http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 58  

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

PETITIONER: Zee Telefilms Ltd. & Anr.                                        

RESPONDENT: Union of India & Ors.                                            

DATE OF JUDGMENT: 02/02/2005

BENCH: N.Santosh Hegde & S.N. Variava & B.P.Singh & H.K.Sema & S.B. Sinha

JUDGMENT: JUDGMENT

With SPECIAL LEAVE PETITION (CIVIL) NO.20186 OF 2004

Delivered by Santosh Hegde,J S.B. Sinha,J

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 58  

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  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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 58  

       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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 58  

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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 58  

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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 58  

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  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)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 58  

(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.  (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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 58  

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  (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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 58  

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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 58  

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?  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 58  

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.

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 58  

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  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.   

                        ============================================================================================

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 58  

====================================

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.

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 is said to be recognized by the Union of India, Ministry of Youth  Affairs and Sports.  The Third and Fourth Respondents are President and   Secretary respectively of the Second Respondent.  The Fifth Respondent,  "ESPN Star Sports", known as "ESS" is a partnership firm of the United  States of America having a branch office in Singapore.  The Sixth  Respondent is a firm of Chartered Accountants which was engaged by Board  in relation to the tender floated on 07.08.2004.  Pursuant to or in furtherance  of a notice inviting tender for grant of exclusive television rights for a period  of four years, several entertainment groups including the Petitioners and the  Fifth Respondent herein gave their offers.   For the purpose of this matter,  we would presume that both the Petitioners and the said Respondent were  found eligible therefor.  The   First    Petitioner     gave    an    offer    for     an    amount  of        US $ 260,756,756.76 (INR equivalent to  Rs.12,060,000,000/- (Rupees twelve thousand sixty million only - @ INR  46.25/US $) Or US $ 281,189,189.19 (INR equivalent to  Rs.13,005,000,000/- (Rupees thirteen thousand five million only - @ INR  46.25/US $).    

Upon holding negotiations with the First Petitioner as also the Fifth  Respondent, the Board decided to accept the offer of the former;  pursuant to  and in furtherance  whereof a sum of Rs. 92.50 crores equivalent to US $ 20  millions was deposited in the State Bank of  Travancore.  In response to a  draft letter of intent   sent by  the Board,  the First Petitioner agreed to abide  by the terms and conditions of offer subject to the conditions mentioned  therein.

       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.  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 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 that has been created in the grant of  Television Rights for the ensuing Test Series owing to  litigation and as informed before the Hon’ble High Court  at Bombay this day, the Board of Control for Cricket in  India (BCCI) hereby cancels the entire process of tender  by invoking Clause 5.3, 5.4 (c) and 5.4 (d) of the  invitation to tender (ITT) dated 7 August, 2004, the terms

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 58  

of which were accepted and acknowledged by you.

The Security in the form of Bank Guarantee and/or  money deposited by you is being returned immediately."            

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.           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 tems of the  decision arrived on 5.9.2004.            

REFERENCE:         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 than 5 Judges as  contemplated under Article 145(3) of the Constitution.   Place this matter before Hon’ble 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.

       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."

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 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 :         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 into the contracts for awarding telecast  and broadcasting rights, for advertisement revenues in  the Stadium etc.         

b.      The team fielded by the BCCI plays as "Indian

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 58  

Team" while playing One Day Internationals or Test  Matches \026 it cannot be gainsaid that the team purports to  represent India as a nation, and its wins are matters of  national prestige.  They wear uniform that carries the  national flag, and are treated as sports ambassadors of  India.

c.      The sportsmen of  today are professionals who  devote their life to playing the game.  They are paid a  handsome remuneration by the BCCI for their  participation in the team.  Thus, they are not amateurs  who participate on an honorary basis.  Consequently they  have a right under Article 19(1)(g) to be considered for  participation in the game.  The BCCI claims the power to  debar players from playing cricket in exercise of its  disciplinary powers.  Obviously, it is submitted, a body  that purports to exercise powers that impinge on the  fundamental rights of citizens would constitute at least an  "authority" within the meaning of Art. 12 of the  Constitution \026 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.      This Hon’ble Court has already, by its interim  orders., directed a free to air telecast of the matches that  were played in Pakistan in which a team selected by the  Respondent BCCI participated.  This was done, it is  respectfully submitted, keeping in view the larger public  interest involved in telecasting of such a sport.  Surely,  the regulatory body that controls solely and to the  exclusion of all others, the power to organize such  games, and to select a team that would participate in such  games is performing a public function that must be  discharged in a manner that complies with the  constitutional discipline of  Part III of the Constitution.   If the events organized are public events, then it is  submitted that the body that is the controlling authority of  such public events would surely be subject to the  discipline of Art. 14 and 19 of the Constitution.

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 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  India,  is amenable to the writ jurisdiction of this Hon’ble Court  under 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 affirmed by Deputy Secretary to the Government of  India, Ministry of Youth Affairs and Sports has been filed.  A large number

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 58  

of documents have also been filed to show that the Board had all along been  acting as a recognized body and as regard international matches  has always  been seeking its prior permission.  The Board had also been under the  administrative control of the Government of India.

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 autonomous non-profit making  Association limited and restricted to its Members only  and registered under the Tamil Nadu Societies  Registration Act.  It is a private organization whose  objects are to promote the game of Cricket.  Its functions  are regulated and governed by its own Rules and  Regulations independent of any statute and are only  related to its members.  The Rules and Regulations of the  Respondent no.2 have neither any statutory force nor it  has any statutory powers to make rules or regulations  having statutory force.

(b)     The Working Committee elected from amongst its  members in accordance with its own Rules controls the  entire affairs and management of the Respondent No.2.   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.

(c)     \005The 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 form or manner from the Government  in this context.  It may be stated that in a writ petition in  the case of Rahul Mehra vs. Union of India in the  Hon’ble High Court at Delhi.  "Union of India" filed  Affidavits stating categorically that there is no  Government control of any nature upon the Board of  Control for Cricket in India and as it does not follow the  Government Guidelines which have been consolidated  and issued under the title "Sports India Operation  Excellence" vide Circular No.F.1-27/86-DESK-1 (SP- IV) dated 16th February, 1988 issued by the Department  of Youth Affairs and Sports, Government of India has  neither extended any financial assistance to the Board of  Control for Cricket in India nor has any relationship of  whatsoever nature with it and no financial assistance is  also extended for participation of any tournament,  competition  or otherwise organized by the Respondent  No.2.  Copies of the said Affidavits are annexed hereto as  Exhibits "A" and "B" respectively.

(e)     The Respondent no.2 organizes cricket matches  and/or tournaments between the Teams of its Members  and with the Teams of the members of International  Cricket Council (ICC) which is also an autonomous  Body dehors any Government control\005.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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 58  

participants, the Respondent no.2 requires normal and  scheduled permissions from the Ministry of Sports for  travel of foreign teams, it obtains the same like any other  private organization, particularly in the subject matter of  foreign  exchange.  The Respondent No.2 is the only  autonomous sporting body which not only does not  obtain any financial grants but on the contrary earns  foreign exchange.

(f)     Organizing Cricket Matches and/or Tournaments  between the Teams of the Members of the Respondent  No.2 and/or with the co-members of International Cricket  Council cannot be said to be a facet of public function or  government in character.  No monopoly status has been  conferred upon the Respondent No.2 either by Statute or  by the Government.  Any other body could organize any  matches on its own and neither the Respondent no.2 nor  the  Government could oppose the same.  As a matter of  fact, number of cricket matches including International  matches are played in the Country which have nothing to  do with the Respondent No.2.  Respondent No.2 has no  monopoly over sending teams overseas for the game of  cricket and to control the entire game of cricket in India.   Matches which are sanctioned or recognized by the ICC  are only known as Official Test matches or One day  International Matches.  Respondent no.2 is entitled to  invite teams of other members of ICC or send teams to  participate in such matches by virtue of its membership  of ICC."         

ESS :         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 but not one under Article 32 thereof as the Board is not a  ’State’.

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 Kumar Biswas vs. Indian Institute of Chemical Biology and Others  [(2002) 5 SCC 111], it would not be a ‘State’.  Our attention, in this behalf,  has been drawn to paragraphs 25, 27, 30, 31, 38, 42 to 45, 48, 49, 50, 51, 52  to 55 of the said judgment .  It was contended that the Board is an  autonomous body and the Central Government does not have any control  thereover either financially or administratively or functionally.  It was urged  that neither the Central Government gives any monetary  grant nor  nominates any member in the Governing Body of the Board nor has  anything to do with its internal affairs.  It was pointed out by the learned  counsel that even the Union of India had agreed before the Bombay High  Court that the Board had the exclusive telecasting rights as owner of the  events.  The Board furthermore does not exercise any sovereign  or  governmental functions; Mr. Venugopal would argue that furthermore  the  Board has not even been recognized by the Union of India nor has it any role  to play as regard framing of its rules and regulations.  Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the  Third Respondent herein, would supplement the arguments of Mr.  Venugopal contending that the activity of a body like Board does not  involve any public duty or public function and although its action is public  in nature,  the same would not amount to a governmental action.  Reliance,  in this connection, has been placed on R. vs. Football Association Ltd, ex  parte Football League Ltd. [1993 (2) AER 833] and  R. vs. Disciplinary  Committee of the Jockey Club, ex parte Aga Khan  [1993 (2) AER 853].  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 58  

The leaned counsel has also drawn our attention to a decision of this Court  in Federal Bank Ltd. vs. Sagar Thomas and Others [(2003) 10 SCC 733].   According to Dr. Singhvi, there exists a distinction between Articles 32 and  226 of the Constitution of India.  Reliance in this behalf has been placed on   a decision of this Court in Andi Mukta Sadguru Shree Muktajee Vandas  Swami Suvarna Jayanti Mahotsav Smarak Trust and Others vs. V.R. Rudani  and Others [(1989) 2 SCC 691].

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  vested under a statute,  it would attract the definition of  "other authorities"  within the meaning of Article 12 of the Constitution  and not otherwise.  The  learned counsel would, however, submit that in Aga Khan (supra), the Court  of Appeal has accepted that there may be some cases where the judicial  review would be maintainable.  Drawing our attention to a decision of this  Court in G. Bassi Reddy vs. International Crops Research Institute and  Another [(2003) 4 SCC 225], the learned counsel would urge that Board  does not fulfil the tests laid down therein.

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  framed by it and contend that from a perusal thereof it would be manifest  that it exercises extensive power in selecting players for the Indian National  team in the international events. The Board, also exercises stringent  disciplinary powers over players, umpires, members of the team and other  officers.  It is the contention of Mr. Salve that the activities of the Board in  effect and substance are governmental functions in the area of sports.  An  exclusive right has been granted to it to regulate the sport in the name of the  country resulting in exercise of functions of larger dimension of public  entertainment.  When a body like the Board has received recognition from  the Union of India to allow it to represent India as a country, its character  must be held to have changed from private body to a public authority.  It was  submitted that the players put on colours of National Flag on their attire.   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 whereof his fundamental right under Article 19(1)(g) of  the Constitution of India would be affected.  He would submit that the  Board, therefore, is not an autonomous body discharging a private function  only and in fact it deals with sporting events of the country.  The learned  counsel would argue that the Board acts strictly in terms of the foreign  policy of the country as it refused to recognize a player who played in South  Africa, as apartheid was being practiced therein which was consistent with  India’s foreign policy.  It was further submitted that the cricket match  between India and Pakistan could be held only with the permission of the  Union of India as and when the relationship between the two countries  improved.   

Mr. Salve, therefore, submits that the Board is a ’State’ within the  meaning of Article 12 of the Constitution of India as:

(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 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 58  

Mr. Mohan Parasaran, learned counsel appearing on behalf of Union  of India  would contend that the functions of the Board are of public  importance and closely related to governmental functions.  Functions of the  Board, the learned counsel would urge, also control free speech rights of  citizens within a public forum which is essentially a governmental function.   Reference in this connection has been made to Daniel Lee Vs. Vera Katz \026  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 and management of sport of cricket by the Board and  enormous power exercised by it calls for a new approach.  The Constitution,  it is trite, should be interpreted in the light of our whole experience and not  merely in that of what was the state of law at the commencement of the  Constitution.  [See Missouri vs. Holland (252 US 416 (433) and  Kapila Hingorani  vs. State of Bihar [(2003) 6 SCC 1].                  Furthermore in John Vallamattom and Anr. Vs. 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:

"...The constitutionality of a provision, it is trite,  will have to be judged keeping in view the  interpretive changes of the statute effected by  passage of time."          

Referring to the changing scenario of the law and having regard to the  declaration on the right to development adopted by the World Conference on  Human Rights and Article 18 of the United Nations Covenant on Civil and  Political Rights, 1966, this Court held:

"It is trite that having regard to Article 13(1) of the  Constitution, the constitutionality of the impugned  legislation is required to be considered on the basis of  laws existing on 26th January, 1950, but while doing so  the court is not precluded from taking into consideration  the subsequent events which have taken place thereafter.   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.  

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 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 a gare of  chance: with only stability the law is as the still waters in  which there is only stagnation and death."  

In any view of the matter even if a provision was not  unconstitutional on the day on which it was enacted or  the Constitution came into force, by reason of facts  emerging out thereafter, the same may be rendered  unconstitutional."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 58  

       In Liverpool & London S.P. & I Association Ltd.  vs. M.V. Sea  Success I and Another, (2004) 9 SCC 512, this Court observed:

"Referring to Motor General Traders and Another vs.  State of Andhra Pradesh and Others [(1984) 1 SCC 222],   Rattan Arya and Others vs. State of Tamil Nadu and  Another [(1986) 3 SCC 385] and Synthetics and  Chemicals Ltd. and Others vs. State of U.P. and Others  [(1990) 1 SCC 109], this Court held: (SCC p. 608, para  49)

"There cannot be any doubt whatsoever that a law  which was at one point of time constitutional may  be rendered unconstitutional because of passage of  time.  We may note that apart from the decisions  cited by Mr. Sanghi, recently a similar view has  been taken in Kapila Hingorani Vs. State of Bihar  [JT 2003 (5) SC 1] and John Vallamattom and  Anr. Vs. Union of India [JT 2003 (6) SC 37]."

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 : "It is presumed that Parliament intends the court to apply  to ongoing Act a construction that continuously updates  its wording to allow for changes since the Act was  initially framed (an updating construction). While it  remains law, it is to be treated as always speaking.  This  means that in its application on any date, the language of  the Act, though necessarily embedded in its own time, is  nevertheless to be construed in accordance with the need  to treat it as 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 a way as to give effect to the true  original intention.  Accordingly, the interpreter is to  make allowances for any relevant changes that have  occurred, since the Act’s passing, in law, social  conditions, technology, the meaning of words, and other  matters.  Just as the US Constitution is regarded as ’a  living Constitution’, so an ongoing British Act is  regarded as ’a living Act’.  That today’s construction  involves the supposition that Parliament was catering  long ago for a state of affairs that did not then exist is no  argument against that construction.  Parliament, in the  wording of an enactment, is expected to anticipate  temporal developments.  The drafter will try to foresee  the future, and allow for it in the wording."   

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  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 1; sports,  entertainments and amusements."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 58  

       The State by reason of a legislative action cannot confer on it extra  territorial jurisdiction in relation to sports, entertainment etc.  Education,  however, is in Concurrent List being Item No.25 of List III.  Sport is  considered to be a part of Education (within its expanded meaning).  Sport  has been included in the Human Resource Development as a larger part of  education. The Ministry of Youth Affairs and Sports was earlier a  department of  the Ministry of Human Resource Development.  Now a  separate Ministry of Youth Affairs and Sports has come into being, in terms  of the Allocation of Business Rules.  

In Secretary, Ministry of Information & Broadcasting,   Government of India and Others etc. vs. Cricket Association of Bengal and  Others etc. [(1995) 2 SCC 161], this Court held :

"\005It may be true that what is protected by Article  19(1)(a) is an expression of thought and feeling and not  of the physical or intellectual prowess or skill.  It is also  true that a person desiring to telecast sports events when  he is not himself a participant in the game, does not seek  to exercise his right of self-expression.  However, the  right to freedom of speech and expression also includes  the right to educate, to inform and to entertain and also  the right to be educated, informed and entertained.  The  former is the right of the telecaster and the latter that of  the viewers.  The right to telecast sporting event will  therefore also include the right to educate and inform the  present and the prospective sportsmen interested in the  particular game and also to inform and entertain the  lovers of the game.  Hence, when a telecaster desires to  telecast a sporting event, it is incorrect to say that free- speech element is absent from his right.  The degree of  the element will depend upon the character of the  telecaster who claims the right.  An organizer such as the  BCCI or CAB in the present case which are indisputably  devoted to the promotion of the game of cricket, cannot  be placed in the same scale as the business organizations  whose only intention is to make as large a profit as can  be made by telecasting the game\005."      

                                               [Emphasis supplied]

       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  under Article 77 of the Constitution of India created a  separate Ministry of  Youth Affairs and Sports for the said purpose.  One of the objects of the  Ministry is to work in close coordination with national federations that  regulate sports.  Keeping in view the fact that the Union of India is required  to promote sports throughout India, it, as of necessity is required to   coordinate between the activities of  different States and furthermore having  regard to the International arena, it is only the Union of India which can  exercise such a power in terms of Entry 10, List I of the Seventh Schedule of  the  Constitution of India and it may also be held to have requisite legislative  competence in terms of Entry 97, List I of the Seventh Schedule of the  Constitution of India.   ARTICLE 12: 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  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 58  

of India."

       In this Article, the ’State’ has not been defined.  It is merely an  inclusive definition.  It includes all other authorities within the territory of  India or under the control of the Government of India.  It does not say that  such other authorities must be under the control of the Government of India.   The word ’or’ is disjunctive and not conjunctive.   

The expression "Authority" has a definite connotation.  It has  different dimensions and, thus, must receive a liberal interpretation.  To  arrive at a conclusion, as to which "other authorities" could come within the  purview of Article 12, we may notice the meaning of the word "authority".

       The word "Other Authorities" contained in Article 12 is not to be  treated as ejusdam generis.     In Concise Oxford English Dictionary, 10th Edition, the word  ’authority’ has been defined as under :

"1. the power or right to give orders and enforce  obedience. 2. a person or organization exerting control in  a particular political or administrative sphere. 3. the  power to influence others based on recognized  knowledge or expertise."

       Broadly, there are three different concepts which exist for determining  the question which fall within the expression "other authorities".  (i)     The Corporations and the Societies created by the State for carrying  on its trading activities in terms of Article 298 of the Constitution  wherefor the capital, infrastructure, initial investment and financial aid  etc. are provided by the State and it also exercises regulation and  control thereover. (ii)    Bodies created for research and other developmental works which 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  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.  

In Pradeep Kumar Biswas (supra), a Seven-Judge Bench held : "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)  1 SCR 778 at 968). The words "State" and "authority"  used in Article 12 therefore remain, to use the words of  Cardozo (Benjamin Cardozo : The Nature of the Judicial  Process), among "the great generalities of the  Constitution" the content of which has been and  continues to be supplied by courts from time to time."

[See also Black Diamond Beverages and Another vs. Commercial Tax  Officer, Central Section, Assessment Wing, Calcutta and Others \026 (1998) 1  SCC 458]                 What is necessary is to notice the functions of the Body concerned.  A   ‘State’ has different meanings in different context.  In a traditional sense, it  can be a body politic but in modern international practice, a State is an  organization which receives the general recognition accorded to it by the  existing group of other States.  Union of India recognizes the Board as its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 58  

representative.  The expression "other  authorities" in Article 12 of the  Constitution of India is ’State’ within the territory of India as  contradistinguished from a State within the control of the Government of  India.  The concept of State under Article 12 is in relation to the fundamental  rights guaranteed by Part-III of the Constitution and Directive Principles of  the State Policy contained in Part-IV thereof.  The contents of these two  parts manifest that Article 12 is not confined to its ordinary or constitutional   sense of an independent or sovereign meaning so as to include within its fold  whatever comes within the purview thereof so as to instill the public  confidence in it.           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 & Ors. vs. Bhagatram  Sardar Singh [(1975) 1 SCC 421] and development of law made therefrom is  to be given full effect,. it is not only the functions of the Government alone  which would enable a body to become a State but also when a body  performs governmental functions or quasi-governmental functions as also  when its business is of public importance and is fundamental for the life of  the people.  For the said purpose, we must notice that this Court in  expanding the definition of State did not advisedly confine itself  to the  debates of Constitutional Assembly.  It considered each case on its own  merit.  In Sukhdev Singh (supra),  Mathew, J. stated that even big industrial  houses and big trade unions would come in the purview thereof.  While  doing so  the courts did not lose sight of the difference between the State  activity and the individual activity.  This Court took  into consideration the  fact that new rights in the citizens have been created and if any such right is  violated, they must have access  to justice  which is a human right. No  doubt, there is an ongoing debate as regard the effect  of the  globalization  and/or opening up of market by reason of  liberalization policy of the  Government as to whether that the notion of sovereignty of the State is being  thereby eroded or not but we are not concerned with the said question in this  case.   "Other authorities", inter-alia, would be there which inter alia  function within the territory of India and the same  need not necessarily  be  the Government of India, the Parliament of India, the Government of each of  the States which constitute the Union of India or the legislation of the States.           Article 12 must receive a purposive interpretation as by reason of Part  III of the Constitution a charter of liberties against oppression and  arbitrariness of all kinds of repositories of power have been conferred \026 the  object being to limit and control power wherever it is found.  A body  exercising significant functions of public importance would be an authority  in respect of these functions.  In those respects it would be same as is  executive government established under the Constitution and the  establishments of organizations funded or controlled by the Government.  A  traffic constable remains an authority even if his salary is paid from the  parking charges inasmuch as he still would have the right to control the  traffic and anybody violating the traffic rules may be prosecuted at his  instance.         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: "The OAC’s functionally exclusive regulation of free  speech within\005.a public forum, is a traditional and  exclusive function of the State"

DEVELOPMENT OF LAW: The development of law in this field is well-known.  At one point of  time, the companies, societies etc. registered under the Indian Companies  Act and Societies Registration Act were treated as separate corporate entities  being governed by its own rules and regulations and, thus, held not to be  ’States’ although they were virtually run as department of the Government,  but the situation has completely changed. Statutory authorities and local  bodies were held to be States in Rajasthan State Electricity Board, Jaipur Vs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 58  

Mohan Lal & Ors. -  (1967) 3 SCR377.    

       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  Indian Companies Act or Societies Registration Act or any other Act for  answering the description of State must be financed by the Central  Government and be under its deep and pervasive control  has in the past  three decades undergone a sea change.  The thrust now is not upon the  composition of the body but the duties and functions performed by it.  The  primary question which is required to be posed is whether the body in  question exercises public function.   

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’.

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].

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 & Ors. [AIR 1999 SC 753], the land development bank was  held to be a State.  This Court upon analyzing various provisions of Act and  the rules framed thereunder observed:

"20\005It is not necessary for us to quote various other  sections and rules but all these provisions unmistakably  show that the affairs of the appellant are controlled by the  State Government though it functions as a cooperative  society and it is certainly an extended arm of the State  and thus an instrumentality of the State or authority as  mentioned under Article 12 of the Constitution."

However, when the law provides for a general control over a business  in terms of a statute and not in respect of the body in question, it would not  be a ’State’.  [See Federal Bank Ltd. (supra) K.R. Anitha and Others vs.  Regional Director, ESI Corporation and Another [(2003) 10 SCC 303] and  Bassi Reddy (supra)].

       Madon, J. in Central Inland Water Transport Corporation Limited and  Another Vs. Brojo Nath Ganguly and Another [(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  floundering in the sloughs of 19th century theories ?  Should the strong be permitted to push the weak to the  wall ?  Should they be allowed to ride roughshod over the  weak? Should the courts sit back and watch supinely   while   the strong trample underfoot the rights of the  weak ?  

It was opined :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 58  

       "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 keep time  with the heartbeats of the society and with the needs and  aspirations of the people.  As the society changes, the law  cannot remain immutable.  The early nineteenth century  essayist and wit, Sydney Smith, said : ’When I hear any  man talk of an unaltelrable law, I am convinced that he is  an unalterable fool."  The law must, therefore, in  a  changing society march in tune with the changed ideas  and ideologies\005"               Pradeep Kumar Biswas (supra) and Bassi Reddy (supra) were recently  considered in Gayatri De vs. Mousumi Cooperative Housing Society Ltd.  and Others [(2004) 5 SCC 90], wherein a mandamus was issued against a  Cooperative Society on the ground that the order impugned therein was  issued by an "administrator" appointed by the High Court who had also no  statutory role to perform. In Chain Singh vs. Mata Vaishno Devi Shrine Board & 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 Nath and Others vs. State of J & K and Others [(1997) 2 SCC  745] requires reconsideration in the light of the principles laid down in  Pradeep Kumar  Biswas (supra).  In Virendra Kumar Srivastava vs. U.P. Rajya Karmachari Kal. Nigam  and Another [2004 (9) SCALE 623], a Division Bench of this Court while  applying the tests laid down in Pradeep Kumar Biswas (supra) observed that  there exists a distinction between a ’State’ based on its being a statutory  body and a one based on the principles propounded in the case of Ajay Hasia  & Ors. vs. Khalid Mujib Sehravardi & Ors. [(1981) 1 SCC 722]     Recently a Division Bench of the Rajasthan High Court in Santosh  Mittal Vs. State of Rajasthan & Ors. (since reported in 2004 (10) 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 : "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 & Coca-Cola and other  manufacturers of beverages and soft drinks, are bound to  clearly specify on the bottle or package containing the  carbonated beverages or soft drink, as the case may be, or  on a label or a wrapper wrapped around it, the details of  its composition and nature and quantity of pesticides and  chemicals, if any, present therein."

       Pepsi Company and Coca-Cola are multinational companies.  They  are business concerns but despite the same this Court in Hindustan Coca- Cola Beverages (P) Ltd. vs. Santosh Mittal & Ors. [2004 (10) SCALE 360]  by an order dated 6.12.2004 dismissed the Special Leave Petitions, stating: "Mr. Harish N. Salve, learned senior counsel appearing  for the petitioner in SLP(C) No. 24266-24268/2004 and  Mr. Arun Jaitley, learned senior counsel appearing for  the petitioners in SLP(C) Nos. 24413/2004 and 24661- 24663/2004 state that the petitioners will be advised to  approach the High Court to seek clarification of exactly  what kind of disclosure the High Court requires them to  make.  We record the statement and dismiss the special  leave petitions giving liberty to the petitioners to  approach the High Court for that purpose.  In case the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 58  

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 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 of the order dated 3.11.2004 passed by  the High Court suspending the operation of its judgment  for six weeks, is extended by another two weeks from  today."

The expansion in the definition of State is not to be kept confined only  to business activities of Union of India or other State Governments in terms  of Article 298 of the Constitution of India but must also take within its fold  any other activity which has a direct influence on the citizens.  The  expression "education" must be given a broader meaning having regard to  Article 21A of the Constitution of India as also Directive Principles of the  State Policy.  There is a need to look into the governing power subject to the  fundamental Constitutional limitations which requires an expansion of the  concept of  State action.           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 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 Vs. Mediciti School of Nursing, Ghanpur, Ranga Reddy District  and Anr. 2002 (2) ALD 827)

       An association performing the function of Housing Board would be  performing a public function and would be bound to comply with Human  Rights Act, 1998. [See Poplar Housing and Regeneration Community  Association Ltd. Vs. 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  others) v. Leonard Cheshire Foundation and another (2002) 2 All ER 936] A school can be run by a private body without any State patronage.  It  is permissible in law because a citizen has fundamental right to do so as his   occupation in terms of Articles 19(1)(g) and 26.  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.M.A. Pai Foundation and Others vs. State of  Karnataka and Others \026 (2002) 8 SCC 481 and Islamic Academy of  Education and Another Vs. State of Karnataka and Others, (2003) 6 SCC  697].  Tests or the nature thereof would vary depending upon the fact of  each case.  We must, however, remember that only because another authority  would be an agency or instrument of the State, the same would not mean that  there exists a relationship of "Principal and Agent" between the Government  of the State and the Corporation or the society.  Only its actions of  promoting the sport making a law of cricket for the entire country,  representing the country in international forum, appointing India’s  representative and the all pervasive control over players, managers and  umpires are State actions. 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 58  

Let us for determining the question have a look at the relevant  decisions rendered in different jurisdictions.

INDIAN CASE LAW:         In K.S. Ramamurthi Reddiar Vs. The Chief Commissioner,  Pondicherry & Anr. [(1964) 1 SCR 656], it was held that the expressions  "under the control of the Government of India" do not qualify the word  "territory" and the expressions "under the control of the Government of  India" and "within the territory of India" are distinct.  

       Mathew, J. in Sukhdev Singh (supra) referring to various authorities  observed: "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 Vs.  International Airport Authority of India and Others [(1979) 3 SCC 489]  laying down the  factors which would enable the Court to determine as to  whether a company or a society would come within the purview of "other  authorities".  [SCC paras 16, 18, 19 & 20].  

       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 vs. Union of India and another [(1981) 1 SCC 449]  

       The conflict between Ajay Hasia (supra) and Sabhajit Tewary vs.  Union of India and Others [(1975) 1 SCC 485] has been resolved in Pradeep  Kumar Biswas (supra) by overruling Sabhajit Tewary (supra) and, thus,  there does not exist any conflict.  The principles laid down in Ajay Hasia  (supra) are not rigid ones and, thus, it is permissible to consider the question  from altogether a different angle.

It is interesting to note that Bhagwati, J. in Ramana Dayaram Shetty  (supra) followed the minority opinion of Douglas, J. in Jackson Vs.  Metropolitan Edison Company [42 L.Ed. (2d) 477] as against the majority  opinion of Rehnquist, J. which was specifically noticed in M.C. Mehta and  Another vs. Union of India and Others [(1987) 1 SCC 395]. [SCC para 29]  

       In Air India Statutory Corporation and Others Vs. United Labour  Union and Others [(1997) 9 SCC 377],  (since overruled on another point) in  Steel Authority of India Ltd. and Others Vs. National Union Waterfront  Workers and Others [(2001)  7 SCC 1] this Court deliberated upon the  distinction between the Private Law and Public Law.  [SCC para  26]. FOREIGN CASE LAW:

UNITED KINGDOM           In Nagle Vs. Feilden and Others [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 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 & Others vs. Insole & Others [1978 (3) All ER 449], a  Chancery Division considered in great details the rules framed by the ICC as  also the Test and County Cricket Board of United Kingdom.  The question  which arose therein was as to whether the ICC and consequently the TCCB  could debar a cricketer from playing  official cricket as also county cricket  only because the plaintiffs therein, who  were well-known and talented  professional cricketers and had played for English County Club for some  years and tests matches,  could take part in the World Series Cricket which  promoted sporting events of various kinds.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 58  

In R. Vs. Panel on Take-overs and Mergers, ex parte Datafin plc and  another [1987 (1) All ER 564] the Court exercised the power of the judicial  review over a private body.  

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; (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 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.

Lloyd LJ. in his separate speech opined :

"On the policy level, I find myself unpersuaded.  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 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 enormous power.  It has a giant’s  strength.  The fact that it is self regulation, which means,  presumably, that it is not subject to regulation by others,  and in particular the Department of Trade and Industry,  makes it not less but more appropriate that it should be  subject to judicial review by the courts."

                               (Emphasis supplied)

[See also Aston Cantlow, Wilmcote and Billesley Parochial Church  Council Vs. Wallbank [2001] 3 W.L.R. 1323].

In  Poplar Housing and Regeneration Community Association Ltd.  Vs. Donoghue [2001] 4 All ER 604, a question arose as to whether eviction  of the defendant therein by a housing association known as Poplar Housing  and Regeneration Community Association from one of the premises violated  the provisions of the Human Rights Act.  Lord Woolf CJ upon considering  the provisions thereof as also a large number of decisions  held that the  Association discharges public function stating:

"\005The emphasis on public functions reflects the  approach adopted in judicial review by the courts and  text books since the decision of the Court of Appeal (the  judgment of Lloyd LJ) in R v Panel on Take-overs and  Mergers, ex p Datafin plc (Norton Opax plc intervening)  [1987] 1 All ER 564, [1987] QB 815. (ii) Tower  Hamlets, in transferring its housing stock to Poplar, does  not transfer its primary public duties to Poplar.  Poplar is  no more than the means by which it seeks to perform  those duties\005"

                                               [Emphasis supplied]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 58  

        Donoghue (supra) was, however, distinguished in Leonard Cheshire  Foundation (supra) holding that the respondent therein having regard to its  activities did not perform any public function. [See also R (on the  application of West) v. Lloyd’s of London, (2004) 3 All ER 251]

       Despite the same it was held that a judicial review cannot be refused  at the threshold.  

       Tests evolved by the courts have, thus,  been expanded from time to  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.  (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  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.         In Aga Khan (supra), the applicant was an owner of the racehorses  and, thus, made himself bound to register with the Jockey Club.  His horse  was disqualified although it had won a major race whereafter he sought  judicial review.  The Court of Appeal opined that the Club could not be  subjected to judicial review.  It preferred to follow ’Law Vs. National  Greyhound Racing Club Ltd.’ [1983] 1 WLR 1302 in preference to Datafin  (supra).  The Court therein, however, acknowledged that the Club regulated  a national activity.  Sir Thomas Bingham M.R., however,  opined therein  that if it did not regulate the sport then the government would in all  probability be bound to do so.         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  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.         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.   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.  Right to work although is not a fundamental right but a  right to livelihood is in terms of Article 21 of the Constitution of India.  This  Court, it may be recorded, need not follow the decisions of the English  Courts.  [See Liverpool & London S.P. & I Association Ltd.  (supra)]    A CRITIQUE OF ENGLISH DECISION IN FOOTBALL  ASSOCIATION (SUPRA) AND AGA KHAN (SUPRA)

Michael J. Beloff in his article ’Pitch, Pool, Rink, Court? Judicial  Review in the Sporting World’ reported in 1989 Public Law 95 while citing  several instances as to when no relief was granted in case of arbitrary action  on the part of such strong and essential sport bodies advocated for a judicial

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 58  

review stating:

"\005As for the argument that the sports bodies know best,  experience may perpetuate, not eliminate error; and  Wilberforce J. indicated in Eastham that the rules of  sporting bodies cannot be treated as the Mosaic or Medan  law.

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 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 law’s new, or at any rate next, frontier; and if  Britain can no longer head the world in sport itself,  perhaps it can do so in sporting litigation.  Members of  the bar, on your marks!"                                                          (Emphasis supplied)

       P.P. Craig in his Administrative Law at page 817 noticing the  aforementioned judgments and upon enumerating the reasons therefor,  observed: "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 exercise of  monopolistic power should serve to bring bodies within  the ambit of judicial review.  To speak of a consensual  foundation for a body’s power is largely beside the point  where those who wish to partake in the activity will have  no realistic choice but to accept that power.  Black has  argued that the emphasis given to the contractual  foundations for a body’s power as the reason for  withholding review are misplaced.  She contends that the  courts are confusing contract as an instrument of  economic exchange, with contract as a regulatory  instrument.  She argues further that the reliance placed on  private law controls, such as restraint of trade and  competition law, may also be misplaced here.  Such  controls are designed for the regulation of economic  activity in the market place, and they may not be best  suited to control potential abuse of regulatory power  itself."                                                                 (Emphasis added) SCOTLAND : In St. Johnstone Football Club Limited Vs. Scottish Football  Association Limited [1965 SLT 171], a Scottish Court held the Council with  regard to its nature of function to the effect that it can impose fine or expel a  member would be amenable to judicial review.  If they attempt to exercise  upon a member a power or authority which he by becoming a member did  not give them, i.e., acting ultra vires or if by so acting they have done him  injury, he will not be precluded from seeking redress, nor the Court of law  hold themselves precluded from giving him redress.  It was emphasized that  in a case of this nature they are bound by the rules of natural justice.

NEW ZEALAND :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 58  

In Finnigan Vs. New Zealand Rugby Football Union Inc [1985] 2  NZLR 159, the Court noticed the factors which carry weight in entertaining  judicial review, stating inter alia :

"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.

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 \026 if not more important  than \026 any other in the history of the game in New  Zealand.

4. The decision affects the New Zealand community as a  whole and so relations between the community and those,  like the plaintiffs, specifically and legally associated with  the sport.  Indeed judicial notice can be taken of the  obvious fact that in the view of a significant number of  people, but no doubt contrary to the view of another  significant number, the decision affects the international  relations or standing of New Zealand.

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.  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  \026 although that was argued.  We are saying simply that it  falls into a special area where, in the New Zealand  context, a sharp boundary between public and private law  cannot realistically be drawn."

It was opined that the petitioner therein had the necessary standing to  seek judicial review.  The Court observed that the floodgate argument  advanced against entertaining judicial review could not be accepted as the  case was so special that the argument carries even less conviction than it is  usually apt to do when invoked against some moderate advance in the  common law.

AUSTRALIA:         In Romeo Vs. 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 and  inefficiently.          Therein a question arose as to whether the public 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 58  

"a degree of consternation in public authorities and their  insurers".  It is claimed that they have occasioned great  uncertainty amongst the officers of such authorities as to  the steps which they can take to reduce their potential  liability for injuries to visitors, brought about largely by  the visitors’ own conduct.  In response to what is  described as "judicial paternalism" the Local  Government Ministers of Australia and New Zealand  have commissioned a report on policy options to provide  statutory limitations on the liability of local authorities."

       In Neat Domestic Trading Pty Ltd. Vs. AWB Ltd. and Another [77  ALJR 1263] the court was concerned with the Australian Wheat Board  (International) Ltd. (AWBI) a private corporation established in terms of  Wheat Marketing Act, 1989 which had the sole right to export wheat.  It had  also the responsibility for the commercial aspects of wheat marketing  through operating wheat pools.  The Appellant therein who was a competitor  of AWBI applied for grant of permit for the bulk export of wheat but the  same was declined whereupon it was contended that the AWBI was  contravening the Trade Practices Act, 1974.  The decision of AWBI was  questioned contending that it involved an improper exercise of discretionary  power in accordance with a rule or policy without regard to the merit of the  case.  The following interesting observation was made therein: "67.This appeal presents an opportunity for this Court to  reaffirm that principle in circumstances, now increasingly  common, where the exercise of public power,  contemplated by legislation, is "outsourced" to a body  having the features of a private sector corporation.  The  question of principle presented is whether, in the  performance of a function provided to it by federal  legislation, a private corporation is accountable according  to the norms and values of public law or is cut adrift from  such mechanisms of accountability and is answerable  only to its shareholders and to the requirements of  corporations law or like rules."                                                 [Emphasis supplied]

       As regards monopoly, it was opined: "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 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\005."

       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. UNITED STATES OF AMERICA:         Brennan, J. in San Francisco Arts & Athletics, Inc. Vs. United States  Olympic Committee and International Olympic Committee [483 US 522 : 97  L.Ed. 2d 427]  stating that the USOC performs a distinctive traditional  government function representing the nation to the International Olympic  Committee observed:

"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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 58  

of life against another.  But it cannot be denied that  spectators, both in Moscow and all over the world,  certainly will have such a thought in mind when the  events take place.  So it would be good for our nation and  for the athletes who represent us if the cooperation, spirit  of individuality, and personal freedom that are the great  virtues of our system are allowed to exert their full  influence in the games. 124 Cong. Rec. 31662 (1978)."

       In Brentwood Academy Vs. Tennessee Secondary School Athletic  Association [531 US 288], the issue was as to whether the respondent  "which was incorporated to regulate interscholastic athletic competition  among public and private secondary schools" is engaged in state action  when it enforced one of its rules against a member school.  It was held that  the pervasive entwinement of state school officials in the structure of the  association would make it a state actor.  The Court acknowledged that the  analysis of whether state action existed was a "necessarily fact-bound  inquiry" and noted that state action may be found only where there is "such  a close nexus between the State and the challenged action that seemingly  private behavior may be fairly treated as that of the State itself".           In Brentwood Academy (supra), it was held:         "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,  102 S Ct 2777 when the State provides "significant  encouragement, either overt or covert," ibid., or when a  private actor operates as a "willful participant in joint  activity with the State or its agents," Lugar, supra, at 941,  73 L Ed 2d 482, 102 S Ct 2744 (internal quotation marks  omitted).  We have treated a nominally private entity as a  state actor when it is controlled by an "agency of the  State," Pennsylvania v Board of Directors of City Trusts  of Philadelphia, 353 US 230, 231, 1 L Ed 2d 792, 77  S  Ct 806 (1957) (per incuriam), when it has been delegated  a public function by the State, cf., e.g., West v Atkins,  supra at 56, 101 L Ed 2d 40, 108 S Ct 2250; Edmonson v  Leesville Concrete Co., 500 US 614, 627-628, 114 L Ed  2d 660, 111 S Ct 2077 (1991), when it is "entwined with  governmental policies," or when government is  "entwined in [its] management or control," Evans v  Newton, 382 US 296, 299, 301, 15 L Ed 2d 373, 86 S Ct  486 (1966).

       Amidst such variety, examples may be the best  teachers, and examples from our cases are unequivocal in  showing that the character of a legal entity is determined  neither by its expressly private characterization in  statutory law, nor by the failure of the law to  acknowledge the entity’s inseparability from recognized  government officials or agencies\005"

       Thus, seven tests have been laid down for fulfilling the requirements  of a public body in becoming a state actor.  We, however, may notice that in  United States of America a  public body would answer the description of a  state actor if one or the other tests laid down therein is satisfied on a factual  consideration and therefor the cumulative effect of all or some of tests  is not  required to be  taken into consideration.  (See  also Communities for Equity  Vs. 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 and other courts seeks to fill up the gap.  Under the heading

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 58  

’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 governmental  do things for which no statutory power is necessary, such  as issuing circulars or other forms of information\005"   

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  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  noticed a large number of decisions and considered  the question from  several angles.  He opined at pages 567-568: "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.         It will under the existing law, be difficult to  maintain an action against the public body itself, either  under the HRA, or via ordinary judicial review, where  there has been contracting out.  The public body will still  be subject to the HRA and to judicial review.  This  should not mask the reality that contracting out will serve  to preclude any meaningful action against the public  body.  Claims that could have been made against the  public body if it had performed the service in house will  no longer be possible where it has contracted 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 normative terms.  The  contractualisation of government is not a transient  phenomenon.  It is here to stay for the foreseeable future.   The courts have in the past developed doctrinal tools to  meet challenges posed by changing pattern of  government.  They should not forget this heritage."

       Craig in his treatise ’Administrative Law’ at page 821 also made an  interesting observation as regards future prospects, stating : "If the scope of review is extended thus far then careful  attention will have to be given to whether the procedural  and substantive norms applied against traditional public  bodies should also be applied against private bodies.   Many of the cases within this section are concerned with  the application of procedural norms.  If we were to  follow Lord Woolf’s suggestion then we would also have  to consider whether substantive public law should be  applied to such bodies.  Would we insist that sporting  bodies with monopoly power, or large companies with  similar power, take account of all relevant considerations  before deciding upon a course of action?  Would we  demand that their actions be subject to a principle of  proportionality, assuming that it becomes an accepted  part of our substantive control?  If there is an affirmative  answer, then the change would be significant to say the  very least.  It would have ramifications for other subjects,  such as company law, commercial law and contract.  It  would increase the courts’ judicial review case load.  It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 58  

would involve difficult questions as to how such  substantive public law principles fit with previously  accepted doctrines of private law.  This is not to deny  that similar broad principles can operate within the public  and private spheres.  It is to argue that the broader the  reach of "public law", the more nuanced we would have  to be about the application of public law principles to  those bodies brought within the ambit of judicial review."       

       In an interesting article ’Sports, Policy and Liability of Sporting  Administrators’ by Jeremy Kirk and Anton Trichardt published in 75 ALJ  504, the learned authors while analyzing a recent decision of the High Court  of Australia in Agar Vs. 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 it is well-founded in so far as it  established that there is generally no liability in  negligence for the creation or amendment of the rules of  amateur sports played by adults.  Even so, there is still  room for argument that sporting administrators will be  liable in negligence in relation to the nature and conduct  of their sports.  It is conceivable that there could be  liability for employers in relation to the rules of  professional sports.  Any type of administrator could be  liable for misrepresentations.  And liability could  potentially arise for failing to fulfil a duty to warn in  situations where controllers become aware of new  information pointing to a higher level of risk than was  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 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.

ANALYSIS OF CASE LAW:         We have noticed hereinbefore that the Courts of Scotland and New  Zealand differ with the English and American majority approach.           The approach of the court as regard judicial review has undergone a  sea change even in England after the Human Rights Act, 1998 came into  force as doctrine of incompatibility is being applied more frequently even in  determining the validity of legislations.          The English Courts despite their reluctance to exercise power of  judicial review over the activities of sports association noticed in the context  of Human Rights Act, 1998 that there are public bodies which are hybrid in  nature who have functions of public and private nature but they would be  public authorities.  [See Donoghue (supra)]          However, in San Francisco Arts & Athletics, Inc.(supra) the minority  view clearly  states that the governmental function of the USOC in that they  represent the nation.  Justice Blackmun, J. had agreed with the said view.   The minority view in Jackson (supra) was noticed in Ramana Dayaram  Shetty (supra).  We agree with the said view.   It is interesting to note that even English Courts have imposed high  standard of fairness in conduct in relation to such bodies in sharp contrast to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 58  

purely private bodies.  As noticed hereinbefore, availability of judicial  review has been accepted by the English courts.  [See  M.C. Mehta   (supra)]          The right of  Indian players, having regard to the observations made in  Greig & Ors. (supra) is comparable to their constitutional right contained in  Article 19(1)(g) of the Constitution of India which would include a right to  work and a right to pursue one’s occupation.         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   hostile discrimination or impose an embargo which would make or mar a  player’s career as was in the case of Greig & Ors. (supra).  The right to   pursue an occupation or the right of equality are embedded in our  Constitution whereby citizens of India are granted much higher right as  compared to common law right in England.  A body although self- regulating, if performs public duty by way of exercise of regulatory  machinery, a judicial review would lie against it as was in the case of  Datafin (supra).  The question has since been considered from a slightly   different angle, viz., when such action affects the human right of the person  concerned holding that the same would be public function.  [See Donoghue  (supra)].   If the action of the Board impinges upon the fundamental or other  constitutional rights of a citizen or if the same is ultra vires or by reason  thereof an injury or material prejudice is caused to its member or a person  connected with cricket, judicial review would lie.  Such functions on the part  of the Board being public function, any violation of or departure or deviation  from abiding by the rules and regulation framed by it would be subject to  judicial review.  Time is not far off when having regard to globalization and  privatization the rules of administrative law have to be extended to the  private bodies whose functions affect the fundamental rights of a citizen and  who wield a great deal of influence in public life.   PUBLIC FUNCTION AND PUBLIC DUTY:         Public law is a term of art with definite legal consequences.  (See  O’Reilly Vs. 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 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 Another Vs. B.D. Agarwal and Others,  (2003) 6 SCC 230 at page 242)         General view, however, is that whenever a State or an instrumentality  of a State is involved, it will be regarded as an issue within the meaning of  public law but where individuals are at loggerheads, the remedy therefor has  to be resorted in private law filed. Situation, however, changes with the  advancement of the State function particularly when it enters in the fields of  commerce, industry and business as a result whereof either private bodies  take up public functions and duties or they are allowed to do so.  The  distinction has narrowed down but again concededly such a distinction still  exists.  Drawing an inspiration from the decisions of this Court as also other  courts, it may be safely inferred that when essential governmental functions  were placed or allowed to be performed by the private body; they must be  held to have undertaken public duty or public functions.         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:         When the state "merely" authorizes a given  "private" action \026 imagine a green light at a street corner  authorizing pedestrians to cross if they wish \026 that action  cannot automatically become one taken under "state  authority" in any sense that makes the Constitution  applicable.  Which authorizations have that Constitution  \026 triggering effect will necessarily turn on the character  of the decision-making responsibility thereby placed (or  left) in private hands.  However described, there must  exist a category of responsibilities regarded at any given

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 58  

time as so "public" or "governmental" that their  discharge by private persons, pursuant to state  authorization even though not necessarily in accord with  state direction, is subject to the federal constitutional  norms that would apply to pubic officials discharging  those same responsibilities.  For example, deciding to  cross the street when a police officer says you may is not  such a "public function;" but authoritatively deciding  who is free to cross and who must stop is a "public  function" whether or not the person entrusted under state  law to perform that function wears a police uniform and  is paid a salary from state revenues or wears civilian garb  and serves as a volunteer crossing guard\005"

       In the instant case, there does not exist any legislation made either by  any State or by the Union of India regulating and controlling the cricketing  activities in the country.  The  Board authorized itself to make law regulating  cricket in India which it did and which it was allowed to do by the States  either overtly or covertly.  The States left the decision making responsibility  in the hands of the Board, otherwise so-called private hands.  They maintain  silence despite the Board’s proclamation of its authority to make law of  sports for the entire country.         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 in a reasonable manner. The duty to act fairly is inherent in  body which exercises such enormous power.    Such a duty can be  envisioned only under Article 14 of the Constitution and not under the  Administrative Law.  The question of a duty to act fairly under  administrative law apart from Article 14 of the Constitution of India, as has  been noticed in  Ramana Dayaram Shetty (supra) (page 503), would not,  thus, arise in the instant case.         Governmental functions are multifacial.  There cannot be a single test  for defining public functions.  Such functions are performed by variety of  means.             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 of natural justice.  Many public duties are implied by the courts  rather than commanded by the legislature; some can even be said to be  assumed voluntarily.  Some statutory public duties are ’prescriptive patterns  of conduct’ in the sense that they are treated as duties to act reasonably so  that the prescription in these cases is indeed provided by the courts, not  merely recognized by them.           A.J. Harding in his book ’Public Duties and Public Law’ summarized  the said definition in the following terms: "1. 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 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."

       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 interpretation\005"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 58  

       There are, however, public duties which arise from sources other than  a statute.  These duties may be more important than they are often thought to  be or perceived.  Such public duties may arise by reason of (i) Prerogative,  (ii) Franchise and (iii) Charter.  All the duties in each of the categories are  regarded as relevant in several cases.  (See A.J. Harding’s Public Duties and  Public Law, Pages 6 to 14)         The functions of the Board, thus,  having regard to its nature and  character of functions would be public functions.

AUTHORITY:         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 Vs. Wallbank and another [2004] 1 AC 546 : [2003] 3 WLR 283  albeit in the context of Human Rights Act, 1998, it was held:

"\005This 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\005."

       See also Hampshire County Council Vs. Graham Beer t/a Hammer  Trout Farm [2003] EWCA Civ 1056 and Parochial Church Council of the  Parish of Aston Cantlow Vs. Wallbank [(2003) UKHL 37], Para 52.         There, however, exists a distinction between a statutory authority and  a public authority.  A writ not only lies against a statutory authority, it will  also be maintainable against any person and a body discharging public  function who is performing duties under a statute.  A body discharging  public functions and exercising monopoly power would also be an authority  and, thus, writ may also lie against it.   

JUDICIAL REVIEW UDNER ARTICLES 32 & 226 OF THE  CONSTITUTION OF INDIA :

       Judicial Review forms basic structure of the Constitution.           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  vive." [See  Padma Vs. Hiralal Motilal Desarda and Others (2002) 7 SCC  564 at 577)         A writ issues against a State, a body exercising monopoly, a statutory  body, a legal authority, a body discharging public utility services or  discharging some public function.  A writ would also issue against a private  person for the enforcement of some public duty or obligation, which  ordinarily will have 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  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- 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; (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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 58  

Article 12, it performs some public function, whether statutory or otherwise.         Some of the questions involved in this matter have recently been  considered in an instructive judgment by High Court Delhi in Rahul Mehra  and Another Vs. 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 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 including in appropriate cases any Government within its territorial  jurisdiction, directions, orders or writs specified therein for the enforcement  of any of the rights conferred by Part III and for any other purpose.  Article  226 confers an extensive jurisdiction to the High Court vis-‘-vis this Court  under Article 32 in the sense that writs issued by it may run to any person  and for purposes other than enforcement of any rights conferred by Part III  but having regard to the term ’authority’ which is used both under Article  226 and Article 12, we have our own doubts as to whether any distinction in  relation thereto can be made.  (See Rohtas Industries Ltd. and another Vs.  Rohtas Industries Staff Union and others, AIR 1976 SC 425)  

       This aspect of the matter has been considered in Andi Mukta Sadguru  (supra).  It has clearly been stated that a writ petition would be maintainable  against other persons or bodies who perform public duty.  The nature of duty  imposed on the body would be highly relevant for the said purpose.  Such  type of duty must be judged in the light of the positive obligation owed by a  person or authority to be the affected party.   

In Assembrook Exports Ltd. & Anr. v. Export Credit Guarantee  Corpn. of India Ltd. & Ors., AIR 1998 Cal 1, it has been held that public law  remedy would be available when determination of a dispute involving public  law character is necessary.   The said decision has been affirmed by this  Court in ABL International Ltd. & Anr. Vs. Export Credit Guarantee  Corporation of India Limited & Ors. [JT 2003 (10) SC 300]. [See also Tata  Cellular vs. Union of India \026  AIR 1996 SC 1 \026 Paras 101 & 102] and State  of U.P.and Another vs. Johri Mal [(2004) 4 SCC 714].            The recent development in the field of judicial review vis-‘-vis human  rights also deserves a mention, although in this case, we are not directly  concerned therewith.         In Hatton and Others Vs. 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 in the year 1993 by the British Government that more  planes will land in Heathrow Airport during night led to filing of a complaint  by the nearby residents alleging violation of their right of privacy but  judicial review was denied to them on the ground that the same  was a policy  decision.  The European Court of Human Rights, however, observed that  prior to coming into force of the Human Rights Act, 1998 the Government  failed to provide  a forum for adjudication of violation of human rights.  The  petitioners therein were held entitled to compensation in view of Article 13  of Convention for the Protection of Human Rights and Fundamental  Freedoms.          Yet recently in E. Vs. Secretary of State for the Home Department  (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) 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 58  

freedoms but also the legislative council, the judicial system, official and  working languages, the educational system and cultural and benevolent  institutions, and broadcasting and television.  Right to development in  developing countries in all spheres is also human right.  [See Kapila  Hingorani (supra), para 62] and Islamic Academy of Education and Another  (supra) Paras 211 to 215].          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 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.          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. APPLICATION OF TESTS:         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 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.  

       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: "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 modern State on the one hand and the  freedom of the individual on the other. The corporate  organisations of business and labour have long ceased to  be private phenomena."                                                         (Emphasis supplied)         The learned Judge stated: "The governing power wherever located must be subject  to the fundamental constitutional limitations. The need to  subject the power centers to the control of Constitution  requires an expansion of the concept of State action."

       Referring to Marsh Vs. Alabama [326 US 501], it was opined: "Although private in the property sense, it was public in  the functional sense. The substance of the doctrine there  laid down is that where a corporation is privately  performing a ’public function’ it is held to the  constitutional standards regarding civil rights and equal  protection of the laws that apply to the State itself. The  Court held that administration of private property of such  a town, though privately carried on, was, nevertheless, in  the nature of a ’public function’, that the private rights of  the corporation must therefore be exercised within  constitutional limitations, and the conviction for trespass  was reversed."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 58  

       Referring to Article 13(2), it was held: "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."

       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 function is of such public importance and so  closely related to governmental functions as to be  classified as a governmental agency, then even the  presence or absence of State financial aid might be  irrelevant in making a finding of State action. If the  function does not fall within such a description, then  mere addition of State money would not influence the  conclusion."

       Conversely put, if the functions of the body falls within the  description of the public function, absence of State financial aid would not  influence the conclusion to the contrary.  As regards, governmental aid, it  was noticed: "The State may aid a private operation in various ways  other than by direct financial assistance. It may give the  organization the power of eminent domain, it may grant  tax exemptions, or it may give it a monopolistic status for  certain purposes."

       The legal position in America in this behalf  was also noticed in the  following terms: "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 within  this category. So also are labour unions on which statutes  confer the right of collective bargaining."                                         (Emphasis supplied)

       Drawing the contrast between the governmental activities which are  private and private activities which are governmental, Mathew, J. noticed  that besides the so-called traditional functions, the modern State operates a  multitude of public enterprises.  What is, therefore, relevant and material is  the nature of the 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  perform; (ii)    When it is bound to protect human rights. (iii)   When it regulates a profession or vocation of a citizen which is  otherwise a fundamental right under a statute or its own rule.. (iv)    When it regulates the right of a citizen contained in Article 19(1)(a) of  the Constitution 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; (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.         We, thus, would have to proceed to determine the knotty issues  involved therein on a clean slate.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 58  

       These traditional tests of a body controlled financially, functionally  and administratively by the Government as laid down in Pradeep Kumar  Biswas (supra) would have application  only when a body is created by the  State itself for different purposes but incorporated under the Indian  Companies Act or Societies Registration Act.   

       Those tests may not be applicable in a case where the body like the  Board was established as a private body long time back.  It was allowed by  the State to represent the State or the country in international fora.  It became  a representative body of the international organizations as representing the  country.  When the nature of function of such a body becomes such that  having regard to the enormity thereof it acquires the status of monopoly for  all practical purposes; regulates and control the fundamental rights of a  citizen as regard their right of speech or right of occupation, becomes  representative of the country either overtly or covertly and has a final say in  the matter of registration of players, umpires and other connecting with a  very popular sport.  The organizers of competitive test cricket between one  association and another or representing different States or different  organizations having the status of a state are allowed to make laws on the  subject which  is essentially a State function in terms of Entry 33 List II of  the Seventh Schedule of the Constitution of India.  In such a case, different  tests have to  be applied.   

       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  Government; whether in certain matters a joint action is taken by the body in  question and the Central Government; its nexus with the Governments or its  bodies, its functions vis-‘-vis the citizens of the country, its activities vis-‘- vis the government of the country and the national interest/ importance given  to the sport of cricket in the country.  The tests, thus, which would be  applicable are coercion test, joint action test, public function test,  entertainment test, nexus test, supplemental governmental activity test and  the importance of the 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 come.  Converse is also true.  A body or an organization although created  for a private purpose by reason of extension of its activities may not only  start performing governmental functions but also may become a hybrid body  and continue to act both in its private capacity or as public capacity.  What is  necessary to answer the question would be to consider the host of factors and  not just a single factor.  The presence or absence of a particular element  would not be determinative of the issue, if on an overall consideration it  becomes apparent that functionally it is an authority within the meaning of  Article 12 of the Constitution of India.         Similarly significant funding by the Government may not by itself  make a body a State, if its functions are entirely private in character.   Conversely absence of funding for the functioning of the body or the  organization would not deny it from its status of a State;  if its functions are  public functions and if it otherwise answers the description of "Other  Authorities".  The Government aid may not be confined only by way of  monetary grant.  It may take various forms, e.g., tax exemptions, minimal  rent for a stadia and  recognition by the State, etc.   An over emphasis of the  absence of the funding by the State is not called for.         It is true that regulatory measures applicable to all the persons  similarly situated, in terms of the provisions of a statute would by itself not  make an organization a State in all circumstances.  Conversely, in a case of  this nature non-interference in the functioning of an autonomous body by the  Government by itself may also not be a determinative factor as the  Government may not consider any need therefor despite the fact that the  body or organization had been discharging essentially a public function.   Such non-interference would not make the public body a private body. WHAT CRICKET MEANS TO INDIA:         We have laid down the tests aforesaid and the approach which needs  to be adopted in determining the issue as to whether the Board is a State or  not.  Before we embark on this enquiry, it would be necessary to keep in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 58  

mind as to what cricket means to the citizens of this country.         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. MEMORANDUM OF ASSOCIATION OF BOARD:   The Board is a society under the Tamil Nadu Societies Registration  Act, 1975.  In terms of its Memorandum of Association,  its objects, inter  alia,  are to control the game of Cricket in India and to resolve the disputes  and to give its decision on matters referred to it by any State, Regional or  other Association, to promote the game, to frame the laws of cricket in India,  to select the teams to represent India in Test Matches and various others and  to appoint India’s representative or representatives on the International  Cricket Conference and other Conferences, Seminars, connected with the  game of cricket;

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 :

"1. INTERPRETATION :  \005.  \005    \005    \005     

(i)      "REPRESENTATIVE" of a Member or an  Associate Member means a person duly nominated  as such by the Member or the Associate Member.

(l)      "TOURNAMENT RULES" means the Rules  governing the conduct of Tournaments such as  Irani, Duleep, Ranji, Deodhar, CoochBehar, C.K.  Nayudu, M.A. Chidambaram, Vijay Hazare, Vijay  Merchant Trophy and Madhavrao Scindia Trophy- Tournaments and such other Tournaments  conducted by the Board from time 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 Player, Umpire,  Team Official,  Administrator, Selector or any  person appointed or employed by BCCI.  The  Committee shall have full power and authority to  summon any person(s) and call for any evidence  it may deem fit and necessary and make and  publish its decision including imposing penalties  if so required, as provided in the Memorandum  and Rules and Regulations."                    It has thirty full members including the State Cricket Associations  representing the States.  Apart from the said Associations, any direct  affiliation therewith is prohibited.  In terms of clause 3(iii) the Central  controlling body for cricket in any State within the territory of India may be  affiliated and shall be an Associate Member.  Even the organization at the  district level and the State level had to become its member for effective  participation in the game.  Rule 8 empowers the Board to nominate  distinguished persons by invitation to be Patron in Chief or Patrons of the  Board.  The powers and duties of the Board have been referred to in Rule 9;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 58  

some of which are as under :

(a)     To grant affiliations as provided in the Rules or to  disaffiliate 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 in a tour to any foreign country and  by which such players shall be governed, including  terms of payments to such players.

(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, 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 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.

(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 10 provides for complete power and control over players within  the jurisdiction of a member or an associate member.

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.  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.  

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."

Rule 35 provides for an exclusive right in the Board to organize

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 58  

foreign tours and invite teams from abroad, in the following terms :

"No organization other than a Member or Associate  Member, Clubs or Institutions affiliated to such members  shall organize foreign tours to or invite teams from  abroad.  Members or Associate Members or such clubs or  institutions, desirous of undertaking tours abroad or  inviting foreign teams shall obtain the previous  permission of the Board.  Such permission may be given  in accordance with the Rules framed by the Board."  

The procedure for dealing with the misconduct on the part of players,  umpires, team officials, administrators, referees and selector is contained in  Rule 38 which also empowers it to frame Bye-laws regarding their discipline  and conduct.

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 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); "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 which is a Full Member, an  Associate Member or an Affiliate Member, as the context  may require;"

GUIDELINE CRITERIA FOR FULL MEMBERSHIP OF ICC

"A country applying for admission as a Full Member of  ICC should use the following criteria."

       Paragraph 1 inter alia provides for playing. Paragraphs 1.2, 4 and 5  provide for Cricket Structure, Financial and Standing respectively.         The membership guidelines relating to one day international matches  speaks of test playing nation and formation of national association.   Preamble to One Day International (ODI) Status reads as under: "ODI status is not an ICC membership category, but  rather a sub-category of Associate Membership.  ODI  status was created to provide a vehicle by which leading  Associate Members could play official One Day  International matches against Full Members in order to  better equip them to apply for Full Membership at the  appropriate time. The Criteria for ODI status are extremely demanding and  ODI status will only be conferred when the applicant  country has a history of excellence in both playing and  administration.  As a precondition the applicant must be a  leading Associate Member and meet all the criteria of  Associate Membership.

       Qualification Rules for International Cricket Council Matches, Series  and Competitions read as under:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 58  

"(a) Definitions          \005                    \005                    \005  (b) Qualification Criteria 1. A cricketer is qualified to play Representative Cricket  for a Member Country of which he is a national or, in  cases of non-nationals, in which he was born\005 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. ***     ***     *** (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 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\005 (d) Applications 1. Each Member Country shall require each player to  certify his eligibility to represent that Member Country.  \005 ***             *** (f) Register of Cricketers and Proof of Qualification 1. Each Member Country shall, prior to the Effective  Date, establish and thereafter maintain a register of  cricketers which shall record the name, address and  nationality of those cricketers who shall in each year  commencing at the beginning of that Member Country’s  domestic cricket season be seeking to play first-class  cricket in that Member Country (or the equivalent  national competition in those countries which do not  have first-class cricket) for any local club or team  including any State or Country Team. 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 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 or players of any  one or more of the applicable qualification criteria  (including as appropriate the Development Criteria)  under these Rules."                   As per ICC Rules and Guidelines for classification of official cricket,  the definition of a Test Match in clause 1(a)(i) is as follows: "Any cricket match of not more than 5 days scheduled  duration played between two teams selected by full  members as representatives of their member countries  and accorded the status of test match by the Council."

GUIDELINES ISSUED BY UNION OF INDIA:         Indisputably, the Union of India had issued guidelines which had been  reviewed from time to time.  The Ministry of Youth Affairs and Sports  issued the revised guidelines and forwarded the same to the  Presidents/Secretary General, Indian Olympic Association and the  Presidents/Hony. General Secretaries of all recognized Sports Federations  incorporating therein the amended provisions.  Cricket is included in  Annexure-I within the category  [Others (C)].  While issuing the Guidelines, it has been asserted that the  Government attaches considerable importance to development of sports in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 58  

general and achieving excellence in the Olympics and other international   events in particular, as also the unsatisfactory performance of the Indian  Team(s) in important international sports events. It was recorded that over  the years the Government had been actively supporting the National Sports  Federations  in the matter of development of specific games/sports  discipline.  The objective of the said guidelines was to define the areas of  responsibility of various agencies involved in the promotion and  development of sports, to  identify National Sports Federations eligible for  coverage thereunder and to state the conditions for eligibility which the  Government would insist upon while releasing grants to Sports Federations.   Para III  speaks of  role and responsibility of the Ministry of Youth Affairs  and Sports,  National Sports Federations and the  Sports Authority.  Para IV  provides for priority sports which have been categorized as : (a) ’Priority’,  (b) ’General Category’  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.         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-II appended to the said guidelines provides for recognition  of National Sports Federations, inter alia, by laying down the eligibility  therefor and the necessity of filing of applications in that behalf.  Clause  3.12 reads as under :         "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 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.         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 for sending an Indian team abroad or for inviting a foreign team  in India in the prescribed form.   EXPRESS RECOGNITION \026 ESSENTIAL?         Union of India has issued certain guidelines evidently in exercise of  its power conferred on it under Article 73 of the Constitution of India for  regulating sports in India.  The said guidelines have been issued having  regard to objects it sought to achieve including the poor performance of  Indian Team abroad.  The said guidelines have been moreover issued in  exercise of its control over the National Sports  Federations.  The sport of  Cricket was not included within the said guidelines.  Both mens’ and  womens’ cricket had been brought within the purview of the said guidelines  in the year 2001.  They provide for grant of recognition.  The Board  contends that it had never applied for recognition nor had it asked for  financial aid or grant of any other benefit.   Factually the Union of India has  not been able to controvert this position although in its affidavit affirmed by  a Deputy Secretary to the Government of India, Ministry of Youth Affairs  and Sports, it  has stated that Board is a recognized National Federation.  It  is true that no document has been produced establishing grant of such  recognition; but in its additional affidavit affirmed by Mrs. Devpreet A.  Singh, Deputy Secretary to the Government of India, Ministry of Youth  Affairs and Sports, a number of documents have been annexed which clearly  go to show that from the very beginning the Board had been asking for  permission of the Ministry of Human Resource Development either to go  abroad or to play or participate in  other countries or for inviting the others  to play in India.  Such permission had been sought for in the form prescribed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 58  

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 to the Government of India, Ministry of Youth Affairs and Sports,  it is stated: "1. 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. 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  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 \026 BCCI in this case."          It is not disputed that the Union of India has not recognized any other  national sports body  for regulating the game of cricket in India.  It is the  categorical stand of the Union of India that only by such recognition granted  by the Union of India, the team selected by the Board is the Indian cricket  team which it could not do in absence thereof.  We cannot accept the  submission of  Mr. Venugopal to the effect that even while playing abroad,  the Board sends its own team.  It is evident from the records which fact has  also been noticed by the Delhi High Court in its judgment in Rahul Mehra  (supra) that the Board fields its team as Indian Team and not as Board  Eleven, which without having any authority from the Union of India, it will  not be able to do. The stand that the cricket team selected by the Board only  represents it and not the country is incorrect.  Having regard to the rules of   the ICC, its own rules as also various documents placed before this Court by  the Union of India, the conduct of both the Board and the Union of India  clearly go to show that sub silentio both the parties had been acting on the  premise that the Board is recognized as the only recognized National  Federation for the purpose of regulating the game of cricket in India. BOARD A STATE?

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  lay down the criteria for its membership and furthermore make the law of  sport of cricket.  The Board for all intent and purport is a recognized national  federation recognized by the Union of India.  By reason of said recognition  only, an enormous power is exercised by the second Respondent which from  selection and preparation of players at the grass root level to organize  Daleep Trophy, Ranji Trophy etc. select teams and umpires for international  events.  The players selected by the second Respondent represent India as  their citizen.  They use the national colour in their attire.  The team is known  as Indian team.  It is recognized as such by the ICC.  For all intent and  purport it exercises the monopoly.         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.

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 58  

become a symbol of national identity and a medium of expression of  national pride, must be held to be carrying out governmental functions.  A  highly arbitrary or capricious action on the part of such a powerful body  would attract the wrath of Article 14 of the Constitution of India.  The Board  itself acted as a representative of the Government of India before the  international community.  It makes representations to the effect that  it was  entitled to select a team which represents the nation as a cricket playing  country, and, thus, the same would, without anything more, make its action a  State action.  For the said purpose, actual control of the Board or issuing any  direction in that behalf by the Government of India is not of much  significance but the question as to whether the Government, considering the  facts and circumstances, should control the actions of the Board as long as it  purports to select a team to represent India would be a matter of great  significance.  The guidelines issued by the Union of India clearly  demonstrate its concern with the fall in standard of Indian Team in sports in  important international sports events.  It would not be correct to draw a  comparison between an event of international sport as significant as cricket  with beauty pageants and other such events as the test necessary to be  evolved in this behalf is the qualitative test and not the quantitative test.  The  quality and character of a sport recognized as a measure of education and  nation building (as a facet of human resources development) cannot be  confused with an event that may be a form of entertainment.  Cricket, as  noticed hereinbefore, has a special place in the hearts of citizens of India.         The monopoly status of the Board is undisputed. The monopoly  enjoyed by the Board need not be  a  statutory one so as to conform to the  tests contained in Clause  (6) of  Article 19 of the Constitution.  It can be a  de facto monopoly which has overtly or covertly received the blessings of  Union of India.  The de facto  monopoly of the Board is manifest as it, as a  member of ICC (even if it is technically possible to float any other  association), can send an Indian Team abroad or invite a foreign team onto  India. In absence of recognition from the ICC, it would not be possible for  any other body including the Union of India to represent India in the  international Cricket events featuring competitive 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 Cricket, India & Anr.  Vs. Netaji Cricket Club and Ors., JT 2005 (1) SC 235].          The object of Part III of our Constitution is to curtail abuse of power  and if by reason of the Board’s activities, fairness in action is expected, it  would answer the description of "Other Authorities".         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 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 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  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 of the ICC Rules.  The tournaments are held between the countries  and at the domestic level between States/regions and the other clubs over

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 58  

which the Board has an exclusive and complete control.  In the international  level, the ICC recognizes the national federations only who are its members  having regard to the fact that these federations either represent a country or a  geographical area.  The very fact that recognition of ICC has been extended  to a geographical area (as for example, the West Indies comprising of so  many countries), goes to show that for the said purpose the consensus  amongst various bodies and several nations is necessary.           It is true that a country as such is not a member of ICC and in some  places of the Rules for the purpose of election of the President, the country is  represented through its national federation which is its full time member.  It  is furthermore true that the ICC Rules refer as a nation not only a ’country’  but also a geographical area covering several countries but a bare perusal of  the rules in its entirety would clearly go to show that only those national  federations which represent the country can become its whole time or  associate members.  The expression "country" has been used at numerous  places.  It is one thing to say that legally it is permissible to make a Club a  member but unless it has the national patronage, it is inconceivable that it  can obtain membership of ICC in any capacity.  Theoretically in the ICC, the  Board is a member but it without State patronage directly or indirectly  would reduce its activities.  In case any other body is recognized by the  Union of India, it would not be entitled to regulate the sport of cricket in  India.  Perforce it has to abandon its functions outside the country.         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  bias has been specifically provided for.  These are in keeping with the  function of public body and not private body.  But, so far as the rules framed  by the Board are concerned, the principles of natural justice are required to  be followed only in the event a disciplinary action is contemplated and not  otherwise.

       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  of Rahul Mehra (supra) before the High Court of Delhi wherein it is  accepted that the Board is not under the control of the Union of India nor  there exist any statutory rules to regulate its functioning and further the  issues raised in the said writ petition relate to the internal functioning of the  Board, which is autonomous in its function, having regard to the materials  on record may not be of much significance.  We must moreover notice that  the Minister of Youth Affairs and Sports in an answer to the Parliament also  stated:

"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."

       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: "\005We 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.

       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.

       However, we may place on record that there are a number of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 58  

documents filed by the Union of India which clearly go to show that either  for sending Indian Team abroad or inviting a foreign team on the soil of  India, the Board has invariably been taking permission from the Ministry of  Youth Affairs and Sports.  In the counter affidavit filed before the Bombay  High Court, the Board raised a contention that it seeks permission of the  Union of India for obtaining visas, foreign exchange and matters connected  therewith; but the said contention cannot be accepted in view of the fact that  had the same been the position, the Ministry of Human Resource  Development (which has nothing to do in these matters), would not have  been approached therefor and that too in the form prescribed in the  guidelines.

       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   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 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 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 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.

         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 stated that they have played for India and not for the Board.   Whenever players play for the Board, the Team is named as Board-Eleven.  [See  ’The Times of India’ \026 October24, 2004 and ’Hindustan Times’ \026  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-‘-vis Article 12 of the  Constitution of India,  the Central Government’s  reluctance to interfere with  its day to day affairs or allowing it to work as an autonomous body, non- assistance in terms of money or the administrative control thereover may not  be of much relevance as it was not only given de facto  recognition  but also  it is aided, facilitated or supported in all other respects by it.

It would not be correct to contend that a monopoly status upon a body  must be conferred either by way of statute or by the State by  issuing an  appropriate order in that behalf.   The question as regard exercise of  monopoly power by the Board of  must be determined having regard to the  ground realities i.e. it not only represents the country but also controls and  regulates the entire field of competitive cricket.   

       Despite the fact that the relationship between the Board and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 58  

players is not that of an employer and employee, but  the players are within  its complete control.  Sports activities of the countries being not a  commercial activity, as has been held in Cricket Association of Bengal  (supra), the same must be considered from a larger spectrum of the Indian  citizenary as a whole.

       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  and how it could become a member of the ICC.  It does not furthermore  disclose as to how it could having regard to its professed function as a  private club, could grant to itself enormous powers as are replete in its rules  and regulations.  Rules and regulations framed by the Board speak out for  themselves as to how  it represents Indian cricket team and regulates almost  all the activities pertaining thereto.  It also legislates law of sports in India in  the field of competitive cricket.  There is no area which is beyond of the  control and regulation of the Board.  Every young person who thinks of  playing cricket either for a State or a Zone or India must as of necessity be a  member of the Board or its members and if he intends to play with another  organization, it must obtain its permission so as to enable him or continue to  participate in the official matches.  The professionals devote their life for  playing cricket.  The Board’s activities may impinge on the fundamental  rights of citizens.   

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  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 \026 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.

       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  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.

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."

       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.         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 .         The Union of India has since filed affidavits categorically stating that  the Board is a ’State’ within the meaning of Article 12 of the Constitution of  India.  It has further been stated that not only the Board is recognized de

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 58  

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 competitive cricket whether  domestic or international are not amateurs; but professionals.  They play on  receipt of remuneration therefor and furthermore make a lot of earnings by  way of advertisements.  They participate in the game for a purpose.         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"  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.         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.         We may notice that in Union of India Vs. Naveen Jindal and Another  [(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 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\005"

       The State had been taking on more and more sports related activities  and thus courts have examined the purport and ambit of activities of such  bodies keeping in view wider and wider range of measures the executive  and the Central Government adopt.   

       The Board, having regard to its functions and object, had also been  granted exemption from payment of Income-tax.  Such exemption has been  granted with a view to fulfill its objectives to promote sports of cricket.   

       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 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  rupees in providing funds to construction of stadia, running zonal cricket  academies under national cricket academy, providing the State Associations  with modern gymnasium equipments, medical expenses of the players,  pension scheme and expenditure on coaches, physiotherapists, trainers, etc.,  but it is not disputed that it earns a lot of revenue through sale of tickets,  advertisements in the stadia, selling of advertisement in the electronic media,  giving out contracts by way of food stalls and installation of other stalls,  selling of broadcasting and telecast rights, highlight programmes.  The  Board is admittedly not a charitable trust.   The State legislature  as also the Parliament have the legislative  competence to make legislation in respect of sports, but no such legislation  has yet seen the light of the day.  We have noticed hereinbefore that the  Board in terms of its Memorandum of Association as also rules and  regulations framed by it is entitled to make laws for Cricket in India.  The  States and the Union of India despite knowledge did not object thereto.   They, thus, made themselves bound by the said Rules and Regulations. In  that sense, exercise of  law making power contemplated by legislation has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 58  

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 and other team officials.  They have a duty to create safe rules  for the sport,  if by reason thereof a physical injury to the player is to be  avoided and to keep safety aspect under ongoing review.  A body may be  autonomous but with autonomy comes responsibility.  Sport is a "good  thing" wherefor a societal end is to be provided.  Sport must receive  encouragement from the State and the general public or at least not  discouraged.  Health, sociability and play are considered to be important  values to be recognized in a human.     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 making a legislation have thought it fit to allow the sports bodies to  grow from its grass-root level by applying the reverse pyramid rules and by  encouraging all associations and federations from village level to national  level.  We have seen that whereas in each State there is a State federation,  they must as of practice or precedent become a member of the Board.  State  Federations and some other organizations essentially having regard to their  respective nature of functions only are members of the Board.  They include  Association of Indian Universities, Railway Sports Control Board and  Services Sports Control Board.           Furthermore, having regard to the nature of activities, viz., the Board  represents a sovereign country while selecting and fielding a team for the  country with another sovereign country promoting and aiming at good  relations with the said country as also peace and prosperity for the people,  even at the domestic level the citizens of the said country may be held to be  entitled to the right to invoke the writ jurisdiction of this Court even if  thereby no personal fundamental right is directly infringed.   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 with the  State functions, they would be State actors only in relation thereto.   

       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  thereto, its actions would be State actions.  For the said purpose, what is  necessary is to find out as to whether by reason of its nature of activities, the  functions of the Board are public functions.  It regulates and controls the  field of cricket to the exclusion of others.  Its activities impinge upon the  fundamental rights of the players and other persons as also the rights, hopes  and aspirations of the cricket loving public.  The right to see the game of  cricket live or on television also forms an important facet of the Board.  A  body which makes a law for the sports in India (which otherwise is the  function of the State),  conferring upon itself not only  enormous powers but  also final say in the disciplinary matter and, thus, being responsible for  making or marring a citizen’s sports career, it  would be an authority which  answers the description of  "other 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  governmental policies or the government is entwined in its management or  control of the Board or any of its agencies \026 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.          The activities undertaken by the Board were taken note of in the case  of Cricket Association of Bengal (supra).  Therein this Court inter alia

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 58  

rejected the contention of the Ministry of Information and Broadcasting that  the activities of the Association was a commercial one and it had been  claiming a commercial right to exploit the sporting event as they did not  have the right to telecast the sporting event through an agency of their choice  in the following terms: "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 revenue.  In  the circumstances, it has the right to choose the best  method to earn the maximum revenue possible.  In fact, it  can be accused of negligence and may be attributed  improper motives, if it fails to explore the most profitable  avenue of telecasting the event, when in any case, in  achieving the object of promoting and popularizing the  sport, it has to endeavour to telecast the cricket matches."

       The aforementioned findings pose a question.  Could this Court arrive  at such a finding, had it not been for the fact that the association exercises  enormous power or it is a ’State’ within the meaning of Article 12.  If  Cricket Association of Bengal (supra) was considered to be a pure private  body where was the occasion for this Court to say that ’if it fails to explore  the most profitable avenue of telecasting the event whereby it would achieve  the object of promoting and popularizing the sport, it may be accused of  negligence and may be attributed improper motives?’  Applying the tests laid down hereinbefore to the facts of the present  case, the Board,  in our considered opinion,  said description.  It discharges a  public function.  It has its duties towards the public.  The public at large will  look forward to the Board for selection of the best team to represent the  country.  It must manage its housekeeping in such a manner so as to fulfill  the hopes and aspirations of  millions.  It has, thus, a duty to act fairly.  It  cannot act arbitrarily, whimsically or capriciously.  Public interest is, thus,  involved in the activities of the Board.  It is, thus, a State actor. 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 ’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 is trite, should not be read as a statute.  A decision is an authority for the  questions of law determined by it.  Such a question is determined having  regard to the fact situation obtaining therein.  While applying the ratio, the  court may not pick out a word or a sentence from the judgment divorced  from the context in which the said question arose for consideration.  A  judgment, as is well-known, must be read in its entirety and the observations  made therein should receive consideration in the light of the questions raised  before it.  [See Punjab National Bank vs. R.L. Vaid and Others \026 (2004) 7  SCC 698]

       Although, decisions are galore on this point, we may refer to a recent  one in State of Gujarat and Others Vs. Akhil Gujarat Pravasi V.S.  Mahamandal and Others [AIR 2004 SC 3894] wherein this Court held:

"\005It is trite that any observation made during the course  of reasoning in a judgment should not be read divorced  from the context in which they were used."

       It is further well-settled that a decision is not an authority for the  proposition which did not fall for its consideration.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 58  

       It is also a trite law that a point not raised before a Court would not be  an authority on the said question.                    In A-One Granites v. State of U.P. and Others [(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) 1 KB 675, and it was laid down that when no  consideration was given to the question, the decision  cannot be said to be binding and precedents sub silentio  and without arguments are of no moment.   

[See also State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and  Another. (1991) 4 SCC 139, Arnit Das Vs. State of Bihar, (2000) 5 SCC 488  (Para 20), Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and Others,  (2003) 2 SCC 111, Cement Corporation of India Ltd. Vs. Purya and Others,  (2004) 8 SCC 270, Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, JT  2005 (1) SC 303], and Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu  Yadav & Anr. \026 para 42 -  (2005) 1 SCALE 385].  

       We have noticed, hereinbefore, that in Pradeep Kumar Biswas (supra)  the only question which arose for consideration was as to whether the  decision of the Constitution Bench in Sabhajit Tewary (supra) was correctly  rendered by a Constitution Bench of 5-Judges.  As the said decision centered  around the activities of CSIR vis-‘-vis the tests laid down therefor in  Sabhajit Tewary (supra), the ratio must be understood to have been laid  down in respect of the questions raised therein.  The questions raised herein  were neither canvassed nor was there any necessity therefor.  Pradeep  Kumar Biswas (supra), therefore, cannot be treated to be a binding precedent  within the meaning of Article 141 of the Constitution of India having been  rendered in a completely different situation.   

The question has been considered by us on the touchstone of new tests  and from a new angle.  ALLAYING THE APPREHENSION:         Only because a body answers the description of a public authority,  discharges public law functions and have public duties, the same by itself  would not lead to the conclusion that all its functions are public functions.   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 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 \026 Page 303)         There are numerous decisions of this Court where such a distinction  between public law function and private law function has been drawn by this  Court. [See Life Insurance Corporation of India Vs. Escorts Ltd. and Others,  (1986) 1 SCC 264 at 343 & 344, para 101, Kerala State Electricity Board  and Another Vs. Kurien E. Kalathil and Others, 2000 (6) SCC 293 at 299,    Johri Mal (supra) page 729 and State of Maharashtra and Others Vs.  Raghunath Gajanan 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 remedy enforceable under Article  226 of the Constitution, the actions of the authority need  to fall in the realm of public law \026be 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 58  

determined in each case having regard to the nature of  and extent of authority vested in the State.  However, it  may not be possible to generalize the nature of the action  which would come either under public law remedy or  private law field nor is it desirable to give exhaustive list  of such actions.                                                         (Emphasis supplied)         The submission of the learned counsel for the Board that once it is  declared to be a ’State’;  the consequences would be devastating inasmuch  as all its activities would be subject to government control, with respect,  cannot be accepted as in absence of any statute or statutory rules no such  control can ordinarily be exercised by Union of India or State.         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  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 Board as State will be disastrous inasmuch as all the  national  sports federations as well as those bodies which represent India in the  international fora in the field of art, culture, beauty competitions, cultural  events, music and dance, science and other conferences or competitions  relating to any subject would become a ’State’ is  one of the desperation.         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.   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  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 16 of the Constitution  of India.         In Ajit Singh and Others (II) Vs. State of Punjab and Others [(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 vs. State of Andhra Pradesh & Ors. \026  2004 (9) SCALE 316]         Furthermore, only because a corporation or a society is a State, the  same would not necessarily mean that all of its actions should be subject to  judicial review. The court’s jurisdiction in such matter is limited. [See  Johrimal (supra).         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.           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  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 even though a body, entity or Corporation is  held to be a ’State’ within the definition of Article 12 of  the Constitution what relief to the aggrieved person or  employee of such a body or entity is to be granted is a  subject matter in each case for the court to determine on  the basis of the structure of that society and also its  financial capability and viability.  The subject of denial  or grant of relief partially or fully has to be decided in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 58  

each particular case by the court dealing with the  grievances brought by an aggrieved person against the  bodies covered by the definition of ’State’ under Article  12 of the Constitution."

       The "in terrorem" submission of Mr. Venugopal that a floodgate of  litigation would open up if the Board is held to be a State within the meaning  of Article 12 of the Constitution cannot also be accepted.  Floodgate  arguments about the claimed devastating effect of being declared a State  must be taken with a grain of salt.  The courts, firstly, while determining a  constitutional question considers such a question to be more or less  irrelevant.  [See Guruvayoor Devaswom Managing Committee and Another  Anr. Vs.    C.. K. Rajan and Others [(2003) 7 SCC 546 \026 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 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)         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  others   vs. 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.  It would be next to impossible, he says, to  reverse all these arrangements without complete chaos  and damage to teachers, pupils and public.  I must say  this: if a local authority does not fulfil the requirements  of the law, this court will see that it does fulfil them.  It  will not listen readily to suggestions of "chaos".  The  department of education and the council are subject to the  rule of law and must comply with it just like everyone  else.  Even if chaos should result still the law must be  obeyed but I do not think that chaos will result.  The  evidence convinces me that the "chaos" is much over- stated\005..I see no reason why the position should not be  restored, so that the eight school retain their previous  character until the statutory requirements are fulfilled. I  can well see that there may be a considerable upset for a  number of people, but I think it far more important to  uphold the rule of law.  Parliament has laid down these  requirements so as to ensure that the electors can make  their objections and have them properly considered.  We  must see that their rights are upheld."   

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 is ordered accordingly.