Report No. 275
BCCI -Performing 'Public Functions'?
6.21 The answer to this question would be in affirmative taking into consideration the judgments/decisions of the Apex Court, various High Courts and other adjudicatory bodies at the Central and State level. It has been explicitly observed in various cases that BCCI enjoys a monopoly status in the cricketing domain, which is recognised by the Union Government as well as the ICC, the international governing body of cricket.166
The intent of the Government of India, to hold BCCI accountable under RTI Act, by tacitly recognising it as an NSF and thereby a 'public authority' was abundantly clear by the answer provided by the Minister of Youth Affairs and Sports, in the Lok Sabha.
6.22 Justice Sinha while discussing the scope of public functions, in the Zee Telefilms case, referred to the book American Constitutional Law by Laurence H. Tribe, where such functions are described in the following terms:167
The 'public function' cases. -When 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 public 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....
6.23 With respect to regulation of cricket in India, it is true that there exists no such legislation, Central or State. BCCI took on the role of regulating the game, makes laws to that effect, which were allowed by the State. Justice Sinha further observed that many public duties are prescribed by the courts rather than laid down by the Legislature, and 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 recognised by them."168
6.24 Thus, it can be concluded that the monopolistic nature of the power exercised by BCCI, the de facto recognition afforded by the Government, the impact of the Board's actions/decisions on the fundamental rights of the players, umpires and the citizenry in general, entail that the nature and character of functions performed by BCCI are that of public functions.