MIS. ZEE TELE FILMS LTD. AND ANR. v. UNION OF INDIA AND ORS.

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 D Kumar Biswas v. Indian Institute of Chemical Biology and Ors., [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 E 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 affairs. It was pointed out by the learned counsel that even the Union of India had agreed before the Bombay High Court that the Board had the exclusive telecasting rights as owner of the events. The Board furthermore does not ..... F exercise any sovereign or governmental functions; Mr. 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 G contending that the activity of a body like Board does not involve any public .J I 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. v. Football Association Ltd., ex parte Football League Ltd. (1993) 2 AER 833 and R. v. Disciplinary Commillee of the Jockey Club, ex parte Aga Khan (I993) 2 AER 853. The leaned counsel has also drawn our H

954 SUPREME COURT REPORTS 120051 I S.C.R. I_ ' A attention to a decision of this Court in Federal Bank ltd. v. Sagar Thomas and Ors., [2003] IO SCC 733. According to Dr. Singhvi, there exists a distinction between A11icles 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 Ors. v. V.R. Rudani and Ors., [1989] 2 SCC 691. B Mr. Soli J. Sorabjee, the learned Senior Counsel appearing on behalf >

the fifth Respondent, would contend that the nature of the function of the concerned authority plays an important role in determining the question and .. only where the function is governmental in nature or where the authority is c vested under a statute, it would attract the definition of "other authorities" within the meaning of Article 12 of the Constitution and not otherwise. The ' learned counsel would, however, submit that in Aga Khan (supra), the Court of Appeal has accepted that there may be some cases where the judicial review would be maintainable. Drawing our attention to a decision of this Court in G. Bassi Reddy v. International Crops Research Institute and Anr., D [2003] 4 SCC 225, the learned counsel would urge that Board does not fulfil the tests laid down therein. A.

Mr. Harish Salve, learned Senior Counsel appearing 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 cricket playing club but as a representative of India, a • cricket playing country. By its disciplinary action, Mr. Salve would argue, the Board may debar a player from representing the country as a result whereof his fundamental right under Article 19( I)(g) of the Constitution of

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.) 955 India 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 : C (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 D 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 also the team as a national team representing the country in the entire field of cricket. E Mr. Mohan Parasaran, learned counsel appearing on behalf of Unior. of India would contend that the functions of the Board are of public importance and closely related to governmental functions. Functions of the Board, the learned counsel would urge, also control free speech rights of citizens within a public forum which is essentially a governmental function. Reference in this connection has been made to Daniel Lee v. Vera Katz, 276 F.3d 550.

CONSTITUTIONAL DEVELOPMENT :

Our Constitution is an ongoing document and, thus, should be.interpreted liberally. Interpretation of Article 12, having regard to the exclusive control and management of sport of cricket by the Board and enormous power .J exercised by it calls for a new approach. The Constitution, it is trite, should be interpreted in the light of our whole experience and not merely in that of what was the state of law at the commencement of the Constitution.

[See Missouri v. Holland, (252 US 416 (433) and Kapila Hingorani v. H

956 SUPREME COURT REPORTS [2005] 1 S.C.R.

A State of Bihar, [2003] 6 sec 1]. Furthennore in John Val/amattom and Anr. v. 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 : B " ... The constitutionality of a provision, it is trite, wiil 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 events which have taken place thereafter. It is further trite that that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation. E 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 F 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 G 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 H force, by reason of facts emerging out thereafter, the same may be

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.) 957 rendered unconstitutional." A In Liverpool & London S.P. & I Association Ltd. v. M. V. Sea Success I and Anr., (2004] 9 SCC 512, this Court observed:

"Referring to Motor General Traders and Anr. v. State of Andhra Pradesh and Ors., (1984] I SCC 222, Rattan A1ya and Ors. v. State B of Tamil Nad11 and Anr., (1986] 3 SCC 385 and Synthetics and Chemicals Ltd. and Ors., v. State of UP. and Ors., (1990] I SCC 109, this Court held: (SCC p. 608, para 49)

"There cannot be any doubt whatsoever that a law which was at one point of time constitutional may be rendered C unconstitutional because of passage of time. We may note that apart from the decisions cited by Mr. Sanghi, recently ' a similar view has been taken in Kapila Hingorani v. State of Bihar, JT (2003) 5 SC I and John Vallamattom and Anr. v. Union of India, JT (2003) 6 SC 37." D Constitution of India is an ongoing document. It must be interpreted accordingly.

In Francis Bennion's 'Statutory Interpretation', Fourth Edition at page 762, it is stated : E "It is presumed that Parliament intends the court to apply to ongoing Act a construction that continuously updates its wording tC\ allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily em bedded 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 G 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 H

958 SUPREME COURT REPORTS [2005] I S.C.R.

A regarded as 'a living Act'. That today's con~truction involves the I \,_ . supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that constructio1i. 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." B 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 encouragement of games and sports is State function in terms of Entry 33 of C 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 I; sports, entertainments and amusements." D 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. E 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 intQ being, in terms of the Allocation of Business Rules.

In Secretary, Ministry of Information & Broadcasting, Government of F India and Ors. etc. v. Cricket Association of Bengal and Ors. etc., [1995] 2 SCC 161, this Court held :

" ... It may be true that what is protected by Article 19(1)(a) is an expression of thought and feeling and not of the physical or intellectual prowess or skill. It is also true that a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self-expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, .informed and entertained. The former is the right of the telecaster and the latter that

ZEE TELE FILMS LTD. v. U.0.l. [S.B. SINHA . .I.] 959 t.__,( of the viewers. The right to telecast sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that free-speech element is absent from his right. The degree of the element will depend upon the character of the telecaster who claims the right An organizer such as the BCCI or CAB in the present case which are indisputably devoted to the promotion of the game of cricket, cannot be placed in the same scale as the business organizations whose only intention is to make as large a profit as can be made by telecasting the game ...."

[Emphasis supplied) c 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 D 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 E International arena, it is only the Union of India which can exercise such a power in terms of Entry I0, 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: F ~

} 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 :

~- "12. In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government G 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 H

960 SUPREME COURT REPORTS [2005] I S.C.R.

A 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". J(

The word "Other Authorities" contained in Article 12 is not to be treated as ejusdam generis.

In Concise Oxford English Dictionary, 10th Edition, the word 'authority' has been defined as under :

"I. the power or right to give orders and enforce obedience. 2. a person or organization exerting control in a particular political or ' D administrative sphere. 3. the power to influence others based on recognized knowledge or expertise." "" . Broadly, there are three different concepts which exist for determining the question which fall within the expression "other authorities".

E (i) The Corporations and the Societies created by the State for carrying on its trading activities in terms of Article 298 of the Constitution wherefor the capital, infrastructure, initial investment and rinancial aid etc. are provided by the State and it also exercises regulation and control thereover. F (ii) Bodies created for research and other developmental works which is otherwise a governmental function but may or may not be a ~

part of the sovereign function. . ' (iii) A private body is allowed to discharge public duty or positive obligation of public nature and furthermore is allowed to perform G regulatory and controlling functions and activities which were ·" otherwise the job of the government.

There cannot be same standard or yardstick for judging different bodies -. for the purpose of ascertaining as to whether it fulfills the requirements of law therefor or not. H

ZEE TELE FILMS LTD. v. U.O.I. [S.B. SINHA. .I.] 961

I _, In Pradeep Kumar Biswas (supra), a Seven-Judge Bench held : A "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) l SCR 778 at 968. The words "State" and "authority" used in Article 12 therefore remain, to use the words of Cardozo B (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 Anr. v. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta and Ors., (1998] 1 SCC 458. c 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 D ).. 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 E 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. F ~ 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 and Ors. v. Bhagatram Sardar G Singh, (1975] I SCC 421 and development of law made therefrom is to be given full effect,. it is not only the functions of the Government alone which ,r-J would enable a body to become a State but also when a body performs governmental functions or quasi-governmental functions as also when its business is of public importance and is fundamental for the life of the people. For the said purpose, we must notice that this Court in expanding the definition H

962 SUPREME COURT REPORTS [2005] I S.C.R.

A of State did not advisedly confine itself to the debates of Constitutional Assembly. It considered each case on its own merit. In Sukhdev Singh (supra), Mathew, J. stated that even big industrial houses and big trade unions would come in the purview thereof. While doing so the courts did not lose sight of the difference between the State activity and the individual activity. This B Court took into consideration the fact that new rights in the citizens have been created and if any such right is violated, they must have access to justice which is a human right. No doubt, there is an ongoing debate as regard the effect of the globalization and/or opening up of market by reason of liberalization policy of the Government as to whether that the notion of sovereignty of the State is being thereby eroded or not but we are not concerned C with the said question in this case. "Other authorities", inter-alia, would be there which inter alia function within the territory 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.

D Article 12 must receive a purposive interpretation as by reason of Part Ill 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 E functions. Jn 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. F It is not that every body 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 : G 'The OAC's functionally exclusive regulation of free speech within ....a public forum, is a traditional <jnd exclusive function of the State"

DEVELOPMENT OF LAW :

H The development of law in this field is well-known. At one point of

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.] 963 I .~ time, the companies, societies etc. registered under the Indian Companies Act A , 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 v. Mohan Lal and Ors., (1967] 3 SCR 377. B

,. 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 held as State.

The concept that all public sector undertakings incorporated under the c

- Indian Companies Act or Societies Registration Act or any other Act for answering the description of State must be financed by the Central Government and be under its deep and pervasive control has in the past three decades undergone a sea change. The thrust now is not upon the composition of the body but the duties and functions performed by it. The primary question D ;_ which is required to be posed is whether the body in question exercises public function.

In Sukhdev Singh (supra), a Constitution Bench of this Court opined that the expression 'other authority' should not be read on the touchstone of the principle of 'ejusdem generis'. E Mathew, J. in his concurring but separate judgment raised a question as to for whose benefit the Corporations were carrying on the business and in answering the same came to the conclusion that the Respondents therein were 'States' within the meaning of Article 12 of the Constitution of India. [SCC para 109]. F ! ~ It was observed that even big companies and trade unions would answer the said description as they exercise enormous powers.

In UP State Cooperative land Development Bank ltd. v. Chandra Bhan Dubey and Ors., AIR (1999) SC 753, the land development bank was G held to be a State. This Court upon analyzing various provisions of Act and ', the rules framed thereunder observed:

"20 ... It is not necessary for us to quote various other sections and rules but all these provisions unmistakably show that the affairs of H

964 SUPREME COURT REPORTS [2005] I S.C.R.

A 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 B 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 Ors. v. Regional Director, ES! Corporation and Anr., [2003] IO SCC 303 and Bassi Reddy JI (supra)].

Madon, J. in Central Inland Water Transport Corporation Limited and C Anr. v. Brojo Nath Ganguly and Anr., [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 D floundering in the slough~ 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? E 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 p 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 changing society march in tune with the changed ideas G and ideologies ..."

Pradeep Kumar Biswas (supra) and Bassi Reddy (supra) were recently considered in Gayatri Dev. Mousumi Cooperative Housing Society Ltd. and .. Ors., [2004] 5 SCC 90, wherein a mandamus was issued against a Cooperative H Society on the ground that the order impugned therein was issued by an

ZEE TELE FILMS LTD. v. U.0.L [S.B. SINHA, J.] 965 , __ j

"administrator" appointed by the High Court who had also no statutory role A to perform.

In Chain Singh v. Mata Vaishno Devi Shrine Board and Anr., (2004) 8 SCALE 348, it was contended that a religious board was a 'State'. Although Mata Vaishno Devi Shrine Board was constituted under a statute, it was per ··<' se not a State actor. It was observed that the decisions of this Court in Bhuri B Nath and Ors. v. State of J & Kand Ors., [1997] 2 SCC 745 requires reconsideration in the light of the principles laid down in Pradeep Kumar Biswas (supra).

In Virendra Kumar Srivastava v. U.P. Rajya Karmachari Kai. Nigam and Anr., (2004) 9 SCALE 623, a Division Bench of this Court while applying c the tests laid down in Pradeep Kumar Biswas (supra) observed that there exists a distinction between a 'State' based on its being a statutory body and a one based on the principles propounded in the case of Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors., [1981] 1 SCC 722 D A Recently a Division Bench of the Rajasthan High Court in Santosh ,) Mittal v. State of Rajasthan and Ors., since reported in (2004) JO SCALE J, ~ 39 issued a direction to Pepsi Company and Coca-Cola and other manufacturers of carbonated beverages or soft drinks to disclose the 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 : E "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 and Coca-Cola and other manufacturers of beverages and soft drinks, are bound to F r clearly specify on the bottle or package containing the carbonated i { 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 G . ., Beverages (P) ltd v. Santosh Mittal and 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, H

966 SUPREME COURT REPORTS r2005) I S.C.R. \_ ' A learned senior counsel appearing for the petitioners in SLP(C) Nos. 244 I 3/2004 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. .,_ B 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 c for the petitioners intended to argue larger constitutional issues touching Articles 19 and 21 of the Constitution which have not been raised on a second thinking and we leave them open to be decided in some other appropriate case.

Though the special leave petitions are dismissed, but the operation of the order dated 3.11.2004 passed by the High Court suspending -"· the operation of its judgment for six weeks, is extended by another I..• ~ two weeks from today."

The expansion in the definition of State is not to be kept confined only to business activities of Union of India or other State Governments in terms of Article 298 of the Constitution of India but must also take within its fold any other activity which has a direct influence on the citizens. The expression "education" must be given a broader meaning having regard to Article 2 IA of the Constitution of India as also Directive Principles of the State Policy. There is a need to look into the governing power subject to the fundamental F Constitutional limitations which requires an expansion of the concept of State ~

action.

Constitutions have to evolve the mode for welfare of their citizens. Flexibility is the hallmark of our Constitution. The growth of the Constitution shall be organic, the rate of change glacial. (See R. Stevens, the English G Judges: Their Role in the Changing Constitution (Oxford 2002), p. xiii) (Quoted by Lord Woolf in 'The Rule of Law and a Change in the Constitution, ' . 2004 Cambridge Law Journal 317]

A school would be a State if it is granted financial aid. (See Jiby P. Chacko v. Mediciti School of Nursing, Ghanpur, Ranga Reddy District and H

ZEE TELE FILMS LTD."- U.O.L [S.ll SINHA. J.] 967 ' ) __) Anr., (2002) 2 ALD 827) A An association performing the function of Housing Board would be performing a public function and would be bound to comply with Human Rights Act, 1998. [See Poplar Housing and Regeneration Community Association ltd v. 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 Ors.) v. B Leonard Cheshire Foundation and Anr., (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. c 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.MA. Pai Foundation and Ors. v. State of Karnataka and Ors., [2002] 8 SCC 481 and Islamic Academy of Education and Anr. v. D State of Karnataka and Ors., (2003] 6 SCC 697]. •. A Tests or the nature thereof would vary depending upon the fact of each case.

We must, however, remember that only because another authority would E 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. F •' · 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 G rendered in different jurisdictions. ') --.._ INDIAN CASE LAW :

In K.S. Ramamurthi Reddiar v. The Chief Commissioner, Pondicherry and Anr., [l 964) 1 SCR 656, it was held that the expressions "under the H

968 SUPREME COURT REPORTS [2005] I S.C.R. l_ ' A control of the Government of India" do not qualify the word "territory" and the expressions "under the control of the Government of India" and "within the territory of India" are distinct. '' Mathew, J. in Sukhdev Singh (supra) referring to various authorities observed : B "In so far as public corporations fulfill public tasks on behalf of government, they are public authorities and as such subject to control by government." (SCC Para 87)

The said principles were reiterated in Ramana Dayaram Shetty v. C International Airport Authority of India and Ors., [1979] 3 SCC 489 laying down the factors which would enable the Court to determine as to whether a company or a society would come within the purview of"other authorities''. [SCC paras 16, 18, I9 & 20].

D In Ajay Hasia (supra), Sukhdev Singh (supra) and Ramana Dayaram Shetty (supra) were noticed with approval. [SCC Paras 8, 14 & 15]. See also Som Prakash Rekhi v. Union of India and Anr., [1981] I SCC 449. >- ~

The conflict between Ajay Hasia (supra) and Sabhajit Tewary v. Union of India and Ors., [1975] I SCC 485 has been resolved in Pradeep Kumar E Biswas (supra) by overruling Sabhajit Tewary (supra) and, thus, there does not exist any conflict. The principles laid down in Ajay Hasia (supra) are not rigid ones and, thus, it is permissible to consider the question from altogether a different angle.

It is interesting to note that Bhagwati, J. in Ramana Dayaram Shetty p (supra) followed the minority opinion of Douglas, J. in Jackson v. Metropolitan Edison Company, [42 L.Ed. (2d) 477] as against the majority opinion of -... Rehnquist, J. which was specifically noticed in MC. Mehta and Anr. v. · • Union of India and Ors., [1987] I SCC 395. [SCC para 29]

In Air India Statutory Corporation and Ors. v. United Labour Union G and Ors., [1997] 9 sec 377, (since overruled on another point) in Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors., [2001] 7 SCC I, this Court deliberated upon the distinction between the Private Law and Public Law. [SCC para 26]. "'

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA . .I.] 969 i~ FOREIGN CASE LAW : A UNITED KINGDOM

In Nagle v. Feilden and Ors., [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 B 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 and Ors. v. /nsole and Ors., [1978) 3 All ER 449, a Chancery Division considered in great details the rules framed by the ICC as also the c 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 D A_ matches, could take part in the World Series Cricket which promoted sporting "- ~ events of various kinds. ·

In R. v. Panel on Take-overs and Mergers, ex parte Datafin pie and Anr., (1987) I All ER 564, the Court exercised the power of the judicial review over a private body. E

The grounds on which judicial review was given are :

(a) The Panel, although self-regulating, do not operate consensually or voluntary but had imposed a collective code on those within its ambit; F -r ' (b) The Panel had been performing a public duty as manifested by the government's willingness to limit legislation in the area and to use the Panel as a part of its regulatory machinery. There had been an "implied devolution of power" by the Government to the Panel in view of the fact that certain legislation presupposed its G existence. -~ (c) Its source of power was partly moral persuasive. Such a power \ would be exercised under a statute by the Government and the Bank of England. H

970 SUPREME COURT REPORTS [2005) I S.C.R.

A Lloyd LJ. in his separate speech opined :

"On the policy level, I find myself unpersu::ided. Counsel for the panel made much of the word 'self-regulating'. No doubt self- regulation has many advantages. But I was unable to see why the mere fact that a body is self-regulating makes it less appropriate for B judicial review. Of course there will be many self-regulating bodies which are wholly inappropriate for judicial review. The committee of an ordinary club affords an obvious example. But the reason why a club is not subject to judicial review is not just because it is self regulating. The panel wields enonnous power. It has a giant's strength.

c The/act that it is self regulation, which means, presumably, that it is not subject to regulation by others, and in particular the Department of Trade and Industry, makes it not less but more appropriate that it should be subject to judicial review by the courts."

(Emphasis supplied) D [See also Aston Cantlow, Wilmcote and Billesley Parochial Church Council v. Wallbank, (200 I] 3 W.L.R. 1323].

In Poplar Housing and Regeneration Community Association Ltd v. Donoghue, (200 I] 4 All ER 604, a question arose as to whether eviction of ,A

- the defendant therein by a housing association known as Poplar Housing and E 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 :

F " ... 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 pie (Norton Opax pie intervening) [ 1987] I All ER 564, [ 1987] QB 815. (ii) Tower Hamlets, in transferring its housing stock to Poplar, does not transfer its primary G public duties to Poplar. Poplar is no more than the means by which it seeks to perform those duties ... " J,.. [Emphasis supplied] I'

Donoghue (supra) was, however, distinguished in Leonard Cheshire H Foundation (supra) holding that the respondent therein having regard to its

ZEE TELE FILMS"LTD. v. U.0.1. [S.B. SINHA. J.] 971 ' ~)~ activities did not perfonn 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. c (supra) and Aga Khan (supra).

In Football Association Ltd (supra), the Football Association was the governing authority for football and all clubs had to be affiliated to it. With a view to facilitate the top clubs breaking away from the Football league, the Association declared void certain rules of the League and made it difficult D ,' ~ for the clubs to terminate their relationship with it. The League sought judicial ·..> review wherein an argument of exercise of monopoly for the game by the Association was advanced but Rose, J. held that it was not susceptible to judicial review. E In Aga Khan (supra), the applicant was an owner of the racehorses and, thus, made himself bound to register with the Jockey Club. His hor.:e was disqualified although it had won a major race whereafter he sought judicial review. The Court of Appeal opined that the Club could not be subjected to judicial review. It preferred to follow 'law v. National Greyhound Racing 1-"" Club Ltd, (1983) I WLR 1302 in preference to Datafin (supra). The Court F I therein, however, acknowledged that the Club regulated a national activity. Sir. Thomas Bingham M.R., however, opined therein that if it did not regulate the sport then the government would in all probability be bound to do so.

It was held that private power although may affect the public interest and livelihood of many individuals but a sporting body would not be subject G ,.; to public law remedy. One of the factors which appears to have influenced the court in arriving at the said decision was that if these bodies are deemed to fall within the public law then "where should we stop"? It is interesting to note that despite the same it held that judicial review would lie in certain areas. H

972 SUPREME COURT REPORTS (2005) I S. C.R.

A We with great respect to the learned Judges do not find ourselves in agreement with the aforementioned views for the reasons stated in the later part 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.

B 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. C 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 D (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 E 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 Jaw. F 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 intellectually has little to commend it, and pragmatically is usually G shown to be. ill-founded. For it is often the case that, once the courts have shown the willingness to intervene, the standards of the bodies at risk of their intervention tend to improve. The threat of litigation averts its actuality.

There is therefore no reason why the field of sport cannot define H

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, .I.) 973 ) ...J. law's new, or at any rate next, frontier; and if Britain can no longer head the world in spo1t itself, perhaps it can do so in sporting litigation. Members of the bar, on your marks!"

(Emphasis supplied)

P.P. Craig in his Administrative Law at page 817 noticing the aforementioned judgments and upon enumerating the reasons therefor, observed : ). "There is no doubt that people will differ as to the cogency of these reasons. The line drawn by the cases considered within this section has, not surprisingly, been contested. Pannick has argued that the c exercise of monopolistic power should serve to bring bodies within the ambit of judicial review. To speak of a consensual foundation for a body's power is largely beside the point where those who wish to partake in the activity will have no realistic choice but to accept that power. Black has argued that the emphasis given to the contractual foundations for a body's power as the reason for withholding review D J.. are misplaced. She contends that the courts are confusing contract as I an instrument of economic exchange, with contract as a regulatory ~ instrument. She argues further that the reliance placed on private law controls, such as restraint of trade and competition law, may also be misplaced here. Such controls· are designed for the regulation of E economic activity in the market place, and they may not be best suited to control potential abuse of regulatory power itself."

(Emphasis added)

SCOTLAND: F r In St. Johnstone Football Club limited v. Scottish Football Association ' limited, ( 1965) SL T 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 G them, i.e., acting ultra vires or if by so acting they have done him injury, he ' -J 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.

974 SUPREME COURT REPORTS [2005] I S.C.R.

A NEW ZEALAND :

In Finnigan v. New Zealand Rugby Football Union Inc., (I 985) 2 NZLR 159, the Court noticed the factors which carry weight in entertaining judicial review, stating inter a/ia :

B "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.

C 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 D so relations between the community and those, like the plaintiffs, specifically and legally associated with the sport. Indeed judicial notice can be taken of the obvious fact that in the view of a significant number of people, but no doubt contrary to the view of another significant number, the decision affects the international relations or standing of New Zealand. E

5. While technically a private and voluntary sporting association, the Rugby Union is in relation to this decision in a position of major national importance, for the reasons already outlined. In this particular case, therefore, we are not willing to apply to the question of standing the narrowest of criteria that might be drawn from private law fields. F In truth the case has some analogy with public law issues. This is not •-"'(

to be pressed too far. We are not holding that, nor even discussing whether, the decision is the exercise of a statutory power - although that was argued. We are saying simply that it falls into a special area where, in the New Zealand context, a sharp boundary between public and private law cannot realistically be drawn."

It was opined that the petitioner therein had the necessary standing to seek judicial review. The Court observed that the floodgate argument advanced .... against entertaining judicial review could not be accepted as the case was so special that the argument carries even less conviction than it is usually apt to do when invoked against some moderate advance in the common law.

ZEE TELE FILMS LTD. v. U.0.l. [S.B. SINHA J.) 975 AUSTRALIA: A In Romeo v. Conservation Commission of the Northern Territory, (1998) 72 ALJR 208, Kirby J. noticed that in the arena of liability of public authority declaring the limits of the common law liability of the public authority has been criticized as unsatisfactory and unsettled, as lacking foreseeable and practical outcomes and as operating ineffectively ad i,1efficiently. B Therein a question arose as to whether the publit: authorities have a duty to care envisaging reasonable possibility of damage. The learned Judge opined:

"Once again this Court has been asked to declare the limits of the C common 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 D con5temation 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 ')udicial paternalism" the Local Government Ministers of Australia and New E Zealand have commissioned a report on policy options to provide statutory limitations on the liability of local authorities."

In Neat Domestic Trading Pty Ltd v. A WB Ltd and Anr., (77 ALJR 1263] the court was concerned with the Australian Wheat Board (International) Ltd. (A WBI) a private corporation established in terms of Wheat Marketing F 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, G

1974. The decision of AWBJ was questioned contending that it involved an improper exercise of discretionary power in accordance with a rule or policy without regard to the merit of the case. The following interesting observation was made therein :

"67. This appeal presents an opportunity for this Court to reaffirm H

976 SUPREME COURT REPORTS [2005] I S.C.R. \..... ' A that principle in circumstances, now increasingly common, where the exercise ofpublic power, contemplated by legislation, is "outsourced" to a body having the features of a private sector corporation. The question of principle presented is whether, in the performance of a function provided to it by federal legislation, a private corporation is accountable according to the norms and values of public law or is cut B adrift from such mechanisms of accountability and is answerable only to its shareholders and to the requirements of corporations law or like rules."

[Emphasis supplied]

C As regards monopoly, it was opined :

"134. It may be that the statutory conferral of monopoly status on AWBI as a private corporation, in itself (particularly when viewed with the added fact that it was formed from what was once a public body) could impose obligations to observe the norms and values of D public law, adapted by analogy, in particular instances of its decision- making. In such circumstances, quite apart from administrative law, it has sometimes been viewed as appropriate to impose duties to the community upon such corporations out of recognition of the particular powers they enjoy ..." E In Datafin (supra) also, as was noticed, there did not exist ample statutory provisions relating to regulation of the trade. In Romeo (supra), the functioning of the corporation apart from grant of monopoly was also not controlled and regulated by any statute. It is in that sense, we presume, the expression "outsourcing" had been used by Kirby, J. F UNITED STATES OF AMERICA:

Brennan, J. in San Francisco Arts and Athletics, Inc. v. United States Olympic Committee and International Olympic Committee, [483 US 522 : 97 L.Ed. 2d 427] stating that the USOC performs a distinctive traditional government 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

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, .I.] 977 i .....J, 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 v. Tennessee Seconaary School Athletic B 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 c 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 seemingly private behavior may be fairly treated as that of the State itself'. D In Brentwood Academy (supra), it was held : >. "Our cases have identified a host of fact that can bear on the fairness of such an attribution. We have, for example, held that a challenged activity may be state action when it results from the State's exercise of"coercive power," Blum, 457 US 1004, 73 L Ed 2d 534, E I 02 S Ct 2777 when the State provides "significant encouragement, either overt or covert," ibid., or when a private actor operates as a "willful participant in joint activity with the State or its agents," Lugar, supra, at 941, 73 L Ed 2d 482, I 02 S Ct 2744 (internal quotation marks omitted). We have treated a nominally private entity as a state ~ actor when it is controlled by an "agency of the State," Pennsylvania F v. Board of Directors of City Trusts of Philadelphia, 353 US 230, 231, 1 L Ed 2d 792, 77 S Ct 806 (1957) (per incuriam), when it has been delegated a public function by the State, cf., e.g., West v Atkins, supra at 56, 101 L Ed 2d 40, 108 S Ct 2250; Edmonson v. Leesville Concrete Co., 500 US 614, 627-628, 114 L Ed 2d 660, 111 S Ct 2077 G (1991), when it is "entwined with governmental policies," or when ' ; government is "entwined in [its] management or control," Evans v. Newton, 382 US 296, 299, 301, 15 L Ed 2d 373, 86 S Ct 486 (1966).

Amidst such variety, examples may be the best teachers, and examples from our cases are unequivocal in showing that the character H

978 SUPREME COURT REPORTS [2005] I S.C.R.

A of a legal entity is determined neither by its expressly private characterization in statutory law, nor by the failure of the law to acknowledge the entity's inseparability from recognized government officials or agencies ..."

Thus, seven tests have been laid down for fulfilling the requirements of B a public body in becoming a state actor. We, however, may notice that in United States of America a public body would answer the description of a state actor if one or the other tests laid down therein is satisfied on a factual consideration and therefor the cumulative effect of all or some of tests is not required to be taken into consideration. (See also Communities for Equity v. C Michigan High 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 D 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 G noticed a large number of decisions and considered the question from several angles. He opined at pages 567-568 : l .

"It is not fortuitous that the public bodies have stood shoulder to shoulder with the private contractors in resisting the application of . the HRA, and ordinary judicial review, to the contractors. H

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.] 979 .A It will under the existing law, be difficult to maintain an action against the public body itself, either under the HRA, or via ordinary judicial review, where there has been contracting out. The public body will still be subject to the HRA and to judicial review. This should not mask the reality that contracting out will serve to preclude any meaningful action against the public body. Claims that could have been made against the public body if it had performed the service in house will no longer be possible where it has contracted this out.

It has been argued in this article that the judicial conclusions as to the applicability of the HRA and judicial review in cases of contracting out were neither legally inevitable, nor desirable in c normative terms. The contractualisation of government is riot a transient phenomenon. It is here to stay for the foreseeable future. The courts have in the past developed doctrinal fools to meet challenges posed by changing pattern of government. They should not forget this heritage." D . >, Craig in his treatise 'Administrative Law' at page 821 also made an J,.r interesting observation as regards future prospects, stating :

"If the scope ofreview is extended thus far then careful attention will have to be given to whether the procedural and substantive norms E applied against traditional public bodies should also be applied against private bodies. Many of the cases within this section are concerned with the application of procedural norms. If we were to follow Lord Woolfs suggestion then we would also have to consider whether substantive public law should be applied to such bodies. Would we insist that sporting bodies with monopoly power, or large companies F r with similar power, take account of all relevant considerations before > deciding upon a course of action? Would we demand that their actions be subject to a principle of proportionality, assuming that it becomes an accepted part of our substantive control? If there is an affirmative answer, then the change would be significant to say the very least. It G would have ramifications for other subjects, such as company law, commercial law and contract. It would increase the courts' judicial ' .l 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 H

980 SUPREME COURT REPORTS (2005] I S.C.R.

A 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 B 504, the learned authors while analyzing a recent decision of the High Court of Australia in Agar v. 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 c 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 rules of amateur sports played by adults. Even so, there is still room for argument that sporting administrators will be liable in negligence in relation to the nature and conduct of their sports. lt is conceivable D that there could be liability for employers in relation to the rules of professional sports. Any type of administrator could be liable for { misrepresentations. And liability could potentially arise for failing to fulfil a duty to warn in situations where controllers become aware of

E new information pointing to a higher level of risk than was generally appreciated. ( ' It may be that the judgments in Agar, to use the words of Gowans J in Carlton Cricket and Football Social Club v. Joseph, "are not going to be very interesting to those who have more familiarity with the rules of [rugby] football than they have with the rules of law". Nevertheless, the decision is an important one for sporting F administrators. What is more, the potential for legal liability to be ~ imposed on sporting administrators has been but partially resolved by the High Court's decision. The ball is, one might say, still in play."

The opinion of the learned authors to say the least provides a new insight. G ANALYSIS OF CASE LAW: .l... We have noticed hereinbefore that the Courts of Scotland and New Zealand differ with the English and American majority approach. H

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.) 981 ) _.. The approach of the court as regard judicial review has undergone a sea A change even in England after the Human Rights Act, I 998 came into force as doctrine of incompatibility is being applied more frequently even in determining the validity of legislations.

The English Courts despite their reluctance to exercise power of judicial review over the activities of sports association noticed in the context of B Human Rights Act, 1998 that there are public bodies which are hybrid in nature who have functions of public and private nature but they would be public authorities. [See Donoghue (supra)]

However, in San Francisco Arts and Athletics, Inc. (supra) the minority view clearly states that the governmental function of the USOC in that they c represent the nation. Justice Blackmun, J. had agreed with the said view. The minority view in Jackson (supra) was noticed in Ramana Dayaram Shelly (supra). We agree with the said view.

It is interesting to note that even 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 MC. Mehta (supra)]

The right of Indian players, having regard to the observations made in Greig and 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 F 'l~ hostile discrimination or impose an embargo which would make or mar a player's career as was in the case of Greig and 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 G would lie against it as was in the case of Datajin (supra). The question has ,1 since been considered from a slightly different angle, viz., when such action affects the human right of the person concerned holding that the same would be public function. [See Donoghue (supra)]. If the action of the Board impinges upon the fundamental or other constitutional rights of a citizen or if the same H

982 SUPREME COURT REPORTS (2005] I S.C.R.

A is ultra vires or by reason thereof an injury or material prejudice is caused ' (

to its member or a person connected with cricket, judicial review would lie. Such functions on the part of the Board being public function, any violation of or departure or deviation from abiding by the rules and regulation framed by it would be subject to judicial review. Time is not far off when having B regard to globalization and privatization the rules of administrative law have to be extended to the private bodies whose functions affect the fundamental rights of a citizen and who wield a great deal of influence in public life.

PUBLIC FUNCTION AND PUBLIC DUTY :

C Public law is a term of art with definite legal consequences. (See 0 'Reilly v. Mackman, (1982) 3 WLR 604).

The concept of public law function is yet to be crystalised. Concededly, however, the power of judicial review can be exercised by this Court under Article 32 and by the High Courts under Article 226 of the Constitution of D India only in a case where the dispute involves a public law element as contradistinguished from a private law dispute. (See Dwarka Prasad Agarwal (D) by LRs. and Anr. v. B.D. Agarwal and Ors., [2003] 6 SCC 230 at page 242)

General view, however, is that whenever a State or an instrumentality E. of a State is involved, it will be regarded as an issue within the meaning of public law but where individuals are at loggerheads, the remedy therefor has to be resorted in private law field. Situation, however, changes with the advancement of the State function particularly when it enters in the fields of commerce, industry and business as a result whereof either private bodies F take up public functions and duties or they are allowed to do so. The distinction has narrowed down but again concededly such a distinction still exists. Drawing an inspiration from the decisions of this Court as also other courts, it may be safely inferred that when essential governmental functions were placed or allowed to be performed by the private body; they must be held to have undertaken public duty or public functions. G 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: H ·. ,·

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.) 983 ) J When the state "merely" authorizes a given "private" action A imagine a green light at a street comer 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 tum on the character of the decision-making responsibility thereby placed (or left) in private hands. However B 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 pubic officials discharging c 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 cross and who must stop is a "public function" whether or not the person entrusted under state law to perform that function wears a police uniform and is paid a salary from state revenues or wears civilian garb and serves as a D volunteer crossing guard, .. ,, >. In the instant case, there does not exist any legislation made either by any State or by the Union of India regulating and controlling the cricketing activities in the country. The Board authorized itself to make law regulating E cricket in India which it did and which it was allowed to do by the States either overtly or covertly. The States left the decision making responsibility in the hands of the Board, otherwise so-called private hands. They maintain silence despite the Board's proclamation of its authority to make law of sports for the entire country. F ~ Performance of a public function in the context of the Constitution of India would be to allow an entity to perform the function as an authority within the meaning of Article 12 which makes it subject to the constitutional discipline of fundamental rights. Except in the case of disciplinary measures, the Board has not made any rule to act fairly or reasonably. In its function, the ICC does. Board as a member of ICC or otherwise also is bound to act G in a reasonable manner. The duty to act fairly is inherent in body which , ..l, exercises such enormous power. Such a duty can be envisioned only under Article 14 of the Constitution and not under the Administrative Law. The question of a duty to act fairly under. administrative law apart from Article 14 of the Constitution of India, as has been noticed in Ramana Dayaram H

984 SUPREME COURT REPORTS [2005] I S.C.R.

A Shetty (supra) (page 503), would not, thus, arise in the instant case. L ,

Governmental functions are multifacial. There cannot be a single test for defining public functions. Such functions are performed by variety of means.

B Furthermore, even when public duties are conferred by statute, powers and duties do not thereunder limit the ambit of a statute as there are instances when the conferment of powers involves the imposition of duty to exercise it, or to perform some other incidental act, such as obedience to the principles <1 of natural justice. Many public duties are implied by the courts rather than commanded by the legislature; some can even be said to be assumed C voluntarily. Some statutory 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.

D A.J. Harding in his book 'Public Duties and Public Law' summarized the said definition in the following terms: I.

"I. 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 E 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." F 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 .I... a statute. These duties may be more important than they are often thought to be or perceived. Such public duties may arise by reason of (i) Prerogative, (ii) Franchise and (iii) Charter. All the duties in each of the categories are regarded as relevant in several cases. (See A.J. Harding's Public Duties and

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.) 985 I _j Public Law, Pages 6 to 14) A The functions of the Board, thus, having regard to its nature and character of functions would be public functions.

AUTHORITY: B All public and statutory authorities are authorities. But an authority in its etymological sense need not be a statutory or public authority. Public ':> authorities. have: public. duties to perform.

-. In Aston Cantlow and Wilmcote with Billesley Parochial Church Council v. Wallbank and Anr., (2004) I AC 546 and (2003) 3 WLR 283 albeit in the c context of Human Rights Act, 1998, it was held :

" .... This feature, that.a core public authority .is incapable of having Convention.rights of its own,. is a matter to be borne in mind when considering whether or. not a. particular. body is. a core. public authority ..." D See also Hampshire County Council v. Graham Beer tla Hammer Trout Farm, (2003) EWCA Civ 1056.and.Parochial Church Council of the Parish of Aston Cantlow v. Wallbank, (2003) UKHL 37; Para.52;

There, however; exists a distinction between a statutory authority and E a public authority. A.writ not only lies against.a.statutory authority, it will also be maintainable against any person and a body discharging public function who is performing duties under a statute. A body discharging public functions and exercising monopoly power would also be an authority and, thus, writ may also lie against it: F r JUDICIAL REVIEW UNDER ARTICLES. 32: & 226 OF THE CONSTITUTION OF' INDIA:·

Judicial Review forms basic structure of the Constitution: G It is inalienable. Public law remedy by way of judicial review is available both under Articles 32 and 226 of the Constitution. They do not operate in , ..; different fields. Article 226 -operates only on a broader horizon.

The courts exercising the power of judicial review both under Articles 226, 32 and 136 of the Constitution of India act as a "sentinel on the qui H

986 SUPREME COURT REPORTS [2005] I S.C.R. A vive." [See Padma v. Hirata/ Moti/a/ Desarda and Ors., [2002] 7 SCC 564 L , at 577]

A writ issues against a State, a body 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 B 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 C 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- D 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; E (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.

p Some of the questions involved in this matter have recently been considered in an instructive judgment by High Court Delhi in Rahul Mehra -t

and Anr. v. Union of India and Ors., (Civil Writ Petition No. 1680 of 2000) disposed of on 4th October, 2004. Having regard to the discussions made therein, probably it was not necessary for us to consider the question in depth but its reluctance to determine as to whether the Board is a State within the meaning of Article 12 of the Constitution necessitates further and deeper probe. .... . The power of the High Court to issue a writ begins with a non-obstante clause. It has jurisdiction to issue such writs to any person or authority including in appropriate cases any Government within its territorial jurisdiction,

ZEE TELE FILMS LTD. v. U.O.l. [S.B. SINHA, J.] 987

I _J directions, orders or writs specified therein for the enforcement of any of the rights conferred by Part Ill and for any other purpose, Article 226 confers an extensive jurisdiction to the High Court vis-a-vis this Court under Article 32 in the sense that writs issued by it may run to any person and for purposes other than enforcement of any rights conferred by Part lII but having regard to the term 'authority' which is used both under Article 226 and Article 12, we have our own doubts as to whether any distinction in relation thereto can be made. (See Rohtas Industries Ltd and Anr. v. Rohtas Industries Staff Union and Ors., AIR (19761 SC 425.

This aspect of the matter has been considered in Andi Mukta Sadguru (supra). It has clearly been stated that a writ petition would be maintainable against other persons or bodies who perform public duty. The nature of duty c imposed on the body would be highly relevant for the said purpose. Such type of duty must be judged in the light of the positive obligation owed by a person or authority to be the affected party.

In Assembrook Exports ltd. and Anr. v. Export Credit Guarantee Corpn. D of India Ltd. and Ors., AIR (1998) Cal 1, it has been held that public law remedy would be available when determination of a dispute involving public law character is necessary. The said decision has been affirmed by this Court in ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Limited and Ors., JT (2003) 10 SC 300. [See also Tata Cellular v. Union of India, AIR ( 1996) SC 11 Paras I 0 I and I 02] and State of U. P. and E Anr. v. Johri Mal, [2004] 4 SCC 714.

The recent development in the field of judicial review vis-a-vis human rights also deserves a mention, although in this case, we are not directly concerned therewith. r F Jn Hatton and Ors. v. 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 G 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 H

988 SUPREME COURT REPORTS (2005] I S.C.R.

A 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. v. Secretwy of State for the Home Department, B (2004) 2 W.L.R. 1351, the Court of Appeal held that judicial review in certain circumstances is maintainable even on facts. (See also Judicial Review, Appeal and Factual Error by Paul Craig Q.C., Public Law, Winter 2004, page 788)

C HUMAN RIGHT : Broadcasting in television have a role to play in terms of the statute of the City of Jerusalem, approved by the Trusteeship Council on 4th April, 1950 which provides for special protective measures for ethnic, religious, or linguistic groups in articles dealing with human rights and fundamental D freedoms but also the legislative council, the judicial system, official and working languages, the educational system and cultural and benevolent institutions, and broadcasting and television. Right to development in developing countries in all spheres is also human right. [See Kapila Hingorani (supra}, para 62 and Islamic Academy of Education and Anr., (supra) Paras 211 to 215]. E To achieve .this, the promotion of human development and the preservation and protection of human rights proceed from a common platform. Both reflect the commitment of the people to promote freedom, the well- being and dignity of individuals in society. Human development as a human F right has a direct nexus with the increase in capabilities of human beings as also the range of things they can do. Human development is eventually in the interest of society and on a larger canvas, it is in the national interest also. Progress and development in all fields will not only give a boost to the economy of the country but also result in better living conditions for the people of India. G Even a hybrid body is bound to protect human rights as it cannot be violated even by such a body. The Board which has the pervasive control over the entire sport of cricket including the participants as well as spectators cannot apparently act in violation of human rights.

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.) 989 J APPLICATION OF TESTS: A The traditional tests which had impelled this Court to lay .down the tests for determining the question as to whether a body comes within the purview of "Other Authorities" in Ajay Hasia (supra), inter alia are :

"(3) It may also be a relevant factor ... whether the corporation enjoys B monopoly status which is State-conferred or State-protected.

(5) If the functions of the corporation 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. c 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 : D "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 modem 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 v. Alabama [326 US 501], it was opined : G "Although private in the property sense, it was public in the functional T ~ 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 State itself. The Court held that H

990 SUPREME COURT REPORTS [2005] I S.C.R. .L A administration of private property of such a tt.wn, though privately carried on, was, neve1theless, in the nature ofa 'public function', that the private rights of the corporation must therefore be exercised within constitutional limitations, and the conviction for trespass was reversed."

Referring to Article 13(2), it was held : B "In other words, it is against state action that fundamental rights are guaranteed. Wrongful individual acts unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings are not prohibited."

C As regards public function tests, it was held :

"Another factor which might be considered is whether the operation is an important public function. The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given D function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion." E Conversely put, if the functions of the body falls within the description of the public function, absence of State financial aid would not influence the conclusion to the contrary. As regards, governmental aid, it was noticed:

"The State may aid a private operation in various ways other than by direct financial assistance. It may give the organization the power of eminent domain, it may grant tax exemptions, or it may give it a monopolistic status for certain purposes."

The legal position in America in this behalf was also noticed in the following terms :

"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

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.] 991 J confer the right of collective bargaining." A (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 m(lder11 State operates a B 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 c 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 .. D (iv) When it regulates the right of a citizen contained in Article 19(l)(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; E (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. F r·

We, thus, would have to proceed to determine the knotty issues involved therein on a clean slate.

These traditional tests of a body controlled financially, functionally and administratively by the Government as laid down in Pradeep Kumar Biswas G (supra) would have application only when a body is created by the State itself r ..; for different purposes but incorporated under the Indian Companies Act or Societies Registration Act.

Those tests may not be applicable in a case where the body like the H

992 SUPREME COURT REPORTS (2005) I S.C.R. l A Board was established as a private body long time back. It was allowed by the State to represent the State or the country in international fora. It became a representative body of the international organizations as representing the country. When the nature of function of such a body becomes such that having regard to the enormity' thereof it acquires the status of monopoly for all practical purposes; regulates and control the fundamental rights of a citizen as regard their right of speech or right of occupation, becomes representative of the country either overtly or covertly and has a final say in the matter of registration of players, umpires and other connecting with a very popular sport. The organizers of competitive test cricket between one association and another or representing different States or different organizations having the status of a state are allowed to make laws on the subject which is essentially a State function in terms of Entry 33 List II of the Seventh Schedule of the Constitution of India. In such a case, different tests have to be applied.

The question in such cases may, moreover, have to be considered as to whether it enjoys the State patronage as a national federation by the Central D Government; whether in ce1tain matters a joint action is taken by the body in question and the Central Government; its nexus with the Governments or its bodies, its functions vis-a-vis the citizens of the country, its activities vis- a-vis the government of the country and the 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 are entirely private in character. Conversely

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, .I.] 993 __./. absence of funding for the functioning of the body or the organization would A ... 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 fonns, 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. B

It is true that regulatory measures applicable to all the persons similarly situated, in tenns of the provisions of a statute would by itself not make an organization a State in all circumstances. Conversely, in a case of this nature non-interference in the functioning of an autonomous body by the Government by itself may also not be a determinative factor as the Government may not c consider any need therefor despite the fact that the body or organization had ·been discharging essentially a public function. Such non-interference would not make the public body a private body.

WHAT CRICKET MEANS TO INDIA: D ;k We have laid down the tests aforesaid ~nd the approaQ\i which needs to be adopted in detennining the issue as to whether the Board is a State or not. Before we embark on this enquiry, it would be )\eces$ary to keep in mind as to what cricket means to the citizens of this counb'y. E Cricket in India is the most popular game. When India plays in international fora, it attracts the attention of millions of people. The win or loss of the game brings 'joy' or 'sorrow' to them. To some lovers of the game, it is a passion, to a lot more it is an obsession, nay a craze. For a large number of viewers, it is not enthusiasm alone but involvement. ~- F MEMORANDUM OF ASSOCIATION OF BOARD:

The Board is a society under the Tamil Nadu Societies Registration Act, 1975. In tenns of its Memorandum of Association, its objects, inter alia, are to control the game of Cricket in India and to resolve the disputes and G to give its decision on matters referred to it by any State, Regional or other r -< Association, to promote the game, to frame the laws of cricket in India, to select the teams to represent India in Test Matches and various others and to appoint India's representative or representatives on the International Cricket Conference and other Conferences, Seminars, connected with the game of cricket; H

994 SUPREME COURT REPORTS [2005] I S.C.R. ..... A 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 : B "!.INTERPRETATION:

(i) "REPRESENTATIVE" of a Member or an Associate Member means a person duly nominated as such by the Member or the + Associate Member. c (I) "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 D 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 E 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 body for cricket in any State within the territory of India may be affiliated and shall be an Associate Member. Even the organization at the district level and the State level had to become its member for effective participation in the game. Rule 8 empowers the Board to nominate distinguished persons by ~ ' invitation to be Patron in Chief or Patrons of the Board. The powers and duties of the Board have been referred to in Rule 9; some of which are as under : H

ZEE TELE FILMS LTD. v_ U.O.L [S.B. SINHA, .I.] 995 __,., (a) To grant affiliations as provided in the Rules or to disaffiliate A .,.. Members on disciplinary grounds . (b) To arrange, control and regulate visits of foreign cricket teams to India and visits of Indian teams to foreign countries and to settle the terms on which such visits shall be conducted. (c) To lay down conditions on which Indian players shall take part B in a tour to any foreign country and by which such players shall be governed, including terms of payments to such players. 't (d) To frame bye-laws and lay down conditions including those of travel, accommodation and allowances under which Indian players shall take part in Cricket Tournaments/Matches or Exhibition, c Festival and Charity matches organized by the Board or by a Member under the authority of the Board in the course of a visit or tour of a foreign Cricket team to India. (f) To permit under conditions laid down by the Board or refuse to permit any visit by a team of players to a foreign country or to D India. (g) To frame the Laws of Cricket in India _and to make alteration, amendment or addition to the laws of Cricket in India whenever desirable or necessary. E (n) To take disciplinary action against a player or a Member of Board. (o) To appoint Manager and/or other official of Indian teams.

Rule I 0 provides for complete power and control over players within the jurisdiction of a member or an associate member. .,.. F 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. G 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. H

996 SUPREME COURT REPORTS (2005] I S.C.R.

A 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." B Rule 35 provides for an exclusive right in the Board to organize foreign tours and invite teams from abroad, in the following terms :