Supreme Court of India
M/S. ZEE TELE FILMS LTD. AND ANR.versusUNION OF INDIA AND ORS.
- Citation
- 2005 INSC 59
- Decided
- 2 February 2005
- Disposal
- Dismissed
- Bench
- N SANTOSH HEGDE
Holding
The Board of Control for Cricket in India is not an "other authority" within the meaning of Article 12 and therefore the writ petition under Article 32 is not maintainable.
Summary
The petitioners challenged the Board of Control for Cricket in India (BCCI) under Article 32, alleging that its cancellation of a television rights tender violated their fundamental rights and that the Board should be treated as a "State" within the meaning of Article 12, making it subject to judicial review. The Court examined whether the BCCI, a society registered under the Tamil Nadu Societies Registration Act, exercised sufficient governmental control, financial dependence, and public functions to qualify as an "other authority" under Article 12. Relying on the seven‑judge precedent in Pradeep Kumar Biswas and earlier tests from Ajay Hasia, Sukhdev Singh and Rajasthan State Electricity Board, the majority held that the Board is not created by statute, receives no pervasive financial or administrative control from the Union, and its monopoly is not State‑conferred; therefore it is not a "State" for Article 12 purposes and the writ petition is not maintainable. The minority opinion argued the opposite, but the majority view prevailed. The petition was dismissed.
Issues considered
- The question whether the Board of Control for Cricket in India (BCCI) falls within the definition of "the State" under Article 12 of the Constitution of India.
- Whether the BCCI's functions, monopoly status and de‑facto recognition by the Union amount to sufficient control to render it an "other authority" subject to Article 32 writ jurisdiction.
- Whether a violation of fundamental rights (Article 19(1)(g) and Article 14) can be invoked against a private body that is not a State.
Legislation cited
- Constitution of Indias. Article 12, s. Article 136, s. Article 14, s. Article 141, s. Article 15, s. Article 16, s. Article 19(1)(g), s. Article 19(6), s. Article 226, s. Article 298, s. Article 32, s. Article 33 (List II), s. Article 73, s. Article 77
Subjects
Article 12other authoritiesState definitionBCCIpublic authorityjudicial reviewArticle 19(1)(g)fundamental rightsmonopolysports regulationwrit petitionArticle 32
Judgment
MIS. ZEE TELE FILMS LTD. AND ANR. A
V.
UNION OF INDIA AND ORS.
FEBRUARY 2, 2005
[N. SANTOSH HEGDE, S.N. VARIAVA, B.P. SINC. H, rl..K. SEMA AND B
S.B. SINHA, JJ.]
Constitution of India, 1950; Articles 12, 14, 15, 16, 19, 32, 136, 141 226
and 298; Entry Nos. 45 and 97 of Union list, 33 of State list and 25 of C
Concurrent List:
Grant of right to telecast cricket matches for certain period infavour of
appellant by Board ofCricket Control in /ndia-Cancellation---Challenge to--
Held by the Court: Board is not an authority/other authority-Hence, writ
against it not maintainable.
D
Held, per majority : An authority must be created by statute having
powers to make laws/rules/regulations could only be called as other authority
in terms of Article 12 of the Constitution-However, Supreme Court could
assign the term 'authority' a wider meaning by judicial interpretation to prevent
the Government from by-passing its constitutional obligations-Merely because E
a non-governmental body performing some public duty that by itself would not
suffice to make such a body other authority-Board is not financially!
administratively/functionally under the effective control of the Government -
Since Board has not been performing its functions as an authorized
representative of the State, it cannot be called as an instrumentality of the
State-Moreover, Central Government's control over certain activities of the F
Board is regulatory in nature and, thus, cannot be termed as pervasive contra/-
Hence, the Board is not an authority.
Held, per minority :
Constitution is an ongoing document and thus should be interpreted G
liberally-Article 12 of the Constitution must receive a purposive
interpretation-Board has been allowed by the Government of India to exercise
enormous powers to control the game of cricket and even to trespass across
the jimdamental rights of citizens-Any activity having direct influence on the
913 II
914 SUPREME COURT REPORTS [2005] I S.C.R.
A citi=ens could be idenlifled as an aclivity of Stale, and thus p11h/icfi111clions-
Presence!ahsence of a pariicular eleme1111101 determi11a1ive ofcharacreristics
of an aulhority, if on overall consideration it salisfies ingredients of Article 12
of the Co11stitulio11-Si11ce Board regulates and exercise comrol over the
competitive crickel/members and represent a sovereign counllJ'. India, while
participating in national/internaliona/ events, it is an aulhority/state-Since
B the Board is performing regulatory fimctions, it could be compelled by the
Court of Law to abide by rule of law-Writ jurisdiction of Supreme Court!
High Court could be invoked against it.
Article 141-Law laid down by the Supreme Court-Applicability of
C Stalutory Authority vis-a-vis public authority-Distinction between.
Functioning of a body-Judicial Review-Scope of-Discussed
The question which arose for consideration was as to whether the
Board of Cricket Control in India falls within the definition of 'the State'
D as contemplated by Article 12 of the Constitution of India.
+
It was contended for the petitioners that the Board enjoys extensive
powers in terms of the Memorandum and Articles of the Association, in
..
selecting players for the Indian National Team, representing India in
cricket matches domestically and internationally; that the Board enjoys
E disciplinary power over the players/umpires and other officials involved
in the game; that the Board exercises Governmental functions in the game
of Cricket; that since playing cricket is a profession, the Board controls
the fundamental right of a citizen under Article 19(l)(g) of the
Constitution; and that since Union of India has pervasive control over the'
F activities of the Board, it could appropriately be termed as "other .../
authority" in terms of Article 12 of the Constitution. ,,
It was contended by Respondent No.2 - Board that a petition under
Article 12 of the Constitution is not maintainable against it since it is not
"State" within the meaning of Article 12 of the Constitution of India; tha1t
G it is not created by any statute but registered under the Societies
Registration Act; that it is an autonomous body, administration of which
is not controlled by any other authority including Union of India; that it t
does not take any financial assistance from the Government nor is it
subjected to any financial control by the Government nor its accounts are
subject to the scrutiny of the Government; that it is not conferred with
H
ZEE TELE flLMS LTD. v. U.0.1. 915
monopoly status in the game of cricket by any statute or by any order of A
the Government; that there is no law which prohibits th:; coming into
existence of any other parallel organization; that as per the parameters
laid down by the Seven Judge Bench of this Court in the case of Fradeep
Kumar &nms v. Indian Institute of Chemical Biology and Ors. the Board
cannot be construed as State for the purpose of Article 12 of the
Constitution. B
Dismissing the writ petition, the Court
}.
HELD: Per Majority (N. Santosh Hegde, J. for himself, B.P. Singh and
H.K. Sema, JJ.) :
c
I. I. The intention of the Constitution framers in incorporating
Article 12 was to treat such authority which has been created by law and
which has got certain powers to make laws, to make rules and regulations
to be included in the term "other authorities" as found presently in Article
12 of the Constitution. Because of the change in the socio-economic policies
of the Government this Court considered it necessary by judicial D
interpretation to give a wider meaning to the term "other authorities .. in
Article 12 so as to include such bodies which were created by Act of
Legislature. This judicial expansion of the term "other authorities" came
about primarily with a view to prevent the Government from by-passing
its constitutional obligations by creating companies, corporations etc. to E
perform its duties. (935-D; 937-A-B(
The University of Madras v. Shantha Bai and Anr., AIR (1954) Madras,
67 and B. W. Devadas v. The Selection Commitlee for Admission of Students
to the Karnalak Engineering College and Ors .. AIR (1964) Mysore 6,
referred to. F
1.2. Applying the principles laid down by seven Judge Bench in the
case of Pradeep Kumar Biswas to the facts and circumstances of the present
case, it would be clear that the facts established do not cumulatively show
that the Board is financially, functionally or administratively dominated
by or is under the control of the Government. The little control which the G
Government may be said to have on the Board is also not pervasive in
nature. Besides, such limited control is purely regulatory control and
nothing more. Though some of the functions being performed by the Board
do partake the nature of public duties or State actions but they being in
a very limited area of the activities of the Board. Even otherwise assuming H
916 SUPREME COURT REPORTS f2005] 1 S.C.R.
A that there is some clement of public duty involved in the discharge of the
Board's functions even then that by itself would not suffice for bringing
the Board within the net of "other authorities" for the purpose of Article
12 of the Constitution. (942-B-C-DI
Pradeep Kumar Biswas v. Indian Institute ofChemical Biology and Ors.,
B 120021ssec111, followed.
2.1. There is no doubt that Article 19(l)(g) of the Constitution
guarantees to all citizens the fundamental right to practise any profession
or to carry on any trade, occupation or business and that such a right
can only be regulated by the State by virtue of Article 19(6). Hence, it
C follows as a logical corollary that any violation of this right will have to
be claimed only against the State and unlike the rights under Articles 17
or 21 which can be claimed against non state actors including individuals,
the right under Article 19(l)(g) cannot be claimed against an individual
or a non State entity. Thus, to argue that every entity, which validly or
D invalidly arrogates to itself the right to regulate or for that matter even
starts regulating the fundamental right of the citizen under Article +
19(1)(g), is a State within the meaning of Article 12 is to put the cart before
the horse. If such logic were to be applied every employer who regulates
the manner in which his employee works would also have to be treated as
State. 1943-A-B-CJ
E
2.2. The pre-requisite for invoking the enforcement of a fundamental
right under Article 32 is that the violator of that right should be a State
first. The petitioner has failed to establish that the Board is State within
the meaning of Article 12. Assuming there is violation of any fundamental
right by the Board that will not make the Board a "State" for the purpose
F of Article 12. (943-D-EI
3.1. It should be borne in mind that the State/Union has not chosen
the Board to perform the duties being performed by it nor has it legally
authorized the Board to carry out these functions under any law or
G agreement. It has chosen to leave the activities of cricket to be controlled
by private bodies out of such bodies' own volition. In such circumstances
when the actions of the Board are not actions as an authorized
representative of the State, it can not be said that the Board is discharging
State functions. 1943-H; 944-AI
H 3.2. It is true that the Union of India has been exercising certain
ZEE TELE FILMS LTD. v. U.0.1. 917
control over the activities of the Board in regard to organizing cricket A
matches and travel of the Indian team abroad as also granting of
permission to allow foreign teams to come to India. But this control over
the activities of the Board cannot be construed as an administrative
control. At best it could be termed as purely regulatory control and the
same is not a factor indicating a pervasive State control of the Board. B
1944-D-E)
4.1. If the Board which controls the game of Cricket is to be held to
be a State for the purpose of Article 12, there is absolutely no reason why
other similarly placed bodies should not be treated as State. The fact that
the game of Cricket is very popular in India also cannot be a ground to C
differentiate these bodies from the Board. Any such differentiation
dependent upon popularity, finances and public opinion of the body
concerned would definitely violate Article 14 of the Constitution, as any
discrimination to be valid must be based on hard facts and not mere
surmises. Therefore neither the Board could be singly identified as "other
authority" nor the State/other federations/bodies could be considered as a D
A-- "State" for the purpose of Article 12. Thus, none of the other federations
or bodies including the Board can be considered as a "State" for the
._. purpose of Article 12. (946-A-B-C)
State of Kera/av. T.P. Roshana, [197911 SCC 572, relied on.
E
4.2. The term "other authorities" in Article 12 of the Constitution
was introduced at the time of framing of the Constitution with a limited
objective of granting judicial review of actions of such authorities which
are created under the Statute and which discharge State functions.
However, because of the need of the day and keeping in view the socio- F
economic policy of the country, this Court in the cases of Rajasthan State
Electricity Board and Sukhdev Singh thought it fit to expand the definition
of the term "other authorities" to include bodies other than statutory
bodies. This development of law by judicial interpretation culminated in
the judgment of the 7-Judge Bench in the case of Pradeep Kumar Biswas.
In the meantime the socio-economic policy of the Government of India G
has changed and the State is today distancing itself from commercial
activities and concentrating on governance rather than on business.
Therefore, the situation prevailing earlier is not in existence at least for
the time being, hence, there seems to be no need to further expand the
scope of "other authorities" in Article 12 by judicial interpretation at least H
918 SUPREME COURT REPORTS [20051 I S.C.R.
A for the time being. It should also be borne in mind that in a democracy
there is a dividing line between a State enterprise and a non-State
enterprise, which is distinct and the judiciary should not be an instrument
to erase the dividing line unless, of course, the circumstances of the day
require it to do so. (946-E-F-G-H(
B Rajasthan State Electricity Board v. Mohan Lal and Ors., AIR. (1967)
SC 185; Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi
and Anr., (1975( 3 SCR 619 and Pradeep Kumar Biswas v. Indian institute
of Chemical Biology and Ors., (2002] 5 SCC 111, followed.
Ba/co Employees' Union (Regd.) v. Union of India and Ors., (20021 2
c sec 333, relied on.
4.3. When a private body exercises its public functions even if it is
not a State, the aggrieved person has a remedy not only under the m:dinary
law but also under the Constitution, by way of a writ petition under Article
226. Therefore, merely because a non-governmental body exercises some
D public duty that by itself would not suffice to make such body a State for
the purpose of Article 12. In the instant case the activities of the Board +
do not come under the guidelines laid down by this Court in the case of
Pradeep Kumar Biswas, hence this petition under Article 32 of the .,
Constitution is not maintainable. (945-E-F(
E Pradeep Kumar Biswas v. Indian Institute ofChemical Biology and Ors.,
120021 5 sec 111, followed.
Per Minority (Sinha, J. for himself and S.N. Variava, J.) :
I.I. Constitution of India is an ongoing document and, thus, should
F 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 whole
experience after its commencement and not merely in that of what was
the state of law at the commencement of the Constitution. 1955-G I
G Missouri v. Holland, (252 US 416 (433) and Kapila Hingorani •1. State
of Bihar, j200316 SCC I and John Vallamattom and Anr. v. Union of India,
JT (2003) 6 SC 37, relied on.
Liverpool & London S. P. & I Association ltd v. M.V. Sea Success I
H and Anr., 120041 9 sec 512, referred to.
ZEE TELE FILMS LTD. v. U.0.1. 919
Human Rights and Article 18 of the United Nations Covenant on Civil A
and Political Rig/us. (/ 966) and 'Statu101y Interpretation', Fourth Edition by
Francis Bennion, referred to.
1.2. Flexibility is the hallmark of our Constitution. The growth of
the Constitution shall be organic, the rate of change glacial. 1966-GI
B
TM.A. Pai Foundation and Ors. v. State of Karnataka and Ors., 120021
8 SCC 481; Islamic Academy of Education and Anr. v. State of Karnataka
and Ors., 1200316 SCC 697 and Jiby P. Chacko v. Mediciti School of Nursing,
Ghanpur, Ranga Reddy District and Anr., (2002) 2 ALO 827, referred to.
Poplar Housing and Regeneration Community Association Ltd. v. C
Donoghue, (2002) Q.B. 48 and R (on the application of Heather and Ors.) v.
Leonard Cheshire Foundation and Anr., (2002) 2 All ER 936, referred to.
R. Stevens: The English Judges: Their Role in the Changing Constitution
(Oxford 2002), p. (xiii) Q11oted by Lord Woe// in 'The Rule of Law and a
Change in the Constitution, 2004 Cambridge Law Journal 317, referred to. D
1.3. 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 E
meaning). Sports has been included in the Human Resource Development
as a larger part of education. 1958-EI
Secretary, Ministry of Information & Broadcasting, Government of India
and Ors. etc. v. Cricket Association of Bengal and Ors. etc., 11995) 2 SCC
161, referred to. F
2.1. The expression "A11thority" 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, one may notice the meaning of the word
"authority". The word "Other Authorities" contained in Article 12 is not G
to be treated as ejusdam generis. Broadly, there are three different concepts
which exist for determining the question which fall within the expression
"other authorities". There cannot be same standard or yardstick for
judging different bodies for the purpose of ascertaining as to whether it
fulfils the requirements of law therefor or not. 1960-B-G; E, HI H
920 SUPREME COURT REPORTS [2005] l S.C.R.
·A Pradeep Kumar Biswas v. Indian Institute ofChemical Biology and Ors.,
120021 5 sec 111, followed.
Black Diamond Beverages and Anr. v. Commercial Tax Officer, Central
Section, Assessment Wing, Calcutta and Ors., 11998) l SCC 458, relied on.
2.2. A 'State' has different meanings in different contexts. In a
B 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
C territory of India as contradistinguished from a State within the control
of the Government of India. The concept of State under Article 12 of the
Constitution is in relation to the fundamental rights guaranteed by Part-
111 of the Constitution and Directive Principles of the State Policy as
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
D independent or sovereign meaning so as to include within its fold whatever
comes within the purview thereof so as to instil the public confidence in
it. (961-D-EJ
3.1. The feature that the Board has been allowed to exercise the
powers enabling it to trespass across the fundamental rights of a citizen
E 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 the case of Sukhdev Singh
and Ors. v. Bhagatram Sardar Singh and development of law made
therefrom is to be given full effect, it is net only the functions of the
F 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. 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. "Other
G 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 t-
or the legislation of the States. 1961-f'-G-H; 962-A-B-CI
Sukhdev Singh and urs. v. Bhagatram Sardar Singh, 1197511 SCC 421,
H followed.
ZEE TELE FILMS LTD. v. U.0.1. 921
_.~
3.2. The right of Indian players is comparable to their constitutional A
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. The Board
while enjoying monopoly in cricket exercises enormous power. 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. 1981-E-FI B
4.1. Article 12 must receive a purposive interpretation as by reason
of Part III of the Constitution a charter ofliberties 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
c
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.
1962-D-E-FI
D
,..\o 4.2. It is not that every body or association which is regulated in its
private functions becomes a 'State'. What matters is the quality and
·~ character offunctions discharged by the body and the State control flowing
therefrom. 1962-Fl
Daniel Lee v. Vera Katz, 276 F.3d 550, referred to.
E
4.3. The 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 undergone
a sea change. The thrust now is not upon the composition of the body but
lo. F
upon the duties and functions performed by it. 1963-C-DI
... UP Stale Cooperative land Development Bank ltd. v. Chandra Bhan
Dubey and Ors.. AIR (1999) SC 753, relied on.
Federal Bank Ltd v. Sagar Thomas and Ors., 120031 to SCC 733; K.R.
Anitha and Ors. v. Regional Director, ES! Corporation and Anr., 120031 10 G
SCC 303 and G. Bassi Reddy v. International Crops Research Institute and
Am'., 120031 4 SCC 225, referred to.
4.4. 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 H
922 SUPREME COURT REPORTS [2005] I S.C.R.
·L
A within its fold any other activity which has a direct influence on 1he
citizens. 1966-EI
5. I. A body although self-regulating, if performs public duty by uay
of exercise of regulatory machinery, a judicial review wauld lie agai11st
it. The question has since been considered from a slightly different angle,
B viz., when such action affects the human right of the person concerned
holding that the same would be public function.
Greig and Ors. v. Insole and Ors., (1978( 3 All ER 449; R. v. Panel on
Take-overs and Mergers, ex parte Datafin pie and Anr., 1198711 All ER 564
C and Poplar Housing and Regeneration Community Association Ltd. v.
Donoghue, (2001 ( 4 All ER 604, referred to.
5.2. 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 hy
reason thereof an injury or material prejudice is caused to its member ·or
D a person connected with cricket, judicial review would lie. Such functio~s
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. 1981-H; 982-AI ,,
5.3. The concept of public law function is yet to be crystalised.
E However, the power of judicial review can be exercised by this Court und·er
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. General view is that
whenever a State or an instrumentality of a ~tate is involved, it will he
regarded as an issue within the meaning of public law but where
F individuals are at loggerheads, the remedy therefor has to be resorted m
private law field. Situation, however, changes with the advancement of tl1e ....
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 distinctiun
G has narrowed down but such a distinction still exists. Thus, 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 hne
undertaken public duty or public functions. 1982-D-E-F-GI
Dwarka Prasad Agarwal (DJ by LRs.. and Anr. v. B.D. Agarwal and Or~ ..
H 120031 6 sec 230, relied on.
ZEE TELE FILMS LTD. v. U.0.1. 923
O'Reilly v. Mackman, (1982) 3 WLR 604, referred to. A
..American Constitutional law" by Laurence H. Tribe, referred to.
S.4. No legislation has been made either by any State or by the Union
or'lndia regulating and controlling the cricketing activities in the country.
The Board authorized itself to make law regulating cricket in India :Which B
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. (983-A(
c
S.S. Performance 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. The duty to act fairly
is inherent in body which exercises such enormous power. Such a duty D
can be envisioned only under Article 14 of the Constitution and not under
the Administrative Law. (983-F-G(
Ramana Dayaram Shetty v. International Airport Authority of India and
Ors., (1979] 3 SCC 489, relied on.
E
S.6. Even when public duties are conferred by statute, powers and
duties do not thereunder limit the ambit of'a statute as there are instanr.es
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 F
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. There are, however, public
duties which arise from sources other than a statute. These duties may be G
more important than they are often thought to be or perceived. The
functions of the Board, thus, having regard to its nature and character of
functions would be public functions. (984-8-D, H; 98S-A(
'Public Duties and Public Law' by A.J. Harding, pp. 6 to 14, referred
to. H
924 SUPREME COURT REPORTS [2005] I S.C.:~.
A 6.1. The traditional tests which had impelled this Court in the case
of Ajay Hasia to lay down the tests for determining the question as to
whether a body comes within the purview of"Other Authorities" are not
exhaustive. This case, moreover, is required to be proceed on the premise
that some other tests had also been propounded if the functions of the body
falls within the description of the public function, absence of State financial
B aid would not influence the conclusion to the contrary. (989-A-B; 990-lli:(
Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors., (1981 ( I SCC
722, relied on.
Marsh v. Alabama 326 US 501, referred to.
c
6.2. Drawing the contrast between the governmental activities which
are private and private activities which are governmental, it was noticed
in the case of Sukhdev Singh that besides the so-called traditional functions,
the modern State operates a multitude of public enterprises. What is,
D therefore, relevant and material is the nature of the function could IJe
resolved keeping in view the following :
(i) When the body acts as a public authority and has a public duty
to perform;
E (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 Artide
F 19(1)(a) of the Constitution of India 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 out-sources its legislative power in its favour;
G (vii) When it has a positive obligation of public nature.
(990-B, C, D, E(
Sukhdev Singh and Ors. v. Bhagatram Sardar Singh, (1975( I SCC 4:~1,
relied on.
H
ZEE TELE FILMS LTD. v. U.0.1. 925
6.3. The tests laid down in earlier cases may not be applicable in a 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 B
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 others connected with a very popular sport. The organizers
of competitive test cricket between one association and another or C
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.
(991-H; 992-A-B-CJ D
6.4. An 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 E
may become a hybrid body and continue to act both in its private capacity
or 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. F
(992-F-GJ
6.5. It is true that regulatory measures applicable to all the persons
similarly situated, in terms of the provisions of a st11tute 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 G
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. Such non-interference would not make the public body a private
body. (993-B-CI II
926 SUPREME COURT REPORTS [2005] I S.C.R.
A 6.6. The Board for all intent and purport was a recognized body.
Probably in that view of the matter, the Board did not think it necessarJ'
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 obtainin1:
the requisite permission for sending an Indian team abroad or for inviting
B a foreign team in India in the prescribed form. 11000-DI
6. 7. 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. 11001-G-HI
c Rahul Mehra and Anr. v. Union of India and Ors., (Civil Writ Petition
No. !680 of2000) disposed of by Supreme Court on 4th October, (2004), reliecl
on.
6.8. A public authority would be an authority which not only can:
D regulate and control the entire sports activities in relation to cricket but:
also the decisive character it plays in formulatinl,l the game in all aspect~
Even the Federations controlled by the State and other public bodies a!: l-
a'3o the State themselves, in view of the Board's Memorandum ol'
Association and the Rules and Regulations framed by it, are under its
complete control. Thus, it would be subject to a judicial review.
E 11003-G, H; 1004-Al
6.9. Although, there are domestic events, indisputably only those whCI
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 domestk
competitive cricket to the fullest measure and exercises control over it!:
F members. 11006-Cf
6.10. In the constitutional scheme rule of law would, by all means.,
·•"
prevail over rule of cricket. A body regulating the game of cricket woul<ll
be compelled by the Court to abide by rule of law. It would not be correci:
to contend that a monopoly status upon a body must be conferred either
G by way of statute or by the State by issuing an appropriate order in that
behalf. 11006-G; 1007-Cf
6.11. Legal meaning attributed to the wordings of the Article 12.
would lead to the conclusion that the Board is a State. In sum, the controil
of the Board over the sport of competitive cricket is deep and pervasive.,
H nay complete. 11008-C-DI
ZEE TELE FILMS LTD. v. U.O.L 927
Pradeep Kumar Biswas v. Indian l11stitule of Chemical Biology and Ors., A
1200215sec111, followed.
Bank of New South Wales v. Co111111011 Wealth, 76 CLR I by Dixon, J.,
referred to.
6.12. The Board, a body which makes law for the sports in India B
(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
authorities". 11012-A-BI
c
Secretary, Ministry of Information & Broadcasting, Government of India
and Ors. etc. v. Cricket Association of Bengal and Ors. etc., 119951 2 SCC
161 and Brentwood Academy v. Tennessee Secondary School Athletic
Association, 531 US 288, referred to.
7.1. A decision, it is trite, should not be read as a statute. A decision D
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 E
entirety and the observations made therein should receive consideration
in the light of the questions raised before it. 11013-C-FI
Punjab National Bank v. R.l. Vaid and Ors., 120041 7 SCC 698; State
of Gujarat and Ors v. Akhil Gujarat Pravasi V.S. Mahamandal and Ors., AIR
(2004) SC 3894 and A-One Granites v. State of U.P. and Ors., (200113 SCC F
537, referred to.
I •
State of U.P. and Anr. v. Sy111hetics and Chemicals Ltd and Anr., (19911
4 SCC 139; Arnit Das v. State of Bihar, (20001 5 SCC 488 (Para 20);
Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors., (2003( 2 SCC
111; Ceme111 Corporation of India ltd. v. Purya and Ors., (20041 8 SCC 270; G
Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, JT (2005) I SC 303 and
Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr., (2005)
I SCALE 385, referred to.
7.2. It is noticed that in the case of Pradeep Kumar Biswas the only
question which arose for consideration was as to whether the decision of H
928 SUPREME COURT REPORTS [2005] 1 S.C.R.
A the Constitution Bench in the case of Subhajit Tewury was correctly
rendered. The ratio in that case must be understood to have been laid down
in respect of the questions raised therein. The questions raised in the
instant case were neither canvassed nor was there any necessity therefor.
Thus, Pradeep Kumar Biswas 's case cannot be treated to be a binding
B precedent within the meaning of Article 141 of the Constitution of India
as having been rendered in a completely different situation. 11014-E-FI
Pradeep Kumar Biswas v. Indian Institute ofChemical Biology and Ors.,
1200215 SCC tl I and Sabha) it TewmJ' v. Union of India and Ors., 119751 l
sec 485, explained.
c 8.1. All 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. 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
D 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 would lie against it. 1985-B, E-FI ' .
Aston Cantlow and Wilmcote with Billesley Parochial Church Council
E v. Wallbank and Anr., (2004) l AC 546: (2003) 3 WLR 283, (1998);
Hampshire County Council v. Graham Beer tla Hammer Trout Farm, (2003)
EWCA Civ 1056 and Parochial Church Council of the Parish of Aston
Cantlow v. Wallbank, (2003) UKHL 37, referred to.
F
8.2. The 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 vive." Judicial Review casts a long shadow and even regulating
bodies that do not exercise statutory functions may be subject to it.
,,.. -
1985-H; 986-A; q
Padma v. Hirata! Motilul Desarda and Ors., 1200217 SCC 564, referred
G
to.
Co11stitu1io11al and Administralive La11• by A. W. Bradley and K. D. Ewing
(13th Edn) Page 303, referred to.
H 8.3. Having regard to the modern conditions when Government h
\
). .
ZEE TELE FILMS LTD. v. U.0.1. 929
entering into business like private sector and also undertaking public utility A
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 could be
issued subject to certain exceptions. (986-DI
Rahul Mehra and Anr. v. Union of India and Ors., (Civil Writ Petition B
No. 1680 of 2000) disposed of by Supreme Court on 4th October, (2004),
referred to.
8.4. The 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 C
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-
a-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 D
conferred by Part Ill but having regard to the term 'authority' which is
used both under Article 226 and Article 12, it is doubted as to whether any
distinction in relation thereto can be made. (986-H; 987-A, 8(
Rohtas Industries Ltd. and Anr. v. Rohtas Industries Staff Union and
Ors., AIR (1976) SC 425; Andi Mukta Sadguru Shree Muktajee Vandas Swami E
Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors.,
(19891 2 SCC 691; ABL International Ltd. and Anr. v. Export Credit
Guarantee Corporation ofIndia Limited and Ors., JT (2003) 10 SC 300; Tata
Cellular v. Union of India, AIR (1996) SC I, Paras 101 and 102 and State
_of U.P. and Anr. v. Johri Mal, (2004( 4 sec 714, relied on. F
Rahul Mehra and Anr. v. Union of India and Ors., Civil Writ Petition
No. 1680 of (2000) disposed of by Supreme Court on 4th October, (2004),
referred to.
E. v. Secretary ofState for the Home Department, (2004) 2 W.L.R. 1351 G
and Hatton and Ors. v. United Kingdom, 15 BHRC 259, referred to.
Assembrook Exports Ltd. and Anr. v. Export Credit Guarantee Corpn.
of India ltd. and Ors., AIR (1998) Cal I, approved.
8.5. The Board represents a sovereign country while selecting and H
930 SUPREME COURT REPORTS [200511 S.C.R.
A fielding a team for the country with another sovereign country promoting L
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
B is directly infringed. 11011-D, El
8.6. Only because the Board 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. Furthermore, only because a corporation or a society
C 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. It is 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 all. Hence the writ petition under Article 32 of the
Constitution oflndia is maintainable. jl016-F, H; 1017-A; 1018-GJ
D
Ajit Singh and Ors. (ff) v. State of Punjab and Ors.. 1199917 SCC 209
and E. V. Chinnaiah v. State of Andhra Pradesh and Ors., (2004) 9 SCALE
316, referred to. ' '
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 541 of2004.
E
(Under Article 32 of the Constitution of India.)
WITH
S.L.P. (C) !'lo. 20186 of 2004.
F
Mohan Parasaran, Additional Solicitor General, Harish N. Salve, K.K.
Venugopal, Dr. A.M. Singhvi, Iqbal Chagla, Soli J. Sorabjee, C.S. . .
Vaidyanathan, Sr. Advs., Maninder Singh, Mrs. Prathiba M. Singh, Ms.
Minakshi Grover, Ankur Talwar, Angad Mirdha, Ms. Aprajita, Saurabh
Mishra, Ms. Radha Rangaswamy, Amit Sibal, Ms. Bharti Tyagi, Ajay Bahl,
G N. Ganpathy, Nitesh Rana, Vineet Malhotra, B.K. Prasad and Rajeev Sharma
for the appearing parties.
...• 1
The Judgments of the Court were delivered by
SANTOSH HEGDE, J. I have had the benefit of reading the judgment
H of Sinha, J. I regret I cannot persuade myself to agree with the conclusions
). ..
ZEE TELE FILMS LTD. r. U.0.1. [SANTOSH HEGDE. J.] 931
~·
recorded in the said judgment, hence this separate opinion. The Judgment of A
' Sinha, J. has elaborately dealt with the facts, relevant rules and bye-laws of
the Board of Control for Cricket in India (the Board). Hence, I consider it not
necessary for me to reproduce the same including the lengthy arguments
advanced on behalf of the parties except to make reference to the same to the
extent necessary in the course of this judgment.
B
Mr. K.K. Venugopal, learned senior counsel appearing for the Board
has raised the preliminary issue in regard to the maintainability of this petition
on the ground that under Article 32, a petition is not maintainable against the
Board since the same is not "State" within the meaning of Article 12 of the
Constitution of India. It is this issue which is being considered in this judgment.
c
In support of his argument Mr. K.K. Venugopal has contended the
Board is not created by any statute and is only registered under the Societies
Registration Act 1860 and that it is an autonomous body, administration of
which is not controlled by any other authority including Union of India,
(U.0.1.) the first respondent herein. He further submitted that it also does not D
.:,. take any financial assistance from the Government nor is it subjected to any
financial control by the Government or its accounts are subject to the scrutiny
.~· ,
of the Government. It is his submission that though in the field of Cricket it
enjoys a monopoly statlls the same is not conferred on the Board by any
statute or by any order of the Government. It enjoys that monopoly status
only by virtue of its first mover advantage and its continuance as the solitary E
player in the field of cricket control. He also submitted that there is no. law
which prohibits the corning into existence of any other parallel organisation.
The learned counsel further submitted that as per the parameters laid down
by this Court in Pradeep Kumar Biswas v. Indian Institute of Chemical
Biology and Ors., (2002] 5 SCC I I I, the Board cannot be construed as a F
State for the purpose of Article I 2 and the said judgment being a judgment
!- of Seven Judge Bench of this Court is binding on this Bench. The argument
of Mr. K.K. Venugopal is supplemented and supported by the arguments of
Dr. A.M. Singhvi and Soli J. Sorabjee appearing for the other contesting
respondents.
G
Mr. Harish N. Salve, learned senior counsel appearing on behalf of the
'~ petitioners opposing the preliminary objections submitted that the perusal of
the Memorandum and Articles of the Association of the Board as also the
rules and regulations framed by the Board indicate that the Board has extensive
powers in selecting players for the Indian National team representing India
H
932 SUPREME COURT REPORTS [2005] I S.C.R.
L
A in test matches domestically and internationally. He also pointed out that the
Board has the authority of inviting foreign teams to play in India. He also •
further contended that the Board is the sole authority for organising major
cricketing events in India and has the disciplinary power over the players/
umpires and other officials involved in the game and sports being a subject
under the control of the States, in substance the Board exercises governmental
B functions in the area of Cricket. He submitted that this absolute authority of
the Board is because of the recognition granted by the Government of India,
hence in effect even though it is as an autonomous body the same comes
under "other authorities" for the purpose of Article 12. He also contended
that the Board has the authority to determine whether a player would represent
c the country or not. Further, since playing cricket is a profession the Board
controls the fundamental right of a citizen under Article 19 (I) (g) of the
Constitution. It is his further contention that many of the vital activities of
the Board like sending a team outside India or inviting foreign teams to India
is subject to the prior approval of the Government of India. Hence, the first
respondent Union of India has pervasive control over the activities of the
D Board. For all these reasons, he submitted that the Board is "other authorities"
within the meaning of Article 12. 'r '
Respondent No. I-Union of India has filed a counter affidavit which is
' .
subsequently supplemented by an additional affidavit in which it is stated
that the Board was always subjected to de-faclo control of the Ministry of
E
Youth Affairs and Sports in regard to international matches played domestically
and internationally. In the said affidavit, it is also stated that the Government
of India has granted de-facto recognition to the Board and continues to so
recognise the Board as the Apex National Body for regulating the game of
Cricket in India. In the said affidavit it is also stated that it is because of such
F recognition granted by the Government of India that the team selected by the _,,.
Board is able to represent itself as the Indian cricket team and if there had
not been such recognition the team could not have represented the country
. '
as the Indian cricket team in the international cricket arena. It is also stated
that Board has to seek prior permission and approval from the Government
of India whenever it has to travel outside the country to represent the country.
G Even in regard to Board's invitation to the foreign teams to visit India the
Board has to take prior permission of the Government of India and the Board
:»
is bound by any decision taken by the Government of India in this regard.
It is further stated that in the year 2002 the Government had refused permission
to the Board to play cricket in Pakistan. It is also submitted that the
H Government of India accepts the recommendation of the Board in regard to
ZEE TELE FILMS LTD. v. U.0.1. [SANTOS!! HEGDE . .I.] 933
......
awarding "Arjuna Awards" as the National Sports Federation representing A
cricket. In the said affidavit the Government of India has stated before this
Court that the activities of the Board are like that of a public body and not
that of a private club. It also asserted that it had once granted an amount of
Rs. 1,35,000 to the Board for the payment of air fares for nine members of
the Indian cricket team which went to Kuala Lumpur (Malaysia) to participate
in the 16th Commonwealth Games in September 1998. It is further stated that B
some of the State Cricket Associations which are members of the Board have
also taken financial assistance of land lease from the respective State
Governments. It is also stated that though the Government does not interfere
with the day to day autonomous functioning of the Board, if it is required the
Board has to answer all clarifications sought by the Government and the c
Board is responsible and accountable to the people of India and the
Government of India which in turn is accountable to Parliament in regard to
team's performance.
Mr. K.K. Venugopal, learned senior counsel has taken serious objections
to the stand taken by the Government of India in its additional affidavit D
,i. before this Court on the ground that the Government of India has been taking
contrary positions in regard to the status of the Board in different writ petitions
> ,
pending before the different High Courts and now even in the Supreme
Court, depending upon the writ petitioners involved. He pointed out that in
the stand taken by the Government of India in a writ petition filed before the
E
Delhi High Court and before the Bombay High Court as also in the first
affidavit filed before this Court it had categorically stated' that Government
of India does not control the Board and that it is not a State under Article 12
of the Constitution of India. He pointed out from the said affidavits that the
first respondent had taken a stand in those petitions that the Government
plays no role in the affairs of any member association and it does not provide F
any financial assistance to the Board for any purpose. It had also taken the
f.
stand before the Delhi High Court that the Board is an autonomous body and
that the government had no control over the Board. The learned counsel has
also relied upon an affidavit filed by the Board in this Court wherein the
Board has specifically denied that the first respondent has ever granted any
recognition to the Board.
G
,~
Hence the question for consideration in this petition is whether the
Board falls within the definition of"the State" as contemplated under Article
12 of the Constitution. Article l 2 reads thus :
H
934 SUPREME COURT REPORTS [2005] I S.C.R.
A "12. Definition - 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."
B A perusal of the above Article shows that the definition of State in the
said Article includes the Government of India, Parliament of India, Government
of the State, Legislatures of the States, local authorities as also "other
authorities". It is the argument of the Board that it does not come under the
term "other authorities", hence is not a State for the purpose of Article 12.
C While the petitioner contends to the contrary on the ground that the various
activities of the Board are in the nature of public duties. A literal reading of
the definition of State under Article 12 would not bring the Board under the
term "other authorities" for the purpose of Article 12. However, the process
of judicial interpretation has expanded the scope of the term "other authorities"
in its various judgments. It is on this basis that the petitioners contend that
D the Board would come under the expanded meaning of the term "other
authorities" in Article 12 because of its activities which is that of a public ;,
body discharging public functior..
Therefore, to understand the expanded meaning of the term "other
authorities" in Article 12, it is necessary to trace the origin and scope of
E Articie 12 in the Indian Constitution. Present Article 12 was introduced in
the Draft Constitution as Article 7. While initiating a debate on this Article
in the Draft Constitution in the Constituent Assembly, Dr. Ambedkar described
the scope of this Article and the reasons why this Article was placed in the
Chapter on fundamental rights as follows :
F "The object of the fundamental rights is twofold. First, that every
citizen must \Je in a position to claim those rights. Secondly, they .'
must be binding upon every authority - l shall presently explain what
the word 'authority' means upon every authority which has got either
the power to make laws or the power to have discretion vested in it.
G Therefore, it is quite clear that if the fundamental rights are to be
clear, then they must be binding not only upon the Central
Government, they must not only be binding upon the Provincial
Government, they must not only be binding upon the Governments
established in the Indian States, they must also be binding upon District
Local Boards, Municipalities, even village panchayats and taluk boards.
H
) ...
ZEE TELE FILMS LTD. v. U.0.1. [SANTOSH l-IEGDE. .I.] 935
1.....t in fact, every authority which has been created by law and which has A
got certain power to make laws, to make rules, or make bye-laws.
If that proposition is accepted - and I do not see anyone who
cares for Fundamental Rights can object to such a universal obligation
being imposed upon every authority created by law then, what are we
to do to make our intention clear ? There are two ways of doing it. B
One way is to use a composite phrase such as 'the State', as we have
done in Article 7; or, to keep on repeating every time, 'the Central
~
Government, the Provincial Government, the State Government, the
Municipality, the Local Board, the Port Trust, or any other authority'.
It seems to me not only most cumbersome but stupid to keep on
repeating this phraseology every time we have to make a reference
c
to some authority. The wisest course is to have this comprehensive
',
·phrase and to economise in words." (1948 (Vol. VII) CAD 61 OJ
(Emphasis supplied)
From the above, it is seen that the intention of the Constitution framers
D
in incorporating this Article was to treat such authority which has been created
). by law and which has got certain powers to make laws to make rules and
regulations to be included in the term "other authorities" as found presently
~.
in Article 12.
Till about the year 1967 the courts in India had taken the view that E
even statutory bodies like Universities, Selection Committee for admission to
Government Colleges were not "other authorities" for the purpose of Article
12 (See The University of Madras v. Shantha Bai and Anr., AIR (1954)
Madras, 67, B. W. Devadas v. The Selection Committee for Admission of
Students to the Karnatak Engineering College and Ors., AIR (1964) Mysore
6. In the year 1967 the case of Rajasthan State Electricity Board v. Mohan F
...... Lal and Ors., AIR (1967) SC 1857 a Constitution Bench of this Court held
f' that the expression "other authorities" is wide enough to include within it
every authority created by a Statute on which powers are conferred /(}-carry
out governmental or quasi-governmental functions and functioning within
the territory of India or under the control of the Government of India. G
(Emphasis supplied) Even while holding so Shah, J. in a separate but
.. I~
concurring judgment observed that every constitutional or, statutory authority
on whom powers are conferred by law is not "other authority" within the
meaning of Article 12. He also observed further that it is only those authorities
which are invested with sovereign powers, that is, power to make rules or
regulations and to administer or enforce them to the detriment of citizens and H
936 SUPREME COURT REPORTS [2005] I S.C.R.
A others that fall within the definition of"State" in Article 12: hut constitutional ,,__,
or statutory bodies invested with power but not sharing the sovereign power
of the State are not "State" within the meaning of that Article. (Emphasis
supplied)
Almost a decade later another Constitution Bench of this Court somewhat
B expanded this concept of "other authority" in the case of Sukhdev Singh and
Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr.. (1975] 3 SCR 619,
in this case the Court held the bodies like Oil and Natural Gas Commission,
Industrial Finance Corporation and Life Insurance Corporation which were ~
created by statutes because of the nature of their activities do come within the
c term "other authorities" in Article 12. Even though in reality they were really
constituted for commercial purposes while so holding Mathew J. gave the
following reasons for necessitating to expand the definition of the term "other
authorities" in the following words :-
"The concept of State has undergone drastic changes in recent years.
D Today State cannot be conceived of simply as a coercive machinery
wielding the thunderbolt of authority. It has to be viewed mainly as
a service Corporation. A State is an abstract entity. It can only act J.,
through the instrumentality or agency or natural or juridical persons.
There is nothing strange in the notion of the State acting through a
..
Corporation and making it an agency or instrumentality of the State.
E With the advent of a welfare State the framework of civil service
administration became increasingly insufficient for handling the new
tasks which were often of a specialised and highly technical character.
The distrust of Government by civil service was a powerful factor in
the development of a policy of pub Ii~ administration through separate
F . Corporations which wou Id operate largely according to business
principles and be separately accountable. The Public Corporation, ~
'
therefore, became a third arm of the Government. The employees of
public Corporation are not civil servants. In so far as public
corporations fulfil public tasks on behalf of government they are
public authorities and as such subject to control by Government. The
G public Corporation being a creation of the State is subject to the
constitutional limitation as the State itself. The governing power
wherever located must be subject to the fundamental constitutional ~.
limitations. The ultimate question which is relevant for our purpose
is whether the Corporation is an agency of instrumentality <?f the
Government for carrying on a business for the benefit of the public."
H
ZEE TELE FILMS LTD. v. U.0.1. [SANTOSH HEGDE . .I.] 937
From the above, it is to be noticed that because of the change in the A
socio-economic policies of the Government this Court considered it necessary
by judicial interpretation to give a wider meaning to the term "other
authorities" in Article 12 so as to include such bodies which were created by
Act of Legislature to be included in the said tenn "other authorities".
This judicial expansion of the term "other authorities" came about B
primarily with a view to prevent the Government from by-passing its
constitutional obligations by creating companies, corporations etc. to perform
its duties.
At this stage it is necessary to refer to the judgment of Sabhajit Tewary C
v. U.0.1. and Ors., [1975] 3 SCR 616 which was delivered by the very same
Constitution Bench which delivered the judgment in Sukhdev Singh and Ors.
on the very same day. In this judgment this court noticing its judgment in
Sukhdev Singh and Ors. (supra), rejected the contention of the petitioner
therein that council for Scientific and Industrial Research the respondent
body in the said writ petition which was only registered under the Societies D
). Registration Act would come under the term "other authorities" in Article
12.
~· .
The distinction to be noticed between the two judgments referred to
hereinabove namely Sukhdev Singh and Ors. and Sabhajit Tewary (supra), is
that in the former the Court held that bodies which were creatures of the E
statues having important State functions and where State had pervasive control
of activities of those bodies would be State for the purpose of Article 12.
While in Sabhajit Tewary's case the Court held a body which was registered
under a statute and not performing important State functions and not
functioning under the pervasive control of the Government would not be a F
State for the purpose of Article 12.
Subsequent to the above judgments of the Constitution Bench a Three
Judge Bench of this Court in the case of Ramana Dayaram Shetty v. The
International Airport Authority of India and Ors., [1979] 3 SCR 1014 placing
reliance on the judgment of this Court in Sukhdev Singh (supra) held that the G
International Airport Authority which was an authority created by the
International Airport Authority Act, 1971 was an instrumentality of the State,
hence, came within the term "other authorities" in Article 12, while doing
so this Court held :-
"To-day the Government, in a weifare. State, is the regulator and H
938 SUPREME COURT REPORTS [2005 J I S.C.R.
A dispenser of special services and provider of a large number of benefits.
The valuables dispensed by Government take many forms, but they
all share one characteristic. They are steadily taking the place of
traditional forms of wealth. These valuables which derive from
relationships to Government are of many kind : leases, licenses,
contracts and so forth. With the increasing magnitude and range of
B governmental functions as we move closer to a welfare State, more
and more of our wealth consists of these new forms. Some of these
forms of wealth may be in the nature of legal rights but the large
majority of them are in the nature of privileges. But on that account,
it cannot be said that they do not enjoy any legal protection nor can
c they be regarded as that they do not enjoy any legal protection nor
can they be regard as gratuity furnished by the State so that the State
may withhold, grant or revoke it at its pleasure.
The law has not be slow to recognize the importance of this new kind
of wealth and the need to protect individual interest in it and with that
D end in view, it has developed new forms of protection. Some interest
in Government largess, formerly regarded as privileges, have been
recognised as rights while others have been given legal protection not
only by forging procedural safeguards but also by confining/structuring ..
and checking Government discretion in the matter of grant of such
largess. The discretion of the Government has been held to be not
E unlimited in that the Government cannot give or withhold largess in
its arbitrary discretion or at its sweet will.
It is in the above context fhat the Bench in Ramana Dayaram Shetty 's
case laid down the parameters or the guidelines for identifying a body as
F coming within the definition of "other authorities" in Article 12. They are
as follows :-
"(I) One thing is clear that if the entire share capital of the corporation ..
is held by Government, it would go a long way towards indicating
that the corporation is an instrumentality or agency of Government.
(SCC p. 507, para 14)
G
(2) Where the financial assistance of the State is so much as to meet
almost entire expenditure of the corporation, it would afford some
indication of the corporation being impregnated with governmental
character. (SCC p.508, para 15)
H (3) It may also be a relevant factor. .... whether the corporation enjoys
ZEE TELE FILMS LTD. v. U.0.1. [SANTOSH HEGDE. .I.] 939
monopoly status which is State-conferred or State-protected. (SCC A
p. 508, para 15)
(4) Existence of deep and pervasive State control may afford an
indication that the corporation is a State agency or instrumentality.
(SCC p. 508, para 15)
(5) If the functions of the corporation are of public importance and B
closely related to governmental functions, it would be a relevant
factor in classifying the corporation as an instrumentality or agency
of Government. (SCC p. 509, para 16)
(6) 'Specifically, if a department of Government is transferred to a
corporation, it would be a strong factor supportive of this inforence' C
of the corporation being an instrumentality or agency of
Government. (SCC p.510, para 18)" (extracted from Pradeep
Kumar Biswas 's case (supra)
The above tests propounded for determining as to when a corporation
can be said to be an instrumentality or agency of the Government was D
).
subsequently accepted by a Constitution Bench of this Court in the case of
,. Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors., [1981] I SCC
722. But in the said case of Ajay Hasia (supra) the court went one step
further and held that a society registered under the Societies Registration Act
could also be an instrument of State for the purpose of the term "other E
authorities" in Article 12. This part of the judgment of the Constitution
Bench Ajay Hasia (supra) was in direct conflict or was seen as being in <irect
conflict with the earlier Constitution Bench of this Court in Sabhajit Tewary 's
case (supra) which had held that a body registered under a statute and which
was not performing important State function or which was not under the
pervasive control of the State cannot be considered as an instrumentality of F
the State for the purpose of Article 12.
The above conflict in the judgments of.Sabhajit Tewary (supra) and
Ajay Hasia (supra) of two coordinate Benches was noticed by this Court in
the case of Pradeep Kumar Biswas and hence the said case of Pradeep G
Kumar Biswas (supra) came to be referred to a larger Bench of seven Judges
and the said Bench, speaking through Ruma Pal, J. held that the judgment in
Sabhajit Tewwy (supra) was delivered on the facts of that case, hence could.
not be considered as having laid down any principle in law: The said larger
Bench while accepting the ratio laid down in Ajay Hasia 's case (supra) though
cautiously had to say the following in regard to the said judgment of this H
940 SUPREME COURT REPORY.S [2005) I S.C.R.
""-.
A Court in Ajay Hasia :-
"Perhaps this rather overenthusiastic application of the broad limits
set by Ajay Hasia may have persuaded this Court to curb the tendency
in Chander Mohan Khanna v. National Council of Educational
Research and Training. The court referred to the tests formulated in
B Sukhdev Singh, Ramana, Ajay Hasia and Som Prakash Rekhi but
striking a note of caution said that (at sec p.580, para 2) "these are
merely indicative indicia and are by no means conclusive or clinching
in any case".
In that case, the question arose whether the National Council of
c Educational Research (NCERT) was a "State" as defined under Article
12 of the Constitution. NCERT is a society registered under the
Societies Registration Act. After considering the provisions of its
memorandum of association as well as the rules of NCERT, this
Court came to the conclusion that since NCERT was largely an
autonomous body and the activities ofNCERT were not wholly related
D
to governmental functions and that the gc,vernmental control was
confined only to the proper utilisation of the grant and since its funding
was not entirely from government resources, the case did not satisfy ..
the requirements of the State under Article 12 of the Constitution.
The Court relied principally on the decision in Tekraj Vasandi v.
E Union of India. However, as far as the decision in Sabhajit Tewary
v. Union of India was concerned, it was noted (at SCC p.583 para 8)
that the "decision has been distinguished a~d watered down in the
subsequent decisions." (Para 38)
Thereafter the larger Bench of this Court in Pradeep Kumar Biswas
F (supra) after discussing the various case laws laid down the following
parameters for gauging whether a particular body could be termed as State , '
for the purpose of Article 12 :-
"The picture that ultimately emerges is that the tests formulated in
Ajay Hasia are not a rigid set of principles so that if a body falls
G with in any one of them it must, ex hypothesi, be considered to be a
State within the meaning of Article 12. The question in each case
would be - whether in the light of the cumulative facts as established, ".
the body is financially, functionally and administratively dominated
by or under the control of the Government. Such control must be
H particular to the body in question and must be pervasive. If this is
ZEE TELE FILMS LTD. v. U.O.l. [SANTOSH HEGDE. J.] 941
\ __,.
found then the body is a State within Article 12. On the other hand, A
when the control is merely regulatory whether under statute or
otherwise, it would not serve to make the body a State." (para 40)
Above is the ratio decidendi laid down by a seven Judge Bench of this
Court which is binding on this Bench. The facts of the case in hand will have
to be tested on the touch stone of the parameters laid down in Pradeep B
Kumar Biswas's case (supra). Before doing so it would be worthwhile once
again to recapitulate what are the guidelines laid down in Pradeep Kumar
Biswas 's case (supra) for a body to be a State under Article 12. They are:-
(1) Principles laid down in Ajay Hasia are not a rigid set of principles
so that if a body falls within any one of them it must ex hypothesi, C
be considered to be a State within the meaning of Article 12.
(2) The Question in each case will have to be considered on the bases
of facts available as to whether in the light of the cumulative facts
as established, the body is financially, functionally,
administratively dominated, by or under the control of the D
Government.
) .
(3) Such control must be particular to the body in question and must
be pervasive.
(4) Mere regulatory control whether under statute or otherwise would E
not serve to make a body a State.
The facts established in this case shows the following :-
1. Board is not created by a statute.
2. No part of the share capital of the Board is held by the F
Government.
3. Practically no financial assistance is given by the Government to
meet the whole or entire expenditure of the Board.
4. The Board does enjoy a monopoly status in the field of cricket
but such status is not State conferred or State protected. G
5. There is no existence of a deep and pervasive State control. The
control if any is only regulatory in nature as applicable to other
similar bodies. This control is not specifically exercised under
any special statute applicable to the Board. All functions of the
Board are not public functions nor are they closely related to H
942 SUPREME COURT REPORTS [2005] I S.C.R.
A governmental functions.
6. The Board is not created by transfer of a Government owned
corporation. It is an autonomous body.
To these facts if we apply the principles laid down by seven Judge
B Bench in f'radeep Kumar Biswas (supra), it would be clear that the facts
established do not cumulatively show that the Board is financially, functionally
or administratively dominated by or is under the control of the Government.
Thus the little control that the Government may be said to have on the Board
is not pervasive in nature. Such limited control is purely regulatory control
and nothing more.
c Assuming for argument sake that some of the functions do partake the
nature of public duties or State actions they being in a very limited area of
the activities of the Board would not fall within the parameters laid down by
this Court in Pradeep Kumar Biswas 's case. Even otherwise assuming that
there is some element of public duty involved in the discharge of the Board's
D functions even then as per the judgment of this Court in Pradeep Kuma1
Biswas (supra) that by itself would not suffice for bringing the Board within
the net of "other authorities" for the purpose of Article 12.
The learned counsel appearing for the petitioners, however, contended
E that there are certain facets of the activities of the Board which really did not
come up for consideration in any one of the earlier cases including in Pradeep
Kumar Biswas case (supra) and those facts if considered would clearly go on
to show that the Board is an instrumentality of the State. In support of this
argument, he contended that in the present day context cricket has become
a profession and that the cricketers have a fundamental right under Article I9
F (I) (g) to pursue their professional career as cricketers. It was also submitted
that the Board controls the said rights of a citizen by its rules and regulations , .
and since such a regulatioµ can be done only by the State the Board of
necessity must be regarded as an instrumentality of the State. It was also
pointed out that under its Memorandum of Association and the rules and
regulations and due to its monopolistic control over the game of Cricket the
G Board has all pervasive powers to control a person's cricketing career as it
has the sole authority to decide on his membership and affiliation to any
particular Cricketing Association, which in turn would affect his right to play
cricket at any level in India as well as abroad.
Assuming that these facts are correct the question then is, would it be
H
). -
7.EE TELE FILMS LTD. v. lHH !SANTOSH HEGDE. J_] 943
\~__.(·
sufficient to hold the Board to be a State for the purpose of Article 12? A
There is no doubt that Article 19( I )(g) guarantees to all citizens the
fundamental right to practise any profession or to carry on any trade occupation
or business and that such a right can only be regulated by the State by virtue
,I of Article 19(6). Hence, it follows as a logical corollary that any violation of
this right will have to be claimed only against the State a11d unlike the rights B
under Articles 17 or 21 which can be claimed against non state actors including
"' individuals the right under Article 19(1 )(g) cannot be claimed against an
individual or a non State entity. Thus, to argue tnat every entity, which
validly or invalidly arrogates to itself the right to regulate or for that matter
even starts regulating the fundamental right of. the citizen under Article
19(1)(g), is a State within the meaning of Article 12 is to put the cart before
c
the horse. If such logic were to be applied every employer who regulates the
manner in which his employee works would also have to be treated as State.
The pre-requisite for invoking the enforcement of a fundamental right under
Article 32 is that the violator of that right should be a State first. Therefore,
).
if the argument of the learned counsel for the petitioner is to be accepted then D
the petitioner will have to first establish that the Board is a State under
j . Article 12 and it is violating the fundamental rights of the petitioner. Unless
this is done the petitioner cannot allege that the Board violates fundamental
rights and is therefore State within Article 12. In this petition under Article
32 we have already held that the petitioner has failed to establish that the
Board is State within the meaning of Article 12. Therefore assuming there is
E
violation of any fundamental right by the Board that will not make the Board
a "State" for the purpose of Article 12.
It was then argued that the Board discharges public duties which are in
...., +- the nature of State functions. Elaborating on this argument it was pointed out F
i . that the Board selects a team to represent India in international matches. The
Board makes rules that govern the activities of the cricket players, umpires
and other persons involved in the activities of cricket. These, according to the
petitioner, are all in the nature of State functions and an entity which discharges
such functions can only be an instrumentality of State, therefore, the Board
falls within the definition of State for the purpose of Article 12. Assuming G
that the abovementioned functions of the Board do amount to public duties
·" or State functions, the question for our consideration is: would this be sufficient
to hold the Board to be a State for the purpose of Article 12. While considering
this aspect of the argument of the petitioner, it should be borne in mind that
the State/Union has not chosen the Board to perform these duties nor has it H
944 SUPREME COURT REPORTS [2005] I S.C.R.
A legally authorised the Board to carry out these functions under any law or
agreement. It has chosen to leave the activities of cricket to be controlled by
private bodies out of such bodies' own volition (self-arrogated). In such
circumstances when the actions of the Board are not actions as an authorised
representative of the State, can it be said that the Board is discharging State
B functions? The answer should be no. In the absence of any authorisation, if
a private body chooses to discharge any such function which is not prohibited
by law then it would be incorrect to hold that such action of the body would
make it an instrumentality of the State. The Union of India has tried to make
out a case that the Board discharges these functions because of the de facto
recognition granted by it to the Board under the guidelines framed by it but
C the Board has denied the same. In this regard we must hold that the Union
of India has failed to prove that there is any recognition by the Union of
India under the guidelines framed by it and that the Board is discharging
these functions on its own as an autonomous body.
However, it is true that the Union of India has been exercising certain
D control over the activities of the Board in regard to organising cricket matches
and travel of the Indian team abroad as also granting of permission to allow
the foreign teams to come to India. But this control over the activities of the
Board cannot be construed as an administrative control. At best this is purely
regulatory in nature and the same according to this Court in Pradeep Kumar
E Biswas 's case (supra) is not a factor indicating a pervasive State control of
the Board.
Be that as it may, it cannot be denied that the Board does discharge
some duties like the selection of an Indian cricket team, controlling the
activities of the players and others involved in the game of cricket. These
p activities can be said to be akin to public duties or State functions and if there
is any violation of any constitutional or statutory obligation or rights of other , <
citizens, the aggrieved party may not have a relief by way of a petition under
Article 32. But that does not mean that the violator of such right would go
scot-free merely because it or he is not a State. Under the Indian jurisprudence
there is always a just remedy for violation of a right of a citizen. Though the
G remedy under Article 32 is not available, an aggrieved party can always seek
a remedy under the ordinary course of law or by way of a writ petition under
Article 226 of the Constitution which is much wider than Article 32.
".
This Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna .Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and
H
ZEE TELE FILfV!S LTD. v. U.0.1. [SANTOSH HEGDE . .I.] 945
Ors., [ 1989] 2 SCC 691 has held : A
"Article 226 confers wide powers on the High Courts to issue writs
in the nature of prerogative writs. This is a striking departure from
the English law. Under Article 226, writs can be issued to "any person
or authority". The term "authority" used in the context, must receive
a liberal meaning unlike the term in Article 12 which is relevant only B
for the purpose of enforcement of fundamental rights under Article
32. Article 226 confers powers on the High Courts to issue writs for
enforcement of the fundamental rights as well as non-fundamental
rights. The words "any person or authority" used in Article 226 are,
therefore, not to be confined only to statutory authorities and C
instrumentalities of the State. They may cover any other person or
body performing public duty. The form of the body concerned is not
very much relevant. What is relevant is the nature of the duty imposed
on the body. The duty must be judged in the light of positive obligation
owned by the person or authority to the affected party, no matter by
what means the duty is imposed. If a positive obligation exists D
mandamus cannot be denied."
' . Thus, it is clear that when a private body exercises its public functions
even if it is not a State, the aggrieved person has a remedy not only under
the ordinary law but also under the Constitution, by way of a writ petition
under Article 226. Therefore, merely because a non-governmental body E
exercises some public duty that by itself would not suffice to make such body
a State for the purpose of Article 12. In the instant case the activities of the
Board do not come under the guidelines laid down by this Court in Pradeep
Kumar Biswas case (supra), hence there is force in the contention of Mr.
Venugopal that this petition under Article 32 of the Constitution is not F
maintainable.
At this stage, it is relevant to note another contention of Mr. Venugopal
that the effect of treating the Board as State will have far reaching
consequences in as much as nearly 64 other national sports federations as
well as some other bodies which represent India in the international forum in G
the field of art, culture, beauty pageants, cultural activities, music and dance,
.~ science and technology or other such competitions will also have to be treated
as a "State" within the meaning of Article 12, opening the flood gates of
litigation under Article 32. We do find sufficient force in this argument.
Many of the above mentioned federations or bodies do discharge functions
and/ or exercise powers which if not identical are at least similar to the H
946 SUPREME COURT REPORTS [2005] I S.C.R.
·l.
A functions discharged by the Board. Many of the sport persons and others who
represent their respective bodies make a livelihood out of it (for e.g. football,
tennis, golf, beauty pageants etc.). Therefore, if the Board which controls the
game of Cricket is to be held to be a State for the purpose of Article 12, there
is absolutely no reason why other similarly placed bodies should not be
B treated as State. The fact that game of Cricket is very popular in India also
cannot be a ground to differentiate these bodies from the Board. Any such
differentiation dependent upon popularity, finances and public opinion of the
body concerned would definitely violate Article 14 of the Constitution, as
any discrimination to be valid must be based on hard facts and not mere
surmises (See State of Kera/a V. rP. Roshana, [1979] 1 sec 572 Therefore,
C the Board in this case cannot be singly identified as "other authority" for the
purpose of Article 12. In our opinion, for the reasons stated above none of
the other federations or bodies referred to hereinabove including the Board
can be considered as a "State" for the purpose of Article 12.
In conclusion, it should be noted that there can be no two views about
D the fact that the Constitution of this country is a living organism and it is the
duty of Courts to interpret the same to fulfil the needs and aspirations of the
people depending on the needs of the time. It is noticed earlier in this judgment
that in Article 12 the term "other authorities" was introduced at the time of
framing of the Constitution with a limited objective of granting judicial review
E of actions of such authorities which are created under the Statute and which
discharge State functions. However, because of the need of the day this Court
in Rajasthan State Electricity Board (supra) and Sukhdev Singh (supra) notic;ng
the socio-economic policy of the country thought it fit to expand the definition
of the term "other authorities" to include bodies other than statutory bodies.
This development of law by judicial interpretation culminated in the judgment
F of the 7-Judge Bench in the case of Pradeep Kumar Biswas (supra). It is to
be noted that in the meantime the socio-economic policy of the Government
of India has changed [See Ba/co Employees' Union (Regd) v. Union of India
' .
and Ors., [2002] 2 SCC 333 and the State is today distancing itself from
commercial activities and concentrating on governance rather than on business.
G Therefore, the situation prevailing at the time of Sukhdev Singh (supra) is not
in existence at least for the time being, hence, there seems to be no need to
further expand the scope of "other authorities" in Article 12 by judicial
interpretation at least for the time being. It should also be borne in mind that
as noticed above, in a democracy there is a dividing line between a State
enterprise and a non-State enterprise, which is distinct and the judiciary should
H not be an instrument to erase the said dividing line unless, of course, the
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, .I.] 947
\_ _J·
circumstances of the day require it to do so. A
In the above view of the matter, the second respondent-Board cannot
be held to be a State for the purpose of Article 12. Consequently, this writ
petition filed under A11icle 32 of the Constitution is not maintainable and the
same is dismissed.
B
S.B. SINHA, J. The 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 India.
c
BACKGROUND FACTS:
The 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
D
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 E
floated on 07.08.2004. Pursuant to or in furtherance of a notice inviting
tender for grant of exclus.ive 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.
F
+· 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 $ 28I,I89,189.19 (INR equivalent to
Rs.13,005,000,000 (Rupees thirteen thousand five million only - @ INR
46.25/US $).
G
Upon holding negotiations with the First Petitioner as also the Fifth
Respondent, the Board decided to accept the offer of the former; pursuant to
,J
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. H
948 SUPREME COURT REPORTS (2005] I S.C.R.
A The 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.
B Arguments 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
C Fifth Respondent, in view of the statements made by the counsel for the
Board, prayed for withdrawal of the writ petition, which was permitted. On
the same day i.e. on 21.9.2004 itself, the Board terminated the contract of the
First Petitioner stating :
"In the larger interest of the game of cricket and due to the stalemate
D 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 (BCCJ) 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
E by you.
The Security in the form of Bank Guarantee and/or money deposited
by you is being returned immediately."
F WRIT PETITION :
The 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.
G In the 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 terms of the decision ....
arrived on 5.9.2004.
H
)...
ZEE TELE FILMS LTD. v. U.O.L (S.B. SINHA. J.] 949
\.. -' REFERENCE: A
By an order dated 27.9.2004, a three-Judge Bench of this Court referred
the matter to a Constitution Bench stating :
"These petitions involve a question related to the interpretation of the
Constitution of India which will have to be heard by a Bench not less B
than 5 Judges as contemplated under Article 145(3) of the Constitution.
Place this matter before Hon 'hie the Chief Justice for further orders.
+ Since the matter involved requires urgent consideration, we request
the Chief Justice to place this matter before the Constitution Bench
for further orders on 28.9.2004. c
We 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."
D
PRELIMINARY ISSUE :
.. )
On 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. The E
said issue having been treated as a preliminary issue, the learned counsel
were heard thereupon. This judgment is confined to the said issue alone.
PLEAS OF THE PARTIES:
Writ Petitioners : F
"-.
The 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:
"a. It undertakes all activities in relation to Cricket including entering G
into the contracts for awarding telecast and broadcasting rights, for
advertisement revenues in the Stadium etc.
,.J
b. The team fielded by the BCCI plays as "Indian Team" while playing
One Day Internationals or Test Matches - it cannot be gainsaid that
H
J \
950 SUPREME COURT REPORTS (2005] 1 S.C.R.
A the team purports to represent India as a nation, and its wins are )._ .
matters of national prestige. They wear unifom1 that carries the national
flag, and are treated as sports ambassadors of India.
c. The sportsmen of today are professionals who devote their life to
playing the game. They are paid a handsome remuneration by the
B 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 I9(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
c 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".
D
d. This Hon'b:e 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
E 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. If the events organized are
public events, then it is submitted that the body that is the controlling
F authority of such public events would surely be subject to the discipline
of Art. 14 and 19 of the Constitution. . ....
e. It 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
G
of cricket.
f. The 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
H
·-,._ .
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.] 951
India, is amenable to the writ jurisdiction of this Hon'ble Court under A
the provisions of the Constitution of India."
Union of India :
Union of India contends that the Board is a State. In support of the said
plea an affidavit affinned by Deputy Secretary to the Government of India, B
Ministry of Youth Affairs and Sports has been filed. A large number of
'jo• 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
be~n seeking its prior permission. The Board had also been under the
administrative control of the Government of India.
c
Board:
In support of its plea that it is not a 'State', the Second Respondent in
its Counter Affidavit asserted :
"(a) Board of Control of Cricket in India, the Respondent No.2 is an D
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 ofCricket. Its functions are regulated and governed
by its own Rules and Regulations independent of any statute and are E
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 force.
(b) The Working Committee elected from amongst its members in
accordance with its own Rules controls the entire affairs and p
J• management of the Respondent No. 2. ·There 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.
G
(c) ... The Respondent No. 2 does not discharge or perform any public
or statutory duty.
(d) The Respondent No. 2 receives no grant of assistance in any fom1
or manner from the Government in this context. It may be stated that
in a writ petition in the case of Rahu/ Mehra v. Union of India in the H
952 SUPREME COURT REPORTS [2005) I S.C.R.
l •
A 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-I (SP-IV) dated 16th February, 1988 issued by the
B 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
c No. 2. Copies of the said Affidavits are annexed hereto as Exhibits
"A" and "B" respectively.
(e) The Respondent No. 2 organizes cricket matches and/or
tournaments between the Teams ofits Members and with the Tearns
of the members of International Cricket Council (ICC) which is also
D 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
E 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.
(t) Organizing Cricket Matches and/or Tournaments between the
F 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
G 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. Matches which are
H
ZEE TELE FILMS LTD. v. U.0.1. (S.B. SINHA. .1.) 953
·,~·-.\
sanctioned or recognized by the ICC are only known as Official Test A
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:
B
,. Although, 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
JI
but not one under Article 32 thereof as the Board is not a 'State'.
c
SUBMISSIONS OF THE LEARNED COUNSEL :
Mr. 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 D
Kumar Biswas v. Indian Institute of Chemical Biology and Ors., [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 E
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
..... F
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.
Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the
Third Respondent herein, would supplement the arguments of Mr. Venugopal G
contending that the activity of a body like Board does not involve any public
.J
I 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. v. Football Association Ltd., ex parte Football League Ltd.
(1993) 2 AER 833 and R. v. Disciplinary Commillee of the Jockey Club, ex
parte Aga Khan (I993) 2 AER 853. The leaned counsel has also drawn our H
954 SUPREME COURT REPORTS 120051 I S.C.R.
I_ '
A attention to a decision of this Court in Federal Bank ltd. v. Sagar Thomas
and Ors., [2003] IO SCC 733. According to Dr. Singhvi, there exists a
distinction between A11icles 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 Ors. v. V.R. Rudani and Ors., [1989] 2 SCC 691.
B
Mr. Soli 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
c 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 v. International Crops Research Institute and Anr.,
D [2003] 4 SCC 225, the learned counsel would urge that Board does not fulfil
the tests laid down therein. A.
Mr. Harish 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
E 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
F 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
G players put on colours of National Flag on their attire. Because 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
H whereof his fundamental right under Article 19( I)(g) of the Constitution of
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.) 955
India would be affected. He would submit that the Board, therefore, is not an A
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 B
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.
Mr. Salve, therefore, submits that the Board is a 'State' within the
meaning of Article 12 of the Constitution of India as : C
(i) it regulates cricket;
(ii) It has a virtual monopoly;
(iii) it seeks to put restrictions on the fundamental rights of the players
and umpires to earn their livelihood as envisaged under Article D
19(1)(g) of the Constitution of India;
(iv) 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. E
Mr. Mohan Parasaran, learned counsel appearing on behalf of Unior. 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. Reference in F
this connection has been made to Daniel Lee v. Vera Katz, 276 F.3d 550.
CONSTITUTIONAL DEVELOPMENT :
Our Constitution is an ongoing document and, thus, should be.interpreted
liberally. Interpretation of Article 12, having regard to the exclusive control G
and management of sport of cricket by the Board and enormous power
.J 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.
[See Missouri v. Holland, (252 US 416 (433) and Kapila Hingorani v. H
956 SUPREME COURT REPORTS [2005] 1 S.C.R.
A State of Bihar, [2003] 6 sec 1].
Furthennore in John Val/amattom and Anr. v. Union of India, JT (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 :
B
" ... The constitutionality of a provision, it is trite, wiil 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
C 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 :
"It is trite that having regard to Article 13(1) of the Constitution, the
constitutionality of the impugned legislation is required to be
D 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. It is 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 changed situation.
E
Justice Cardoze said :
"The 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
F is never an easy process".
Albert Campus stated : - .
"The 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
G
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
H force, by reason of facts emerging out thereafter, the same may be
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.) 957
rendered unconstitutional." A
In Liverpool & London S.P. & I Association Ltd. v. M. V. Sea Success
I and Anr., (2004] 9 SCC 512, this Court observed:
"Referring to Motor General Traders and Anr. v. State of Andhra
Pradesh and Ors., (1984] I SCC 222, Rattan A1ya and Ors. v. State B
of Tamil Nad11 and Anr., (1986] 3 SCC 385 and Synthetics and
Chemicals Ltd. and Ors., v. State of UP. and Ors., (1990] I 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 C
unconstitutional because of passage of time. We may note
that apart from the decisions cited by Mr. Sanghi, recently
' a similar view has been taken in Kapila Hingorani v. State
of Bihar, JT (2003) 5 SC I and John Vallamattom and Anr.
v. Union of India, JT (2003) 6 SC 37."
D
Constitution of India is an ongoing document. It must be interpreted
accordingly.
In Francis Bennion's 'Statutory Interpretation', Fourth Edition at page
762, it is stated :
E
"It is presumed that Parliament intends the court to apply to ongoing
Act a construction that continuously updates its wording tC\ 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 em bedded in its own time, is nevertheless to be F
construed in accordance with the need to treat it as current law.
At page 764, it is commented :
"In construing an ongoing Act, the interpreter is to presume that
Parliament intended the Act to be applied at any future time in such G
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 H
958 SUPREME COURT REPORTS [2005] I S.C.R.
A regarded as 'a living Act'. That today's con~truction involves the I
\,_ .
supposition that Parliament was catering long ago for a state of affairs
that did not then exist is no argument against that constructio1i.
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 the wording."
B
LEGISLATIVE POWERS:
Although 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
C List II of the Seventh Schedule of the Constitution of India which reads thus:
"33. Theaters and dramatic performances; cinemas subject to the
provisions of entry 60 of List I; sports, entertainments and
amusements."
D 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.
E 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 intQ being, in terms of the Allocation of Business
Rules.
In Secretary, Ministry of Information & Broadcasting, Government of
F India and Ors. etc. v. Cricket Association of Bengal and Ors. etc., [1995] 2
SCC 161, this Court held :
" ... It 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
G 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
H
ZEE TELE FILMS LTD. v. U.0.l. [S.B. SINHA . .I.] 959
t.__,( of the viewers. The right to telecast sporting event will therefore also A
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
B
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)
c
It was held that sport is a form of expressive conduct.
We may notice at this juncture that the Union of India in exercise of
its executive functions in terms of the Allocation of Business Rules framed
D
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 E
International arena, it is only the Union of India which can exercise such a
power in terms of Entry I0, 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.
ARTICLE 12:
F
~
} Before 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 :
~-
"12. In this part, unless the context otherwise requires, "the State"
includes the Government and Parliament of India and the Government G
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
H
960 SUPREME COURT REPORTS [2005] I S.C.R.
A 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 of India. The word
'or' is disjunctive and not conjunctive.
The expression "Authority" has a definite connotation. It has different
B 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 "authority".
J(
The word "Other Authorities" contained in Article 12 is not to be
C treated as ejusdam generis.
In Concise Oxford English Dictionary, 10th Edition, the word 'authority'
has been defined as under :
"I. the power or right to give orders and enforce obedience. 2. a
person or organization exerting control in a particular political or '
D 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 authorities".
E (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 rinancial
aid etc. are provided by the State and it also exercises regulation
and control thereover.
F (ii) 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. . '
(iii) A private body is allowed to discharge public duty or positive
obligation of public nature and furthermore is allowed to perform
G regulatory and controlling functions and activities which were ·"
otherwise the job of the government.
There 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 or not.
H
ZEE TELE FILMS LTD. v. U.O.I. [S.B. SINHA. .I.] 961
I _,
In Pradeep Kumar Biswas (supra), a Seven-Judge Bench held : A
"That 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) l SCR 778 at 968. The words "State" and "authority"
used in Article 12 therefore remain, to use the words of Cardozo B
(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 Anr. v. Commercial Tax Officer,
Central Section, Assessment Wing, Calcutta and Ors., (1998] 1 SCC 458. c
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
D
)..
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 E
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.
F
~
The 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 and Ors. v. Bhagatram Sardar
G
Singh, (1975] I 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
,r-J
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 H
962 SUPREME COURT REPORTS [2005] I S.C.R.
A 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
B 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
C 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.
D Article 12 must receive a purposive interpretation as by reason of Part
Ill 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
E functions. Jn 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.
F
It is 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.
In Daniel lee (supra), it was held :
G
'The OAC's functionally exclusive regulation of free speech within ....a
public forum, is a traditional <jnd exclusive function of the State"
DEVELOPMENT OF LAW :
H The development of law in this field is well-known. At one point of
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.] 963
I .~
time, the companies, societies etc. registered under the Indian Companies Act A
, 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 bodies
were held to be States in Rajasthan State Electricity Board, Jaipur v. Mohan
Lal and Ors., (1967] 3 SCR 377.
B
,. This 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.
The concept that all public sector undertakings incorporated under the c
-
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 D
;_ which is required to be posed is whether the body in question exercises
public function.
In Sukhdev 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 generis'. E
Mathew, 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]. F
!
~ It was observed that even big companies and trade unions would answer
the said description as they exercise enormous powers.
In UP State Cooperative land Development Bank ltd. v. Chandra
Bhan Dubey and Ors., AIR (1999) SC 753, the land development bank was G
held to be a State. This Court upon analyzing various provisions of Act and
', the rules framed thereunder observed:
"20 ... It is not necessary for us to quote various other sections and
rules but all these provisions unmistakably show that the affairs of
H
964 SUPREME COURT REPORTS [2005] I S.C.R.
A 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
B 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 Ors. v. Regional
Director, ES! Corporation and Anr., [2003] IO SCC 303 and Bassi Reddy
JI
(supra)].
Madon, J. in Central Inland Water Transport Corporation Limited and
C Anr. v. Brojo Nath Ganguly and Anr., [1986] 3 SCC 156 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
D floundering in the slough~ 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?
E
It was opined :
"26. 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
p 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
G and ideologies ..."
Pradeep Kumar Biswas (supra) and Bassi Reddy (supra) were recently
considered in Gayatri Dev. Mousumi Cooperative Housing Society Ltd. and
..
Ors., [2004] 5 SCC 90, wherein a mandamus was issued against a Cooperative
H Society on the ground that the order impugned therein was issued by an
ZEE TELE FILMS LTD. v. U.0.L [S.B. SINHA, J.] 965
, __ j
"administrator" appointed by the High Court who had also no statutory role A
to perform.
In Chain Singh v. Mata Vaishno Devi Shrine Board and Anr., (2004)
8 SCALE 348, it was contended that a religious board was a 'State'. Although
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 B
Nath and Ors. v. State of J & Kand Ors., [1997] 2 SCC 745 requires
reconsideration in the light of the principles laid down in Pradeep Kumar
Biswas (supra).
In Virendra Kumar Srivastava v. U.P. Rajya Karmachari Kai. Nigam
and Anr., (2004) 9 SCALE 623, a Division Bench of this Court while applying c
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 and Ors.
v. Khalid Mujib Sehravardi and Ors., [1981] 1 SCC 722
D
A Recently a Division Bench of the Rajasthan High Court in Santosh
,) Mittal v. State of Rajasthan and Ors., since reported in (2004) JO SCALE J,
~ 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 : E
"In 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 and Coca-Cola
and other manufacturers of beverages and soft drinks, are bound to
F
r clearly specify on the bottle or package containing the carbonated
i
{
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 G
. ., Beverages (P) ltd v. Santosh Mittal and Ors., (2004) 10 SCALE 360 by an
order dated 6.12.2004 dismissed the Special Leave Petitions, stating :
"Mr. Harish N. Salve, learned senior counsel appearing for the
petitioner in SLP(C) No. 24266-24268/2004 and Mr. Arun Jaitley,
H
966 SUPREME COURT REPORTS r2005) I S.C.R.
\_ '
A learned senior counsel appearing for the petitioners in SLP(C) Nos.
244 I 3/2004 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. .,_
B 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.
We may, however, place on record that the learned senior counsel
c 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.
Though the special leave petitions are dismissed, but the operation
D
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 I..•
~
two weeks from today."
The expansion in the definition of State is not to be kept confined only
E 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 2 IA
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
F Constitutional limitations which requires an expansion of the concept of State ~
action.
Constitutions have to evolve the mode for welfare of their citizens.
Flexibility is the hallmark of our Constitution. The growth of the Constitution
shall be organic, the rate of change glacial. (See R. Stevens, the English
G 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.
Chacko v. Mediciti School of Nursing, Ghanpur, Ranga Reddy District and
H
)._ _
ZEE TELE FILMS LTD."- U.O.L [S.ll SINHA. J.] 967
' ) __)
Anr., (2002) 2 ALD 827) A
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
Association ltd v. Donoghue, (2002] Q.B. 48]. But an old age house run by
a private body may not. [See R (on the application of Heather and Ors.) v. B
Leonard Cheshire Foundation and Anr., (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.
c
But 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.MA. Pai Foundation and Ors. v. State of Karnataka
and Ors., [2002] 8 SCC 481 and Islamic Academy of Education and Anr. v. D
State of Karnataka and Ors., (2003] 6 SCC 697].
•. A
Tests or the nature thereof would vary depending upon the fact of each
case.
We must, however, remember that only because another authority would E
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. F
•' · Thus, all autonomous bodies having some nexus with the Government
by itself would not bring them within the sweep of the expression 'State'.
Each case must be determined on its own merits.
Let us for determining the question have a look at the relevant decisions G
rendered in different jurisdictions.
')
--.._ INDIAN CASE LAW :
In K.S. Ramamurthi Reddiar v. The Chief Commissioner, Pondicherry
and Anr., [l 964) 1 SCR 656, it was held that the expressions "under the H
I
.-'(
968 SUPREME COURT REPORTS [2005] I S.C.R.
l_ '
A 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 distinct.
''
Mathew, J. in Sukhdev Singh (supra) referring to various authorities
observed :
B
"In 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)
The said principles were reiterated in Ramana Dayaram Shetty v.
C International Airport Authority of India and Ors., [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, I9 & 20].
D In 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 v. Union of India and Anr., [1981] I SCC 449. >- ~
The conflict between Ajay Hasia (supra) and Sabhajit Tewary v. Union
of India and Ors., [1975] I SCC 485 has been resolved in Pradeep Kumar
E 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.
It is interesting to note that Bhagwati, J. in Ramana Dayaram Shetty
p (supra) followed the minority opinion of Douglas, J. in Jackson v. Metropolitan
Edison Company, [42 L.Ed. (2d) 477] as against the majority opinion of -...
Rehnquist, J. which was specifically noticed in MC. Mehta and Anr. v. · •
Union of India and Ors., [1987] I SCC 395. [SCC para 29]
In Air India Statutory Corporation and Ors. v. United Labour Union
G and Ors., [1997] 9 sec 377, (since overruled on another point) in Steel
Authority of India Ltd. and Ors. v. National Union Waterfront Workers and
Ors., [2001] 7 SCC I, this Court deliberated upon the distinction between the
Private Law and Public Law. [SCC para 26]. "'
H
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA . .I.] 969
i~
FOREIGN CASE LAW : A
UNITED KINGDOM
In Nagle v. Feilden and Ors., [1966) 2 QB 633, the Jockey Club 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
B
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.
In Greig and Ors. v. /nsole and Ors., [1978) 3 All ER 449, a Chancery
Division considered in great details the rules framed by the ICC as also the
c
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 D
A_ matches, could take part in the World Series Cricket which promoted sporting
"-
~ events of various kinds. ·
In R. v. Panel on Take-overs and Mergers, ex parte Datafin pie and
Anr., (1987) I All ER 564, the Court exercised the power of the judicial
review over a private body. E
The grounds on which judicial review was given are :
(a) The Panel, although self-regulating, do not operate consensually
or voluntary but had imposed a collective code on those within
its ambit; F
-r
' (b) 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 G
existence.
-~
(c) 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.
H
970 SUPREME COURT REPORTS [2005) I S.C.R.
A Lloyd LJ. in his separate speech opined :
"On the policy level, I find myself unpersu::ided. Counsel for the
panel made much of the word 'self-regulating'. No 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
B judicial review. Of 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. The panel wields enonnous power. It has a giant's strength.
c The/act 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)
D [See also Aston Cantlow, Wilmcote and Billesley Parochial Church
Council v. Wallbank, (200 I] 3 W.L.R. 1323].
In Poplar Housing and Regeneration Community Association Ltd v.
Donoghue, (200 I] 4 All ER 604, a question arose as to whether eviction of
,A
-
the defendant therein by a housing association known as Poplar Housing and
E
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 :
F " ... The 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 pie (Norton Opax pie intervening)
[ 1987] I All ER 564, [ 1987] QB 815. (ii) Tower Hamlets, in
transferring its housing stock to Poplar, does not transfer its primary
G public duties to Poplar. Poplar is no more than the means by which
it seeks to perform those duties ... "
J,..
[Emphasis supplied]
I'
Donoghue (supra) was, however, distinguished in Leonard Cheshire
H Foundation (supra) holding that the respondent therein having regard to its
ZEE TELE FILMS"LTD. v. U.0.1. [S.B. SINHA. J.] 971
' ~)~
activities did not perfonn any public function. [See also R (on the application A
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.
Tests evolved by the courts have, thus, been expanded· from time to B
time and applied having regard to the factual matrix obtaining in each case.
Development in this branch of law as in others has always found differences .
... Development of law had never been an easy task and probably would never
be.
A different note, however, was struck in Football Association Ltd. c
(supra) and Aga Khan (supra).
In 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
D
,' ~
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
judicial review.
E
In Aga Khan (supra), the applicant was an owner of the racehorses and,
thus, made himself bound to register with the Jockey Club. His hor.:e 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 subjected to
judicial review. It preferred to follow 'law v. National Greyhound Racing
1-"" Club Ltd, (1983) I WLR 1302 in preference to Datafin (supra). The Court F
I 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.
It was held that private power although may affect the public interest
and livelihood of many individuals but a sporting body would not be subject G
,.; 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
areas. H
972 SUPREME COURT REPORTS (2005) I S. C.R.
A We 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.
B In 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.
C 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
D (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
E stating :
"... As 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 Jaw.
F
It is, 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
G shown to be. ill-founded. For it 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.
There is therefore no reason why the field of sport cannot define
H
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, .I.) 973
) ...J.
law's new, or at any rate next, frontier; and if Britain can no longer A
head the world in spo1t 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 B
aforementioned judgments and upon enumerating the reasons therefor,
observed :
).
"There 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 c
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 D
J.. are misplaced. She contends that the courts are confusing contract as
I 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 E
economic activity in the market place, and they may not be best
suited to control potential abuse of regulatory power itself."
(Emphasis added)
SCOTLAND: F
r
In St. Johnstone Football Club limited v. Scottish Football Association
' limited, ( 1965) SL T 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 G
them, i.e., acting ultra vires or if by so acting they have done him injury, he
' -J 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.
H
974 SUPREME COURT REPORTS [2005] I S.C.R.
A NEW ZEALAND :
In Finnigan v. New Zealand Rugby Football Union Inc., (I 985) 2 NZLR
159, the Court noticed the factors which carry weight in entertaining judicial
review, stating inter a/ia :
B "2. 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.
C 3. In 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.
4. The decision affects the New Zealand community as a whole and
D 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.
E
5. 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.
F 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
G 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
H do when invoked against some moderate advance in the common law.
ZEE TELE FILMS LTD. v. U.0.l. [S.B. SINHA J.) 975
AUSTRALIA: A
In Romeo v. Conservation Commission of the Northern Territory, (1998)
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 ad i,1efficiently. B
Therein a question arose as to whether the publit: authorities have a
duty to care envisaging reasonable possibility of damage. The learned Judge
opined:
"Once again this Court has been asked to declare the limits of the C
common law liability of a public authority. This 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 D
con5temation 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 ')udicial
paternalism" the Local Government Ministers of Australia and New E
Zealand have commissioned a report on policy options to provide
statutory limitations on the liability of local authorities."
In Neat Domestic Trading Pty Ltd v. A WB Ltd and Anr., (77 ALJR
1263] the court was concerned with the Australian Wheat Board (International)
Ltd. (A WBI) a private corporation established in terms of Wheat Marketing F
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, G
1974. The decision of AWBJ 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 :
"67. This appeal presents an opportunity for this Court to reaffirm H
976 SUPREME COURT REPORTS [2005] I S.C.R.
\..... '
A that principle in circumstances, now increasingly common, where the
exercise ofpublic 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
B 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]
C As regards monopoly, it was opined :
"134. 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
D 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 ..."
E 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 Kirby, J.
F
UNITED STATES OF AMERICA:
Brennan, J. in San Francisco Arts and Athletics, Inc. v. United States
Olympic Committee and International Olympic Committee, [483 US 522 : 97
L.Ed. 2d 427] stating that the USOC performs a distinctive traditional
G government function representing the nation to the International Olympic
Committee observed :
"American 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
H denied that spectators, both in Moscow and all over the world, certainly
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, .I.] 977
i .....J,
will have such a thought in mind when the events take place. So it A
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)."
In Brentwood Academy v. Tennessee Seconaary School Athletic B
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
c
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'.
D
In Brentwood Academy (supra), it was held :
>.
"Our 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, E
I 02 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, I 02 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
F
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 G
(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).
Amidst such variety, examples may be the best teachers, and
examples from our cases are unequivocal in showing that the character H
978 SUPREME COURT REPORTS [2005] I S.C.R.
A 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
B 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 v.
C Michigan High School Athletic Association decided on 27th July, 2004)
SOME OTHER VIEWS :
We may notice that Wade in his Administrative Law at page 633
commented that while the English law creates a gap, the Scottish, New Zealand
D and other courts seeks to fill up the gap. Under the heading 'Realms Beyond
the Law' at page 627, the learned Author states :
"The 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
E 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" [1992) P.L. 221 at 235 advocated a broader approach by extending
review to cover all bodies which exercise authority over another person or
F body in such a manner as to cause material prejudice to that person or body.
These 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
G noticed a large number of decisions and considered the question from several
angles. He opined at pages 567-568 :
l .
"It 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.
H
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.] 979
.A
It will under the existing law, be difficult to maintain an action A
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
B
service in house will no longer be possible where it has contracted
this out.
It has 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
c
normative terms. The contractualisation of government is riot a
transient phenomenon. It is here to stay for the foreseeable future.
The courts have in the past developed doctrinal fools to meet challenges
posed by changing pattern of government. They should not forget
this heritage." D
. >,
Craig in his treatise 'Administrative Law' at page 821 also made an
J,.r interesting observation as regards future prospects, stating :
"If the scope ofreview is extended thus far then careful attention will
have to be given to whether the procedural and substantive norms E
applied against traditional public bodies should also be applied against
private bodies. Many of the cases within this section are concerned
with the application of procedural norms. If we were to follow Lord
Woolfs 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 F
r 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
G
would have ramifications for other subjects, such as company law,
commercial law and contract. It would increase the courts' judicial
' .l
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 H
980 SUPREME COURT REPORTS (2005] I S.C.R.
A 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
B 504, the learned authors while analyzing a recent decision of the High Court
of Australia in Agar v. Hyde, (2000) 74 ALJR 1219 involving right of Rugby
players to ask for amendment of the rules of International Rugby Football
Board (which was disallowed) opined :
"The High Court's decision in Agar is not without its difficulties, but
c 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. lt is conceivable
D 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
E
new information pointing to a higher level of risk than was generally
appreciated. ( '
It may 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
F administrators. What 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.
G
ANALYSIS OF CASE LAW:
.l...
We have noticed hereinbefore that the Courts of Scotland and New
Zealand differ with the English and American majority approach.
H
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.) 981
) _..
The approach of the court as regard judicial review has undergone a sea A
change even in England after the Human Rights Act, I 998 came into force
as doctrine of incompatibility is being applied more frequently even in
determining the validity of legislations.
The English Courts despite their reluctance to exercise power of judicial
review over the activities of sports association noticed in the context of B
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 and Athletics, Inc. (supra) the minority
view clearly states that the governmental function of the USOC in that they
c
represent the nation. Justice Blackmun, J. had agreed with the said view. The
minority view in Jackson (supra) was noticed in Ramana Dayaram Shelly
(supra). We agree with the said view.
It is interesting to note that even English Courts have imposed high
D
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 MC. Mehta (supra)]
The right of Indian players, having regard to the observations made in
Greig and Ors. (supra) is comparable· to their constitutional right contained E
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.
The 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 F
'l~ hostile discrimination or impose an embargo which would make or mar a
player's career as was in the case of Greig and 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
G
would lie against it as was in the case of Datajin (supra). The question has
,1
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 H
982 SUPREME COURT REPORTS (2005] I S.C.R.
A 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
B 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.
PUBLIC FUNCTION AND PUBLIC DUTY :
C Public law is a term of art with definite legal consequences. (See 0 'Reilly
v. Mackman, (1982) 3 WLR 604).
The concept of public law function is yet to be crystalised. Concededly,
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
D India only in a case where the dispute involves a public law element as
contradistinguished from a private law dispute. (See Dwarka Prasad Agarwal
(D) by LRs. and Anr. v. B.D. Agarwal and Ors., [2003] 6 SCC 230 at page
242)
General view, however, is that whenever a State or an instrumentality
E. 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 field. 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
F 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.
G
What would be a public function has succinctly been stated in American
Constitutional Law by Laurence H. Tribe at page 1705 in the following
terms:
"18-5. The "Public· Function" Cases:
H ·. ,·
",. ..
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.) 983
) J When the state "merely" authorizes a given "private" action A
imagine a green light at a street comer 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 tum on the character of the decision-making
responsibility thereby placed (or left) in private hands. However
B
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 c
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 D
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 E
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.
F
~ Performance 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 G
in a reasonable manner. The duty to act fairly is inherent in body which
, ..l, 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 H
984 SUPREME COURT REPORTS [2005] I S.C.R.
A Shetty (supra) (page 503), would not, thus, arise in the instant case. L ,
Governmental functions are multifacial. There cannot be a single test
for defining public functions. Such functions are performed by variety of
means.
B Furthermore, 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 <1
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
C 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.
D A.J. Harding in his book 'Public Duties and Public Law' summarized
the said definition in the following terms:
I.
"I. There is, for certain purposes (particularly for the remedy of
mandamus or its equivalent), a distinct body of public law.
2. Certain bodies are regarded under that law as being amenable to
E it.
3. Certain functions of these bodies are regarded under that law as
prescribing as opposed to merely permitting certain conduct.
4. These prescriptions are public duties."
F
In Donoghue (supra), it is stated :
"58. 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
G interpretation .... "
There are, however, public duties which arise from sources other than
.I...
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 (i) Prerogative,
(ii) Franchise and (iii) Charter. All the duties in each of the categories are
H regarded as relevant in several cases. (See A.J. Harding's Public Duties and
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.) 985
I _j
Public Law, Pages 6 to 14) A
The functions of the Board, thus, having regard to its nature and character
of functions would be public functions.
AUTHORITY:
B
All 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.
-. In Aston Cantlow and Wilmcote with Billesley Parochial Church Council
v. Wallbank and Anr., (2004) I AC 546 and (2003) 3 WLR 283 albeit in the c
context of Human Rights Act, 1998, it was held :
" .... This 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 ..." D
See also Hampshire County Council v. Graham Beer tla Hammer Trout
Farm, (2003) EWCA Civ 1056.and.Parochial Church Council of the Parish
of Aston Cantlow v. Wallbank, (2003) UKHL 37; Para.52;
There, however; exists a distinction between a statutory authority and E
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:
F
r
JUDICIAL REVIEW UNDER ARTICLES. 32: & 226 OF THE
CONSTITUTION OF' INDIA:·
Judicial Review forms basic structure of the Constitution:
G
It is 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.
The 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 H
986 SUPREME COURT REPORTS [2005] I S.C.R.
A vive." [See Padma v. Hirata/ Moti/a/ Desarda and Ors., [2002] 7 SCC 564 L ,
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
B enforcement of some public duty or obligation, which ordinarily will have
statutory flavour..
Judicial Review castes a long shadow and even regulating bodies that
do not exercise statutory functions may be subject to it. (Constitutional and
C Administrative Law; by A.W. Bradley and K.D. Ewing (13th Edn) Page
303).
Having 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-
D 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 : )
(a) Where the institution is governed by a statute which imposes
legal duties upon it;
E (b) Where the institution is 'State' within the meaning of Article 12.
(c) Where even though the institution is not 'State' within the purview
of Article 12, it performs some public function, whether statutory
or otherwise.
p Some of the questions involved in this matter have recently been
considered in an instructive judgment by High Court Delhi in Rahul Mehra -t
and Anr. v. Union of India and Ors., (Civil Writ Petition No. 1680 of 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
G meaning of Article 12 of the Constitution necessitates further and deeper
probe.
.... .
The 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
H including in appropriate cases any Government within its territorial jurisdiction,
ZEE TELE FILMS LTD. v. U.O.l. [S.B. SINHA, J.] 987
I _J
directions, orders or writs specified therein for the enforcement of any of the A
rights conferred by Part Ill and for any other purpose, Article 226 confers an
extensive jurisdiction to the High Court vis-a-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 lII 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 relation thereto can B
be made. (See Rohtas Industries Ltd and Anr. v. Rohtas Industries Staff
Union and Ors., AIR (19761 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
c
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.
In Assembrook Exports ltd. and Anr. v. Export Credit Guarantee Corpn. D
of India Ltd. and 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 Court
in ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation
of India Limited and Ors., JT (2003) 10 SC 300. [See also Tata Cellular v.
Union of India, AIR ( 1996) SC 11 Paras I 0 I and I 02] and State of U. P. and E
Anr. v. Johri Mal, [2004] 4 SCC 714.
The recent development in the field of judicial review vis-a-vis human
rights also deserves a mention, although in this case, we are not directly
concerned therewith.
r F
Jn Hatton and Ors. v. United Kingdom, [15 BHRC 259] it was 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 G
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
H
988 SUPREME COURT REPORTS (2005] I S.C.R.
A 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.
Yet recently in E. v. Secretwy of State for the Home Department,
B (2004) 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)
C HUMAN RIGHT :
Broadcasting 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
D 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 Anr., (supra) Paras
211 to 215].
E
To 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
F 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.
G
Even a 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.
H
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.) 989
J
APPLICATION OF TESTS: A
The 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 :
"(3) It may also be a relevant factor ... whether the corporation enjoys B
monopoly status which is State-conferred or State-protected.
(5) If 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. c
The six tests laid down there are not exhaustive.
We in 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 : D
"The 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 modem 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 E
phenomena."
(Emphasis supplied)
The learned Judge stated :
-,..- "The governing power wherever located must be subject to the F
fundamental constitutional limitations. The need to subject the power
centers to the control of Constitution requires an expansion of the
concept of State action."
Referring to Marsh v. Alabama [326 US 501], it was opined :
G
"Although private in the property sense, it was public in the functional
T ~
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
H
990 SUPREME COURT REPORTS [2005] I S.C.R.
.L
A administration of private property of such a tt.wn, though privately
carried on, was, neve1theless, in the nature ofa '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 :
B
"In 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."
C As regards public function tests, it was held :
"Another 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
D 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."
E
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:
"The State may aid a private operation in various ways other than by
F 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
G following terms :
"In 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
H within this category. So also are labour unions on which statutes
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.] 991
J
confer the right of collective bargaining." A
(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 m(lder11 State operates a B
multitude of public enterprises. What is, therefore, relevant and material is
the nature of the function.
In our view, the complex problem has to be resolved keeping in view
the following further tests :
(i) When the body acts as a public authority and has a public duty to
c
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 .. D
(iv) When it regulates the right of a citizen contained in Article 19(l)(a)
of the Constitution of India 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; E
(vi) When the State out-sources its legislative power in its favour;
(vii) When it has a positive obligation of public nature.
These tests as such had not been considered independently in any other
decision of this Court. F
r·
We, thus, would have to proceed to determine the knotty issues involved
therein on a clean slate.
These traditional tests of a body controlled financially, functionally and
administratively by the Government as laid down in Pradeep Kumar Biswas G
(supra) would have application only when a body is created by the State itself
r ..;
for different purposes but incorporated under the Indian Companies Act or
Societies Registration Act.
Those tests may not be applicable in a case where the body like the
H
992 SUPREME COURT REPORTS (2005) I S.C.R.
l
A 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
B 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
C 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.
The 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
D Government; whether in ce1tain 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-a-vis the citizens of the country, its activities vis-
a-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
E applicable are coercion test, joint action test, public function test, .entertainment
test, nexus test, supplemental governmental activity test and the importance
of the sport test.
An 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
F 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
G 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.
Similarly significant funding by the Government may not by itself
H make a body a State, if its functions are entirely private in character. Conversely
\_
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, .I.] 993
__./.
absence of funding for the functioning of the body or the organization would A
... 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
fonns, 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. B
It is true that regulatory measures applicable to all the persons similarly
situated, in tenns 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
c
consider any need therefor despite the fact that the body or organization had
·been discharging essentially a public function. Such non-interference would
not make the public body a private body.
WHAT CRICKET MEANS TO INDIA: D
;k
We have laid down the tests aforesaid ~nd the approaQ\i which needs
to be adopted in detennining the issue as to whether the Board is a State or
not. Before we embark on this enquiry, it would be )\eces$ary to keep in mind
as to what cricket means to the citizens of this counb'y.
E
Cricket 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.
~-
F
MEMORANDUM OF ASSOCIATION OF BOARD:
The Board is a society under the Tamil Nadu Societies Registration
Act, 1975. In tenns of its Memorandum of Association, its objects, inter alia,
are to control the game of Cricket in India and to resolve the disputes and
G
to give its decision on matters referred to it by any State, Regional or other
r -<
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; H
994 SUPREME COURT REPORTS [2005] I S.C.R.
.....
A RULES AND REGULATIONS :
The 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 :
B
"!.INTERPRETATION:
(i) "REPRESENTATIVE" of a Member or an Associate Member
means a person duly nominated as such by the Member or the
+
Associate Member.
c (I) "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
D from time to time.
(q) 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
E
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,
F 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
G 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 :
H
\_
ZEE TELE FILMS LTD. v_ U.O.L [S.B. SINHA, .I.] 995
__,.,
(a) To grant affiliations as provided in the Rules or to disaffiliate A
.,.. Members on disciplinary grounds .
(b) To 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 conducted.
(c) To lay down conditions on which Indian players shall take part B
in a tour to any foreign country and by which such players shall
be governed, including terms of payments to such players.
't
(d) To 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, c
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.
(f) To 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 D
India.
(g) To 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.
E
(n) To take disciplinary action against a player or a Member of Board.
(o) To appoint Manager and/or other official of Indian teams.
Rule I 0 provides for complete power and control over players within
the jurisdiction of a member or an associate member.
.,.. F
Rule 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. G
Rule 32(A)(ii) provides for constitution of All India Selection Committee
' ' inter alia when Indian Team goes on a foreign tour.
Rule 33 provides that no tournaments by any club affiliated to a member
or any other organization be held without permission of the Board.
H
996 SUPREME COURT REPORTS (2005] I S.C.R.
A Rule 34 imposes ban on participation in tournaments stating :
"No 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."
B
Rule 35 provides for an exclusive right in the Board to organize foreign
tours and invite teams from abroad, in the following terms :
"No organization other than a Member or Associate Member, Clubs t
or Institutions affiliated to such members shall organize foreign tours
c 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."
D 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.
E ICC RULES:
In the Articles of Association of the ICC, the words "Cricket Authority",
Full Member Country(ies)" and "Member Country(ies)" have been defined
as under :
"Cricket Authority" a body (whether incorporated or not) which ·is
F 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);
G "Full 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; ..
"Member Country (ies)" any country or countries associated for cricket
purposes or geographical area, the governing body for cricket of
H
ZEE TELE FILMS LTO. v. U.0.1. [S.B. SINHA, J.) 997
which is a Full Member, an Associate Member or an Affiliate Member, A
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." B
Paragraph I inter alia provides for playing. Paragraphs 1.2, 4 and 5
provide for Cricket Structure, Financial and Standing respectively.
The membership guidelines relating to one day international matches
speaks of test playing nation and formation of national association. Preamble C
to One Day International (OD!) Status reads as under :
"ODI status is not an ICC membership category, but rather a sub-
category of Associate Membership. OD! 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 D
better equip them to apply for Full Membership at the appropriate
time.
The Criteria for OD! status are extremely demanding and OD! 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 E
a leading Associate Member and meet all the criteria of Associate Membership.
Qualification Rules for International Cricket Council Matches, Series
and Competitions read as under :
*** *** *** F
"(a) Definitions
(b) Qualification Criteria
I. A cricketer is qualified to play Representative Cricket for a Member G
Country of which he is a national or, in cases of non-nationals, in
which he was born ...
2. A 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.
H
998 SUPREME COURT REPORTS [2005) I S.C.R.
A ••• *** ***
(c) Transfer of "Playing Nationality"
1. Cricketers qualified to play for a Member Country can continue to
represent that country without negating their eligibility or interrupting
B 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 .....
(d) Applications t
I. Each Member Country shall require each player to certify his
c eligibility to represent that Member Country.
*** •••
(f) Register of Cricketers and Proof of Qualification
D I. 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
E which do not have first-class cricket) for any local club or team
including any State or Country Team.
2. 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
F of any year, including copies of the register or of the relevant extracts
therefrom.
3. 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
G 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 l(a)(i) is as follows :
H "Any cricket match of not more than 5 days scheduled duration played
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.) 999
between two teams selected by full members as representatives of A
their member countries and accorded the status of test match by the
Council."
GUIDELINES ISSUED BY UNION OF INDIA :
Indisputably, the Union of India had issued guidelines which had been B
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-1 within the category C
[Others (C)].
While 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 D.
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.
The objective of the said guidelines was to define the areas of
responsibility of various agencies involved in the promotion and development E
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. Para Ill 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: (a) 'Priority', (b) 'General Category' F
and (c) 'Other Category'. 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.
G
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.
Annexure-11 appended to the said guidelines provides for recognition
of National Sports Federations, inter alia, by laying down the eligibility therefor H
I
1000 SUPREME COURT REPORTS [2005) I S.C.R.
A and the necessity of filing of applications in that behalf. Clause 3.12 reads as
under :
"There 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
B 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.
c
The 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
D for sending an Indian team abroad or for inviting a foreign team in India in
the prescribed form.
EXPRESS RECOGNITION - ESSENTIAL?
Union of India has issued certain guidelines evidently in exercise of its
E 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
F been brought within the purview of the said guidelines in the year 200 I.
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
G 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
H beginning the Board had been asking for permission of the Ministry of Human
ZEE TELE FILMS LTD. v. U.0.1. {S.B. SINHA, J.] I 001
Resource Development either to go abroad or to play or participate in other A
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 facto recognition.
In the affidavit dated 8th October, 2004 affirmed by a Deputy Secretary B
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. C
2. In 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 D
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 E
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 F
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 G
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.
H
1002 SUPREME COURT REPORTS (2005] I S.C.R.
A BOARD A ST ATE?
The Board is a society registered under the Tamil Nadu Societies Act.
It is 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
B 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
C 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 monopoly.
D 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.
E A monopoly 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.
A body 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
F 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
G 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 G<.'vernment, considering the facts and circumstances, should
control the actions of the Board as long as it purports to select a team to
H represent India would be a matter of great significance. The guidelines issued
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.] 1003
by the Union of India clearly demonstrate its concern with the fall in standard A
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 B
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.
7 Cricket, as noticed hereinbefore, has a special place in the hearts of citizens
of India. ·
The monopoly status of the Board is undisputed. The monopoly enjoyed C
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 ifit is technically possible to float any other association), can send
an Indian Team abroad or invite a foreign team onto India. In absence of D
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 cricket. So 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 E
Cricket, India and Anr. v. Netaji Cricket Club and Ors., JT (2005) I SC 235].
The object of Part Ill 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".
F
The 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 G
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 H
1004 SUPREME COURT REPORTS [2005) I S.C.R.
;...
A judicial review.
The 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.
It is not disputed that the Government in terms of its guidelines
B 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. The
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
c 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
D 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.
It is true that a country as such is not a member of ICC and in some
E 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
F
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
G 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. ... .
In the Rules framed by the ICC, the principles of natural justice
containing elements (a) the right to a fair hearing; and (b) the rule against
H bias has been specifically provided for. These are in keeping with the function
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.] I005
of public body and not private body. But, so far as the rules framed by the A
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.
The submission of Mr. Venugopal that Union of India having made a
categorical statement before the Parliament as also in its affidavit in the case B
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 C
be of much significance. We must moreover notice that the Minister of Youth
Affairs and Sports in an answer to the Parliament also stated :
"The 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." D
Such responsibility on its part makes it a State actor.
When a 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 :
E
" ... We 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.
F
It is 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. G
However, 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 H
1006 SUPREME COURT REPORTS [2005) I S.C.R.
A 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
B in the form prescribed in the guidelines.
The 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
C 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 governmental
D organizations.
Indisputably the Board is a regulator of cricket played at the country
level both off and on the fields including selection of players and umpires.
ICC possesses and exercises all the powers to regulate international competitive
cricket. It exercises disciplinary power also as in case of violation of the
E rules, a country member or the player may be derecognized. The 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
p 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.
G In our 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.
.. '
The hallowness 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
H stated that they have played for India and not for the Board. Whenever
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA . .J.] I 007
players play for the Board, the Team is named as Board-Eleven. [See 'The A
Times of India' October 24, 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.
While considering the status of the Board vis-a-vis Article 12 of the
Constitution of India, the Central Government's reluctance to interfere with B
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.
It would not be correct to contend that a monopoly status upon a body C
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 competitive cricket. D
•· ~. Despite 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 froin a larger spectrum of the Indian citizenary as a E
whole.
It is 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 F
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 G
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 H
1008 SUPREME COURT REPORTS [2005) I S.C.R.
A 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.
There 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
B 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.
c Legal 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
D to be canvassed by Lahoti, J. in his minority opinion in Pradeep Kumar
Biswas (supra), the same would give way to the majority opinion.
In sum, the control of the Board over the sport of competitive cricket
is deep and pervasive, nay complete.
E The word 'control' has been defined in Black's Law Dictionary in the
following terms :
"Control-power or authority to manage, direct, superintend, restrict,
regulate, govern, administer, oversee."
p 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.
G
It is not correct that the Board represents itself in international area. If
it 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 .
H The Union of India has since filed affidavits categorically stating that
'-r-
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA . .I.] 1009
....(
the Board is a 'State' within the meaning of Article 12 of the Constitution of A
,. 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).
The players who participate in the competitiw cricket whether domestic B
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.
The 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" c
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 . D
A ... It is 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.
E
We may notice that in Union of India v. Naveen Jindal and Anr.,
[2004] 2 SCC 510, this Court as regard right of a citizen to fly the Indian
National Flag observed :
"14. National Flags are intended to project the identity of the country.
They represent and foster national spirit. Their distinctive designs F
', ~-
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 G
bodies keeping in view wider and wider range of measures the executive and
t ... the Central Government adopt.
The Board, having regard to its functions and object, had also been
granted exemption from payment of Income-tax. Such exemption has been H
1010 SUPREME COURT REPORTS [2005) I S.C.R.
l-
A granted with a view to fulfill its objectives to promote sports of cricket.
The Board, thus, in terms of ICC Rules, is representative of India. The ..
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
B 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.
,,
The Board (although such a contention has not been raised in any
affidavit but in the written submissions only) allegedly spends crores of
c 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
D 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.
The State legislature as also the Parliament have the legislative
E 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 thereto. They, thus, made
themselves bound by the said Rules and Regulations. In that sense, exercise
F
of law making power contemplated by legislation has been outsourced to the ~-
Board.
The Board which represents a nation with or without a statutory flavour
has duties to perform towards the players, coaches, umpires, administrators
G 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
H
ZEE TELE FILMS LTD. v. U.O.I. [S.B. SINHA, J.) l 011
and play are considered to be important values to be recognized in a human. A
Encouragement 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 B
making a legislation have thought it fit to allow the sports bodies to grow
from its grass-root· ievel 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 C
Federations and some other organizations essentially having regard to their
respective nature of functions only are members of the Board. They include
Association oflndian Universities, Railway Sports Control Board and Services
Sports Control Board.
Furthermore, having regard to the nature of activities, viz., the Board D
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. E
With 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 witllthe State
functions, they would be State actors only in relation thereto.
F
An 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 G
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
H
1012 SUPREME COURT REPORTS [2005] I S.C.R.
A 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
B citizen's sports career, it would be an authority which answers the description
of "other authorities".
The Board, it appears, even nominates cricketers for the Arjuna Awards.
The 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
c 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 State actor.
D
The activities undertaken by the Board were taken note of in the case
of Cricket Association of Bengal (supra). Therein this Court inter a/ia 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
E to telecast the sporting event through an agency of their choice in the following
terms :
"We 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
F 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
G 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
H Association of Bengal (supra) was considered to lie a pure private body
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, .1.) 1013
where was the occasion for this Court to say that 'if it fails to explore the A
most profitable avenue of telecasting the event whereby it would achieve the
object of promoting and popularizing the sport, it may be accused ofnegligence
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 B
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 C
in the activities of the Board. It is, thus, a State actor.
We, 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 D
'State'.
PRECEDENT:
Are we 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 E
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 F
} made therein should receive consideration in the light of the questions raised
before it. [See Punjab National Bank v. R.L. Vaid and Ors., [2004] 7 SCC
.,
698]
Although, decisions are galore on this point, we may refer to a recent G
one in State of Gujarat and Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal
and Ors., AIR (2004) SC 3894 wherein this Court held :
" ... It 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." H
1014 SUPREME COURT REPORTS (2005] I S.C.R.
;_
A It is further well-settled that a decision is not an authority for the
proposition which did not fall for its consideration.
....
It is also a trite law that a point not raised before a Court would not be
an authority on the said question.
B In A-One Granites v. State of U.P. and Ors., [2001] 3 SCC 537, it is
stated as follows :-
"11. This question was considered by the Court of Appeal in Lancaster ~·
Motor Co. (London) ltd. v. Bremth ltd., (1941) I KB 675, and it was
laid down that when no consideration was given to the question, the
c decision cannot be said to be binding and precedents sub silentio and
without arguments are of no moment.
[See also State of U.P. and Anr. v. Synthetics and Chemicals ltd. and
Anr., [ 1991] 4 SCC 139, Amit Das v. State of Bihar, (2000] 5 SCC 488 (Para
20), Bhavnagar University v. Palitana Sugar Mill (P) ltd. and Ors., [2003]
D 2 SCC 111, Cement Corporation of India ltd. v. Purya and Ors., (2004] 8
SCC 270, Bharat Forge Co. ltd v. Uttam Manohar Nalw.te, JT (2005) I SC ,..
303 and Kalyan Chandra Sarkar v. Rajesh Ranjan @Pappu Yadav and Anr.,
para 42, (2005) I SCALE 385].
We have noticed, hereinbefore, that in Pradeep Kumar Biswas (supra)
E .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-a-vis the tests laid down therefor in Sabhajit Tewary
(supra), the ratio must be understood to have been laid down in respect of the
F 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
situation.
G The question has been considered by us on the touchstone of new tests
and from a new angle.
"
ALLA YING THE APPREHENSION :
Only because a body answers the description of a public authority,
H
~··
ZEE TELE FILMS LTD. v. U.0.1. [S.13. SINHA ..I.] 1015
discharges public law functions and have public duties, the same by itself A
would not lead to the conclusion that all its functions are public functions.
They are not. (See Donoghue (supra)) Many duties in public law would not
be public duties as, for example, duty to pay taxes.
By way of illustration, we may point out that whereas mandamus can
issue directing a private body discharging public utility services in terms of B
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 C
between public law function and private law function has been drawn by this
Court. [See Life Insurance Corporation of India v. Escorts Lid. and Ors.,
(1986] l SCC 264 at 343 and 344, para 101, Kera/a State Electricity Board
and Anr. v. Kurien E. Ka/athil and Ors., (2000] 6 SCC 293 at 299, Johri Mal
(supra) page 729 and State of Maharashtra and Ors. v. Raghunath Gajanan D
Waingankar, (2004) AIR SCW 4701]
In Johri Mal (supra) it is stated :
"The 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 E
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 F
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.
(Emphasis supplied)
G
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.
H
1016 SUPREME COURT REPORTS (2005) I S.C.R.
A It is 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
B function would depend upon the nature and character thereof. This Court
cannot be asked to give a hypothetical answer to a hypothetical question.
The contention of Mr. Venugopal to the effect that the consequences of
treating the Boara as State will be disastrous inasmuch as all the national ·>'
sports federations as well as those bodies which represent India in the
C 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.
We 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.
D Amongst 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.
Further, 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
E association and the rules and regulations framed by it.
Only 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 I 6 of the Constitution
of India.
F
In Ajit Singh and Ors. (II) v. State of Punjab and Ors., (1999] 7 SCC
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 v. State of Andhra Pradesh and Ors., (2004)
G 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. [SeeJohrimal
(supra).
H
ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA . .I.] 1017
It is furthermore well-settled that issuance of a writ is discretionary in A
nature. The Court may in a given case and in larger interest may not issue
any writ at all.
Mr. Venugopal 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 B
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.
Recently in Virendra Kumar Srivastava (supra), this Court held :
"Before parting with the case, it is necessary for us to clarify that C
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 D
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 E
litigation would open up ifthe Board is held to be a State within the meaning
of A11icle 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
G;,iruvayoor Devaswom Managing Committee and Another Anr. v. C.K. Rajan F
and Ors., [2003) 7 SCC 546, para 69). Secondly, 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 G
the lis involves only private law character.
' .. We are 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.
(See P.P. Craig's Administrative Law) H
1018 SUPREME COURT REPORTS [2005] I S.C.R.
A 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.
It is interesting to note that Lord Denning M.R. in Bradbury and Ors
B v. London Borough of Enfield, [1967} 3 All ER 434] held :-
"It 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.
c 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
D 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 ..... .!
see no reason why the position should not be restored, so that the
eight school retain their previous character until the statutory
E 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. '.Ve must see that their rights are
F upheld."
CONCLUSION :
For the reasons aforementioned, we are of the considered view that the
writ petition under Article 32 of the Constitution of India is maintainable. It
G is ordered accordingly.
S.K.S. Petition dismissed.
.. '
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