Author: Vaishnavi Nimje Student, Symbiosis Law School, Nagpur
Zee Telefilms Ltd. (the first petitioner), is one of the largest vertically integrated media entertainment groups in India. The Board of Control for Cricket in India (BCCI) (the second respondent), is a society registered under the Tamil Nadu Societies Registration Act which is said to be recognised by the Union of India, the Ministry of Youth Affairs and Sports.
In this case, the question was whether the Board of Control for Cricket in India was “State” within the meaning of Article 12. The Board argued that its autonomous nature took it out of the ambit of Article 12, per Pradeep Kumar Biswas. Zee Telefilms, on the other hand, pointed to the “governmental functions exercised by the Board in the area of cricket.” The Court held in favour of the Board. In the case, the Supreme Court looked into the public functions performed by BCCI in order to ascertain whether BCCI is an instrumentality of State under the term ‘other authorities’ within Article 12 so as to invoke Article 32 against BCCI. By applying the earlier precedents on the matter like Pradeep Kumar Biswas v. Union of India, Supreme Court declined to hold BCCI as a ‘state’ under Article 12, but at the same time recognized the public functions performed by it.
The facts established in this case show the following:
The Board is not created by a statute.
No part of the share capital of the Board is held by the Government.
Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the Board.
The Board does enjoy a monopoly status in the field of cricket but such status is not State-conferred or State-protected.
There is no existence 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.
The Board is not created by transfer of a government-owned corporation. It is an autonomous body.
To understand the concept of ‘State’ as defined in Article 12 of the Constitution of India.
To analyse the necessity to bring in private entities exercising public functions within the purview of Article 12.
To probe into the background and judicial approach towards interpretation of Article 12.
To study the relevance of the public interest involved in the functions performed by BCCI.
Whether Writ Petition against Board of Control for Cricket in India is maintainable?
Whether Board is a State within meaning ofArt.12?
A 5 judge bench was constituted namely N. Santosh Hegde, B.P. Singh, H.K. Sema, S.B. Sinha and S.N. Variava.
Arguments of Petitioner (Zee Telefilms Ltd.) made by Mr. Harish Salve
BCCI is the only body which controls the cricket as per India is concerned. Domestic matches are recognised by BCCI, IPL, Ranji Trophy etc. are conducted by under BCCI. BCCI has a monopoly in India.
Players who will represent India are appointed by BCCI.
Cricket is a profession, and therefore BCCI has a power to interfere the Fundamental Rights in Article 19(g) – Freedom to express any occupation, trade or business.
Disciplinary action against the players as well as umpires rest with BCCI.
Financial assistance was provided by Government.
It was also submitted that even domestically, all representative cricket could only be under its aegis. No representative tournament could be organised without the permission of BCCI or its affiliates at any level of cricket.
BCCI and its affiliates were the recipients of State largesse, inter alia, in the form of nominal rent for stadia. BCCI, performing one of the most important public functions for the country with the authorisation and recognition by the Government of India, was amenable to the writ jurisdiction of the Court under the provisions of the Constitution.
Initial stand taken by the Government was that Government does not control BCCI. Although selection of players is done by BCCI and when foreign team visits India, Government gives the permission.
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. Constitution Bench of this Court somewhat expanded this concept of “other authority” in the case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi. In this case the Court held that bodies like Oil and Natural Gas Commission, Industrial Finance Corporation and Life Insurance Corporation which were created by statutes, because of the nature of their activities do come within the term “other authorities” in Article 12 even though in reality they were really constituted for commercial purposes. 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 v. Khalid Mujib Sehravardi. But in the said case of Ajay Hasia, 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.
Arguments of Respondent (BCCI) made by Mr. K K Venugopal
Origin of BCCI was pointed out. He says BCCI is a society under Tamil Nadu Societies Registration Act.
There was autonomy of BCCI and none of the members can be elected by the government.
He agrees that initial assistance was provided by government but BCCI has never took any financial assistance.
BCCI enjoys monopoly but it is not granted or protected by State. BCCI enjoys monopoly because of First – Mover Advantage as it was the first body who controlled cricket.
There is no prohibition for a new body to come up. It is open for any body can come up.
If we hold BCCI for cricket as a State, then we have to hold other national sports associations as a State.
Court said we should treat cricket and other sports equally.
Also, other bodies that represent India like Beauty Pageants, Art Galleries would be treated unequally.
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 was not maintainable and the same was dismissed.
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