Zee Telefilms v. Union of India

MANU/SC/0074/2005
Equivalent Citation: AIR2005SC 2677, 2005(2)ALT10(SC ), (2005)4C ompLJ283(SC ), (2005)4C ompLJ283(SC ), JT2005(2)SC 8,
2005(1)SC ALE666, (2005)4SC C 649, [2005]2SC R913
IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 541 of 2004 with S.L.P. (C) No. 20186 of 2004
Decided On: 02.02.2005
Appellants:Zee Telefilms Ltd. and Ors.
Vs.
Respondent:Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
N. Santosh Hegde, B.P. Singh, H.K. Sema, S.B. Sinha and S.N. Variava, JJ.
JUDGMENT
N. Santosh Hegde, J.
1 . 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.
2. 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.
3 . 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
i n Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors.
MANU/SC/0330/2002 : [2002]3SCR100 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.
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Sorabjee-appearing for the other contesting respondents.
4. 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.
5 . 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.
6 . 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 mat 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.
7 . 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--In this part, unless the context otherwise requires, "the
State" includes the Government and Parliament of India and the Government
and the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of India."
8. 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.
9. 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 - I shall presently explain what the word 'authority'
means - upon every authority which has got either the power to make laws
or the power to have discretion vested in it. Therefore, it is quite clear that if
the fundamental rights are to be clear, then they must be binding not only
upon the Central Government they must not only be binding upon the
Provincial Government, they must not only be binding upon the Governments
established in the Indian States, they must also be binding upon District
Local Boards, Municipalities, even village panchayats and taluk boards, in
fact every authority which has been created by law and which has got certain
power to make laws, to make rules, or make bye-laws.
If that proposition is accepted - and I do not see anyone who cares for
Fundamental Rights can object to such a universal obligation being imposed
upon every authority created by law then, what are we to do to make our
intention clear ? There are two ways of doing it. One way is to use a
composite phrase such as 'the State', its 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 7 CAD 610
(Emphasis supplied)
1 0 . 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.
1 1 . 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 v. Shantha Bai and Anr. MANU/TN/0096/1954 :
AIR1954Mad67, B.W. Devadas v. The Selection Committee for Admission of
Students to the Karnatak Engineering College and Ors. MANU/KA/0067/1964 :
AIR1964Kant6. In the year 1967 the case of Rajasthan State Electricity Board v.
Mohan Lal and Ors. MANU/SC/0360/1967 : (1968)ILL J257SC 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)

1 2 . Almost a decade later another Constitution Bench of this Court somewhat
expanded this concept of "other authority" in the case of Sukhdev Singh and Ors.
v . Bhagatram Sardar Singh Raghuvanshi and Anr. MANU/SC/0667/1975 :
(1975)ILL J399SC, in this case the Court held the bodies like Oil and Natural Gas
Commission, industrial Finance Corporation and Life Insurance Corporation which
were created by statutes because of the nature of their activities do come within the
term "other authorities" in Article 12. Even though in reality they were really
constituted for commercial purposes while so holding Mathew J. gave the following
reasons for necessitating to expand the definition of the term "other authorities" in
the following words:-
"The concept of State has undergone drastic changes in recent years. Today
State cannot be conceived of simply as a coercive machinery wielding the
thunderbolt of authority. It has to be viewed mainly as a 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
tar 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."
13. 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".
14. 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.
15. At this stage it is necessary to refer to the judgment of Sabhajit Tewary v.
U.O.I and Ors. MANU/SC/0059/1975 : (1975)ILL J374SC which was delivered by the
very same Constitution Bench which delivered the judgment in Sukhdev Singh and
Ors. on the very same day. In this judgment this court noticing its judgment in
Sukhdev Singh and Ors. (supra), rejected the contention of the petitioner therein
that council for Scientific and Industrial Research the respondent body in the said
writ petition which was only registered under the Societies Registration Act would
come under the term "other authorities" in Article 12.
16. The distinction to be noticed between the two judgments referred to hereinabove

namely Sukhdev Singh and Ors. and Sabhajit Tewary (supra), is that in the
former the Court held that bodies which were creatures of the 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.
1 7 . Subsequent to the above judgments of the Constitution Bench a Three Judge
Bench of this Court in the case of Ramana Dayaram Shetty v. The International
Airport Authority of India and Ors. MANU/SC/0048/1979 : (1979)IILL J217SC
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.
18. It is in the above context that the Bench in Ramana Dayaram Shetty's case
laid down the parameters or the guidelines for identifying a body as coming within
the definition of "other authorities" in Article 12. They are as follows :-
"(1) One thing is clear that if the entire share capital of the corporation is
held by Government, it would go a long way towards indicating that the
corporation is an instrumentality or agency of Government. (SCC p. 507,
para 14)
(2) Where the financial assistance of the State is so much as to meet almost
entire expenditure of the corporation, it would afford some indication of the

corporation being impregnated with governmental character. (SCC p.508,
para 15)
(3) it may also be a relevant factor ... 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)
19. 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 and Ors. v.
Khalid Mujib Sehravardi and Ors. MANU/SC/0498/1980 : (1981)ILLJ103SC. 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.
2 0 . 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 v. National Council of Educational Research and Training
MANU/SC/0010/1992 : (1992)ILL J331SC.' 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
MANU/SC/0154/1987 : (1988)ILL J341SC. However, as far as the decision in
Sabhajit Tewary v. Union of India MANU/SC/0059/1975 : (1975)ILL J374SC
was concerned, it was noted (at SCC p.583 para 8) that the "decision has
been distinguished and watered down in the subsequent decisions."
(para 38)
21. 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 - 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 Stare." (para 40)
22. Above is the ratio decidendi laid down by a seven Judge Bench of this Court
which is binding on this Bench. The facts of the case in hand will have to be tested
on the touch stone of the parameters laid down in Pradeep Kumar Biswas's case
(supra). Before doing so it would be worthwhile once again to recapitulate what are
the guidelines laid down in Pradeep Kumar Biswas's case (supra) for a body to be
a State under Article 12. They are :-
(1) Principles laid down in Ajay Hasia are not a rigid set of principles so
that if a body falls within any one of them it must ex hypothesi, be
considered to be a State within the meaning of Article 12.
(2) The Question in each case will have to be considered on the bases of
facts available as to whether in the light of the cumulative facts as
established, the body is financially, functionally, administratively dominated,
by or under the control of the Government.
(3) Such control must be particular to the body in question and must be
pervasive.
(4) Mere regulatory control whether under statute or otherwise would not
serve to make a body a State.

23. 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.
24. 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 of 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.
25. 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.
26. The learned counsel appearing for the petitioners, however, contended that there
are certain facets of the activities of the Board which really did not come up for
consideration in any one of the earlier cases including in Pradeep Kumar Biswas
case (supra) and those facts if considered would clearly go on to show that the Board
is an instrumentality of the State. In support of this argument, he contended that in
the present day context cricket has become a profession and that the cricketers have
a fundamental right under Article 19(1)(g) to pursue their professional career as
cricketers. It was also submitted that the Board controls the said rights of a citizen by
its rules and regulations and since such a regulation can be done only by the State
the Board of necessity must be regarded as an instrumentality of the State. It was
also pointed out that under its Memorandum of Association and the rules and
regulations and due to its monopolistic control over the game of Cricket the Board
has all pervasive powers to control a person's cricketing career as it has the sole
authority to decide on his membership and affiliation to any particular Cricketing
Association, which in turn would affect his right to play cricket at any level in India
as well as abroad.

27. 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?
28. 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.
2 9 . It was then argued that the Board discharges public duties which are in the
nature of State functions. Elaborating on this argument it was pointed out that the
Board selects a team to represent India in international matches. The Board makes
rules that govern the activities of the cricket players, umpires and other persons
involved in the activities of cricket. These, according to the petitioner, are all in the
nature of State functions and an entity which discharges such functions can only be
an instrumentality of State, therefore, the Board falls within the definition of State for
the purpose of Article 12. Assuming that the abovementioned functions of the Board
do amount to public duties or State functions, the question for our consideration is:
would this be sufficient to hold the Board to be a State for the purpose of Article 12.
While considering this aspect of the argument of the petitioner, it should be borne in
mind that the State/Union has not chosen the Board to perform these duties nor has
it legally authorised the Board to carry out these functions under any law or
agreement. It has chosen to leave the activities of cricket to be controlled by private
bodies out of such bodies' own volition (self-arrogated). In such circumstances when
the actions of the Board are not actions as an authorised representative of the State,
can it be said that the Board is discharging State functions? The answer should be no.
In the absence of any authorisation, if a private body chooses to discharge any such
function which is not prohibited by law then it would be incorrect to hold that such
action of the body would make it an instrumentality of the State. The Union of India
has tried to make out a case that the Board discharges these functions because of the
de facto recognition granted by it to the Board under the guidelines framed by it but
the Board has denied the same. In this regard we must hold that the Union of India
has failed to prove that there is any recognition by the Union of India under the
guidelines framed by it and that the Board is discharging these functions on its own
as an autonomous body.

30. 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.
31. 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.
3 2 . This Court in the case of Andi Mukta Sadguru Shree Muktajee Pandas
Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v.V.R. Rudani and
Ors. MANU/SC/0028/1989 : (1989)IILLJ324SC 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."
33. 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 nongovernmental body exercises some public duty that by itself
would not suffice to make such body a State for the purpose of Article 12. In the
instant case the activities of the Board do not come under the guidelines laid down by
this Court in Pradeep Kumar Biswas case (supra), hence there is force in the
contention of Mr. Venugopal that this petition under Article 32 of the Constitution is
not maintainable.
34. 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 (S e e State of Kerala v. T.P. Roshana MANU/SC/0051/1979 :
[1979]2SCR974. 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.
35. 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 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 and Ors.] MANU/SC/0779/2001 :
(2002)ILL J550SC 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.
36. 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.
SEPARATE DISSENTING JUDGEMENT
S.B. Sinha, J.

37. 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:
38. 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 therefore. 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 $).
39. 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.
40. 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 therefore 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 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:
41. 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.
42. 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 terns of the decision arrived on 5.9.2004.
4 3 . 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 28.92004.
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:
4 4 . 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:
4 5 . 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 Team" while playing One
Day Internationals or Test Matches -- 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 Article 12 of the Constitution - it can hardly contend that it
has the power to arbitrarily deny players all rights to even be considered for
participation in a tournament which they are included as a team from "India".
d. 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 Article 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 or 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:
46. 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 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 :
47. 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) ...The Respondent No. 2 does not discharge or perform any public or
statutory duly.
(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 v. Union of India MANU/DE/0846/2004 :
114(2004)DLT323 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 (SPIV) 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....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 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:
4 8 . 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:
4 9 . 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 v.
Indian Institute of Chemical Biology and Ors. MANU/SC/0330/2002 :
[2002]3SCR100, 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 there over 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.
5 0 . 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. v. Football
Association Ltd, ex parte Football League Ltd. [(1992) 4 ALR 623] and R. v.
Disciplinary Committee of the Jockey Club, ex parte Aga Khan [(1993) 1 WLR 909].
The leaned counsel has also drawn our attention to a decision of this Court in Federal
Bank Ltd. v. Sagar Thomas and Ors. MANU/SC/0769/2003 : (2004)ILL J161SC.
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 Ors. v. V.R. Rudani and Ors. MANU/SC/0028/1989 :
(1989)IILLJ324SC.
51. 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 v. International Crops Research Institute and Anr.
MANU/SC/0115/2003 : (2003)IILL J1123SC the learned counsel would urge that
Board does not fulfil the tests laid down therein.
5 2 . 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.
53. 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.
5 4 . 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 v. Vera Katz -276 F.3d 550.
CONSTITUTIONAL DEVELOPMENT :
5 5 . 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.
56. [See Missouri v. Holland 252 US 416 (433) and Kapila Hingorani v. State of Bihar
MANU/SC/0403/2003 : (2003)IIILLJ31SC
5 7 . Furthermore in John Vallamattom and Anr. v. Union of India
MANU/SC/0480/2003 : AIR2003SC2902 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."
5 8 . 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 gore 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."
59. In Liverpool & London S.P. &. I. Association Ltd. v. M.V. Sea Success I and Anr.
MANU/SC/0951/2003 : (2004)9SCC512, this Court observed:
"Referring to Motor General Traders and Anr. v. State of Andhra Pradesh and
Ors. MANU/SC/0293/1983 : [1984]1SCR594, Rattan Arya and Ors. v. State of
Tamil Nadu and Anr. MANU/SC/0550/1986 : [1986]2SCR596 andSynthetics
and Chemicals Ltd. and Ors. v. State of U.P. and Ors.
"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 v. State of Bihar
MANU/SC/0403/2003 : (2003)IIILL J31SC andJohn Vallamattom and Anr. v.
Union of India MANU/SC/0480/2003 : AIR2003SC2902."
60. Constitution of India is an ongoing document. It must be interpreted accordingly.
61. 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:
62. 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; spoils, entertainments and amusements."
63. 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.
64. I n Secretary, Ministry of Information & Broadcasting, Government of India and
Ors. etc. v. Cricket Association of Bengal and Ors. etc. MANU/SC/0246/1995 :
[1995]1SCR1036, this Court held :
"...It may be true that what is protected by Article 19(1)(a) is an expression
of thought and feeling and not of the physical or intellectual prowess or skill.
It is also true that a person desiring to telecast sports 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...."
[Emphasis supplied]
65. It was held that sport is a form of expressive conduct.
66. 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:
67. 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 of India."
6 8 . 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.
69. 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".
7 0 . The word "Other Authorities" contained in Article 12 is not to be treated as
ejusdem generis.
71. 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."
7 2 . 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 where for the
capital, infrastructure, initial investment and financial aid etc. are provided
by the State and it also exercises regulation and control there over.
(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.
73. 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 therefore or
not.
74. 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., MANU/SC/0101/1961 : [1963]1SCR778 ).
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."
75. [See also Black Diamond Beverages and Anr. v. Commercial Tax Officer, Central
Section, Assessment Wing, Calcutta and Ors. MANU/SC/0879/1997 : AIR1997SC3550
76. 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 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 told whatever comes within the purview thereof
so as to instill the public confidence in it.
77. The feature that the Board has been allowed to exercise the powers enabling it to
trespass across the fundamental rights of a citizen is of great significance. In terms of
the Memorandum of Association even the States are required to approach the Board
for its direction. If the 'Constitution Bench judgment of this Court in Sukhdev Singh
and Ors. v. Bhagatram Sardar Singh MANU/SC/0667/1975 : (1975)ILL J399SC 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 lights 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.
78. 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 - 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.
79. 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.
80. In Daniel Lee (supra), it was held:
"The OAC's functionally exclusive regulation of tree speech within....a public
forum, is a traditional and exclusive function of the State"
DEVELOPMENT OF LAW:
81. 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 v. Mohan Lal and Ors. MANU/SC/0360/1967 :
(1968)ILLJ257SC.
82. 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.
83. 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.
84. I n 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'.
85. 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].
86. It was observed that even big companies and trade unions would answer the said
description as they exercise enormous powers.
87. In UP State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey and
Ors. , 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...It 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."
88. 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 Ors. v. Regional Director, ESI Corporation
and Anr. MANU/SC/0725/2003 : (2003)IIILLJ855SC and Bassi Reddy (supra)].
8 9 . Madon, J. in Central Inland Water Transport Corporation Limited and Anr. v.
Brojo Nath Ganguly and Anr. MANU/SC/0439/1986 : (1986)IILL J171SC 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 ?
90. 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 lime 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 unalterable law, I am convinced that he is an unalterable
tool." The law must, therefore, in a changing society march in tune with the
changed ideas and ideologies..."
91. Pradeep Kumar Biswas (supra) and Bassi Reddy (supra) were recently considered
i n Gayatri De v. Mousumi Cooperative Housing Society Ltd. and Ors.
MANU/SC/0366/2004 : AIR2004SC2271, 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.
92. In Chain Singh v. Mata Vishno Devi Shrine Board and Anr. MANU/SC/0836/2004
: (2004)12SCC634, 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 Ors. v.
State of J & K and Ors. MANU/SC/1077/1997 : [1997]1SCR138 requires
reconsideration in the light of the principles laid down in Pradeep Kumar Biswas
(supra).
9 3 . I n Virendra Kumar Srivastava v. U.P. Rajya Karmachari Kal. Nigam and Anr.
MANU/SC/0998/2004 : (2005)ILL J544SC, 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 and Ors. v. Khalid
Mujib Sehravardi and Ors. MANU/SC/0498/1980 : (1981)ILLJ103SC
94. Recently a Division Bench of the Rajasthan High Court in Santosh Mittal v. State
of Rajasthan and Ors. MANU/RH/0414/2004 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."
95. 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.
v. Santosh Mittal and Ors. [2004 (10) SCALE 360] by an order dated 6.12.2004
dismissed the Special Leave Petitions, stating:
"Mr. Harish N. Salve, learned senior counsel appearing for the petitioner in
SLP(C) No. 24266-24268/2004 and Mr. Arun Jaitley, 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 for six weeks, is extended by another two weeks from today."
9 6 . 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.
97. 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]
98. A school would be a State if it is granted financial aid. (See Jiby P. Chacko v.
Mediciti School of Nursing, Ghanpur, Ranga Reddy District and Anr.
MANU/AP/0290/2002 : 2002(2)ALD827
99. An association performing the function of Housing Board would be performing a
public function and would be bound to comply with Human Rights Act, 1998. [See
Poplar Housing and Regeneration Community Association Ltd. v. Donoghue [2002]
Q.B. 48. But an old age house run by a private body may not. [See R (on the
application of Heather and Ors.) v. Leonard Cheshire Foundation and Anr. 2002 WL
346985
1 0 0 . 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.
1 0 1 . 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.
[ S e e T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. -
MANU/SC/0905/2002 : AIR2003SC355 andIslamic Academy of Education and Anr. v.
State of Karnataka and Ors., MANU/SC/0580/2003 : AIR2003SC3724.
102. Tests or the nature thereof would vary depending upon the fact of each case.
103. 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.
104. 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.
1 0 5 . Let us for determining the question have a look at the relevant decisions
rendered in different jurisdictions.
INDIAN CASE LAW:
106. I n K.S. Ramamurthi Reddiar v. The Chief Commissioner, Pondicherry and Anr.
MANU/SC/0029/1963 : [1964]1SCR656, 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.
107. Mathew, J. in Sukhdev Singh (supra) referring to various authorities observed:
"In so tar 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)
108. The said principles were reiterated in Ramana Dayaram Shetty v. International
Airport Authority of India and Ors. MANU/SC/0048/1979 : (1979)IILL J217SC 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].
109. I n Ajay Hasia (supra), Sukhdev Singh (supra) and Ramana Dayaram Shetty
(supra) were noticed with approval. [SCC Paras 8, 14 & 15]- See also Som Prakash
Rekhi v. Union of India and Anr.
110. The conflict between Ajay Hasia (supra) and Sabhajit Tewary v. Union of India
and Ors. MANU/SC/0059/1975 : (1975)ILL J374SC has been resolved inPradeep
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.
111. It is interesting to note that Bhagwati. J. in Ramana Dayaram Shetty (supra)
followed the minority opinion of Douglas, J. in Jackson v. Metropolitan Edison
Company 419 U.S. 345 as against the majority opinion of Rehnquist, J. which was
specifically noticed in M.C. Mehta and Anr. v. Union of India and Ors.
MANU/SC/0092/1986 : [1987]1SCR819
112. I n Air India Statutory Corporation and Ors. v. United Labour Union and Ors.
MANU/SC/0163/1997 : (1997)ILL J1113SC, (since overruled on another point) in
Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors.
MANU/SC/0515/2001 : (2001)IILL J1087SC : AIR 2001 SC 3527: JT 2001 ( 7) SC
268: 2001 Lab IC 3656 : (2002) UPLBEC 228 : (2001) 11 LL J 1087 SC : 2001 (5)
SCALE 626 : 2001 (4) SCT 1 (SC): (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
113. I n Nagle v. Feilden and Ors. 1966 2 QB 633, the Jockey Club was entitled to
issue licence enabling the persons to train horses meant for races. The Respondent's
application for grant of licence was rejected on the ground, 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.
114. In Greig and Ors. v. Insole and Ors. [1978] 1 W.L.R. 302, a Chancery Division
considered in great details the rules trained 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.

115. In R. v. Panel on Take-overs and Mergers, ex parte Datafin plc and Anr. [1987
(1) All ER 564] the Court exercised the power of the judicial review over a private
body.
116. 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 machines. 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 v.
Wallbank [2001] 3 W.L.R. 1323].
117. I n Poplar Housing and Regeneration Community Association Ltd. v. Donoghue
(2001) 3 W.L.R. 183 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:
"...The emphasis on public functions reflects the approach adopted in judicial
review by the courts and text books since the decision of the Court of Appeal
(the judgment of Lloyd L J) 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..."
[Emphasis supplied]

118. 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 WC 85 2308
119. Despite the same it was held that a judicial review cannot be refused at the
threshold.
120. 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.
121. A different note, however, was struck in Football Association Ltd. (supra) and
Aga Khan (supra).
122. 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.
123. 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 v. 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.
124. 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 tall 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.
125. 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.
126. 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)
127. Michael I Beloff in his article 'Pitch, Pool, Rink, Court? Judicial Review in the
Sporting World' reported in 1989 Public Law 95 while citing several instances as to
when no relief was granted in case of arbitrary action on the part of such strong and
essential sport bodies advocated for a judicial review 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-Chancelleries 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)
128. P.P. Craig in his Administrative Law at page 817 noticing the aforementioned
judgments and upon enumerating the reasons therefore, 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 accent 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 contusing
contract as an instrument of economic exchange, with contract as a
regulatory instrument. She argues farther 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 :
129. In St. Johnstone Football Club Limited v. 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
130. In Finnigan v. 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 tails, 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 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
tar. We are not holding that nor even discussing whether, the decision is the
exercise of a statutory power - although that was argued. We are saying
simply that it fails into a special area where, in the New Zealand context, a
sharp boundary between public and private law cannot realistically be
drawn."
131. 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:
132. I n Romeo v. Conservation Commission of the Northern Territory [(1998) 72
AL JR 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.
133. Therein a question arose as to whether the public authorities have a duty to
care envisaging reasonable possibility of damage. The teamed 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 "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."
134. I n Neat Domestic Trading Pty Ltd. v. AWB Ltd. and Anr. [77 AL JR 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]
135. 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...."

136. I n 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:
137. Brennan, J. in San Francisco Arts & Athletics, Inc. v. United States Olympic
Committee and International Olympic Committee [483 US 522 : 97 L.Ed. 2d 427]
stating that the USOC performs a distinctive traditional government function
representing the nation to the International Olympic Committee observed:
"American athletes will go into these same [1980 Olympic] games as
products of our way of life. I do not believe that it is the purpose of the
games to set one way of life against another. But it cannot be 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)."
1 3 8 . I n Brentwood Academy v. 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..."
139. 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 therefore the
cumulative effect of all or some of tests is not required to be taken into
consideration. (See also Communities for Equity v. Michigan High School Athletic
Association decided on 27th July, 2004)
SOME OTHER VIEWS:
140. 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 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..."
141. Lord Woolf in an Article "Judicial Review: A Possible Programme for Reform"
[1992] P.L. 221 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)
142. 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
contractualization 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."
143. 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 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 nuance we would have to be about the application of public law
principles to those bodies brought within the ambit of judicial review."
144. In an interesting article 'Sports, Policy and Liability of Sporting Administrators'
by Jeremy Kirk and Anton Trichardt published in 75 AL J 504, the learned authors
while analyzing a recent decision of the High Court of Australia in Agar v. Hyde
[(2000) 74 AL JR 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."
145. The opinion of the learned authors to say the least provides a new insight.
ANALYSIS OF CASE LAW:
146. We have noticed hereinbefore that the Courts of Scotland and New Zealand
differ with the English and American majority approach.
147. 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.
148. 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)]
1 4 9 . 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.
150. 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 purely private
bodies. As noticed hereinbefore, availability of judicial review has been accepted by
the English courts. [See M.C. Mehta (supra)]
151. The right of Indian players, having regard to the observations made in Geirg
and 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.
152. 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 and
Ors. (supra). The right to pursue an occupation or the right of equality are embedded
in our Constitution whereby citizens of India are granted much higher right as
compared to common law right in England. A body although self-regulating, if
performs public duty by way of exercise of regulatory machinery, a judicial review
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:
153. Public law is a term of art with definite legal consequences. (See O'Reilly v.
Mackman, (1982) 3 WLR 604.
154. 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 Anr. v. B.D. Agarwal and Ors.
MANU\SC\0450\2003: AIR 2003 SC 2686: 2003 (5) ALD 14 (SC): [2003] 117 Com
Cas 1 (SC): RLW 2003 (3) SC 562: 2003 (5) SCALE 138 (2003) 6 SCC 230 at page
242)
155. 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 therefore 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 result where of 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.
1 5 6 . 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 - imagine a green
light at a street corner authorizing pedestrians to cross if they wish - that
action cannot automatically become one taken under "state authority" in any
sense that makes the Constitution applicable. Which authorizations have that
Constitution - triggering effect will necessarily 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..."

157. 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.
158. 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 rub 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.
1 5 9 . Governmental functions are multi-facial. There cannot be a single test for
defining public functions. Such functions are performed by variety of means.
160. 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.
161. 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."
162. 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 Section 6
of the 1998 Act, should be given, a generous interpretation..."
163. 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)
164. The functions of the Board, thus, having regard to its nature and character of
functions would be public functions.
AUTHORITY:
1 6 5 . 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.
1 6 6 . I n Aston Cantlow and Wilmcote with Billesley Parochial Church Council v.
Wallbank and Anr. albeit in the context of Human Rights Act, 1998, it was held:
"...This feature, that a core public authority is incapable of having
Convention rights of its own, is a matter to be borne in mind when
considering whether or not a particular body is a core public authority...."
167. See also Hampshire County Council v. Graham Beer t/a Hammer Trout Farm
[2003] EWCA Civ 1056 and Parochial Church Council of the Parish of Aston Cantlow
v. Wallbank [(2003) UKHL 37], Para 52.
168. 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 he against it.
JUDICIAL REVIEW UNDER ARTICLES 32 & 226 OF THE CONSTITUTION OF
INDIA:
169. Judicial Review forms basic structure of the Constitution.
170. 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.
171. 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 v.
Hiralal Motilai Desarda and Ors. MANU/SC/0765/2002 : [2002]SUPP2SCR179
172. 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.
173. 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).
1 7 4 . 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 nongovernmental 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.
175. Some of the questions involved in this matter have recently been considered in
an instructive judgment by High Court Delhi in Rahul Mehra and Anr. v. Union of
India and Ors. (Civil Writ Petition No. 1680 of 2000) disposed of on 4th October,
2004. Having regard to the discussions made therein, probably it was not necessary
for us to consider the question in depth but its reluctance to determine as to whether
the Board is a State within the meaning of Article 12 of the Constitution necessitates
further and deeper probe.
176. 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 tot any other purpose. Article 226 confers an extensive jurisdiction to the
High Court vis-a-vis this Court under Article 32 in the sense that writs issued by it
may rim 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 Anr. v.
Rohtas Industries Staff Union and Ors. MANU/SC/0354/1975 : (1976)ILLJ274SC
177. 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.
178. In Assembrook Exports Ltd. and Anr. v. Export Credit Guarantee Corporation of
India Ltd. and Ors., MANU/WB/0061/1997 : AIR1998Cal1, 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
i n ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India
Limited and Ors. MANU/SC/1080/2003 : (2004)3SCC553. [See alsoTata Cellular v.
Union of India MANU/SC/0002/1996 : AIR1996SC11 andState of U.P. and Anr. v.
Johri Mal MANU/SC/0396/2004 : AIR2004SC3800.
179. The recent development in the field of judicial review vis-a-vis human rights
also deserves a mention, although in this case, we are not directly concerned
therewith.
180. In Hatton and Ors. v. United Kingdom [15 BHRC 259] it was noticed that Article
13 of Convention for the Protection of Human Rights and Fundamental Freedoms

envisages constitution of forums where complaint of violation of human rights can be
adjudicated. No such forum was provided for before enactment of Human Rights Act,
1998. A policy decision adopted 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.
181. Yet recently in E. v. 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:
182. 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 freedoms but also the legislative council,
the judicial system, official and working languages, the educational system and
cultural and benevolent institutions, and broadcasting and television. Right to
development in developing countries in all spheres is also human right. [See Kapila
Hingorani (supra), para 62] and Islamic Academy of Education and Anr. (supra) Paras
211 to 215].
183. 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.
184. 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:
185. 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.
186. The six tests laid down there are not exhaustive.
187. 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 modem State on the one hand and the
freedom of the individual on the other. The corporate organisations of
business and labour have long ceased to be private phenomena."
(Emphasis supplied)
188. 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."
189. Referring to Marsh v. 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 earned on, was, nevertheless, in the nature of a
'public function', that the private right of the corporation must therefore be
exercised within constitutional limitations, and the conviction for trespass
was reversed."
190. 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."
191. 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."
192. Conversely put, if the functions of the body tails 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."
193. 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)
194. 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 modem State operates a multitude of public
enterprises. What is, therefore, relevant and material is the nature of the function.
195. 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 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.
1 9 6 . These tests as such had not been considered independently in any other
decision of this Court.
1 9 7 . We, thus, would have to proceed to determine the knotty issues involved
therein on a clean slate.
1 9 8 . 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.

199. 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.
200. 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-
a-vis the citizens of the country its activities vis-a-vis the government of the country
and the national interest/ importance given to the sport of cricket in the country. The
tests, thus, which would be 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.
201. 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.
202. 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.
2 0 3 . 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
therefore 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:
204. 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 mind as to what cricket
means to the citizens of this country.
205. 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:
206. 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:
207. 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:
(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, Cooch Behar.
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 ever 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."

208. 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; 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 learns 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.
2 0 9 . Rule 10 provides for complete power and control over players within the
jurisdiction of a member or an associate member.
210. 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.
211. Rule 33 provides that no tournaments by any club affiliated, to a member or
any other organization be held without permission of the Board.
212. 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."
213. 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 me previous permission of the Board. Such permission may be
given in accordance with the Rules framed by the Board."
214. 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:
215. 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,"
216. Paragraph 1 inter alia provides for playing. Paragraphs 1, 2, 4 and 5 provide for
Cricket Structure, Financial and Standing respectively.
217. 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.
2 1 8 . Qualification Rules for International Cricket Council Matches, Series and
Competitions read as under:
"(a) Definitions
...
(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...
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 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."
2 1 9 . 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:
220. 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)].
221. While issuing the Guidelines, it has been asserted that the Government attaches
considerable importance to development of sports in general and achieving
excellence in the Olympics and other international events in particular, as also the
unsatisfactory performance of the Indian Team(s) in 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.
222. 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 identity
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.
2 2 3 . 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.
2 2 4 . Annexure-II appended to the said guidelines provides for recognition of
National Sports Federations, inter alia, by laying down the eligibility therefore and
the necessity of filling 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."
225. 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.
226. 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 -- ESSENTIAL?
227. 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 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
228. 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 - BCCI in this case."
229. 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?
230. 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.
231. 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 therefore.
232. 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.
2 3 3 . 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 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 shorts events. It would not be correct to draw a
comparison between an event of international sort 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.
234. 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 and Anr.
v. Netaji Cricket Club and Ors., MANU/SC/0019/2005 : AIR2005SC592.
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".
236. 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.
237. 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.
238. 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 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.
239. 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.
240. In the Rules trained 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.
241. 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 Ministry 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."
242. Such responsibility on its part makes it a State actor.
243. 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."
244. The tenor of the letter, thus, runs contrary to the assertion of the Board that it
has never sent its accounts to the Government.
2 4 5 . It is accented 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.
246. However, we may place on record that there are a number of documents filed
by the Union of India which clearly on 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 accented 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 therefore and that too in the form prescribed in the guidelines.
247. 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.
248. 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.
249. 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.
250. The hollowness 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' - October 24, 2004 and
'Hindustan Times' - October 24, 2004]. It undertakes activities of entering into
contracts for telecasting and broadcasting rights as allow advertisements in the
stadia.
2 5 1 . While considering the status of the Board vis-Ã -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 there over 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.
252. 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.
253. Despite the fact that the relationship between the Board and the players is not
that of an employer and employee, but the players are within its complete control.
Sports activities of the countries being not a commercial activity, as has been held in
Cricket Association of Bengal (supra), the same must be considered from a larger
spectrum of the Indian citizenry as a whole.
254. 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.
255. 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 identify and pride to a
nation.
256. 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.
257. In sum, the control of the Board over the sport of competitive cricket is deep
and pervasive, may complete.
258. 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."
2 5 9 . I n 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.
2 6 0 . 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.
261. 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 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).
2 6 2 . The players who participate in the competitive cricket whether domestic or
international are not amateurs; but professionals. They play on receipt of
remuneration therefore and furthermore make a lot of earnings by way of
advertisements. They participate in the game for a purpose.
263. The Board's commands bind all who are connected with cricket. The rules and
regulations framed by it for all intent and purport and "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 particulate the professionals.
264. 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.
2 6 5 . We may notice that in Union of India v. Naveen Jindal and Anr.
MANU/SC/0072/2004 : AIR2004SC1559 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..."
266. 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.
267. 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.

2 6 8 . 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.
269. 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.
270. 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 been
outsourced to the Board.
271. 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" 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.
272. 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.
2 7 3 . 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.
2 7 4 . 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.
275. 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".
276. The Board, it appears, even nominates cricketers for the Arjuna Awards.
277. The game of cricket both in the domestic for a as also the international for a
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 - 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.
278. 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."

279. 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?'
280. 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.
281. 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:
282. 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 v. R.L. Vaid and Ors.
MANU/SC/0665/2004 : 2004CriLJ4246.
283. Although, decisions are galore on this point, we may refer to a recent one in
State of Gujarat and Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal and Ors.
MANU/SC/0333/2004 : AIR2004SC3894 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."
284. It is further well-settled that a decision is not an authority for the proposition
which did not fall for its consideration.
285. It is also a trite that a point not raised before a Court would not be an authority
on the said question.
286. In A-one Granites v. State of U.P. and Ors. [MANU/SC/0107/2001], 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 Anr. v. Synthetics and Chemicals Ltd. and Anr.
MANU/SC/0616/1991 : 1993(41)E C C326, Arnit Das v. State of Bihar
MANU/SC/0376/2000 : , 2000CriL J2971, Bhavnagar University v. Palitana Sugar Mill
(P) Ltd. and Ors. MANU/SC/1092/2002 : AIR2003SC511, Cement Corporation of India
Ltd. v. Purya and Ors. MANU/SC/0870/2004 :(2004)8SCC270, Bharat Forge Co. Ltd.
v . Uttam Manohar Nakate MANU/SC/0043/2005 :, (2005)ILL J738SC, andKalyan
Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. MANU/SC/0045/2005 :
2005CriLJ944.
287. 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-Ã -vis the tests laid down therefore 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 therefore. 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.
288. The question has been considered by us on the touchstone of new tests and
from a new angle.
ALLAYING THE APPREHENSION:
289. 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.
290. 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 - Page 303).
291. 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 v. Escorts Ltd. and Ors. MANU/SC/0015/1985 :
1986(8)ECC189, Kerala State Electricity Board and Anr. v. Kurien E. Kalathil and Ors.
MANU/SC/0435/2000 : AIR2000SC2573, Johri Mal (supra) page 729 andState of
Maharashtra and Ors. v. Raghunath Gajanan Waingankar, MANU/SC/0584/2004 :
AIR2004SC4264 ].
292. 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 - 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)
293. 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.
294. 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 therefore 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. The Court cannot be asked to give a hypothetical answer to a
hypothetical question.
295. 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 for a 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.
296. We clarify that this judgment is rendered on the facts of this case. It does not
lay down not lay 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 e
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.
297. 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.
298. In Ajit Singh and Ors. (II) v. State of Punjab and Ors. MANU/SC/0575/1999 :
AIR1999SC3471, it has been held that Article 16(4) is an enabling provision and,
thus, it is not mandatory. The State in its discretion may provide reservation or may
not. [See also E.V. Chinnaiah v. State of Andhra Pradesh and Ors.
MANU/SC/0960/2004 : AIR2005SC162.
299. 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).

300. It is furthermore well-settled that issuance of a writ discretionary in nature. The
Court may in a given case and in larger interest may not issue any writ at all.
301. 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.
302. 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
Constitution."
303. 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
court, firstly, while determining a constitutional question considers such a question to
be more or less irrelevant. [See Guruvayoor Devaswom Managing Committee and
Anr. v. C.K. Rajan and Ors. MANU/SC/0582/2003 : (2003)7SCC546. 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.
304. 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)
305. Unlike English, 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 the Court would take care of such
apprehension.
306. It is interesting to note that Lord Denning M.R. in Bradbury and Ors. v. London
Borough of Engfield (1967) 3 All ER 434] held:-
"It has been suggested by the Chief Education Officer that, if an injunction is
granted, chaos will 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 will still the law must be obeyed but I do not think that chaos
will result. The evidence convinces me that the "chaos" is much
overstated....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:
307. 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.
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MANU/SC/0074/2005

IN THE SUPREME COURT OF INDIA

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