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TMI Blog2005 (2) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... thus, a duty to act fairly. It cannot act arbitrarily, whimsically or capriciously. Public interest is, thus, involved in the activities of the Board. It is, thus, a State actor. We, therefore, are of the opinion that law requires to be expanded in this field and it must be held that the Board answers the description of Other Authorities as contained in Article 12 of the Constitution of India and satisfies the requisite legal tests, as noticed hereinbefore. It would, therefore, be a 'State'. The writ petition under Article 32 of the Constitution of India is maintainable. It is ordered accordingly. - Writ Petition (civil) 541 of 2004 & SPECIAL LEAVE PETITION (CIVIL) NO.20186 OF 2004 - - - Dated:- 2-2-2005 - HEGDE, N. SANTOSH, VARIAVA, S.N., SINGH, BISHESHWAR P., SEMA, HOTOI KHETOHO AND SINHA, S.B., JJ. JUDGEMENT S.B. SINHA, J : The matter calls for an authoritative pronouncement as to whether the Board of Control for Cricket in India (Board) which is a cricket controlling authority in terms of the ICC Rules answers the description of "Other Authorities" within the meaning of Article 12 of the Constitution of India. BACKGROUND FACTS: The First Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 i.e. on 21.9.2004 itself, the Board terminated the contract of the First Petitioner stating : "In the larger interest of the game of cricket and due to the stalemate that has been created in the grant of Television Rights for the ensuing Test Series owing to litigation and as informed before the Hon'ble High Court at Bombay this day, the Board of Control for Cricket in India (BCCI) hereby cancels the entire process of tender by invoking Clause 5.3, 5.4 (c) and 5.4 (d) of the invitation to tender (ITT) dated 7 August, 2004, the terms of which were accepted and acknowledged by you. The Security in the form of Bank Guarantee and/or money deposited by you is being returned immediately." WRIT PETITION: The order of the Board dated 21.9.2004 terminating the contract is in question in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal prestige. They wear uniform that carries the national flag, and are treated as sports ambassadors of India. c. The sportsmen of today are professionals who devote their life to playing the game. They are paid a handsome remuneration by the BCCI for their participation in the team. Thus, they are not amateurs who participate on an honorary basis. Consequently they have a right under Article 19(1)(g) to be considered for participation in the game. The BCCI claims the power to debar players from playing cricket in exercise of its disciplinary powers. Obviously, it is submitted, a body that purports to exercise powers that impinge on the fundamental rights of citizens would constitute at least an "authority" within the meaning of Art. 12 of the Constitution it can hardly contend that it has the power to arbitrarily deny players all rights to even be considered for participation in a tournament which they are included as a team from "India". d. This Hon'ble Court has already, by its interim orders., directed a free to air telecast of the matches that were played in Pakistan in which a team selected by the Respondent BCCI participated. This was done, it is respectfully submitted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor it has any statutory powers to make rules or regulations having statutory force. (b) The Working Committee elected from amongst its members in accordance with its own Rules controls the entire affairs and management of the Respondent No.2. There is no representation of the Government or any Statutory Body of whatsoever nature by whatever form in the Respondent No.2. There exists no control of the Government over the function, finance, administration, management and affairs of the Respondent No.2. (c) The Respondent No.2 does not discharge or perform any public or statutory duty. (d) The Respondent no.2 receives no grant of assistance in any form or manner from the Government in this context. It may be stated that in a writ petition in the case of Rahul Mehra vs. Union of India in the Hon'ble High Court at Delhi. "Union of India" filed Affidavits stating categorically that there is no Government control of any nature upon the Board of Control for Cricket in India and as it does not follow the Government Guidelines which have been consolidated and issued under the title "Sports India Operation Excellence" vide Circular No.F.1-27/86-DESK-1 (SP- IV) dated 16th February, 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, ESS itself filed a writ petition before the Bombay High Court on the ground that the same was violative of Article 14 of the Constitution, it now contends that although a writ petition under Article 226 of the Constitution before the High Court would be maintainable but not one under Article 32 thereof as the Board is not a 'State'. SUBMISSIONS OF THE LEARNED COUNSEL : Mr. K.K. Venugopal, the learned senior counsel appearing in support of the preliminary issue would submit that as the Board does not come within the purview of any of the six legal tests laid down by this Court in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and Others [(2002) 5 SCC 111], it would not be a `State'. Our attention, in this behalf, has been drawn to paragraphs 25, 27, 30, 31, 38, 42 to 45, 48, 49, 50, 51, 52 to 55 of the said judgment . It was contended that the Board is an autonomous body and the Central Government does not have any control thereover either financially or administratively or functionally. It was urged that neither the Central Government gives any monetary grant nor nominates any member in the Governing Body of the Board nor has anything to do with its internal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring on behalf of the Writ Petitioners, on the other hand, would take us through the Memorandum and Articles of Association of the Board as also the rules and regulations framed by it and contend that from a perusal thereof it would be manifest that it exercises extensive power in selecting players for the Indian National team in the international events. The Board, also exercises stringent disciplinary powers over players, umpires, members of the team and other officers. It is the contention of Mr. Salve that the activities of the Board in effect and substance are governmental functions in the area of sports. An exclusive right has been granted to it to regulate the sport in the name of the country resulting in exercise of functions of larger dimension of public entertainment. When a body like the Board has received recognition from the Union of India to allow it to represent India as a country, its character must be held to have changed from private body to a public authority. It was submitted that the players put on colours of National Flag on their attire. Because of the nature of its actions the International Cricket Council has recognized the Board not in its capacity as a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not merely in that of what was the state of law at the commencement of the Constitution. [See Missouri vs. Holland (252 US 416 (433) and Kapila Hingorani vs. State of Bihar [(2003) 6 SCC 1]. Furthermore in John Vallamattom and Anr. Vs. Union of India [JT 2003 (6) SC 37] while referring to an amendment made in U.K. in relation to a provision which was in pari materia with Section 118 of the Indian Succession Act, 1925, this Court observed: "...The constitutionality of a provision, it is trite, will have to be judged keeping in view the interpretive changes of the statute effected by passage of time." Referring to the changing scenario of the law and having regard to the declaration on the right to development adopted by the World Conference on Human Rights and Article 18 of the United Nations Covenant on Civil and Political Rights, 1966, this Court held: "It is trite that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be considered on the basis of laws existing on 26th January, 1950, but while doing so the court is not precluded from taking into consideration the subsequent event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. At page 764, it is commented : "In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred, since the Act's passing, in law, social conditions, technology, the meaning of words, and other matters. Just as the US Constitution is regarded as 'a living Constitution', so an ongoing British Act is regarded as 'a living Act'. That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will try to foresee the future, and allow for it in the wording." LEGISLATIVE POWERS : Although we will advert to various rival contentions raised at the Bar at some details a litter later but suffice it to notice at this stage that en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as can be made by telecasting the game."[Emphasis supplied] It was held that sport is a form of expressive conduct. We may notice at this juncture that the Union of India in exercise of its executive functions in terms of the Allocation of Business Rules framed under Article 77 of the Constitution of India created a separate Ministry of Youth Affairs and Sports for the said purpose. One of the objects of the Ministry is to work in close coordination with national federations that regulate sports. Keeping in view the fact that the Union of India is required to promote sports throughout India, it, as of necessity is required to coordinate between the activities of different States and furthermore having regard to the International arena, it is only the Union of India which can exercise such a power in terms of Entry 10, List I of the Seventh Schedule of the Constitution of India and it may also be held to have requisite legislative competence in terms of Entry 97, List I of the Seventh Schedule of the Constitution of India. ARTICLE 12: Before adverting to the core issues at some length we may take a look at Article 12 of the Constitution of India which reads as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not. In Pradeep Kumar Biswas (supra), a Seven-Judge Bench held : "That an "inclusive" definition is generally not exhaustive is a statement of the obvious and as far as Article 12 is concerned, has been so held by this Court (Ujjam Bai v. State of U.P., AIR 1962 SC 1621 : (1963) 1 SCR 778 at 968). The words "State" and "authority" used in Article 12 therefore remain, to use the words of Cardozo (Benjamin Cardozo : The Nature of the Judicial Process), among "the great generalities of the Constitution" the content of which has been and continues to be supplied by courts from time to time." [See also Black Diamond Beverages and Another vs. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta and Others (1998) 1 SCC 458] What is necessary is to notice the functions of the Body concerned. A `State' has different meanings in different context. In a traditional sense, it can be a body politic but in modern international practice, a State is an organization which receives the general recognition accorded to it by the existing group of other States. Union of India recognizes the Board as its representative. The expression "other authorities" in Article 12 of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of India and the same need not necessarily be the Government of India, the Parliament of India, the Government of each of the States which constitute the Union of India or the legislation of the States. Article 12 must receive a purposive interpretation as by reason of Part III of the Constitution a charter of liberties against oppression and arbitrariness of all kinds of repositories of power have been conferred the object being to limit and control power wherever it is found. A body exercising significant functions of public importance would be an authority in respect of these functions. In those respects it would be same as is executive government established under the Constitution and the establishments of organizations funded or controlled by the Government. A traffic constable remains an authority even if his salary is paid from the parking charges inasmuch as he still would have the right to control the traffic and anybody violating the traffic rules may be prosecuted at his instance. It is not that everybody or association which is regulated in its private functions becomes a 'State'. What matters is the quality and character of functions discharged by the body and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary for us to quote various other sections and rules but all these provisions unmistakably show that the affairs of the appellant are controlled by the State Government though it functions as a cooperative society and it is certainly an extended arm of the State and thus an instrumentality of the State or authority as mentioned under Article 12 of the Constitution." However, when the law provides for a general control over a business in terms of a statute and not in respect of the body in question, it would not be a 'State'. [See Federal Bank Ltd. (supra) K.R. Anitha and Others vs. Regional Director, ESI Corporation and Another [(2003) 10 SCC 303] and Bassi Reddy (supra)]. Madon, J. in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another [(1986) 3 SCC 156] questioned : - "Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories? Should the strong be permitted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he composition and contents of the product including the presence of the pesticides and chemicals on the bottle, package or container, as the case may be, observing : "In view of the aforesaid discussion we hold that in consonance with the spirit and content of Article 19(1)(g) and 21 of the Constitution the manufacturers of beverages namely Pepsi-Cola Coca-Cola and other manufacturers of beverages and soft drinks, are bound to clearly specify on the bottle or package containing the carbonated beverages or soft drink, as the case may be, or on a label or a wrapper wrapped around it, the details of its composition and nature and quantity of pesticides and chemicals, if any, present therein." Pepsi Company and Coca-Cola are multinational companies. They are business concerns but despite the same this Court in Hindustan Coca- Cola Beverages (P) Ltd. vs. Santosh Mittal Ors. [2004 (10) SCALE 360] by an order dated 6.12.2004 dismissed the Special Leave Petitions, stating: "Mr. Harish N. Salve, learned senior counsel appearing for the petitioner in SLP(C) No. 24266-24268/2004 and Mr. Arun Jaitley, learned senior counsel appearing for the petitioners in SLP(C) Nos. 24413/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Human Rights Act, 1998. [See Poplar Housing and Regeneration Community Association Ltd. Vs. Donoghue [2002] Q.B. 48]. But an old age house run by a private body may not. [See R (on the application of Heather and others) v. Leonard Cheshire Foundation and another (2002) 2 All ER 936] A school can be run by a private body without any State patronage. It is permissible in law because a citizen has fundamental right to do so as his occupation in terms of Articles 19(1)(g) and 26. But once a school receives State patronage, its activities would be State activities and thus would be subject to judicial review. Even otherwise it is subjected to certain restrictions as regard its right to spend its money out of the profit earned. [See T.M.A. Pai Foundation and Others vs. State of Karnataka and Others (2002) 8 SCC 481 and Islamic Academy of Education and Another Vs. State of Karnataka and Others, (2003) 6 SCC 697]. Tests or the nature thereof would vary depending upon the fact of each case. We must, however, remember that only because another authority would be an agency or instrument of the State, the same would not mean that there exists a relationship of "Principal and Agent" b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquist, J. which was specifically noticed in M.C. Mehta and Another vs. Union of India and Others [(1987) 1 SCC 395]. [SCC para 29] In Air India Statutory Corporation and Others Vs. United Labour Union and Others [(1997) 9 SCC 377], (since overruled on another point) in Steel Authority of India Ltd. and Others Vs. National Union Waterfront Workers and Others [(2001) 7 SCC 1] this Court deliberated upon the distinction between the Private Law and Public Law. [SCC para 26]. FOREIGN CASE LAW: UNITED KINGDOM In Nagle Vs. Feilden and Others [1966 (2) QB 633], the Jockey Club was entitled to issue licence enabling the persons to train horses meant for races. The Respondent's application for grant of licence was rejected on the ground that she was a woman. The action of the Club which was otherwise a private club was struck down holding that it exercises the function of licensing authority and controls the profession and, thus, its actions are required to be judged and viewed by higher standards. It was held that it cannot act arbitrarily. In Greig Others vs. Insole Others [1978 (3) All ER 449], a Chancery Division considered in great details the rules framed by the ICC as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Poplar Housing and Regeneration Community Association Ltd. Vs. Donoghue [2001] 4 All ER 604, a question arose as to whether eviction of the defendant therein by a housing association known as Poplar Housing and Regeneration Community Association from one of the premises violated the provisions of the Human Rights Act. Lord Woolf CJ upon considering the provisions thereof as also a large number of decisions held that the Association discharges public function stating: "The emphasis on public functions reflects the approach adopted in judicial review by the courts and text books since the decision of the Court of Appeal (the judgment of Lloyd LJ) in R v Panel on Take-overs and Mergers, ex p Datafin plc (Norton Opax plc intervening) [1987] 1 All ER 564, [1987] QB 815. (ii) Tower Hamlets, in transferring its housing stock to Poplar, does not transfer its primary public duties to Poplar. Poplar is no more than the means by which it seeks to perform those duties" [Emphasis supplied] Donoghue (supra) was, however, distinguished in Leonard Cheshire Foundation (supra) holding that the respondent therein having regard to its activities did not perform any public function. [See also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of this judgment. Chancery Division and Court of Appeal, in our opinion, were not correct in not applying the law laid down in Jockey Club (supra) and Datafin (supra) to the sporting bodies. In Football Association (supra) and Aga Khan (supra) earlier decisions were not followed. We have noticed that when an action of such a body infringed the right of work of a citizen or was in restraint of trade, the same had been struck down by the English Courts. In England, there are statutory rights; but in India a right to carry on an occupation is a fundamental right. Right to work although is not a fundamental right but a right to livelihood is in terms of Article 21 of the Constitution of India. This Court, it may be recorded, need not follow the decisions of the English Courts. [See Liverpool London S.P. I Association Ltd. (supra)] A CRITIQUE OF ENGLISH DECISION IN FOOTBALL ASSOCIATION (SUPRA) AND AGA KHAN (SUPRA) Michael J. Beloff in his article 'Pitch, Pool, Rink, Court? Judicial Review in the Sporting World' reported in 1989 Public Law 95 while citing several instances as to when no relief was granted in case of arbitrary action on the part of such strong and essential sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) SCOTLAND : In St. Johnstone Football Club Limited Vs. Scottish Football Association Limited [1965 SLT 171], a Scottish Court held the Council with regard to its nature of function to the effect that it can impose fine or expel a member would be amenable to judicial review. If they attempt to exercise upon a member a power or authority which he by becoming a member did not give them, i.e., acting ultra vires or if by so acting they have done him injury, he will not be precluded from seeking redress, nor the Court of law hold themselves precluded from giving him redress. It was emphasized that in a case of this nature they are bound by the rules of natural justice. NEW ZEALAND : In Finnigan Vs. New Zealand Rugby Football Union Inc [1985] 2 NZLR 159, the Court noticed the factors which carry weight in entertaining judicial review, stating inter alia : "2. As the wrong body argument fails, the sole issue is whether the New Zealand (179) Union has acted against its objects of promoting, fostering and developing the game. This cannot be dismissed as only a matter of internal management or administration; it goes to fundamentals. 3. In its bearing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommon law liability of a public authority. This is an area of the law which has been much criticized as unsatisfactory and unsettled, as lacking foreseeable and practical outcomes and as operating ineffectively and inefficiently. Particular decisions, such as Nagle v. Rottnest Island Authority, have been said to have caused "a degree of consternation in public authorities and their insurers". It is claimed that they have occasioned great uncertainty amongst the officers of such authorities as to the steps which they can take to reduce their potential liability for injuries to visitors, brought about largely by the visitors' own conduct. In response to what is described as "judicial paternalism" the Local Government Ministers of Australia and New Zealand have commissioned a report on policy options to provide statutory limitations on the liability of local authorities." In Neat Domestic Trading Pty Ltd. Vs. AWB Ltd. and Another [77 ALJR 1263] the court was concerned with the Australian Wheat Board (International) Ltd. (AWBI) a private corporation established in terms of Wheat Marketing Act, 1989 which had the sole right to export wheat. It had also the responsibility for the comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent function representing the nation to the International Olympic Committee observed: "American athletes will go into these same [1980 Olympic] games as products of our way of life. I do not believe that it is the purpose of the games to set one way of life against another. But it cannot be denied that spectators, both in Moscow and all over the world, certainly will have such a thought in mind when the events take place. So it would be good for our nation and for the athletes who represent us if the cooperation, spirit of individuality, and personal freedom that are the great virtues of our system are allowed to exert their full influence in the games. 124 Cong. Rec. 31662 (1978)." In Brentwood Academy Vs. Tennessee Secondary School Athletic Association [531 US 288], the issue was as to whether the respondent "which was incorporated to regulate interscholastic athletic competition among public and private secondary schools" is engaged in state action when it enforced one of its rules against a member school. It was held that the pervasive entwinement of state school officials in the structure of the association would make it a state actor. The Court acknowledged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... School Athletic Association decided on 27th July, 2004) SOME OTHER VIEWS: We may notice that Wade in his Administrative Law at page 633 commented that while the English law creates a gap, the Scottish, New Zealand and other courts seeks to fill up the gap. Under the heading 'Realms Beyond the Law' at page 627, the learned Author states: "The law has been driven from these familiar moorings by the impetus of expanding judicial review, which has been extended to two kinds of non-statutory action. One is where bodies which are unquestionably governmental do things for which no statutory power is necessary, such as issuing circulars or other forms of information" Lord Woolf in an Article "Judicial Review: A Possible Programme for Reform" [1992] P.L. 221 at 235 advocated a broader approach by extending review to cover all bodies which exercise authority over another person or body in such a manner as to cause material prejudice to that person or body. These controls could, on principle, apply to bodies exercising power over sport and religion. (See also Craig's Administrative Law, (5th Edn. page 821) In an instructive Article "Contracting Out, the Human Rights Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange would be significant to say the very least. It would have ramifications for other subjects, such as company law, commercial law and contract. It would increase the courts' judicial review case load. It would involve difficult questions as to how such substantive public law principles fit with previously accepted doctrines of private law. This is not to deny that similar broad principles can operate within the public and private spheres. It is to argue that the broader the reach of "public law", the more nuanced we would have to be about the application of public law principles to those bodies brought within the ambit of judicial review." In an interesting article 'Sports, Policy and Liability of Sporting Administrators' by Jeremy Kirk and Anton Trichardt published in 75 ALJ 504, the learned authors while analyzing a recent decision of the High Court of Australia in Agar Vs. Hyde [(2000) 74 ALJR 1219] involving right of Rugby players to ask for amendment of the rules of International Rugby Football Board (which was disallowed) opined: "The High Court's decision in Agar is not without its difficulties, but it is well-founded in so far as it established that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... English Courts have imposed high standard of fairness in conduct in relation to such bodies in sharp contrast to purely private bodies. As noticed hereinbefore, availability of judicial review has been accepted by the English courts. [See M.C. Mehta (supra)] The right of Indian players, having regard to the observations made in Greig Ors. (supra) is comparable to their constitutional right contained in Article 19(1)(g) of the Constitution of India which would include a right to work and a right to pursue one's occupation. The Board while enjoying monopoly in cricket exercises enormous power which is neither in doubt nor in dispute. Its action may disable a person from pursuing his vocation and in that process subject a citizen to hostile discrimination or impose an embargo which would make or mar a player's career as was in the case of Greig Ors. (supra). The right to pursue an occupation or the right of equality are embedded in our Constitution whereby citizens of India are granted much higher right as compared to common law right in England. A body although self- regulating, if performs public duty by way of exercise of regulatory machinery, a judicial review would lie aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate body; they must be held to have undertaken public duty or public functions. What would be a public function has succinctly been stated in American Constitutional Law by Laurence H. Tribe at page 1705 in the following terms: "18-5. The "Public Function" Cases: When the state "merely" authorizes a given "private" action imagine a green light at a street corner authorizing pedestrians to cross if they wish that action cannot automatically become one taken under "state authority" in any sense that makes the Constitution applicable. Which authorizations have that Constitution triggering effect will necessarily turn on the character of the decision-making responsibility thereby placed (or left) in private hands. However described, there must exist a category of responsibilities regarded at any given time as so "public" or "governmental" that their discharge by private persons, pursuant to state authorization even though not necessarily in accord with state direction, is subject to the federal constitutional norms that would apply to public officials discharging those same responsibilities. For example, deciding to cross the street when a police officer says you may is not such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory public duties are 'prescriptive patterns of conduct' in the sense that they are treated as duties to act reasonably so that the prescription in these cases is indeed provided by the courts, not merely recognized by them. A.J. Harding in his book 'Public Duties and Public Law' summarized the said definition in the following terms: "1. There is, for certain purposes (particularly for the remedy of mandamus or its equivalent), a distinct body of public law. 2. Certain bodies are regarded under that law as being amenable to it. 3. Certain functions of these bodies are regarded under that law as prescribing as opposed to merely permitting certain conduct. 4. These prescriptions are public duties." In Donoghue (supra), it is stated: "58. We agree with Mr. Luba's submissions that the definition of who is a public authority, and what is a public function, for the purposes of s 6 of the 1998 Act, should be given a generous interpretation" There are, however, public duties which arise from sources other than a statute. These duties may be more important than they are often thought to be or perceived. Such public duties may ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic duty or obligation, which ordinarily will have statutory flavour Judicial Review castes a long shadow and even regulating bodies that do not exercise statutory functions may be subject to it. (Constitutional and Administrative Law; by A.W. Bradley and K.D. Ewing (13th Edn) Page 303). Having regard to the modern conditions when Government is entering into business like private sector and also undertaking public utility services, many of its actions may be a State action even if some of them may be non- governmental in the strict sense of the general rule. Although rule is that a writ cannot be issued against a private body but thereto the following exceptions have been introduced by judicial gloss: (a) Where the institution is governed by a statute which imposes legal duties upon it; (b) Where the institution is 'State' within the meaning of Article 12. (c) Where even though the institution is not 'State' within the purview of Article 12, it performs some public function, whether statutory or otherwise. Some of the questions involved in this matter have recently been considered in an instructive judgment by High Court Delhi in Rahul Mehra and Another Vs. Union of India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers Vs. United Kingdom [15 BHRC 259] it was noticed that Article 13 of Convention for the Protection of Human Rights and Fundamental Freedoms envisages constitution of forums where complaint of violation of human rights can be adjudicated. No such forum was provided for before enactment of Human Rights Act, 1998. A policy decision adopted in the year 1993 by the British Government that more planes will land in Heathrow Airport during night led to filing of a complaint by the nearby residents alleging violation of their right of privacy but judicial review was denied to them on the ground that the same was a policy decision. The European Court of Human Rights, however, observed that prior to coming into force of the Human Rights Act, 1998 the Government failed to provide a forum for adjudication of violation of human rights. The petitioners therein were held entitled to compensation in view of Article 13 of Convention for the Protection of Human Rights and Fundamental Freedoms. Yet recently in E. Vs. Secretary of State for the Home Department (2004) 2 W.L.R. 1351, the Court of Appeal held that judicial review in certain circumstances is maintainable even on facts. (See also Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We in this case, moreover, are required to proceed on the premise that some other tests had also been propounded by Mathew, J. in Sukhdev Singh (supra), wherein it was observed: "The growing power of the industrial giants, of the labour unions and of certain other organized groups, compels a reassessment of the relation between group power and the modern State on the one hand and the freedom of the individual on the other. The corporate organisations of business and labour have long ceased to be private phenomena." (Emphasis supplied) The learned Judge stated: "The governing power wherever located must be subject to the fundamental constitutional limitations. The need to subject the power centers to the control of Constitution requires an expansion of the concept of State action." Referring to Marsh Vs. Alabama [326 US 501], it was opined: "Although private in the property sense, it was public in the functional sense. The substance of the doctrine there laid down is that where a corporation is privately performing a 'public function' it is held to the constitutional standards regarding civil rights and equal protection of the laws that apply to the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities which are governmental, Mathew, J. noticed that besides the so-called traditional functions, the modern State operates a multitude of public enterprises. What is, therefore, relevant and material is the nature of the function. In our view, the complex problem has to be resolved keeping in view the following further tests : i) When the body acts as a public authority and has a public duty to perform; (ii) When it is bound to protect human rights. (iii) When it regulates a profession or vocation of a citizen which is otherwise a fundamental right under a statute or its own rule.. (iv) When it regulates the right of a citizen contained in Article 19(1)(a) of the Constitution of India available to the general public and viewers of the game of cricket in particular. (v) When it exercises a de facto or a de jure monopoly; (vi) When the State out-sources its legislative power in its favour; (vii) When it has a positive obligation of public nature. These tests as such had not been considered independently in any other decision of this Court. We, thus, would have to proceed to determine the knotty issues involved therein on a clean slate. These traditional tests of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate purpose by reason of extension of its activities may not only start performing governmental functions but also may become a hybrid body and continue to act both in its private capacity or as public capacity. What is necessary to answer the question would be to consider the host of factors and not just a single factor. The presence or absence of a particular element would not be determinative of the issue, if on an overall consideration it becomes apparent that functionally it is an authority within the meaning of Article 12 of the Constitution of India. Similarly significant funding by the Government may not by itself make a body a State, if its functions are entirely private in character. Conversely absence of funding for the functioning of the body or the organization would not deny it from its status of a State; if its functions are public functions and if it otherwise answers the description of "Other Authorities". The Government aid may not be confined only by way of monetary grant. It may take various forms, e.g., tax exemptions, minimal rent for a stadia and recognition by the State, etc. An over emphasis of the absence of the funding by the State is not called for. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RULES" means the Rules governing the conduct of Tournaments such as Irani, Duleep, Ranji, Deodhar, CoochBehar, C.K. Nayudu, M.A. Chidambaram, Vijay Hazare, Vijay Merchant Trophy and Madhavrao Scindia Trophy-Tournaments and such other Tournaments conducted by the Board from time to time. (q) DISCIPLINARY COMMITTEE : The Board shall at every Annual General Meeting appoint a Committee consisting of three persons of whom the President shall be one of them to inquire into and deal with the matter relating to any act of indiscipline or misconduct or violation of any of the Rules or Regulation by any Player, Umpire, Team Official, Administrator, Selector or any person appointed or employed by BCCI. The Committee shall have full power and authority to summon any person(s) and call for any evidence it may deem fit and necessary and make and publish its decision including imposing penalties if so required, as provided in the Memorandum and Rules and Regulations." It has thirty full members including the State Cricket Associations representing the States. Apart from the said Associations, any direct affiliation therewith is prohibited. In terms of clause 3(iii) the Central controlling bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a foreign tour. Rule 33 provides that no tournaments by any club affiliated to a member or any other organization be held without permission of the Board. Rule 34 imposes ban on participation in tournaments stating : "No club or player shall participate in any tournament or a match for which the permission of the Board has not been previously obtained. A player contravening this Rule shall be dealt with in accordance with the procedure laid down in Rule 38." Rule 35 provides for an exclusive right in the Board to organize foreign tours and invite teams from abroad, in the following terms : "No organization other than a Member or Associate Member, Clubs or Institutions affiliated to such members shall organize foreign tours to or invite teams from abroad. Members or Associate Members or such clubs or institutions, desirous of undertaking tours abroad or inviting foreign teams shall obtain the previous permission of the Board. Such permission may be given in accordance with the Rules framed by the Board." The procedure for dealing with the misconduct on the part of players, umpires, team officials, administrators, referees and selector is contained in Rule 38 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber Country of which he is a national or, in cases of non-nationals, in which he was born 2. A player who has resided for a minimum of 183 days in a Member Country in each of the 4 immediately preceding years shall be a "deemed national" of that country for the purpose of these Rules. (c) Transfer of "Playing Nationality" 1. Cricketers qualified to play for a Member Country can continue to represent that country without negating their eligibility or interrupting their qualification period for another Member Country up until the stage that the cricketer has played for the first Member Country at under 19 level or above (d) Applications 1. Each Member Country shall require each player to certify his eligibility to represent that Member Country. (f) Register of Cricketers and Proof of Qualification 1. Each Member Country shall, prior to the Effective Date, establish and thereafter maintain a register of cricketers which shall record the name, address and nationality of those cricketers who shall in each year commencing at the beginning of that Member Country's domestic cricket season be seeking to play first-class cricket in that Member Country (or the equivalent nation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibility which the Government would insist upon while releasing grants to Sports Federations. Para III speaks of role and responsibility of the Ministry of Youth Affairs and Sports, National Sports Federations and the Sports Authority. Para IV provides for priority sports which have been categorized as : (a) 'Priority', (b) 'General Category' and (c) 'Other Category'. Para 8 refers to grants given to National Federations under different sub-heads. Clause 8.8 specifies the funds with which the National Sports Federations would be assisted for holding the international tournaments. Clause 8.9 provides for cultural exchange. Para 9 provides for clubbing and dovetailing of schemes of SAI and the Ministry. Para XI provides for long term development plans. Para XII deals with miscellaneous matters. Annexure-II appended to the said guidelines provides for recognition of National Sports Federations, inter alia, by laying down the eligibility therefor and the necessity of filing of applications in that behalf. Clause 3.12 reads as under : "There would be only one recognized Federation for each discipline of sport, irrespective of the fact that the particular sport caters to yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n India. Such permission had been sought for in the form prescribed in terms of the said regulations. The said documents leave no manner of doubt that the Board had asked for and the Union of India had granted de facto recognition. In the affidavit dated 8th October, 2004 affirmed by a Deputy Secretary to the Government of India, Ministry of Youth Affairs and Sports, it is stated: "1. I am informed that this Hon'ble Court required to be apprised as to whether it was mandatory for all sporting bodies including private entities or clubs to seek permission and to obtain the same for playing in tournaments abroad. 2. In response to the issue raised before this Hon'ble Court, it is respectfully submitted that only the recognized National Sports Federations are required to apply in the prescribed format for seeking permission to go abroad to play as a Team representing India. There have been instances where club teams, organizations engaged in sports activities etc. have applied for such permission but the Ministry has considered their request only when they were received through the National Sports Federation BCCI in this case." It is not disputed that the Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is involved in distributing its telecasting right for a period of four years, inasmuch as both the First Petitioner and the Fifth Respondent offered US $ 308 millions therefor. A monopoly status need not always be created by a law within the meaning of clauses 2 to 6 of Article 19 of the Constitution of India. A body which carries on the monopolistic function of selecting team to represent the nation and whose core function is to promote a sport that has become a symbol of national identity and a medium of expression of national pride, must be held to be carrying out governmental functions. A highly arbitrary or capricious action on the part of such a powerful body would attract the wrath of Article 14 of the Constitution of India. The Board itself acted as a representative of the Government of India before the international community. It makes representations to the effect that it was entitled to select a team which represents the nation as a cricket playing country, and, thus, the same would, without anything more, make its action a State action. For the said purpose, actual control of the Board or issuing any direction in that behalf by the Government of India is not of much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the said purpose, a complete new look must be bestowed on the functions and structures of the Board. A public authority, in my opinion, would be an authority which not only can regulate and control the entire sports activities in relation to cricket but also the decisive character it plays in formulating the game in all aspects. Even the Federations controlled by the State and other public bodies as also the State themselves, in view of the Board's Memorandum of Association and the Rules and Regulations framed by it, are under its complete control. Thus, it would be subject to a judicial review. The history of ICC has been noticed by the Court of Appeal in Greig (supra) and, thus, it may not be necessary to retrace it over again. It is not disputed that the Government in terms of its guidelines recognizes only the Board. Its recognition whether formal or informal is evident as both the Union of India and the Board proceeded on that basis. In international arena the regulated cricket is also known as official cricket. The rules of the ICC suggest that a domicile of one country can play in county clubs but only citizens or other persons who come within the purview of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Parliament as also in its affidavit in the case of Rahul Mehra (supra) before the High Court of Delhi wherein it is accepted that the Board is not under the control of the Union of India nor there exist any statutory rules to regulate its functioning and further the issues raised in the said writ petition relate to the internal functioning of the Board, which is autonomous in its function, having regard to the materials on record may not be of much significance. We must moreover notice that the Minister of Youth Affairs and Sports in an answer to the Parliament also stated: "The promotion of the game of cricket in the country is the responsibility of the Board of Control for Cricket in India (BCCI) which is an autonomous organization." Such responsibility on its part makes it a State actor. When a query was made from the Board to give reply to a starred question dated 11.12.2001, the Board in its letter dated 13.05.2003 replied as follows: "We would like to reiterate that the Annual Reports of BCCI are already available with your Ministry." The tenor of the letter, thus, runs contrary to the assertion of the Board that it has never sent its accounts to the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evel. It is the Board only, to the exclusion of all others, that can recognize bodies who are entitled to participate in the nominated tournaments. Players and umpires also must be registered with it. In the event of violation of its rules and regulations, which may include participation in an unauthorized tournaments without its permission, a player or umpire would forfeit his right to participate in all official cricket matches which for all intent and purport shall be the end of career of a professional cricketer or umpire. In our constitutional scheme rule of law would, by all means, prevail over rule of cricket. A body regulating the game of cricket would be compelled by the court to abide by rule of law. The hallowness of the claim of the Board that its players play for it and not for India is belied by the claim of the former players who categorically stated that they have played for India and not for the Board. Whenever players play for the Board, the Team is named as Board-Eleven. [See 'The Times of India' October24, 2004 and 'Hindustan Times' October 24, 2004]. It undertakes activities of entering into contracts for telecasting and broadcasting rights as also advertis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate in the official matches. The professionals devote their life for playing cricket. The Board's activities may impinge on the fundamental rights of citizens. There is no gainsaying that there is no organization in the world other than the ICC at the international level and the Board at the national level that control the game of first class cricket. It has, thus, enormous power and wields great influence over the entire field of cricket. Cricket when it comes to competitive matches no longer remains a mere entertainment it commands such a wide public interest. It is now recognized that game of cricket as an activity gives a sense of identity and pride to a nation. Legal meaning attributed to the wordings of the Article 12 would lead to the conclusion that the Board is a State. It is true that while developing the law operating in the field a strict meaning was not adhered to by this Court but it may not now be possible to put the clock back. We must remind ourselves that if Article 12 is subjected to strict constructions as was sought to be canvassed by Lahoti, J. in his minority opinion in Pradeep Kumar Biswas (supra), the same would give way to the majority opinion. In su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in Union of India Vs. Naveen Jindal and Another [(2004) 2 SCC 510] this Court as regard right of a citizen to fly the Indian National Flag observed: "14. National Flags are intended to project the identity of the country. They represent and foster national spirit. Their distinctive designs and colours embody each nation's particular character and proclaim the country's separate existence. Thus it is veritably common to all nations that a national flag has a great amount of significance" The State had been taking on more and more sports related activities and thus courts have examined the purport and ambit of activities of such bodies keeping in view wider and wider range of measures the executive and the Central Government adopt. The Board, having regard to its functions and object, had also been granted exemption from payment of Income-tax. Such exemption has been granted with a view to fulfill its objectives to promote sports of cricket. The Board, thus, in terms of ICC Rules, is representative of India. The membership although is in the name of the Board; it is the country which matters. It may be that when the Board and the ICC were constituted the concep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Union List is a State function. We have noticed the main objects of the Board which are to promote, control, regulate, make laws for the country and encourage the game of cricket. The Union of India or the respective Governments of the States instead and place of making a legislation have thought it fit to allow the sports bodies to grow from its grass-root level by applying the reverse pyramid rules and by encouraging all associations and federations from village level to national level. We have seen that whereas in each State there is a State federation, they must as of practice or precedent become a member of the Board. State Federations and some other organizations essentially having regard to their respective nature of functions only are members of the Board. They include Association of Indian Universities, Railway Sports Control Board and Services Sports Control Board. Furthermore, having regard to the nature of activities, viz., the Board represents a sovereign country while selecting and fielding a team for the country with another sovereign country promoting and aiming at good relations with the said country as also peace and prosperity for the people, even at the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociation of Bengal (supra). Therein this Court inter alia rejected the contention of the Ministry of Information and Broadcasting that the activities of the Association was a commercial one and it had been claiming a commercial right to exploit the sporting event as they did not have the right to telecast the sporting event through an agency of their choice in the following terms: "We have pointed out that that argument is not factually correct and what in fact the BCCI/CAB is asserting is a right under Article 19(1)(a). While asserting the said right, it is incidentally going to earn some revenue. In the circumstances, it has the right to choose the best method to earn the maximum revenue possible. In fact, it can be accused of negligence and may be attributed improper motives, if it fails to explore the most profitable avenue of telecasting the event, when in any case, in achieving the object of promoting and popularizing the sport, it has to endeavour to telecast the cricket matches." The aforementioned findings pose a question. Could this Court arrive at such a finding, had it not been for the fact that the association exercises enormous power or it is a 'State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the context in which they were used." It is further well-settled that a decision is not an authority for the proposition which did not fall for its consideration. It is also a trite law that a point not raised before a Court would not be an authority on the said question. In A-One Granites v. State of U.P. and Others [(2001) 3 SCC 537], it is stated as follows :- "11. This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremth Ltd. (1941) 1 KB 675, and it was laid down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment. [See also State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another. (1991) 4 SCC 139, Arnit Das Vs. State of Bihar, (2000) 5 SCC 488 (Para 20), Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and Others, (2003) 2 SCC 111, Cement Corporation of India Ltd. Vs. Purya and Others, (2004) 8 SCC 270, Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, JT 2005 (1) SC 303], and Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav Anr. para 42 - (2005) 1 SCALE 385]. We have notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e realm of public law be it a legislative act or the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question is required to be determined in each case having regard to the nature of and extent of authority vested in the State. However, it may not be possible to generalize the nature of the action which would come either under public law remedy or private law field nor is it desirable to give exhaustive list of such actions. (Emphasis supplied) The submission of the learned counsel for the Board that once it is declared to be a 'State'; the consequences would be devastating inasmuch as all its activities would be subject to government control, with respect, cannot be accepted as in absence of any statute or statutory rules no such control can ordinarily be exercised by Union of India or State. It is not necessary for us to consider as to whether for entering into a contract with the players or for their induction in a team, the provisions of Articles 14 and 16 are required to be complied with as no occasion threrefor has yet arisen. It is, however, necessary to mention that a question as to whether a function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he doors of this Court and the High Courts would be knocked at very frequently questioning all and single action of the Board which may include selection of players for Indian Team, day to day functioning et al. We do not agree. Recently in Virendra Kumar Srivastava (supra), this Court held: "Before parting with the case, it is necessary for us to clarify that even though a body, entity or Corporation is held to be a 'State' within the definition of Article 12 of the Constitution what relief to the aggrieved person or employee of such a body or entity is to be granted is a subject matter in each case for the court to determine on the basis of the structure of that society and also its financial capability and viability. The subject of denial or grant of relief partially or fully has to be decided in each particular case by the court dealing with the grievances brought by an aggrieved person against the bodies covered by the definition of 'State' under Article 12 of the Constitution." The "in terrorem" submission of Mr. Venugopal that a floodgate of litigation would open up if the Board is held to be a State within the meaning of Article 12 of the Constitution cannot also be acc ..... 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