9911796707
TMI Blog2005 (2) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... nown 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 draf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of documents have also been filed to show that the Board had all along been acting as a recog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.Matches that are organized are played at places either belonging to Members in India or at the places of either belonging to its Members of ICC only. Only when for the purpose of organizing any match or tournament with foreign participants, the Respondent no.2 requires normal and scheduled permissions from the Ministry of Sports for travel of foreign 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 conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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]. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Mr. Mohan Parasaran, learned counsel appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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." 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; "33. Theaters and dramatic performances; cinemas subject to the provisions of entry 60 of List 1; sports, entertainments and amusements." 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 : "It may be true that what is protected by Article 19(1)(a) is an expression of thought and feeling and not of the physical or intellectual prowess or skill. It is also true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing therefrom. In Daniel Lee (supra), it was held: "The OAC's functionally exclusive regulation of free speech within.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. 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 Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 : "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" 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alve, 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 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form those duties" [Emphasis supplied] 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 wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itch, Pool, Rink, Court? Judicial Review in the Sporting World' reported in 1989 Public Law 95 while citing several instances as to when no relief was granted in case of arbitrary action on the part of such strong and essential sport bodies advocated for a judicial review stating: "As for the argument that the sports bodies know best, experience may perpetuate, not eliminate error; and Wilberforce J. indicated in Eastham that the rules of sporting bodies cannot be treated as the Mosaic or Medan 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; "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 if not more important than any other in the history of the game in New Zealand. 4. The decision affects the New Zealand community as a whole and 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unquestionably governmental do things for which no statutory power is necessary, such as issuing circulars or other forms of information" Lord Woolf in an Article "Judicial Review: A Possible Programme for Reform" [1992] P.L. 221 at 235 advocated a broader approach by extending review to cover all bodies which exercise authority over another person or 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne'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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution applicable. Which authorizations have that Constitution triggering effect will necessarily turn on the character of the decision-making responsibility thereby placed (or left) in private hands. However described, there must exist a category of responsibilities regarded at any given time as so "public" or "governmental" that their discharge by private persons, pursuant to state authorization even though not necessarily in accord with state direction, is subject to the federal constitutional norms that would apply to public officials discharging those same responsibilities. For example, deciding to cross the street when a police officer says you may is not such a "public function;" but authoritatively deciding who is free to cross and who must stop is a "public function" whether or not the person entrusted under state law to perform that function wears a police uniform and is paid a salary from state revenues or wears civilian garb and serves as a volunteer crossing guard" 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment 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 specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 corporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew, 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. These traditional tests of a body controlled financially, functionally an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a national or, in cases of non-nationals, in which he was born 2. A player who has resided for a minimum of 183 days in a Member Country in each of the 4 immediately preceding years shall be a "deemed national" of that country for the purpose of these Rules. (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 (d) Applications 1. Each Member Country shall require each player to certify his eligibility to represent that Member Country. (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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 youngster ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h permission had been sought for in the form prescribed in terms of the said regulations. The said documents leave no manner of doubt that the Board had asked for and the Union of India had granted de facto recognition. In the affidavit dated 8th October, 2004 affirmed by a Deputy Secretary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies" 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: "We would like to reiterate that the Annual Reports of BCCI are already available with your Ministry." The tenor of the letter, thus, runs contrary to the assertion of the Board t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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' October24, 2004 and 'Hindustan Times' October 24, 2004]. It undertakes activities of entering into contracts for telecast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" 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 Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an. 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 instead 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 aimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94] wherein this Court held: "It is trite that any observation made during the course of reasoning in a judgment should not be read divorced from the context in which they were used." It is further well-settled that a decision is not an authority for the proposition which did not fall for its consideration. It is also a trite law that a point not raised before a Court would not be an authority on the said question. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dividual 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 be it a legislative act or the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question is required to be determined in each case having regard to the nature of and extent of authority vested in the State. However, it may not be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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