TaxTMI 
TaxTMI 
2005 (2) TMI 773
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....The Fifth Respondent, "ESPN Star Sports", known as "ESS" is a partnership firm of the United States of America having a branch office in Singapore. The Sixth Respondent is a firm of Chartered Accountants which was engaged by Board in relation to the tender floated on 07.08.2004. Pursuant to or in furtherance of a notice inviting tender for grant of exclusive television rights for a period of four years, several entertainment groups including the Petitioners and the Fifth Respondent herein gave their offers. For the purpose of this matter, we would presume that both the Petitioners and the said Respondent were found eligible therefor. The First Petitioner gave an offer for an amount of US $ 260,756,756.76 (INR equivalent to Rs.12,060,000,000/- (Rupees twelve thousand sixty million only - @ INR 46.25/US $) Or US $ 281,189,189.19 (INR equivalent to Rs.13,005,000,000/- (Rupees thirteen thousand five million only - @ INR 46.25/US $). Upon holding negotiations with the First Petitioner as also the Fifth Respondent, the Board decided to accept the offer of the former; pursuant to and in furtherance whereof a sum of Rs. 92.50 crores equivalent to US $ 20 millions was deposited in the St....
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....amus commanding upon the Board to act in tems of the decision arrived on 5.9.2004. REFERENCE: By an order dated 27.9.2004, a three-Judge Bench of this Court referred the matter to a Constitution Bench stating : "These petitions involve a question related to the interpretation of the Constitution of India which will have to be heard by a Bench not less than 5 Judges as contemplated under Article 145(3) of the Constitution. Place this matter before Hon'ble the Chief Justice for further orders. Since the matter involved requires urgent consideration, we request the Chief Justice to place this matter before the Constitution Bench for further orders on 28.9.2004. We direct the Attorney General to take notice on behalf of first respondent. The petitioner shall take steps to serve respondent no.6 dasti. The same shall be served today indicating that the matter will be heard tomorrow." PRELIMINARY ISSUE: On commencement of hearing, Mr. K.K. Venugopal, learned Senior Counsel appearing on behalf of the Second Respondent raised an issue as regard maintainability of the writ petition on the premise that the Board is not a 'State' w....
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.... that must be discharged in a manner that complies with the constitutional discipline of Part III of the Constitution. If the events organized are public events, then it is submitted that the body that is the controlling authority of such public events would surely be subject to the discipline of Art. 14 and 19 of the Constitution. e. It is also submitted that even domestically, all representative cricket can only be under its aegis. No representative tournament can be organized without the permission of BCCI or its affiliates at any level of cricket. f. The BCCI and its affiliates are the recipients of State largesse, inter alia, in the form of nominal rent for stadia. It is submitted that the BCCI is performing one of the most important public functions for the country with the authorization and recognition by the Govt. of India, is amenable to the writ jurisdiction of this Hon'ble Court under the provisions of the Constitution of India." Union of India: Union of India contends that the Board is a State. In support of the said plea an affidavit affirmed by Deputy Secretary to the Government of India, Ministry of Youth Affairs and Sports has been filed. A large number ....
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....f any tournament, competition or otherwise organized by the Respondent No.2. Copies of the said Affidavits are annexed hereto as Exhibits "A" and "B" respectively. (e) The Respondent no.2 organizes cricket matches and/or tournaments between the Teams of its Members and with the Teams of the members of International Cricket Council (ICC) which is also an autonomous Body dehors any Government control.Matches that are organized are played at places either belonging to Members in India or at the places of either belonging to its Members of ICC only. Only when for the purpose of organizing any match or tournament with foreign participants, the Respondent no.2 requires normal and scheduled permissions from the Ministry of Sports for travel of foreign teams, it obtains the same like any other private organization, particularly in the subject matter of foreign exchange. The Respondent No.2 is the only autonomous sporting body which not only does not obtain any financial grants but on the contrary earns foreign exchange. (f) Organizing Cricket Matches and/or Tournaments between the Teams of the Members of the Respondent No.2 and/or with the co-members of International Cricket Council ....
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..... Venugopal would argue that furthermore the Board has not even been recognized by the Union of India nor has it any role to play as regard framing of its rules and regulations. Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the Third Respondent herein, would supplement the arguments of Mr. Venugopal contending that the activity of a body like Board does not involve any public duty or public function and although its action is public in nature, the same would not amount to a governmental action. Reliance, in this connection, has been placed on R. vs. Football Association Ltd, ex parte Football League Ltd. [1993 (2) AER 833] and R. vs. Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993 (2) AER 853]. The leaned counsel has also drawn our attention to a decision of this Court in Federal Bank Ltd. vs. Sagar Thomas and Others [(2003) 10 SCC 733]. According to Dr. Singhvi, there exists a distinction between Articles 32 and 226 of the Constitution of India. Reliance in this behalf has been placed on a decision of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others vs. V.R. Rudani and Others [(1989) ....
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....ndia would be affected. He would submit that the Board, therefore, is not an autonomous body discharging a private function only and in fact it deals with sporting events of the country. The learned counsel would argue that the Board acts strictly in terms of the foreign policy of the country as it refused to recognize a player who played in South Africa, as apartheid was being practiced therein which was consistent with India's foreign policy. It was further submitted that the cricket match between India and Pakistan could be held only with the permission of the Union of India as and when the relationship between the two countries improved. Mr. Salve, therefore, submits that the Board is a 'State' within the meaning of Article 12 of the Constitution of India as: (i) it regulates cricket; (ii) It has a virtual monopoly; (iii) it seeks to put restrictions on the fundamental rights of the players and umpires to earn their livelihood as envisaged under Article 19(1)(g) of the Constitution of India; (iv) The cricket events managed by the third Respondent have a definite concept, connotation and significance which have a bearing on the performance of individual players as....
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....tutional in view of the changed situation. Justice Cardoze said : "The law has its epochs of ebb and flow, the flood tides are on us. The old order may change yielding place to new; but the transition is never an easy process". Albert Campus stated : "The wheel turns, history changes". Stability and change are the two sides of the same law-coin. In their pure form they are antagonistic poles; without stability the law becomes not a chart of conduct, but a gare of chance: with only stability the law is as the still waters in which there is only stagnation and death." In any view of the matter even if a provision was not unconstitutional on the day on which it was enacted or the Constitution came into force, by reason of facts emerging out thereafter, the same may be rendered unconstitutional." In Liverpool & London S.P. & I Association Ltd. vs. M.V. Sea Success I and Another, (2004) 9 SCC 512, this Court observed: "Referring to Motor General Traders and Another vs. State of Andhra Pradesh and Others [(1984) 1 SCC 222], Rattan Arya and Others vs. State of Tamil Nadu ....
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....t encouragement of games and sports is State function in terms of Entry 33 of List II of the Seventh Schedule of the Constitution of India which reads thus: "33. Theaters and dramatic performances; cinemas subject to the provisions of entry 60 of List 1; sports, entertainments and amusements." The State by reason of a legislative action cannot confer on it extra territorial jurisdiction in relation to sports, entertainment etc. Education, however, is in Concurrent List being Item No.25 of List III. Sport is considered to be a part of Education (within its expanded meaning). Sport has been included in the Human Resource Development as a larger part of education. The Ministry of Youth Affairs and Sports was earlier a department of the Ministry of Human Resource Development. Now a separate Ministry of Youth Affairs and Sports has come into being, in terms of the Allocation of Business Rules. In Secretary, Ministry of Information & Broadcasting, Government of India and Others etc. vs. Cricket Association of Bengal and Others etc. [(1995) 2 SCC 161], this Court held :  ....
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....es at some length we may take a look at Article 12 of the Constitution of India which reads as under : "12. In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India." In this Article, the 'State' has not been defined. It is merely an inclusive definition. It includes all other authorities within the territory of India or under the control of the Government of India. It does not say that such other authorities must be under the control of the Government of India. The word 'or' is disjunctive and not conjunctive. The expression "Authority" has a definite connotation. It has different dimensions and, thus, must receive a liberal interpretation. To arrive at a conclusion, as to which "other authorities" could come within the purview of Article 12, we may notice the meaning of the word "authority". The word "Other Authorities" contained in Article 12 is not to be treated as ejusdam generis. In Conc....
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....eceives the general recognition accorded to it by the existing group of other States. Union of India recognizes the Board as its representative. The expression "other authorities" in Article 12 of the Constitution of India is 'State' within the territory of India as contradistinguished from a State within the control of the Government of India. The concept of State under Article 12 is in relation to the fundamental rights guaranteed by Part-III of the Constitution and Directive Principles of the State Policy contained in Part-IV thereof. The contents of these two parts manifest that Article 12 is not confined to its ordinary or constitutional sense of an independent or sovereign meaning so as to include within its fold whatever comes within the purview thereof so as to instill the public confidence in it. The feature that the Board has been allowed to exercise the powers enabling it to trespass across the fundamental rights of a citizen is of great significance. In terms of the Memorandum of Association even the States are required to approach the Board for its direction. If the Constitution Bench judgment of this Court in Sukhdev Singh & Ors. vs. Bhagatram Sardar Singh [(1975) ....
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.... 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 State control flowing therefrom. In Daniel Lee (supra), it was held: "The OAC's functionally exclusive regulation of free speech within.a public forum, is a traditional and exclusive function of the State" DEVELOPMENT OF LAW: The development of law in this field is well-known. At one point of time, the companies, societies etc. registered under the Indian Companies Act and Societies Registration Act were treated as separate corporate entities being governed by its own rules and regulations and, thus, held not to be 'States' although they were virtually run as department of the Government, but the situation has completely changed. Statutory authorities and local bodies were held to be States in Rajasthan State Electricity Board, Jaipur Vs. Mohan Lal & Ors. - (1967) 3 SCR377. This court, however, did not stop there and newer and newer principles were evolved as a result whereof different categories of bodies came to be h....
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.... "Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? It was opined : "26. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said : 'When I hear any man talk of an unaltelrable law, I am convinced that he is an unalterable fool." The law must, therefore, in a chan....
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....ltinational 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. 24413/2004 and 24661- 24663/2004 state that the petitioners will be advised to approach the High Court to seek clarification of exactly what kind of disclosure the High Court requires them to make. We record the statement and dismiss the special leave petitions giving liberty to the petitioners to approach the High Court for that purpose. In case the petitioners feel aggrieved by the order passed by the High Court on the clarification application, the dismissal of these special leave petitions will not come in their way in challenging the said order. We may, however, place on record that the learned senior counsel for the petitioners intended to argue larger constitutional issues touching Articles 19 and 21 of the Constitution which have not b....
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....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" between the Government of the State and the Corporation or the society. Only its actions of promoting the sport making a law of cricket for the entire country, representing the country in international forum, appointing India's representative and the all pervasive control over players, managers and umpires are State actions. Thus, all autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression 'State'. Each case must be determined on its own merits. Let us for determining the question have a look at the relevant decisions rendered in different jurisdictions. INDIAN CASE LAW: In K.S. Ramamurthi Reddiar Vs. The Chief Commissioner, Pondicherry & Anr. [(1964) 1 SC....
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....ation 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 also the Test and County Cricket Board of United Kingdom. The question which arose therein was as to whether the ICC and consequently the TCCB could debar a cricketer from playing official cricket as also county cricket only because the plaintiffs therein, who were well-known and talented professional cricketers and had played for English County Club for some years and tests matches, could take part in the World Series Cricket which promoted sporting events of various kinds. In R. Vs. Panel on Take-overs and Mergers, ex parte Datafin plc and another [1987 (1) All ER 564] the Court exercised the power of the judicial review over a private body. The grounds on which judicial revi....
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....l (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 R (on the application of West) v. Lloyd's of London, (2004) 3 All ER 251] Despite the same it was held that a judicial review cannot be refused at the threshold. Tests evolved by the courts have, thus, been expanded from time to time and applied having regard to the factual matrix obtaining in each case. Development in this branch of law as in others has always found differences. Development of law had never been an easy task and probably would never be. A different note, however, was struck in Football Association Ltd. (supra) and Aga Khan (supra). In Football Association Ltd. (supra), the Football Association....
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....t 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 sport bodies advocated for a judicial review stating: "As for the argument that the sports bodies know best, experience may perpetuate, not eliminate error; and Wilberforce J. indicated in Eastham that the rules of sporting bodies cannot be treated as the Mosaic or Medan law. It is, I suspect, the floodgates argument that is the unspoken premise of the Vice-Chancellarial observations, the fear that limited court time will be absorbed by a new and elastic category of case with much scope for abusive or captious litigation. It is an argument which inte....
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.... 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 on the image, standing and future of rugby as a national sport, the decision challenged is probably at least as important as if not more important than any other in the history of the game in New Zealand. 4. The decision affects the New Zealand community as a whole and so relations between the community and those, like the plaintiffs, specifically and legally associated w....
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....tion 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 commercial aspects of wheat marketing through operating wheat pools. The Appellant therein who was a competitor of AWBI applied for grant of permit for the bulk export of wheat but the same was declined whereupon it was contended that the AWBI was contravening the Trade Practices Act, 1974. The decision of AWBI was questioned contending that it invol....
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.... 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 that the analysis of whether state action existed was a "necessarily fact-bound inquiry" and noted that state action may be found only where there is "such a close nexus between the State and the challenged action that se....
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....tes 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 Act and the Scope of Judicial Review" published in 118 L.Q.R. 551, Paul Craig noticed a large number of decisions and considered the ....
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.... 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 is generally no liability in negligence for the creation or amendment of the....
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....lation 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 against it as was in the case of Datafin (supra). The question has since ....
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.... 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 "public function;" but authoritatively deciding who is free to cro....
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....e 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....
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....ody exercising monopoly, a statutory body, a legal authority, a body discharging public utility services or discharging some public function. A writ would also issue against a private person for the enforcement of some public duty or obligation, which ordinarily will have statutory flavour 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....
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....Another vs. Johri Mal [(2004) 4 SCC 714]. The recent development in the field of judicial review vis-`-vis human rights also deserves a mention, although in this case, we are not directly concerned therewith. In Hatton and Others 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 F....
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....n are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. The six tests laid down there are not exhaustive. 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 ....
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....; "In America, corporations or associations, private in character, but dealing with public rights, have already been held subject to constitutional standards. Political parties, for example, even though they are not statutory organisations, and are in form private clubs, are within this category. So also are labour unions on which statutes confer the right of collective bargaining." (Emphasis supplied) Drawing the contrast between the governmental activities which are private and private activities which are governmental, Mathew, J. noticed that besides the so-called traditional functions, the 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....
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....he national interest/ importance given to the sport of cricket in the country. The tests, thus, which would be applicable are coercion test, joint action test, public function test, entertainment test, nexus test, supplemental governmental activity test and the importance of the sport test. An entity or organization constituting a State for the purpose of Part III of the Constitution would not necessarily continue to be so for all times to come. Converse is also true. A body or an organization although created for a private purpose by reason of extension of its activities may not only start performing governmental functions but also may become a hybrid body and continue to act both in its private capacity or as public capacity. What is necessary to answer the question would be to consider the host of factors and not just a single factor. The presence or absence of a particular element would not be determinative of the issue, if on an overall consideration it becomes apparent that functionally it is an authority within the meaning of Article 12 of the Constitution of India. Similarly significant funding by the Government may not by itself make a body a State, if its functions ....
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....s, connected with the game of cricket; RULES AND REGULATIONS: The Board has framed rules and regulations in exercise of its power under the Memorandum of Association. Such rules and regulations are also filed with the Registrar of Societies under the Tamil Nadu Societies Registration Act, 1975. The relevant rules and regulations are as under : "1. INTERPRETATION : (i) "REPRESENTATIVE" of a Member or an Associate Member means a person duly nominated as such by the Member or the Associate Member. (l) "TOURNAMENT RULES" means the Rules governing the conduct of Tournaments such as Irani, Duleep, Ranji, Deodhar, 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 per....
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....ember. Rule 12 provides that an inquiry into conduct of players shall be in the manner as specified in Rule 38 of the Rules. Rule 32 provides for Standing Committees which include an All India Selection Committee, All India Junior Selection Committee, Umpires Committee, Senior Tournament Committee, Vizzy Trophy Committee, Tour, Programme and Fixtures Committee, Technical Committee, Junior Cricket Committee and Finance Committee. Rule 32(A)(ii) provides for constitution of All India Selection Committee inter alia when Indian Team goes on a foreign tour. 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 : ....
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....st Full Members in order to better equip them to apply for Full Membership at the appropriate time. The Criteria for ODI status are extremely demanding and ODI status will only be conferred when the applicant country has a history of excellence in both playing and administration. As a precondition the applicant must be a leading Associate Member and meet all the criteria of Associate Membership. Qualification Rules for International Cricket Council Matches, Series and Competitions read as under: "(a) Definitions (b) Qualification Criteria 1. A cricketer is qualified to play Representative Cricket for a Member Country of which he is a national or, in cases of non-nationals, in which he was born 2. A player who has resided for a minimum of 183 days in a Member Country in each of the 4 immediately preceding years shall be a "deemed national" of that country for the purpose of these Rules. (c) Transfer of "Playing Nationality" 1. Cricketers qualified to play for a Member Country can continue to represent that country without negating their eligibility or interrupting their qualification period for another Member Country up until the stage that the cricketer has ....
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....eneral and achieving excellence in the Olympics and other international events in particular, as also the unsatisfactory performance of the Indian Team(s) in important international sports events. It was recorded that over the years the Government had been actively supporting the National Sports Federations in the matter of development of specific games/sports discipline. The objective of the said guidelines was to define the areas of responsibility of various agencies involved in the promotion and development of sports, to identify National Sports Federations eligible for coverage thereunder and to state the conditions for eligibility which the Government would insist upon while releasing grants to Sports Federations. Para III speaks of role and responsibility of the Ministry of Youth Affairs and Sports, National Sports Federations and the Sports Authority. Para IV provides for priority sports which have been categorized as : (a) 'Priority', (b) 'General Category' and (c) 'Other Category'. Para 8 refers to grants given to National Federations under different sub-heads. Clause 8.8 specifies the funds with which the National Sports Federations would be assisted for holding the in....
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....avit affirmed by a Deputy Secretary to the Government of India, Ministry of Youth Affairs and Sports, it has stated that Board is a recognized National Federation. It is true that no document has been produced establishing grant of such recognition; but in its additional affidavit affirmed by Mrs. Devpreet A. Singh, Deputy Secretary to the Government of India, Ministry of Youth Affairs and Sports, a number of documents have been annexed which clearly go to show that from the very beginning the Board had been asking for permission of the Ministry of Human Resource Development either to go abroad or to play or participate in other countries or for inviting the others to play in India. Such permission had been sought for in the form prescribed in terms of the said regulations. The said documents leave no manner of doubt that the Board had asked for and the Union of India had granted de facto recognition. 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 whethe....
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.... of cricket. The Board for all intent and purport is a recognized national federation recognized by the Union of India. By reason of said recognition only, an enormous power is exercised by the second Respondent which from selection and preparation of players at the grass root level to organize Daleep Trophy, Ranji Trophy etc. select teams and umpires for international events. The players selected by the second Respondent represent India as their citizen. They use the national colour in their attire. The team is known as Indian team. It is recognized as such by the ICC. For all intent and purport it exercises the monopoly. The Board is in a position to expend crores of rupees from its own earnings. The tender in question would show that what sort of amount is involved in distributing its telecasting right for a period of four years, inasmuch as both the First Petitioner and the Fifth Respondent offered US $ 308 millions 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....
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....l Cricket events featuring competitive cricket. So would be the position in domestic cricket. The Board in view of enormity of powers is bound to follow "the doctrine of fairness and good faith in all its activities". [See Board of Control for Cricket, India & Anr. Vs. Netaji Cricket Club and Ors., JT 2005 (1) SC 235]. The object of Part III of our Constitution is to curtail abuse of power and if by reason of the Board's activities, fairness in action is expected, it would answer the description of "Other Authorities". The decisions rendered in different jurisdictions including those of this Court clearly suggest that a body like the Board would come within the purview of the expression "Other Authorities" contained in Article 12 of the Constitution of India. For the said purpose, a complete new look must be bestowed on the functions and structures of the Board. A public authority, in my opinion, would be an authority which not only can regulate and control the entire sports activities in relation to cricket but also the decisive character it plays in formulating the game in all aspects. Even the Federations controlled by the State and other public bodies as also the State themselv....
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....would reduce its activities. In case any other body is recognized by the Union of India, it would not be entitled to regulate the sport of cricket in India. Perforce it has to abandon its functions outside the country. In the Rules framed by the ICC, the principles of natural justice containing elements (a) the right to a fair hearing; and (b) the rule against bias has been specifically provided for. These are in keeping with the function of public body and not private body. But, so far as the rules framed by the Board are concerned, the principles of natural justice are required to be followed only in the event a disciplinary action is contemplated and not otherwise. The submission of Mr. Venugopal that Union of India having made a categorical statement before the Parliament as also in its affidavit in the case of Rahul Mehra (supra) before the High Court of Delhi wherein it is accepted that the Board is not under the control of the Union of India nor there exist any statutory rules to regulate its functioning and further the issues raised in the said writ petition relate to the internal functioning of the Board, which is autonomous in its function, having regard to the materia....
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.... regulates the domestic competitive cricket to the fullest measure and exercises control over its members which represents the five zones in India. All the States Federations besides a few other clubs which are its members, two of which it will bear repetition to state, are governmental organizations. Indisputably the Board is a regulator of cricket played at the country level both off and on the fields including selection of players and umpires. ICC possesses and exercises all the powers to regulate international competitive cricket. It exercises disciplinary power also as in case of violation of the rules, a country member or the player may be derecognized. The ICC exercises a monopoly over the sports at the international level whereas Board does so at the country level. It is the Board only, to the exclusion of all others, that can recognize bodies who are entitled to participate in the nominated tournaments. Players and umpires also must be registered with it. In the event of violation of its rules and regulations, which may include participation in an unauthorized tournaments without its permission, a player or umpire would forfeit his right to participate in all official c....
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....not furthermore disclose as to how it could having regard to its professed function as a private club, could grant to itself enormous powers as are replete in its rules and regulations. Rules and regulations framed by the Board speak out for themselves as to how it represents Indian cricket team and regulates almost all the activities pertaining thereto. It also legislates law of sports in India in the field of competitive cricket. There is no area which is beyond of the control and regulation of the Board. Every young person who thinks of playing cricket either for a State or a Zone or India must as of necessity be a member of the Board or its members and if he intends to play with another organization, it must obtain its permission so as to enable him or continue to participate in the official matches. The professionals devote their life for playing cricket. The Board's activities may impinge on the fundamental rights of citizens. 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 ....
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....hey participate in the game for a purpose. The Board's commands bind all who are connected with cricket. The rules and regulations framed by it for all intent and purport are "the code" which regulate an important aspect of national life. Such codes on the premise whereof the Board has been permitted by all concerned including the Union of India and the States to operate so as to regulate and control not only the sport of cricket as such but also all other intimately connected therewith and in particular the professionals. It is not in dispute that the players wear national colours in their attires and it also appears from the correspondences that the Board drew the attention to the Government of India that the players to show their pride of being Indian also exhibit Ashok Chakra on their helmets. We may notice that 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 em....
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....s. In that sense, exercise of law making power contemplated by legislation has been outsourced to the Board. The Board which represents a nation with or without a statutory flavour has duties to perform towards the players, coaches, umpires, administrators and other team officials. They have a duty to create safe rules for the sport, if by reason thereof a physical injury to the player is to be avoided and to keep safety aspect under ongoing review. A body may be autonomous but with autonomy comes responsibility. Sport is a "good thing" wherefor a societal end is to be provided. Sport must receive encouragement from the State and the general public or at least not discouraged. Health, sociability and play are considered to be important values to be recognized in a human. Encouragement of games and sports in terms of Entry 33 of the State List and Entries 45 and 97 of the Union List is a State function. We have noticed the main objects of the Board which are to promote, control, regulate, make laws for the country and encourage the game of cricket. The Union of India or the respective Governments of the States instead and place of making a legislation have thought it fit to al....
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....lf not only enormous powers but also final say in the disciplinary matter and, thus, being responsible for making or marring a citizen's sports career, it would be an authority which answers the description of "other authorities". The Board, it appears, even nominates cricketers for the Arjuna Awards. The game of cricket both in the domestic fora as also the international fora cannot reach the desired results unless the Board acts in terms of the governmental policies or the government is entwined in its management or control of the Board or any of its agencies statutory or otherwise. Apart from the above, the other tests laid down in Brentwood Academy (supra), viz., "willful participant in joint activity with the State or its agents", in our opinion, would make the Board as a State actor. The activities undertaken by the Board were taken note of in the case of Cricket Association of Bengal (supra). Therein this Court inter alia rejected the contention of the Ministry of Information and Broadcasting that the activities of the Association was a commercial one and it had been claiming a commercial right to exploit the sporting event as they did not have the right to telecast th....
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..... A decision, it is trite, should not be read as a statute. A decision is an authority for the questions of law determined by it. Such a question is determined having regard to the fact situation obtaining therein. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for consideration. A judgment, as is well-known, must be read in its entirety and the observations made therein should receive consideration in the light of the questions raised before it. [See Punjab National Bank vs. R.L. Vaid and Others (2004) 7 SCC 698] Although, decisions are galore on this point, we may refer to a recent one in State of Gujarat and Others Vs. Akhil Gujarat Pravasi V.S. Mahamandal and Others [AIR 2004 SC 3894] wherein this Court held: "It is trite that any observation made during the course of reasoning in a judgment should not be read divorced from the context in which they were used." 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 aut....
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....er and electricity energy, its other functions like flowing from a contract etc. would not generally be amenable to judicial review. (See Constitutional and Administrative Law By A.W. Bradley and K.D. Ewing Page 303) There are numerous decisions of this Court where such a distinction between public law function and private law function has been drawn by this Court. [See Life Insurance Corporation of India Vs. Escorts Ltd. and Others, (1986) 1 SCC 264 at 343 & 344, para 101, Kerala State Electricity Board and Another Vs. Kurien E. Kalathil and Others, 2000 (6) SCC 293 at 299, Johri Mal (supra) page 729 and State of Maharashtra and Others Vs. Raghunath Gajanan Waingankar, 2004 AIR SCW 4701] In Johri Mal (supra) it is stated: "The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the actions of the authority need to fall in the realm of public law be it a legislative act or the State, an executive act of the State or an instrumentality or a person or authority imbued with public la....
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....ticle 12, the same by itself would not mean that it is bound by rule of reservation as contained in Clause 4 of Article 15 and Clause 4 of the Article 16 of the Constitution of India. In Ajit Singh and Others (II) Vs. State of Punjab and Others [(1999) 7 SCC 209], it has been held that Article 16(4) is an enabling provision and, thus, it is not mandatory. The State in its discretion may provide reservation or may not . [See also E.V. Chinnaiah vs. State of Andhra Pradesh & Ors. 2004 (9) SCALE 316] Furthermore, only because a corporation or a society is a State, the same would not necessarily mean that all of its actions should be subject to judicial review. The court's jurisdiction in such matter is limited. [See Johrimal (supra). It is furthermore well-settled that issuance of a writ is discretionary in nature. The Court may in a given case and in larger interest may not issue any writ at all. Mr. Venugopal vehemently argued that if the Board is held to be a State within the meaning of Article 12 of the Constitution, the doors of this Court and the High Courts would be knocked at very frequently questioning all and single action of the Board which may include selection....