Supreme Court: BCCI is performing public functions

Allegations of sporting frauds like match fixing and betting coupled with allegations of favoritism have cast a cloud over the working of the Board of Cricket Control in India (BCCI). With cricket being a passion unmatched by anything else, a zero tolerance approach towards any wrong doing is required and calls for cleansing have been made.

The Supreme Court of India has passed a verdict which is likely to pave the way for the opening up of the game of cricket and bringing transparency in the sport. The Court examined the question whether the respondent-Board of Cricket Control of India is ‘State’ within the meaning of Article 12 and if it is not, whether it is amenable to the writ jurisdiction of the High Court under Article 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 6 of the Constitution of India?  The court was hearing the following petitions which were disposed of:

1.      Civil Appeal No.4235 of 2014 in Board of Control for Cricket in India v. Cricket Association of Bihar & Ors;

2.      Civil Appeal No.4236 of 2014 Cricket Association of Bihar v. Board of Control for Cricket in India & Ors.

3.      Civil Appeal No. of 2015 (Arising out of SLP (C) No.34 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 8 of 2014) Cricket Association of Bihar v. The Board of Control for Cricket in India & Anr.

The Board of Control for Cricket in India (BCCI) is a Society registered under the provisions of Tamil Nadu Registration of Societies Act, 1975 while the Cricket Association of Bihar is a society registered under the Societies Registration Act, 1860. The corollary of the judgment is that is that if the BCCI is held as an organisation performing ‘public function’, it is deemed to be a ‘state’ under article 12 of the constitution and hence would be covered under the definition of the ‘public authority’ under the RTI Act. The Apex Court referred to the earlier judgments as discussed below and gave certain observations.

1.      In Sukhdev and Ors. etc. v. Bhagatram Sardar Singh Raghuvanshi and Anr. etc. (1975) 1 SCC 421, referred to Marsh v. Alabama (3) 326 U.S. 501: 19 L. 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. ed. 265 to hold that even where a corporation is privately performing a public function it is bound by the constitutional standard applicable to all State actions.

2.      In Ramana Dayaram Shetty v. International Airport Authority of India and Ors. (1979) 3 SCC 489 this Court held that while a corporation may be created by a statute or incorporated under a law such as the Companies Act, 1956, or the Societies Registration Act, 1860, the question that often arises is as to when does the corporation become an instrumentality or agency of the Government and what are the tests to determine whether a corporation is or is not such an instrumentality or agency.

3.      In Ajay Hasia and ors. v. Khalid Mujib Sehravardi and ors. (1981) 1 SCC 7 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. , the issue was discussed

4.      In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. (2002) 5 SCC 111 Council of Scientific and Industrial Research even when registered as Society was ‘State’ within the meaning of Article 12.

5.      In Board of Control for Cricket in India & Anr. v. Netaji Cricket Club and Ors. (2005) 4 SCC 741

“80. The Board is a society registered under the Tamil Nadu Societies Registration Act. It enjoys a monopoly status as regards regulation of the sport of cricket in terms of its Memorandum of Association and Articles of Association. It controls the sport of cricket and lays down the law therefor. It inter alia enjoys benefits by way of tax exemption and right to use stadia at nominal annual rent. It earns a huge revenue not only by selling tickets to viewers but also selling right to exhibit films live on TV and 29 broadcasting the same. Ordinarily, its full members are the State associations except Association of Indian Universities, Railway Sports Control Board and Services Sports Control Board. As a member of ICC, it represents the country in the international fora. It exercises enormous public functions. It has the authority to select players, umpires and officials to represent the country in the international fora. It exercises total control over the players, umpires and other officers. The Rules of the Board clearly demonstrate that without its recognition no competitive cricket can be hosted either within or outside the country. Its control over the sport of competitive cricket is deeply pervasive and complete.

81. In law, there cannot be any dispute that having regard to the enormity of power exercised by it, the Board is bound to follow the doctrine of “fairness” and “good faith” in all its activities. Having regard to the fact that it has to fulfil the hopes and aspirations of millions, it has a duty to act reasonably. It cannot act arbitrarily, whimsically or capriciously. As the Board controls the profession of cricketers, its actions are required to be judged and viewed by higher standards.”

6.      Zee Telefilms Ltd. and Anr. v. Union of India and Ors. (2005) 4 SCC 649

The question whether the respondent-BCCI is ‘State’ within the meaning of Article 12 fell directly for consideration of this Court in Zee Telefilms Ltd. and Anr. v. Union of India and Ors. (2005) 4 SCC 649. By a majority of 3:2 this Court ruled that respondent-BCCI was not ‘State’ within the meaning of Article 12. This Court held that the Board was not created by any statute, nor was a part of the share capital held by the Government. There was practically no financial assistance given to the Board by the Government, and even when the Board did enjoy a monopoly status in the field of cricket such status was not State conferred or State protected. So also there is no deep and pervasive State control. The control, if any, is only regulatory in nature as applicable to other similar bodies. The control is not specifically exercised under any special statute applicable to the Board. All functions of the Board are not public functions nor are they closely related to governmental functions. The Board is not created by transfer of a government-owned corporation and was an autonomous body. Relying upon the tests laid down in Pradeep Kumar Biswas’s case (supra), this Court held that the Board was not financially, functionally or administratively dominated by or under the control of the Government so as to bring it within the expression ‘State’ appearing in Article 12 of the Constitution. Having said that this Court examined whether the Board was discharging public duties in the nature of State functions. Repelling the contention that the functions being discharged by the Board were public duties in the nature of State functions which would make the Board a State within the meaning of Article 12 this Court observed:

 “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 (selfarrogated). In such circumstances when the actions of the Board are not actions as an authorized 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.”

Having said that this Court recognized the fact that the Board was discharging some duties like the Selection of Indian Cricket Team, controlling the activities of the players which activities were akin to public duties or State functions so that if there is any breach of a constitutional or statutory obligation or the rights of other citizens, the aggrieved party shall be entitled to seek redress under the ordinary law or by way of a writ petition under Article 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 6 of the Constitution which is much wider than Article 32. This Court observed:

“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 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 6 of the Constitution, which is much wider than Article 32.”

30. The majority view thus favours the view that BCCI is amenable to the writ jurisdiction of the High Court under Article 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 6 even when it is not ‘State’ within the meaning of Article 12. The rationale underlying that view if we may say with utmost respect lies in the “nature of duties and functions” which the BCCI performs. It is common ground that the respondent-Board has a complete sway over the game of cricket in this country. It regulates and controls the game to the exclusion of all others. It formulates rules, regulations norms and standards covering all aspect of the game. It enjoys the power of choosing the members of the national team and the umpires. It exercises the power of disqualifying players which may at times put an end to the sporting career of a person. It spends crores of rupees on building and maintaining infrastructure like stadia, running of cricket academies and Supporting State Associations. It frames pension schemes and incurs expenditure on coaches, trainers etc. It sells broadcast and telecast rights and collects admission fee to venues where the matches are played. All these activities are undertaken with the tacit concurrence of the State Government and the Government f India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board’s monopoly in the field of cricket. On the contrary, the Government of India have allowed the Board to select the national team which is then recognized by all concerned and applauded by the entire nation including at times by the highest of the dignitaries when they win tournaments and bring laurels home. Those distinguishing themselves in the international arena are conferred highest civilian awards like the Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri apart from sporting awards instituted by the Government. Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old alike. Any organization or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity. The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a nongovernment body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action. Our answer to question No.1, therefore, is in the negative, qua, the first part and affirmative qua the second. BCCI may not be State under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 6 of the Constitution of India.

For past posts on the similar matter, please refer to the links below. The LINK TO ORDER OF THE SUPREME COURT IS AVAILABLE AT THE END :

You are covered under RTI Act if you use the word ‘India’
Read more at: http://www.rtifoundationofindia.com/you-are-covered-under-rti-act-if-you-use-word-%E2%80%98ind#.VMHG2tKUe1U
 

Hearing on the BCCI case adjourned by the CIC
Read more at: http://www.rtifoundationofindia.com/hearing-bcci-case-adjourned-cic#.VMHHedKUe1U
 

Delhi High Court rejects plea by Indian Olympic Association against National Sports Code
Read more at: http://www.rtifoundationofindia.com/delhi-high-court-rejects-plea-indian-olympic-assoc#.VMHHuNKUe1U
 

No RTI for Indian Olympic Association says Ramachandran
Read more at: http://www.rtifoundationofindia.com/no-rti-indian-olympic-association-says-ramachandra#.VMHJH9KUe1U
 

National Sports Federations receiving over Rs.10 lakhs covered under RTI
Read more at: http://www.rtifoundationofindia.com/national-sports-federations-receiving-over-rs10-la#.VMHJNNKUe1U