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CASE NO.: Writ Petition (civil)  541 of 2004

PETITIONER: M/S. Zee Telefilms Ltd. & Anr.                  

RESPONDENT: Union of India & Ors.                                    

DATE OF JUDGMENT: 02/02/2005

BENCH: N Santosh Hegde,B P Singh & H K Sema

JUDGMENT: J U D G M E N T ( With S.L.P. (c) No. 20186 of 2004 )

Santosh Hegde, J.         I have had the benefit of reading the judgment of Sinha, J. I regret I  cannot persuade myself  to agree with the conclusions  recorded  in the said  judgment, hence this separate opinion.  The Judgment of 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.  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.

       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.O.I.) the first respondent  herein. He further submitted that it also does  not 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  status  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  player  in the field of cricket control.  He also submitted  that  there is no law which prohibits the coming 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  vs. Indian  Institute of Chemical Biology & Ors. (2002 5 SCC 111), the Board cannot  be construed  as a State for the purpose of Article 12 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.  

       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 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

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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 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 the country or not. Further,  since playing cricket  is a profession the Board controls the fundamental  right of a citizen under Article  19 (1) (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 Board.  For all these  reasons, he submitted that the Board is "other authorities" within the  meaning of Article 12.

       Respondent No. 1-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-facto control of the Ministry of  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 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.  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  Government of India accepts the  recommendation of the Board in regard to awarding  "Arjuna Awards" as  the National Sports Federation representing  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 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 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  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 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

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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  any financial  assistance to the Board for  any purpose. It had also taken the 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.  

       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  12 reads thus :-  

"12. Definition\027In 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."

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.  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 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 function.   

Therefore, to understand the expanded meaning of the term "other  authorities"  in Article 12, it is necessary to trace the origin and scope  of  Article  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 :- "The object of the fundamental rights is  twofold. First, that every citizen must be in a  position to claim those rights. Secondly, they  must be binding upon every authority \026 I shall  presently explain what the word ’authority’  means \026 upon every authority which has got  either the power to make laws or the power to  have discretion vested in it. 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, in fact, every  authority which has been created by law and  which has got certain power to make laws, to  make rules, or make bye-laws.

If that proposition is accepted \026 and I do not

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see anyone who cares for Fundamental Rights  can object to such a universal obligation being  imposed upon every authority created by law \026  then, what are we to do to make our intention  clear ? There are two ways of doing it. 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 to  some authority. The wisest course is to have  this comprehensive phrase and to economise in  words." (1948 (Vol. VII) CAD 610]                                        (Emphasis supplied)

From the above, it is seen that the intention of the Constitution  framers  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  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   vs. Shantha Bai & Anr.  (AIR  1954 Madras, 67), B.W. Devadas Vs. 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  Vs. Mohan Lal & Ors.  (AIR 1967 SC 1857) a  Constitution Bench of this Court held  that the expression "other  authorities"  is wide enough  to include within it every authority created by  a Statute  on which powers are conferred to carry out governmental or quasi- governmental functions and functioning  within the territory of India or  under the control of the Government of India.(Emphasis supplied) Even  while holding so Shah, J. in a separate but 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 others that  fall within the definition of "State" in Article 12 : but 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  expanded  this concept of "other authority" in the case of   Sukhdev Singh & Ors.  Vs. Bhagatram Sardar Singh Raghuvanshi & 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 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. Today State cannot  be conceived of simply as a coercive  machinery wielding the thunderbolt of  authority. It has to be viewed mainly as a

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service Corporation. A State is an abstract  entity. It can only act 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. 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 public  administration through separate Corporations  which would 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 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 of  the Government for carrying on a business for  the benefit of the public."

From the above, it is to be noticed that because of the change in the  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 term "other  authorities".

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  perform its duties.  

At this stage it is necessary to refer to the judgment of Sabhajit  Tewary vs U.O.I. & Ors. [(1975) 3 SCR 616] which was delivered by the  very same Constitution Bench which delivered the judgment in Sukhdev  Singh & Ors. on the very same day.  In this judgment this court noticing its  judgment in Sukhdev Singh & 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 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 & Ors  and Sabhajit Tewary (supra), is  that in the former the Court held that bodies  which were creatures of the  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

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not functioning under the pervasive  control of the Government would not be  a 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   Vs.  The International  Airport Authority of India  & Ors. (1979  3 SCR 1014)  placing reliance  on the judgment of this Court in Sukhdev Singh (supra)   held that the 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 welfare State, is the  regulator and 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 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 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 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   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 that the Bench in Ramana Dayaram  Shetty’s case laid down  the parameters  or the guidelines  for  identifying  a body as coming within  the definition of "other  authorities" in Article 12.  They are as follows :- "(1)    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)

(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)

(3)     It may also be a relevant factor \005 whether  the corporation enjoys monopoly status  which is State-conferred or State-protected.

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(SCC 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 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 inference’ 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 subsequently  accepted by a Constitution Bench  of this Court in the case of Ajay Hasia & Ors. Vs.  Khalid Mujib  Sehravardi & Ors. (1981 1 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  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 direct 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 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 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  Tewary (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 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 vs.  National Council of Educational Research and  Training. The court referred to the tests  formulated in Sukhdev Singh, Ramana, Ajay  Hasia and Som Prakash Rekhi but striking a  note of caution said that (at SCC 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 Educational Research

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(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 of  NCERT were not wholly related to  governmental functions and that the  governmental 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. 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 and  watered down in the subsequent decisions."                                                                   (para38)   

Thereafter the larger Bench of this Court in Pradeep Kumar  Biswas (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 within  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  \026 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 particular to the body in question and must  be pervasive. If this is found then the body is a  State within Article 12. On the other hand,  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 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, 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  Government.

(3)     Such control must be particular to the body in

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question and must be pervasive.

(4)     Mere regulatory control whether under statute or  otherwise would 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  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.   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 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  Bench in Pradeep 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.   

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 functions even then as per the judgment of  this Court in Pradeep Kumar 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 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 19 (1) (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 regulation 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 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 sufficient to hold the Board to be a State for the purpose of Article 12?

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There is no doubt that Article 19(1)(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 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 and unlike the rights 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 that 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 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  the petitioner will have to first establish that the Board is a State under  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 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 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 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 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 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 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 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 Biswas’s case (supra) is not a factor  indicating a pervasive State control of the Board.

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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  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 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 & Ors. vs.  V.R. Rudani & Ors. (1989 2 SCC 691) has held :

"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 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 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 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 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 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 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

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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 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 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 Kerala v. T.P. Roshana,  (1979) 1 SCC 572) Therefore, 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 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 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) noticing 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 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 Balco Employees’ Union  (Regd.) v. Union of India & Ors. (2002 2 SCC 333)] and the State is  today distancing itself from commercial activities and concentrating on  governance rather than on business. 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 not be an  instrument to erase the said dividing line unless, of course, the  circumstances of the day require it to do so.

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 Article 32 of the Constitution is not  maintainable and the same is dismissed.