Case Summary
| Citation | |
| Keywords | |
| Facts | |
| Issues | |
| Contentions | |
| Law Points | |
| Judgement | |
| Ratio Decidendi & Case Authority |
Full Case Details
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-today 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
36
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.
37
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 oneday 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.
38
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.
- 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) - 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.
39 - 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) - 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. - 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”. - 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. - 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. - 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.
40 - 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. - 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. - 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. - 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
41
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’.” - 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.” - 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. - The facts established in this case show the following:
- The Board is not created by a statute.
- No part of the share capital of the Board is held by the Government.
- Practically no financial assistance is given by the Government to meet the
whole or entire expenditure of the Board. - The Board does enjoy a monopoly status in the field of cricket but such status
is not State-conferred or State-protected. - There is no existence 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.
42 - The Board is not created by transfer of a government-owned corporation. It is
an autonomous body. - 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. - 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. - 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. - 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? - 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
43
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. - 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. - 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. - 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
44
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. - 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 hence
there is force in the contention of Mr Venugopal that this petition under Article 32 of the
Constitution is not maintainable. - 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 - We do find sufficient force in this argument. Many of the abovementioned 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 sportspersons 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. - 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 socioeconomic 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.
45
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. - 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.
