Report No. 275
Minority View in Zee Telefilms Case
6.9 The minority view in the Zee Telefilms case was expressed by Justice Sinha on behalf of Justice S.N. Variava and himself; and the same deserves a special mention here. It was said that our Constitution is an ongoing document and thus requires a liberal interpretation and therefore the interpretation of Article 12 with regard to the exclusive control and management of the game of cricket by the Board and the enormous power exercised by it, called for a new approach.156
6.10 The minority judges also maintained that the Pradeep Kumar Biswas judgement was not a binding precedent within the meaning of Article 141 of the Constitution. This was because the question which arose in the Pradeep Kumar Biswas case was, whether the judgment in Sabhajit Tewary was correctly rendered or not. Since the decision in Pradeep Kumar Biswas case revolved around the activities of CSIR vis-à-vis the tests laid down in Sabhajit Tewary case, the ratio must be considered to be in respect of those questions only. They added that the questions raised in the present case were "neither canvassed nor was there any necessity therefor".157
6.11 It was further said that: Broadly, there are three different concepts which exist for determining the questions which fall within the expression 'other authorities':
(i) 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.
(ii) Bodies created for research and other developmental works which are otherwise governmental functions but may or may not be a part of the sovereign function.
(iii) 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.158
6.12 The judges (minority view) further observed that one cannot have the same yardstick for judging different bodies to ascertain whether any of them fulfils the requirement of the law and what actually is necessary to see are the functions of the body concerned.159
6.13 After perusal of both domestic and foreign jurisprudence, the learned judges laid down certain tests that could assist in solving this complex issue:160
(i) When the body acts as a public authority and has a public duty to perform.
(ii) When it is bound to protect human rights.
(iii) When it regulates a profession or vocation of a citizen which is otherwise a fundamental right under a statute or its own rule.
(iv) When it regulates the right of a citizen contained in Article 19(1)(a) of the Constitution available to the general public and viewers of the game of cricket in particular.
(v) When it exercises a de facto or a de jure monopoly.
(vi) When the State outsources its legislative power in its favour.
(vii) When it has a positive obligation of public nature.
6.14 Continuing thereon, it was said that the traditional tests of control - financial, functional and administrative, by the Government as laid down in Pradeep Kumar Biswas case would apply only when a body is created by the State itself for different purposes but incorporated under the Companies Act or registered under the Societies Registration Act. Those tests may not be applicable in a case like that of BCCI, where it was established as a private body many years ago. Being allowed by the State to represent the country at the international stage it became an archetypal body for Indian cricket.
The magnanimity and enormity of the functions of BCCI provide it with a monopolistic status for all practical purposes. BCCI tinkers with the fundamental rights of citizens pertaining to their right of speech or right of occupation, and has a final say in several matters such as those of registration of players, umpires and others connected with the game of cricket, which is extremely popular in the country.
6.15 By virtue of being the organisers of competitive cricket between one association and another or representing different States or different organisations having the status of State, making bye-laws for the same BCCI is de facto legislating on 'sport' related activities. This is essentially a State function in terms of Entry 33 List II of the Seventh Schedule of the Constitution. Additionally, BCCI enjoys State patronage as a national federation, conferred by the Central Government. This necessitates and justifies the application of a different test.161
6.16 Thus, it can be seen that the minority judgment in the Zee Telefilms case did make some very interesting points which are extremely pertinent to the discussion endeavoured here.
6.17 Now, in conjunction with the above deliberation some uncontentious points can be culminated as follows:
1. With BCCI, one finds an entity permitted de facto by the State to represent the country at the international stage. BCCI selects the 'Indian Team', and the selected players wear the national colours.162
2. ICC recognises BCCI as the 'official' body representing India.
3. Neither the Government, nor BCCI have ever sought to challenge, discuss or change the aforesaid status.
4. BCCI practically enjoys a monopolistic status in controlling and regulating the game of cricket in India. BCCI controls the policy formulation related to cricket and its implementation, affecting the country at large, which is essentially a State function.163
5. BCCI and its actions/activities, directly and indirectly, affect the fundamental rights of citizens, players, and other functionaries.
6.18 The aforementioned points bear a striking resemblance to a 'State-like' entity wielding 'State-like' powers. In light of these facts, it is difficult to convince oneself that BCCI does not fall within the definition of 'State' under Article 12.
6.19 Moreover, the doctrine of contemporaneaexpositio entails that "the best meaning of a statute or document is the one given by those who enacted it or signed it, and that the meaning publicly given by contemporary or long professional usage is presumed to be the correct one, even if the language may have a popular or an etymological meaning that is very different."164 This rule has been applied by the Supreme Court in several cases. However, the Court added words of caution that such a rule must give way where the language of the statute is plain and unambiguous.165
6.20 BCCI's political significance is also highlighted, time and again, by the desire of governing parties to control it by controlling the position at the helm of the Board. As has been noted on several occasions over the years that the post of the President of BCCI was occupied by a politician owing allegiance to the then governing political party.
For example: Mr. N.P.K. Salve, veteran politician and Union Minister from INC was the BCCI President between the years of 1982 and 1985; Mr. Madhavrao Jivajirao Scindia, politician and Minister from INC held the position from1990 to 1993; Mr. Ranbir Singh Mahendra, politician from INC between the years 2004 and 2005; Mr. Sharad Pawar politician from Nationalist Congress Party and a Cabinet Minister in the UPA-I Government from the year 2005 to 2008; and, very recently Mr. Anurag Thakur, a Member of Parliament from BJP was the BCCI President from 2016 to 2017.