Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649

Zee Telefilms Ltd. v. Union of India   (2005) 4 SCC 649

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 Writ Petition (Civil) 541 of 2004 WITH S. L. P. (C) No. 20186 of 2004  decided on 02/02/2005

Headnote

(A) Constitution of India , Art.12, Art.32, Art.226— ‘State’ – Board of Control for Cricket in India – Is not financially, functionally or administratively dominated by Govt. nor it is under control of Govt. – Govt. only exercises limited control which is purely regulatory and not pervasive – Board is therefore not ‘State’ – Remedy under Art. 32 is not available against it – However aggrieved party can always seek remedy under ordinary course of law or by way of writ petition under Art. 226

Majority view (Per N. Santosh Hegde, J. for himself and on behalf of B. P. Singh, and H. K. Sema, JJ.) :-The Board of Control for Cricket in India is not financially, functionally or administratively dominated by the Govt. nor it is under the control of the Govt. The little control that Govt. may be said to have on the Board is not pervasive in nature. Such limited control is purely regulatory. Assuming that some of the functions do partake 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 Supreme Court in (2002) 5 SCC 111 and that by itself would not suffice for bringing the board within the net of ‘other authorities’ for purpose of Art. 12.

Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111, Foll.(Para 24 25)

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 team 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 same is not a factor indicating a pervasive State control of the Board.(Para 30)

However 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 Art. 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 Art. 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 Art. 226 of the Constitution which is much wider than Art. 32.(Para 31)

Further the effect of treating Board as State would 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 Art. 12, opening the flood gates of litigation under Art. 32. Therefore, the Board cannot be singly identified as ‘other authority’ for the purpose of Art. 12. For the reasons stated none of the other federations or bodies referred to hereinabove including the Board can be considered as a ‘State’ for the purpose of Art. 12. In view of the above Board cannot be held to be a State for the purpose of Art. 12. Consequently, writ petition filed under Art. 32 is not maintainable.(Para 34 36)

Minority view (Per S. B. Sinha, J. for himself and on behalf of S. N. Variava, J.) :- Significant funding by the Government may not by itself make a body a State, if its functions are entirely private in character. Conversely absence of funding for the functioning of the body or the organization would not deny it from its status of a State; if its functions are public functions and if it otherwise answers the description of ‘Other Authorities’. The Government aid may not be confined only by way of monetary grant. It may take various forms, e. g., tax exemptions minimal rent for a stadia and recognition by the State, etc. An over emphasis of the absence of the funding by the State is not called for. It is true that regulatory measures applicable to all the persons similarly situated, in terms of the provisions of a statute would by itself not make an organization a State in all circumstances. Conversely, in a case of this nature non-interference in the functioning of an autonomous body by the Government by itself may also not be a determinative factor as the Government may not consider any need therefor despite the fact that the body or organization had been discharging essentially a public function. Such non-interference would not make the public body a private body.(Para 195 196)

(B) Constitution of India , Art.12, Art.19(1)(g)— ‘State’ – Board of Control for Cricket in India – Fact that it regulates fundamental right of cricketers under Art. 19(1)(g) to pursue their professional career as cricketers – Does not make Board a ‘State’.

(C) Constitution of India , Art.12— ‘State’ – Board of Control for Cricket in India – Discharging public functions of selecting team, making rules governing activities of cricket players, umpires etc. – Actions of Board not actions as authorized representative of State – Board cannot be termed as ‘State’.

Majority view (Per Santosh Hegde, J. for himself and on of behalf B. P. Singh, and H. K. Sema, JJ.) :- The fact that the Board discharges public duties which are in the nature of State functions such as selecting team to represent India in international matches, to make rules governing activities of cricket players, umpires and other persons involved in activities of cricket, it cannot be said that Board discharges these functions as an authorised representative of the State. In the absence of any authorisation if the private body chooses to discharge such function which is not prohibited by law then it would be incorrect to hold that such action of the body would make it instrumentality of the State.(Para 29)

Minority view (Per S. B. Sinha, J. for himself and on behalf of S. N. Variava, J.) :- The Bopard 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 Board which is 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 Board represent India as their citizen. They use the national colour in their attire. The team is known as Indian team. It is recognized as such by the ICC. For all intent and purport it exercises the monopoly. The Board is in a position to expend crores of rupees from its own earnings. The monopoly enjoyed by the Board need not be a statutory one so as to conform to the tests contained in cl. (6) of Art. 19 of the Constitution. It can be as de facto monopoly which has overtly or covertly received the blessings of Union of India. The ICC exercises a monopoly over the sports at the international level whereas Board does so at the country level. It is the Board only, to the exclusion of all others, that can recognize bodies who are entitled to participate in the nominated tournaments.Players and umpires also must be registered with it. In the event of violation of its rules and regulations, which may include participation in an unauthorized tournaments without its permission, a player or umpire would forfeit his right to participate in all official cricket matches which for all intent and purport shall be the end of career of a professional cricketer or umpire. In our constitutional scheme rule of law would, by all means, prevail over rule of cricket. A body regulating the game of cricket would be compelled by the Court to abide by rule of law. The Board allegedly spends crores of rupees in providing funds to construction of stadia, running zonal cricket academies under national cricket academy, providing the State Associations with modern gymnasium equipments, medical expenses of the players, pension scheme and expenditure on coaches, physiotherapists, trainers, etc., but it is not disputed that it earns a lot of revenue through sale of tickets, advertisements in the stadia, selling of advertisement in the electronic media, giving out contracts by way of food stalls and installation of other stalls, selling of broadcasting and telecast rights, highlight programmes. The Board is admittedly not a charitable trust. The object of Part III of our Constitution is to crutail 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’. 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 fulfil the hopes and aspirations of millions. It has, thus, a duty to act fairly. It cannot act arbitrarily, whimsically or capariciously. Public interest is, thus, involved in the activities of the Board. It is, thus, a State actor, and it must be held that the Board answers the description of ‘Other Authorities’ as contained in Art. 12 of the Constitution of India and satisfies the requisite legal tests, as noticed hereinbefore. It would, therefore, be a ‘State’.(Para 223 224 226 227 241 242 262 273 274)

(D) Constitution of India , Art.12— Definition of term ‘Other Authorities’ – Need not be further expanded – State is today distancing itself from commercial activities and concentrating on governance rather than on business – In democracy there is dividing line between State enterprise and non State enterprise which is disinct – Judiciary should not be an instrument to erase said dividing line unless circumstances of the day requires it to do so. (Per N. Santosh Hegde J. for himself and on behalf of B. P. Singh and H. K. Sema J.J.)

Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331 : 1975 Lab IC 881, Expl.(Para35) (Para 35)

(E) Constitution of India , Sch.VII List II Entry 33— State function – Encouragement of games and sports – Is State function in terms of Entry 33, List II (Per S. B. Sinha, J. for himself and for S. N. Variava, J.) (Para 62)

(F) Constitution of India , Art.12— Definition of under Art. 12 – Is

SC2680merely an inclusive definition – “Other Authorities” – Need not be under control of Union – Word ‘Or’ is disjunctive.

Per S. B. Sinha J. (for himself and for S. N. Variava, J.) – In Art. 12, 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 Govt. of India. It does not say that such other authorities must be under the control of the Govt. of India. The word ‘Or’ is disjunctive and not conjunctive.(Para 68)

(G-H) Constitution of India, Art.12 – STATE – State – All autonomous bodies having some nexus with Govt. – Are not ‘State’ – Each case must be determined on its own merits. – All autonomous bodies having some nexus with the Govt. by itself would not bring them within the sweep of the expression ‘State’. Each case must be determined on its own merits.(Para 100)

(I) Constitution of India , Art.32, Art.226— Judicial review – Exercise of powers – Exceptions to rule that writ cannot be issued against private body stated.

(J) Protection of Human Rights Act (10 of 1994) , S.2(d)— Human Rights – Violation of – Board of Control for Cricket in India (BCCI) having pervasive control over entire sport of cricket – Cannot apparently act in violation of human rights.

(K) Constitution of India , Art.141— Precedent – Judgment must be read in its entirety – Observations made therein should be considered in light of questions raised before it – A decision is not an authority for proposition which did not fall for its consideration – Per S. B. Sinha, J. (for himself and on behalf of S. N. Variava, J.) (Para 275)

Cases Referred :

Rahul Mehra vs. Union of India [WP (C) 1680/2000]

Rajasthan SEB v. Mohan Lal  (AIR 1967 SC 1857) Para 11

Sukhdev Singh & Ors. vs. Bhagatram Sardar Singh [(1975) 1 SCC 421] Para 12

Sabhajit Tewary vs U.O.I. & Ors.  [AIR 1975 SC 1329] Para 15

Ramana Dayaram Shetty v. International Airport Authority of India  [(1979) 3 SCC 489] Para 17

Ajay Hasia & Ors. vs. Khalid Mujib Sehravardi & Ors.  [(1981) 1 SCC 722] Para 19

Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and Others [(2002) 5 SCC 111] Para 20

Chander Mohan Khanna vs. National Council of Educational Research and Training Para 20

Tekraj Vasandi v. Union of India Para 20

Judgement

Zee Telefilms Ltd. (the first petitioner), is one of the largest vertically integrated media entertainment groups in India. The Board of Control for Cricket in India (BCCI) (the second respondent), is a society registered under the Tamil Nadu Societies Registration Act which is said to be recognised by the Union of India, the Ministry of Youth Affairs and Sports. The third and fourth respondents are President and Secretary respectively of the second respondent. “ESPN Star Sports”, known as “ESS” (the fifth respondent), 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 the Board in relation to the tender floated on 7-8-2004.

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 gave their offers. Both the petitioners and the said respondent were found eligible therefor. The first petitioner gave an offer for an amount of US $ 260,756,756.76 [INR equivalent to Rs. 12,06,00,00,000] or US $ 281,189,189.19 [INR equivalent to Rs 13,00,50,00,000]. 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 of the same, a sum of Rs. 92.50 crores equivalent to US $ 20 million was deposited by the first petitioner in the State Bank of Travancore. The first petitioner agreed to abide by the terms and conditions of offer subject to the conditions mentioned by the Board.

The fifth respondent in the meanwhile filed a writ petition before the Bombay High Court [Writ Petition (L) No. 2462 of 2004]. 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 a day-to-day basis. On 21-9-2004, the Board before commencing its argument stated that it purported to have cancelled the entire tender process on the premise that no concluded contract was reached between the parties as no letter of intent had therefor been issued. The first petitioner, however, raised a contention that such a concluded contract in fact had been arrived at. The fifth respondent, in view of the statements made by the counsel for the Board, prayed for withdrawal of the writ petition, which was permitted. On the same day [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 clauses 5.3, 5.4(c) and 5.4(d) of the invitation to tender (ITT) dated 7-8-2004, 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.”

The order of the Board dated 21-9-2004 terminating the contract was questioned in the writ petition contending that the action on the part of the Board in terminating the contract was arbitrary and thus, violative of Article 14 of the Constitution. The petitioners prayed for setting aside the above said communication as also for issuance of a writ of or in the nature of mandamus commanding the Board to act in terms of the decision arrived at on 5-9-2004.

The BCCI raised the issue of maintainability of the writ petition on the premise that it was not “State” within the meaning of Article 12 of the Constitution.

Pleas of the petitioners:

(a) BCCI undertook 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 BCCI played as „Indian Team‟ while playing one-day internationals or test matches – it could not be gainsaid that the team purported to represent India as a nation, and its wins were matters of national prestige. They wore uniform that carried the national flag, and were treated as sports ambassadors of India.

(c) The sportsmen of today were professionals devoting their life to playing the game. They were paid a handsome remuneration by BCCI for their participation in the team. Thus, they were not amateurs who participated on an honorary basis. Consequently, they had a right under Article 19(1)(g) to be considered for participation in the game. BCCI claimed the power to debar players from playing cricket in exercise of its disciplinary powers. Obviously, a body that purports to exercise powers that impinged on the fundamental rights of citizens constituted at least an „authority‟ within the meaning of Article 12 of the Constitution – it could hardly contend that it had the power to arbitrarily deny players all rights to even be considered for participation in a tournament in which they were included as a team from „India‟.

(d) The Supreme Court had 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, keeping in view the larger public interest involved in telecasting of such a sport. The regulatory body that controlled solely and to the exclusion of all others, the power to organise such games, and to select a team that would participate in such games was 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 organised were public events, then that body was the controlling authority of such public events and be subject to the discipline of Articles 14 and 19 of the Constitution.

(e) It was also submitted that even domestically, all representative cricket could only be under its aegis. No representative tournament could be organised without the permission of BCCI or its affiliates at any level of cricket.

(f) BCCI and its affiliates were the recipients of State largesse, inter alia, in the form of nominal rent for stadia. BCCI, performing one of the most important public functions for the country with the authorisation and recognition by the Government of India, was amenable to the writ jurisdiction of the Court under the provisions of the Constitution.

The Union of India contended that BCCI was State. In support of the said plea an affidavit affirmed by the Deputy Secretary, Ministry of Youth Affairs and Sports, Government of India had been filed. A large number of documents were also filed to show that the Board had all along been acting as a recognised body and as regards international matches had always been seeking its prior permission. The Board had also been under the administrative control of the Government of India.

Pleas of BCCI:

(a) BCCI was an autonomous non-profit-making association limited and restricted to its members only and registered under the Tamil Nadu Societies Registration Act. It was a private organisation whose objects were to promote the game of cricket. Its functions were regulated and governed by its own Rules and Regulations independent of any statute and only related to its members. The Rules and Regulations of Respondent 2 had neither any statutory force nor it had 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 controlled the entire affairs and management of BCCI. There was no representation of the government or any statutory body of whatsoever nature by whatever form in it. There existed no control of the government over the function, finance, administration, management and affairs of Respondent 2.

(c) BCCI did not discharge or perform any public or statutory duty.

(d) BCCI received no grant or assistance in any form or manner from the government. It could be stated that in a writ petition in Rahul Mehra v. Union of India [WP (C) 1680/2000] in the Hon‟ble High Court at Delhi, „Union of India‟ had filed affidavits stating categorically that there was no government control of any nature upon the BCCI and as it did not follow the government guidelines which had been consolidated and issued under the title „Sports India Operation Excellence‟ vide Circular No. F.1-27/86-DESK-1 (SP-IV) dated 16-2-1988 issued by the Department of Youth Affairs and Sports, Government of India had neither extended any financial assistance to BCCI nor had any relationship of whatsoever nature with it and no financial assistance was extended for participation in any tournament, competition or otherwise organised by BCCI.

(e) BCCI organised cricket matches and/or tournaments between the teams of its members and with the teams of the members of the International Cricket Council (ICC) which was also an autonomous body dehors any government control…. Matches that were organised were played at places either belonging to members in India or at the places belonging to the members of ICC only. Only when for the purpose of organising any match or tournament with foreign participants, BCCI required normal and scheduled permissions from the Ministry of Sports for travel of foreign teams, it obtained the same like any other private organisation, particularly in the subject-matter of foreign exchange. BCCI was the only autonomous sporting body which not only did not obtain any financial grants but on the contrary earned foreign exchange.

(f) Organising cricket matches and/or tournaments between the teams of the members of Respondent 2 and/or with the co-members of the International Cricket Council could not be said to be a facet of public function or government in character. No monopoly status had been conferred upon BCCI either by statute or by the government. Any other body could organise any matches on its own and neither BCCI nor the government could oppose the same. As a matter of fact, a number of cricket matches including international matches were played in the country which had nothing to do with BCCI. BCCI had no monopoly over sending teams overseas for the game of cricket and to control the entire game of cricket in India. Matches which were sanctioned or recognised by ICC were only known as official test matches or one-day international matches. BCCI was entitled to invite teams of other members of ICC or send teams to participate in such matches by virtue of its membership of ICC.

N. SANTOSH HEGDE, J. [Majority view] – 8. A perusal of Article 12 shows that the definition of State in the said article includes the Government of India, Parliament of India, Governments of the States, 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 are those 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. The 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‟, as we have done in Article 7; or, to keep on repeating every time, „the Central Government, the Provincial Government, the State Government, the Municipality, the Local Board, the Port Trust, or any other authority‟. It seems to me not only most cumbersome but stupid to keep on repeating this phraseology every time we have to make a reference to some authority . The wisest course is to have this comprehensive phrase and to economise in words.” [VII CAD 610 (1948)] (emphasis supplied)

10. 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.

11. Till about the year 1967 the courts in India had taken the view that even statutory bodies like universities, Selection Committees for admission to government colleges were not “other authorities” for the purpose of Article 12. In the year 1967 in the case of Rajasthan SEB v. Mohan Lal 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)

12. Almost a decade later another Constitution Bench of this Court somewhat expanded this concept of “other authority” in the case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi. In this case the Court held that bodies like Oil and Natural Gas Commission, Industrial Finance Corporation and Life Insurance Corporation which were created by statutes, because of the nature of their activities do come within the term “other authorities” in Article 12 even though in reality they were really constituted for commercial purposes.

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 an 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 bypassing 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. Union of India [AIR 1975 SC 1329] which was delivered by the very same Constitution Bench which delivered the judgment in Sukhdev Singh on the very same day. In this judgment this Court noticing its judgment in Sukhdev Singh rejected the contention of the petitioner therein that the 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 Sabhajit Tewary is that in the former the Court held that bodies which were creatures of statutes having important State functions and where the State had pervasive control of activities of those bodies would be State for the purpose of Article 12; while in Sabhajit Tewary case, the Court held that 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.

17. Subsequent to the above judgments of the Constitution Bench a three-Judge Bench of this Court in the case of Ramana Dayaram Shetty v. International Airport Authority of India placing reliance on the judgment of this Court in Sukhdev Singh 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.

18. It is in the above context that the Bench in Ramana Dayaram Shetty case laid down the parameters or the guidelines for identifying a body as coming within the definition of “other authorities” in Article 12.

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 v. Khalid Mujib Sehravardi. But in the said case of Ajay Hasia, the Court went one step further and held that a society registered under the Societies Registration Act could also be an instrument of State for the purpose of the term “other authorities” in Article 12. This part of the judgment of the Constitution Bench in Ajay Hasia was in direct conflict or was seen as being in direct conflict with the earlier Constitution Bench of this Court in Sabhajit Tewary case which had held that a body registered under a statute and which was not performing important State functions 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.

20. The above conflict in the judgments of Sabhajit Tewary and Ajay Hasia of two coordinate Benches was noticed by this Court in the case of Pradeep Kumar Biswas [(2002) 5 SCC 111] and hence the said case of Pradeep Kumar Biswas 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 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 case though cautiously had to say the following in regard to the said judgment of this Court in Ajay Hasia (Pradeep Kumar Biswas case):

“38. 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. 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 „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 and Training (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 government control was confined only to the proper utilisation of the grant and since its funding was not entirely from government resources, the case did not satisfy the requirements of the State under Article 12 of the Constitution. The Court relied principally on the decision in Tekraj Vasandi v. Union of India. However, as far as the decision in Sabhajit Tewary v. Union of India was concerned, it was noted that the „decision has been distinguished and watered down in the subsequent decisions‟.”

21. Thereafter the larger Bench of this Court in Pradeep Kumar Biswas 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:

“40. 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 State.”

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 touchstone of the parameters laid down in Pradeep Kumar Biswas case. Before doing so it would be worthwhile once again to recapitulate what are the guidelines laid down in Pradeep Kumar Biswas case 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 basis 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 show the following:

1. The 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 the seven-Judge Bench in Pradeep Kumar Biswas it would be clear that the facts established do not cumulatively show that the Board is financially, functionally or administratively dominated by or is under the control of the Government. Thus the little control that the Government may be said to have on the Board is not pervasive in nature. Such limited control is purely regulatory control and nothing more.

25. Assuming for argument‟s 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 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, 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 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 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 cricket 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 prerequisite 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.

29. 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 case 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 the 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.

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 non-governmental body exercises some public duty, that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case 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 inasmuch 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 floodgates 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 sports 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 a State. The fact that the 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. Therefore, the Board in this case cannot be singly identified as an “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 fulfill 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 statute and which discharge State functions. However, because of the need of the day this Court in Rajasthan SEB and Sukhdev Singh 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 seven-Judge Bench in the case of Pradeep Kumar Biswas. It is to be noted that in the meantime the socio-economic policy of the Government of India has changed 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 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.