaments are held between the countries and at
the domestic level between States/regions and the other clubs over which the
Board has an exclusive and complete control. In the international level, the
ICC recognizes the national federations only who are its members having regard
to the fact that these federations either represent a country or a geographical
area. The very fact that recognition of ICC has been extended to a geographical
area (as for example, the West Indies comprising of so many countries), goes to
show that for the said purpose the consensus amongst various bodies and several
nations is necessary.
true that a country as such is not a member of ICC and in some places of the
Rules for the purpose of election of the President, the country is represented
through its national federation which is its full time member. It is
furthermore true that the ICC Rules refer as a nation not only a 'country' but
also a geographical area covering several countries but a bare perusal of the
rules in its entirety would clearly go to show that only those national
federations which represent the country can become its whole time or associate
members. The expression "country" has been used at numerous places.
It is one thing to say that legally it is permissible to make a Club a member
but unless it has the national patronage, it is inconceivable that it can
obtain membership of ICC in any capacity. Theoretically in the ICC, the Board
is a member but it without State patronage directly or indirectly would reduce
its activities. In case any other body is recognized by the Union of India, it
would not be entitled to regulate the sport of cricket in India. Perforce it has to abandon its
functions outside the country.
Rules framed by the ICC, the principles of natural justice containing elements
right to a fair hearing; and
rule against bias has been specifically provided for.
are in keeping with the function of public body and not private body. But, so
far as the rules framed by the Board are concerned, the principles of natural
justice are required to be followed only in the event a disciplinary action is
contemplated and not otherwise.
submission of Mr. Venugopal that Union of India having made a categorical
statement before the Parliament as also in its affidavit in the case of Rahul Mehra
(supra) before the High Court of Delhi wherein it is accepted that the Board is
not under the control of the Union of India nor there exist any statutory rules
to regulate its functioning and further the issues raised in the said writ
petition relate to the internal functioning of the Board, which is autonomous
in its function, having regard to the materials on record may not be of much
significance. We must moreover notice that the Minister of Youth Affairs and
Sports in an answer to the Parliament also stated:
promotion of the game of cricket in the country is the responsibility of the
Board of Control for Cricket in India (BCCI) which is an autonomous
organization." Such responsibility on its part makes it a State actor.
query was made from the Board to give reply to a starred question dated
11.12.2001, the Board in its letter dated 13.05.2003 replied as follows:
would like to reiterate that the Annual Reports of BCCI are already available
with your Ministry." The tenor of the letter, thus, runs contrary to the
assertion of the Board that it has never sent its accounts to the Government.
accepted by the Union of India that the Board is an autonomous organization and
the Government of India does not hold any cricket match series as it is the
function of the Board, but that is all the more reason as to why it has its own
responsibilities towards officials, players, umpires, coaches, administrators
and above all the cricket loving public.
we may place on record that there are a number of documents filed by the Union
of India which clearly go to show that either for sending Indian Team abroad or
inviting a foreign team on the soil of India, the Board has invariably been taking permission from the Ministry of
Youth Affairs and Sports. In the counter affidavit filed before the Bombay High
Court, the Board raised a contention that it seeks permission of the Union of
India for obtaining visas, foreign exchange and matters connected therewith;
but the said contention cannot be accepted in view of the fact that had the
same been the position, the Ministry of Human Resource Development (which has
nothing to do in these matters), would not have been approached therefor and
that too in the form prescribed in the guidelines.
Board's activities representing the country is not confined to international
forums only. The Board within the country organizes and conducts the Ranji
Trophy, the Irani Trophy, the Duleep Singh Trophy, the Deodar Trophy and the
NKP Salve Challenge Trophy. Although, there are domestic events, indisputably
only those who are members of the Board and/or recognized by it can take part
therein and none else. This also goes to show that the Board regulates the
domestic competitive cricket to the fullest measure and exercises control over
its members which represents the five zones in India. All the States Federations besides a few other clubs which
are its members, two of which it will bear repetition to state, are
the Board is a regulator of cricket played at the country level both off and on
the fields including selection of players and umpires.
possesses and exercises all the powers to regulate international competitive
cricket. It exercises disciplinary power also as in case of violation of the rules,
a country member or the player may be derecognized.
ICC exercises a monopoly over the sports at the international level whereas
Board does so at the country level. It is the Board only, to the exclusion of
all others, that can recognize bodies who are entitled to participate in the
nominated tournaments. Players and umpires also must be registered with it. In
the event of violation of its rules and regulations, which may include
participation in an unauthorized tournaments without its permission, a player
or umpire would forfeit his right to participate in all official cricket
matches which for all intent and purport shall be the end of career of a
professional cricketer or umpire.
constitutional scheme rule of law would, by all means, prevail over rule of
cricket. A body regulating the game of cricket would be compelled by the court
to abide by rule of law.
of the claim of the Board that its players play for it and not for India is belied by the claim of the
former players who categorically stated that they have played for India and not for the Board.
players play for the Board, the Team is named as Board-Eleven.
'The Times of India' October24, 2004 and 'Hindustan Times' October 24, 2004]. It undertakes activities of entering into contracts for
telecasting and broadcasting rights as also advertisements in the stadia.
considering the status of the Board vis-`-vis Article 12 of the Constitution of
India, the Central Government's reluctance to interfere with its day to day
affairs or allowing it to work as an autonomous body, non- assistance in terms
of money or the administrative control thereover may not be of much relevance
as it was not only given de facto recognition but also it is aided, facilitated
or supported in all other respects by it.
would not be correct to contend that a monopoly status upon a body must be
conferred either by way of statute or by the State by issuing an appropriate
order in that behalf. The question as regard exercise of monopoly power by the
Board of must be determined having regard to the ground realities i.e. it not
only represents the country but also controls and regulates the entire field of
the fact that the relationship between the Board and the players is not that of
an employer and employee, but the players are within its complete control.
Sports activities of the countries being not a commercial activity, as has been
held in Cricket Association of Bengal (supra), the same must be considered from
a larger spectrum of the Indian citizenary as a whole.
not disputed that as of now except the Board there is no other authority in the
field. The rules framed by the Board do not spell out as to how without virtual
recognition of the Union of India as also the patronage of States whether de
facto or de jure it could become a national federation and how it could become
a member of the ICC. It does not furthermore disclose as to how it could having
regard to its professed function as a private club, could grant to itself
enormous powers as are replete in its rules and regulations. Rules and regulations
framed by the Board speak out for themselves as to how it represents Indian
cricket team and regulates almost all the activities pertaining thereto. It
also legislates law of sports in India in the field of competitive cricket. There is no area which is beyond
of the control and regulation of the Board. Every young person who thinks of
playing cricket either for a State or a Zone or India must as of necessity be a member of the Board or its
members and if he intends to play with another organization, it must obtain its
permission so as to enable him or continue to participate in the official
matches. The professionals devote their life for playing cricket. The Board's
activities may impinge on the fundamental rights of citizens.
is no gainsaying that there is no organization in the world other than the ICC
at the international level and the Board at the national level that control the
game of first class cricket. It has, thus, enormous power and wields great
influence over the entire field of cricket. Cricket when it comes to
competitive matches no longer remains a mere entertainment it commands such a
wide public interest. It is now recognized that game of cricket as an activity
gives a sense of identity and pride to a nation.
meaning attributed to the wordings of the Article 12 would lead to the
conclusion that the Board is a State. It is true that while developing the law
operating in the field a strict meaning was not adhered to by this Court but it
may not now be possible to put the clock back. We must remind ourselves that if
Article 12 is subjected to strict constructions as was sought to be canvassed
by Lahoti, J. in his minority opinion in Pradeep Kumar Biswas (supra), the same
would give way to the majority opinion.
sum, the control of the Board over the sport of competitive cricket is deep and
pervasive, nay complete.
word 'control' has been defined in Black's Law Dictionary in the following
or authority to manage, direct, superintend, restrict, regulate, govern,
administer, oversee." In Bank of New South Wales v. Common Wealth, [76 CLR
1], Dixon, J., observed that the word 'control' is 'an unfortunate word of such
wide and ambiguous import that it has been taken to mean something weaker than
'restraint', something equivalent to 'regulation'. Having regard to the purport
and object of activities of the Board, its control over 'cricket' must be held
to be of wide amplitude.
not correct that the Board represents itself in international area.
represents the country, indisputably it must have the implied sanction of the
Government of India to do so. Its activities, thus, have so far-reaching effect
Union of India has since filed affidavits categorically stating that the Board
is a 'State' within the meaning of Article 12 of the Constitution of India. It
has further been stated that not only the Board is recognized de facto but it
had all along been seeking permission for going abroad from the Ministry of
Human Resource Development (Ministry of Youth Affairs and Sports).
players who participate in the competitive cricket whether domestic or
international are not amateurs; but professionals. They play on receipt of
remuneration therefor and furthermore make a lot of earnings by way of
advertisements. They participate in the game for a purpose.
Board's commands bind all who are connected with cricket. The rules and
regulations framed by it for all intent and purport are "the code"
which regulate an important aspect of national life. Such codes on the premise
whereof the Board has been permitted by all concerned including the Union of
India and the States to operate so as to regulate and control not only the
sport of cricket as such but also all other intimately connected therewith and
in particular the professionals.
not in dispute that the players wear national colours in their attires and it
also appears from the correspondences that the Board drew the attention to the
Government of India that the players to show their pride of being Indian also
exhibit Ashok Chakra on their helmets. [(2004) 2 SCC 510] this Court as regard
right of a citizen to fly the Indian National Flag observed:
National Flags are intended to project the identity of the country. They
represent and foster national spirit.
distinctive designs and colours embody each nation's particular character and
proclaim the country's separate existence. Thus it is veritably common to all
nations that a national flag has a great amount of significance" The State
had been taking on more and more sports related activities and thus courts have
examined the purport and ambit of activities of such bodies keeping in view
wider and wider range of measures the executive and the Central Government
having regard to its functions and object, had also been granted exemption from
payment of Income-tax. Such exemption has been granted with a view to fulfill
its objectives to promote sports of cricket.
Board, thus, in terms of ICC Rules, is representative of India.
membership although is in the name of the Board; it is the country which
matters. It may be that when the Board and the ICC were constituted the concept
was that the game of cricket would be played by clubs but with the passage of
time, the concept has undergone a sea change. In any event, the ICC does not
say that it does not recognize the country and merely recognizes the clubs.
Board (although such a contention has not been raised in any affidavit but in
the written submissions only) allegedly spends crores of rupees in providing
funds to construction of stadia, running zonal cricket academies under national
cricket academy, providing the State Associations with modern gymnasium
equipments, medical expenses of the players, pension scheme and expenditure on
coaches, physiotherapists, trainers, etc., but it is not disputed that it earns
a lot of revenue through sale of tickets, advertisements in the stadia, selling
of advertisement in the electronic media, giving out contracts by way of food
stalls and installation of other stalls, selling of broadcasting and telecast
rights, highlight programmes. The Board is admittedly not a charitable trust.
State legislature as also the Parliament have the legislative competence to make
legislation in respect of sports, but no such legislation has yet seen the
light of the day. We have noticed hereinbefore that the Board in terms of its
Memorandum of Association as also rules and regulations framed by it is
entitled to make laws for Cricket in India. The States and the Union of India despite knowledge did not object
thus, made themselves bound by the said Rules and Regulations. In that sense,
exercise of law making power contemplated by legislation has been outsourced to
Board which represents a nation with or without a statutory flavour has duties
to perform towards the players, coaches, umpires, administrators and other team
officials. They have a duty to create safe rules for the sport, if by reason
thereof a physical injury to the player is to be avoided and to keep safety
aspect under ongoing review. A body may be autonomous but with autonomy comes
responsibility. Sport is a "good thing" wherefor a societal end is to
be provided. Sport must receive encouragement from the State and the general
public or at least not discouraged. Health, sociability and play are considered
to be important values to be recognized in a human.
of games and sports in terms of Entry 33 of the State List and Entries 45 and
97 of the Union List is a State function. We have noticed the main objects of
the Board which are to promote, control, regulate, make laws for the country
and encourage the game of cricket. The Union of India or the respective
Governments of the States in stead and place of making a legislation have
thought it fit to allow the sports bodies to grow from its grass-root level by
applying the reverse pyramid rules and by encouraging all associations and
federations from village level to national level. We have seen that whereas in
each State there is a State federation, they must as of practice or precedent
become a member of the Board. State Federations and some other organizations
essentially having regard to their respective nature of functions only are
members of the Board. They include Association of Indian Universities, Railway
Sports Control Board and Services Sports Control Board.
having regard to the nature of activities, viz., the Board represents a
sovereign country while selecting and fielding a team for the country with
another sovereign country promoting and aiming at good relations with the said
country as also peace and prosperity for the people, even at the domestic level
the citizens of the said country may be held to be entitled to the right to
invoke the writ jurisdiction of this Court even if thereby no personal
fundamental right is directly infringed.
the opening up of economy and globalization, more and more governmental
functions are being performed and allowed to be performed by private bodies.
When the functions of a body are identifiable with the State functions, they
would be State actors only in relation thereto.
authority necessarily need not be a creature of the statute. The powers enjoyed
and duties attached to the Board need not directly flow from a statute. The
Board may not be subjected to a statutory control or enjoy any statutory power
but the source of power exercised by them may be traced to the legislative
entries and if the rules and regulations evolved by it are akin thereto, its
actions would be State actions. For the said purpose, what is necessary is to
find out as to whether by reason of its nature of activities, the functions of
the Board are public functions. It regulates and controls the field of cricket
to the exclusion of others. Its activities impinge upon the fundamental rights
of the players and other persons as also the rights, hopes and aspirations of
the cricket loving public. The right to see the game of cricket live or on television
also forms an important facet of the Board. A body which makes a law for the
sports in India (which otherwise is the function of the State), conferring upon
itself not only enormous powers but also final say in the disciplinary matter
and, thus, being responsible for making or marring a citizen's sports career,
it would be an authority which answers the description of "other
Board, it appears, even nominates cricketers for the Arjuna Awards.
game of cricket both in the domestic fora as also the international fora cannot
reach the desired results unless the Board acts in terms of the governmental
policies or the government is entwined in its management or control of the
Board or any of its agencies statutory or otherwise. Apart from the above, the
other tests laid down in Brentwood Academy (supra), viz., "willful participant in joint activity
with the State or its agents", in our opinion, would make the Board as a
activities undertaken by the Board were taken note of in the case of Cricket
Association of Bengal (supra). Therein this Court inter alia rejected the
contention of the Ministry of Information and Broadcasting that the activities
of the Association was a commercial one and it had been claiming a commercial
right to exploit the sporting event as they did not have the right to telecast
the sporting event through an agency of their choice in the following terms:
have pointed out that that argument is not factually correct and what in fact
the BCCI/CAB is asserting is a right under Article 19(1)(a). While asserting
the said right, it is incidentally going to earn some revenue. In the
circumstances, it has the right to choose the best method to earn the maximum
revenue possible. In fact, it can be accused of negligence and may be
attributed improper motives, if it fails to explore the most profitable avenue
of telecasting the event, when in any case, in achieving the object of
promoting and popularizing the sport, it has to endeavour to telecast the cricket
matches." The aforementioned findings pose a question. Could this Court
arrive at such a finding, had it not been for the fact that the association
exercises enormous power or it is a 'State' within the meaning of Article 12.
If Cricket Association of Bengal (supra) was considered to be a pure private
body where was the occasion for this Court to say that 'if it fails to explore
the most profitable avenue of telecasting the event whereby it would achieve
the object of promoting and popularizing the sport, it may be accused of
negligence and may be attributed improper motives?' Applying the tests laid
down hereinbefore to the facts of the present case, the Board, in our
considered opinion, said description. It discharges a public function. It has
its duties towards the public. The public at large will look forward to the
Board for selection of the best team to represent the country. It must manage
its housekeeping in such a manner so as to fulfill the hopes and aspirations of
millions. It has, thus, a duty to act fairly. It cannot act arbitrarily,
whimsically or capriciously. Public interest is, thus, involved in the
activities of the Board. It is, thus, a State actor.
therefore, are of the opinion that law requires to be expanded in this field
and it must be held that the Board answers the description of "Other
Authorities" as contained in Article 12 of the Constitution of India and
satisfies the requisite legal tests, as noticed hereinbefore. It would,
therefore, be a 'State'.
bound hands and feet by Pradeep Kumar Biswas (supra)? The answer to the
question must be found in the law of precedent. A decision, it is trite, should
not be read as a statute. A decision is an authority for the questions of law
determined by it. Such a question is determined having regard to the fact
situation obtaining therein. While applying the ratio, the court may not pick
out a word or a sentence from the judgment divorced from the context in which
the said question arose for consideration. A judgment, as is well-known, must
be read in its entirety and the observations made therein should receive
consideration in the light of the questions raised before it. [See Punjab
National Bank vs. R.L. Vaid and Others (2004) 7 SCC 698] Although, decisions
are galore on this point, we may refer to a recent Mahamandal and Others [AIR
2004 SC 3894] wherein this Court held:
is trite that any observation made during the course of reasoning in a judgment
should not be read divorced from the context in which they were used." It
is further well-settled that a decision is not an authority for the proposition
which did not fall for its consideration.
also a trite law that a point not raised before a Court would not be an
authority on the said question.
A-One Granites v. State of U.P. and
Others [(2001) 3 SCC 537], it is stated as follows :-
This question was considered by the Court of Appeal in Lancaster Motor Co.
(London) Ltd. v. Bremth Ltd. (1941) 1 KB 675, and it was laid down that when no
consideration was given to the question, the decision cannot be said to be
binding and precedents sub silentio and without arguments are of no moment.
(1) SC 303], and Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & Anr.
para 42 - (2005) 1 SCALE 385].
have noticed, hereinbefore, that in Pradeep Kumar Biswas (supra) the only
question which arose for consideration was as to whether the decision of the
Constitution Bench in Sabhajit Tewary (supra) was correctly rendered by a
Constitution Bench of 5-Judges. As the said decision centered around the
activities of CSIR vis-`-vis the tests laid down therefor in Sabhajit Tewary
(supra), the ratio must be understood to have been laid down in respect of the
questions raised therein. The questions raised herein were neither canvassed
nor was there any necessity therefor. Pradeep Kumar Biswas (supra), therefore,
cannot be treated to be a binding precedent within the meaning of Article 141
of the Constitution of India having been rendered in a completely different
question has been considered by us on the touchstone of new tests and from a
because a body answers the description of a public authority, discharges public
law functions and have public duties, the same by itself would not lead to the
conclusion that all its functions are public functions.
are not. (See Donoghue (supra)) Many duties in public law would not be public
duties as, for example, duty to pay taxes.
of illustration, we may point out that whereas mandamus can issue directing a
private body discharging public utility services in terms of a statute for
supply of water and electricity energy, its other functions like flowing from a
contract etc. would not generally be amenable to judicial review. (See
Constitutional and Administrative Law By A.W. Bradley and K.D. Ewing Page 303)
There are numerous decisions of this Court where such a distinction between
public law function and private law function has been drawn by this (1986) 1
SCC 264 at 343 & 344, para 101, Kerala State Electricity Board Raghunath Gajanan
Waingankar, 2004 AIR SCW 4701] In Johri Mal (supra) it is stated:
legal right of an individual may be founded upon a contract or a statute or an
instrument having the force of law. For a public law remedy enforceable under
Article 226 of the Constitution, the actions of the authority need to fall in
the realm of public law be it a legislative act or the State, an executive act
of the State or an instrumentality or a person or authority imbued with public
law element. The question is required to be determined in each case having
regard to the nature of and extent of authority vested in the State. However,
it may not be possible to generalize the nature of the action which would come
either under public law remedy or private law field nor is it desirable to give
exhaustive list of such actions.
supplied) The submission of the learned counsel for the Board that once it is
declared to be a 'State'; the consequences would be devastating inasmuch as all
its activities would be subject to government control, with respect, cannot be
accepted as in absence of any statute or statutory rules no such control can
ordinarily be exercised by Union of India or State.
not necessary for us to consider as to whether for entering into a contract
with the players or for their induction in a team, the provisions of Articles
14 and 16 are required to be complied with as no occasion threrefor has yet
arisen. It is, however, necessary to mention that a question as to whether a
function of the Board would be a public function or a private function would
depend upon the nature and character thereof. This Court cannot be asked to
give a hypothetical answer to a hypothetical question.
contention of Mr. Venugopal to the effect that the consequences of treating the
Board as State will be disastrous inasmuch as all the national sports
federations as well as those bodies which represent India in the international fora
in the field of art, culture, beauty competitions, cultural events, music and
dance, science and other conferences or competitions relating to any subject
would become a 'State' is one of the desperation.
clarify that this judgment is rendered on the facts of this case. It does not
lay down a law that all national sports federations would be State.
other federations, one of the important factors which has been taken note of in
rendering the decision is the fact that the game of cricket has a special place
in India. No other game attracts so much
attention or favour.
no other sport, in India, affords an opportunity to make a
livelihood out of it. Of course, each case may have to be considered on its own
merit not only having regard to its public functions but also the memorandum of
association and the rules and regulations framed by it.
because it is a State within the meaning of Article 12, the same by itself
would not mean that it is bound by rule of reservation as contained in Clause 4
of Article 15 and Clause 4 of the Article 16 of the Constitution of India.
209], it has been held that Article 16(4) is an enabling provision and, thus,
it is not mandatory. The State in its discretion may provide reservation or may
not . [See also E.V. Chinnaiah vs. State of Andhra Pradesh & Ors. 2004 (9)
SCALE 316] Furthermore, only because a corporation or a society is a State, the
same would not necessarily mean that all of its actions should be subject to
judicial review. The court's jurisdiction in such matter is limited. [See Johrimal
furthermore well-settled that issuance of a writ is discretionary in nature.
The Court may in a given case and in larger interest may not issue any writ at
vehemently argued that if the Board is held to be a State within the meaning of
Article 12 of the Constitution, the doors of this Court and the High Courts
would be knocked at very frequently questioning all and single action of the
Board which may include selection of players for Indian Team, day to day
functioning et al. We do not agree.
in Virendra Kumar Srivastava (supra), this Court held:
parting with the case, it is necessary for us to clarify that even though a
body, entity or Corporation is held to be a 'State' within the definition of
Article 12 of the Constitution what relief to the aggrieved person or employee
of such a body or entity is to be granted is a subject matter in each case for
the court to determine on the basis of the structure of that society and also
its financial capability and viability. The subject of denial or grant of
relief partially or fully has to be decided in each particular case by the
court dealing with the grievances brought by an aggrieved person against the
bodies covered by the definition of 'State' under Article 12 of the
Constitution." The "in terrorem" submission of Mr. Venugopal
that a floodgate of litigation would open up if the Board is held to be a State
within the meaning of Article 12 of the Constitution cannot also be accepted.
Floodgate arguments about the claimed devastating effect of being declared a
State must be taken with a grain of salt. The courts, firstly, while
determining a constitutional question considers such a question to be more or
less irrelevant. [See Guruvayoor Devaswom Managing Committee and Another as
would be noticed hereinafter that this Court has evolved principles of judicial
restraint as regards interfering with the activities of a body in policy
matters. It would further appear from the discussions made hereinbefore that as
all actions of the Board would not be subject to judicial review. A writ would
not lie where the lis involves only private law character.
not oblivious of the fact that one of the grounds why the English Courts refused
to broaden the judicial review concept so far as the sporting associations are
concerned, that the same would open floodgate.
P.P. Craig's Administrative Law) Unlike England, India has a written
Constitution, and, thus, this Court cannot refuse to answer a question only
because there may be some repercussions thereto. As indicated hereinbefore,
even the decisions of this Court would take care of such apprehension.
interesting to note that Lord Denning M.R. in Bradbury and others vs. London Borough
of Enfield (1967) 3 All ER 434] held:-
has been suggested by the Chief Education Officer that, if an injunction is
granted, chaos will supervene. All the arrangements have been made for the next
term, the teachers appointed to the new comprehensive schools, the pupils
allotted their places, and so forth. It would be next to impossible, he says,
to reverse all these arrangements without complete chaos and damage to
teachers, pupils and public. I must say this: if a local authority does not fulfil
the requirements of the law, this court will see that it does fulfil them. It
will not listen readily to suggestions of "chaos". The department of
education and the council are subject to the rule of law and must comply with
it just like everyone else. Even if chaos should result still the law must be
obeyed but I do not think that chaos will result. The evidence convinces me
that the "chaos" is much over- stated..I see no reason why the
position should not be restored, so that the eight school retain their previous
character until the statutory requirements are fulfilled. I can well see that
there may be a considerable upset for a number of people, but I think it far
more important to uphold the rule of law. Parliament has laid down these
requirements so as to ensure that the electors can make their objections and
have them properly considered. We must see that their rights are upheld."
the reasons aforementioned, we are of the considered view that the writ
petition under Article 32 of the Constitution of India is maintainable. It is