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

"No organization other than a Member or Associate Member, Clubs t or Institutions affiliated to such members shall organize foreign tours c to or invite teams from abroad. Members or Associate Members or such clubs or institutions, desirous of undertaking tours abroad or inviting foreign teams shall obtain the previous permission of the Board. Such permission may be given in accordance with the Rules framed by the Board."

D The procedure for dealing with the misconduct on the part of players, umpires, team officials, administrators, referees and selector is contained in Rule 38 which also empowers it to frame Bye-laws regarding their discipline and conduct.

E ICC RULES: In the Articles of Association of the ICC, the words "Cricket Authority", Full Member Country(ies)" and "Member Country(ies)" have been defined as under :

"Cricket Authority" a body (whether incorporated or not) which ·is F recognized by the Council as the governing body responsible for the administration, management and development of cricket in a Cricket Playing Country (being at the date of incorporation of the Council the bodies of that description shown in the names and addresses of subscribers to the Memorandum of Association); G "Full Member Country (ies)" any Member Country whose Cricket Authority is a Full Member and shall, when the context requires, include the Cricket Authority of that Member Country; .. "Member Country (ies)" any country or countries associated for cricket purposes or geographical area, the governing body for cricket of H

ZEE TELE FILMS LTO. v. U.0.1. [S.B. SINHA, J.) 997 which is a Full Member, an Associate Member or an Affiliate Member, A as the context may require;"

GUIDELINE CRITERIA FOR FULL MEMBERSHIP OF ICC

"A country applying for admission as a Full Member of ICC should , use the following criteria." B Paragraph I inter alia provides for playing. Paragraphs 1.2, 4 and 5 provide for Cricket Structure, Financial and Standing respectively.

The membership guidelines relating to one day international matches speaks of test playing nation and formation of national association. Preamble C to One Day International (OD!) Status reads as under :

"ODI status is not an ICC membership category, but rather a sub- category of Associate Membership. OD! status was created to provide a vehicle by which leading Associate Members could play official One Day International matches against Full Members in order to D better equip them to apply for Full Membership at the appropriate time.

The Criteria for OD! status are extremely demanding and OD! status will only be conferred when the applicant country has a history of excellence in both playing and administration. As a precondition the applicant must be E a leading Associate Member and meet all the criteria of Associate Membership.

Qualification Rules for International Cricket Council Matches, Series and Competitions read as under :

*** *** *** F "(a) Definitions

(b) Qualification Criteria

I. A cricketer is qualified to play Representative Cricket for a Member G Country of which he is a national or, in cases of non-nationals, in which he was born ...

2. A player who has resided for a minimum of 183 days in a Member Country in each of the 4 immediately preceding years shall be a "deemed national" of that country for the purpose of these Rules. H

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A ••• *** *** (c) Transfer of "Playing Nationality"

1. Cricketers qualified to play for a Member Country can continue to represent that country without negating their eligibility or interrupting B their qualification period for another Member Country up until the stage that the cricketer has played for the first Member Country at under 19 level or above .....

(d) Applications t

I. Each Member Country shall require each player to certify his c eligibility to represent that Member Country.

*** ••• (f) Register of Cricketers and Proof of Qualification

D I. Each Member Country shall, prior to the Effective Date, establish and thereafter maintain a register of cricketers which shall record the name, address and nationality of those cricketers who shall in each year commencing at the beginning of that Member Country's domestic cricket season be seeking to play first-class cricket in that Member Country (or the equivalent national competition in those countries which do not have first-class cricket) for any local club or team including any State or Country Team.

2. Each Member Country shall from time to time provide to the Chief Executive ICC on request and at the expense of that Member Country details as to any entries made in its register of cricketers in respect of any year, including copies of the register or of the relevant extracts therefrom.

3. Each Member Country shall from time to time provide to the Chief Executive ICC on request and at the expense of that Member Country, any relevant information as to the fulfillment by a particular player or players of any one or more of the applicable qualification criteria (including as appropriate the Development Criteria) under these Rules." .... As per ICC Rules and Guidelines for classification of official cricket, the definition of a Test Match in clause l(a)(i) is as follows :

H "Any cricket match of not more than 5 days scheduled duration played

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, J.) 999 between two teams selected by full members as representatives of their member countries and accorded the status of test match by the Council."

GUIDELINES ISSUED BY UNION OF INDIA :

Indisputably, the Union of India had issued guidelines which had been reviewed from time to time. The Ministry of Youth Affairs and Sports issued the revised guidelines and forwarded the same to the Presidents/Secretary General, Indian Olympic Association and the Presidents/Hony. General Secretaries of all recognized Sports Federations incorporating therein the amended provisions. Cricket is included in Annexure-1 within the category C [Others (C)].

While issuing the Guidelines, it has been asserted that the Government attaches considerable importance to development of sports in general and achieving excellence in the Olympics and other international events in particular, as also the unsatisfactory performance of the Indian Team(s) in D. important international sports events. It was recorded that over the years the Government had been actively supporting the National Sports Federations in the matter of development of specific games/sports discipline.

The objective of the said guidelines was to define the areas of responsibility of various agencies involved in the promotion and development E of sports, to identify National Sports Federations eligible for coverage thereunder and to state the conditions for eligibility which the Government would insist upon while releasing grants to Sports Federations. Para Ill speaks of role and responsibility of the Ministry of Youth Affairs and Sports, National Sports Federations and the Sports Authority. Para IV provides for priority sports which have been categorized as: (a) 'Priority', (b) 'General Category' F and (c) 'Other Category'. Para 8 refers to grants given to National Federations under different sub-heads. Clause 8.8 specifies the funds with which the National Sports Federations would be assisted for holding the international tournaments. Clause 8.⁹ provides for cultural exchange. G Para 9 provides for clubbing and dovetailing of schemes of SAi and the Ministry. Para XI provides for long term development plans. Para XII deals ' .). with miscellaneous matters.

Annexure-11 appended to the said guidelines provides for recognition of National Sports Federations, inter alia, by laying down the eligibility therefor H

1000 SUPREME COURT REPORTS [2005) I S.C.R.

A and the necessity of filing of applications in that behalf. Clause 3.12 reads as under :

"There would be only one recognized Federation for each discipline of sport, irrespective of the fact that the particular sport caters to youngsters, men, women or veterans. However, this condition B shall not apply to Federations already recognized by the Department."

Clause 5 provides for grant of recognition. Annexure-III appended to the said guidelines provides for the procedure for suspension/withdrawal of recognition and consequences thereof. The said guidelines also prescribe forms required to be used by the federations for different purposes. c The Board for all intent and purport was a recognized body. Probably in that view of the matter, the Board did not think it necessary to apply for grant of such recognition of the Union of India asking it for passing a formal order. However, the Board had all along been obtaining the requisite permission for sending an Indian team abroad or for inviting a foreign team in India in the prescribed form.

EXPRESS RECOGNITION - ESSENTIAL?

Union of India has issued certain guidelines evidently in exercise of its power conferred on it under Article 73 of the Constitution of India for regulating sports in India. The said guidelines have been issued having regard to objects it sought to achieve including the poor performance of Indian Team abroad. The said guidelines have been moreover issued in exercise of its control over the National Sports Federations. The sport of Cricket was not included within the said guidelines. Both mens' and womens' cricket had been brought within the purview of the said guidelines in the year 200 I. They provide for grant of recognition. The Board contends that it had never applied for recognition nor had it asked for financial aid or grant of any other benefit. Factually the Union of India has not been able to controvert this position although in its affidavit affirmed by a Deputy Secretary to the G Government of India, Ministry of Youth Affairs and Sports, it has stated that Board is a recognized National Federation. It is true that no document has been produced establishing grant of such recognition; but in its additional affidavit affirmed by Mrs. Devpreet A. Singh, Deputy Secretary to the Government of India, Ministry of Youth Affairs and Sports, a number of documents have been annexed which clearly go to show that from the very beginning the Board had been asking for permission of the Ministry of Human

ZEE TELE FILMS LTD. v. U.0.1. {S.B. SINHA, J.] I 001

Resource Development either to go abroad or to play or participate in other countries or for inviting the others to play in India. Such permission had been sought for in the form prescribed in terms of the said regulations. The said documents leave no manner of doubt that the Board had asked for and the Union of India had granted de facto recognition.

In the affidavit dated 8th October, 2004 affirmed by a Deputy Secretary B to the Government of India, Ministry of Youth Affairs and Sports, it is stated:

"\. I am informed that this Hon'ble Court required to be apprised as to whether it was mandatory for all sporting bodies including private entities or clubs to seek permission and to obtain the same for playing in tournaments abroad. C

2. In response to the issue raised before this Hon'ble Court, it is respectfully submitted that only the recognized National Sports Federations are required to apply in the prescribed format for seeking permission to go abroad to play as a Team representing India. There D have been instances where club teams, organizations engaged in sports activities etc. have applied for such permission but the Ministry has considered their request only when they were received through the National Sports Federation BCCI in this case."

It is not disputed that the Union of India has not recognized any other national sports body for regulating the game of cricket in India. It is the categorical stand of the Union of India that only by such recognition granted by the Union of India, the team selected by the Board is the Indian cricket team which it could not do in absence thereof. We cannot accept the submission of Mr. Venugopal to the effect that even while playing abroad, the Board sends its own team. It is evident from the records which fact has also been noticed by the Delhi High Court in its judgment in Rahul Mehra (supra) that > the Board fields its team as Indian Team and not as Board Eleven, which without having any authority from the Union of India, it will not be able to do. The stand that the cricket team selected by the Board only represents it and not the country is incorrect. Having regard to the rules of the ICC, its own rules as also various documents placed before this Court by the Union of India, the conduct of both the Board and the Union of India clearly go to show that sub silentio both the parties had been acting on the premise that the Board is recognized as the only recognized National Federation for the purpose of regulating the game of cricket in India. H

1002 SUPREME COURT REPORTS (2005] I S.C.R.

A BOARD A ST ATE?

The Board is a society registered under the Tamil Nadu Societies Act. It is not created under a Statute but it is an acknowledged fact that in terms of its Memorandum of Association and rules framed by it, it has not only the monopoly status as regard the regulation of the game of cricket but also can B lay down the criteria for its membership and furthermore make the law of sport of cricket. The Board for all intent and purport is a recognized national federation recognized by the Union of India. By reason of said recognition only, an enormous power is exercised by the second Respondent which from selection and preparation of players at the grass root level to organize Daleep C Trophy, Ranji Trophy etc. select teams and umpires for international events. The players selected by the second Respondent represent India as their citizen. They use the national colour in their attire. The team is known as Indian team. It is recognized as such by the ICC. For all intent and purport it exercises the monopoly.

D The Board is in a position to expend crores of rupees from its own earnings. The tender in question would show that what sort of amount is involved in distributing its telecasting right for a period of four years, inasmuch as both the First Petitioner and the Fifth Respondent offered US $ 308 millions therefor.

E A monopoly status need not always be created by a law within the meaning of clauses 2 to 6 of Article 19 of the Constitution of India.

A body which carries on the monopolistic function of selecting team to represent the nation and whose core function is to promote a sport that has become a symbol of national identity and a medium of expression of national F pride, must be held to be carrying out governmental functions. A highly arbitrary or capricious action on the part of such a powerful body would attract the wrath of Article 14 of the Constitution of India. The Board itself acted as a representative of the Government of India before the international community. It makes representations to the effect that it was entitled to select G a team which represents the nation as a cricket playing country, and, thus, the same would, without anything more, make its action a State action. For the said purpose, actual control of the Board or issuing any direction in that behalf by the Government of India is not of much significance but the question as to whether the G<.'vernment, considering the facts and circumstances, should control the actions of the Board as long as it purports to select a team to represent India would be a matter of great significance. The guidelines issued

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.] 1003 by the Union of India clearly demonstrate its concern with the fall in standard of Indian Team in sports in important international sports events. It would not be correct to draw a comparison between an event of international sport as significant as cricket with beauty pageants and other such events as the test necessary to be evolved in this behalf is the qualitative test and not the quantitative test. The quality and character of a sport recognized as a measure of education and nation building (as a facet of human resources development) cannot be confused with an event that may be a form of entertainment. 7 Cricket, as noticed hereinbefore, has a special place in the hearts of citizens of India. ·

The monopoly status of the Board is undisputed. The monopoly enjoyed by the Board need not be a statutory one so as to conform to the tests contained in Clause (6) of Article 19 of the Constitution. It can be a de facto monopoly which has overtly or covertly received the blessings of Union of India. The de facto monopoly of the Board is manifest as it, as a member of ICC (even ifit is technically possible to float any other association), can send an Indian Team abroad or invite a foreign team onto India. In absence of recognition from the ICC, it would not be possible for any other body including the Union of India to represent India in the international Cricket events featuring competitive cricket. So would be the position in domestic cricket. The Board in view of enormity of powers is bound to follow "the doctrine of fairness and good faith in all its activities". [See Board of Control for E Cricket, India and Anr. v. Netaji Cricket Club and Ors., JT (2005) I SC 235].

The object of Part Ill of our Constitution is to curtail abuse of power and if by reason of the Board's activities, fairness in action is expected, it would answer the description of "Other Authorities". F The decisions rendered in different jurisdictions including those of this Court clearly suggest that a body like the Board would come within the purview of the expression "Other Authorities" contained in Article 12 of the Constitution of India. For the said purpose, a complete new look must be bestowed on the functions and structures of the Board. A public authority, in my opinion, would be an authority which not only can regulate and control G the entire sports activities in relation to cricket but also the decisive character • ~ it plays in formulating the game in all aspects. Even the Federations controlled by the State and other public bodies as also the State themselves, in view of the Board's Memorandum of Association and the Rules and Regulations framed by it, are under its complete control. Thus, it would be subject to a H

1004 SUPREME COURT REPORTS [2005) I S.C.R. ;... A judicial review. The history of ICC has been noticed by the Court of Appeal in Greig (supra)" and, thus, it may not be necessary to retrace it over again.

It is not disputed that the Government in terms of its guidelines B recognizes only the Board. Its recognition whether formal or informal is evident as both the Union of India and the Board proceeded on that basis. In international arena the regulated cricket is also known as official cricket. The rules of the ICC suggest that a domicile of one country can play in county + clubs but only citizens or other persons who come within the purview of the said rules must play for their country in test or other official matches in terms c of the ICC Rules. The tournaments are held between the countries and at the domestic level between States/regions and the other clubs over which the Board has an exclusive and complete control. In the international level, the ICC recognizes the national federations only who are its members having regard to the fact that these federations either represent a country or a D geographical area. The very fact that recognition of ICC has been extended to a geographical area (as for example, the West Indies comprising of so many countries), goes to show that for the said purpose the consensus amongst various bodies and several nations is necessary.

It is true that a country as such is not a member of ICC and in some places of the Rules for the purpose of election of the President, the country is represented through its national federation which is its full time member. It is furthermore true that the ICC Rules refer as a nation not only a 'country' but also a geographical area covering several countries but a bare perusal of the rules in its entirety would clearly go to show that only those national federations which represent the country can become its whole time or associate members. The expression "country" has been used at numerous places. It is • one thing to say that legally it is permissible to make a Club a member but unless it has the national patronage, it is inconceivable that it can obtain membership of ICC in any capacity. Theoretically in the ICC, the Board is a member but it without State patronage directly or indirectly would reduce its activities. In case any other body is recognized by the Union of India, it would not be entitled to regulate the sport of cricket in India. Perforce it has to abandon its functions outside the country. ... . In the Rules framed by the ICC, the principles of natural justice containing elements (a) the right to a fair hearing; and (b) the rule against bias has been specifically provided for. These are in keeping with the function

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA. J.] I005 of public body and not private body. But, so far as the rules framed by the A Board are concerned, the principles of natural justice are required to be followed only in the event a disciplinary action is contemplated and not otherwise.

The submission of Mr. Venugopal that Union of India having made a categorical statement before the Parliament as also in its affidavit in the case of Rahul Mehra (supra) before the High Court of Delhi wherein it is accepted that the Board is not under the control of the Union of India nor there exist any statutory rules to regulate its functioning and further the issues raised in the said writ petition relate to the internal functioning of the Board, which is autonomous in its function, having regard to the materials on record may not be of much significance. We must moreover notice that the Minister of Youth Affairs and Sports in an answer to the Parliament also stated :

"The promotion of the game of cricket in the country is the responsibility of the Board of Control for Cricket in India (BCCI) which is an autonomous organization." D Such responsibility on its part makes it a State actor.

When a query was made from the Board to give reply to a starred question dated 11.12.2001, the Board in its letter dated 13 .05 .2003 replied as follows : E " ... We would like to reiterate that the Annual Reports of BCCI are already available with your Ministry."

The tenor of the letter, thus, runs contrary to the assertion of the Board that it has never sent its accounts to the Government. F It is accepted by the Union of India that the Board is an autonomous organization and the Government of India does not hold any cricket match series as it is the function of the Board, but that is all the more reason as to why it has its own responsibilities towards officials, players, umpires, coaches, administrators and above all the cricket loving public. G However, we may place on record that there are a number of documents filed by the Union of India which clearly go to show that either for sending Indian Team abroad or inviting a foreign team on the soil of India, the Board has invariably been taking permission from the Ministry of Youth Affairs and Sports. In the counter affidavit filed before the Bombay High Court, the H

1006 SUPREME COURT REPORTS [2005) I S.C.R.

A Board raised a contention that it seeks permission of the Union of India for obtaining visas, foreign exchange and matters connected therewith: but the said contention cannot be accepted in view of the fact that had the same been the position, the Ministry of Human Resource Development (which has nothing to do in these matters), would not have been approached therefor and that too in the form prescribed in the guidelines.

The Board's activities representing the country is not confined to international forums only. The Board within the country organizes and conducts the Ranji Trophy, the Irani Trophy, the Duleep Singh Trophy, the Deodar Trophy and the NKP Salve Challenge Trophy. Although, there are domestic events, indisputably only those who are members of the Board and/ or recognized by it can take part therein and none else. This also goes to show that the Board regulates the domestic competitive cricket to the fullest measure and exercises control over its members which represents the five zones in India. All the States Federations besides a few other clubs which are its members, two of which it will bear repetition to state, are governmental organizations. Indisputably the Board is a regulator of cricket played at the country level both off and on the fields including selection of players and umpires. ICC possesses and exercises all the powers to regulate international competitive cricket. It exercises disciplinary power also as in case of violation of the rules, a country member or the player may be derecognized. The ICC exercises a monopoly over the sports at the international level whereas Board does so at the country level. It is the Board only, to the exclusion of all others, that can recognize bodies who are entitled to participate in the nominated tournaments. Players and umpires also must be registered with it. In the event p of violation of its rules and regulations, which may include participation in an unauthorized tournaments without its permission, a player or umpire would forfeit his right to participate in all official cricket matches which for all intent and purport shall be the end of career of a professional cricketer or umpire.

G In our constitutional scheme rule of law would, by all means, prevail over rule of cricket. A body regulating the game of cricket would be compelled by the court to abide by rule of law. .. '

The hallowness of the claim of the Board that its players play for it and not for India is belied by the claim of the former players who categorically H stated that they have played for India and not for the Board. Whenever

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA . .J.] I 007 players play for the Board, the Team is named as Board-Eleven. [See 'The A Times of India' October 24, 2004 and 'Hindustan Times' October 24, 2004]. It undertakes activities of entering into contracts for telecasting and broadcasting rights as also advertisements in the stadia.

While considering the status of the Board vis-a-vis Article 12 of the Constitution of India, the Central Government's reluctance to interfere with its day to day affairs or allowing it to work as an autonomous body, non- assistance in terms of money or the administrative control thereover may not '> be of much relevance as it was not only given de facto recognition but also it is aided, facilitated or supported in all other respects by it.

It would not be correct to contend that a monopoly status upon a body must be conferred either by way of statute or by the State by issuing an appropriate order in that behalf. The question as regard exercise of monopoly power by the Board of must be determined having regard to the ground realities i.e. it not only represents the country but also controls and regulates the entire field of competitive cricket. D •· ~. Despite the fact that the relationship between the Board and the players is not that of an employer and employee, but the players are within its complete control. Sports activities of the countries being not a commercial activity, as has been held in Cricket Association of Bengal (supra), the same must be considered froin a larger spectrum of the Indian citizenary as a E whole.

It is not disputed that as of now except the Board there is no other authority in the field. The rules framed by the Board do not spell out as to how without virtual recognition of the Union of India as also the patronage of States whether de facto or de jure it could become a national federation and how it could become a member of the ICC. It does not furthermore disclose as to how it could having regard to its professed function as a private club, could grant to itself enormous powers as are replete in its rules and regulations. Rules and regulations framed by the Board speak out for themselves as to how it represents Indian cricket team and regulates almost all the activities pertaining thereto. It also legislates law of sports in India in the field of competitive cricket. There is no area which is beyond of the control and regulation of the Board. Every young person who thinks of playing cricket either for a State or a Zone or India must as of necessity be a member of the Board or its members and if he intends to play with another organization, it must obtain its permission so as to enable him or continue to H

1008 SUPREME COURT REPORTS [2005) I S.C.R.

A participate in the official matches. The professionals devote their life for playing cricket. The Board's activities may impinge on the fundamental rights of citizens.

There is no gainsaying that there is no organization in the world other than the ICC at the international level and the Board at the national level that B control the game of first class cricket. It has, thus, enormous power and wields great influence over the entire field of cricket. Cricket when it comes to competitive matches no longer remains a mere entertainment it commands such a wide public interest. It is now recognized that game of cricket as an activity gives a sense of identity and pride to a nation. c Legal meaning attributed to the wordings of the Article 12 would lead to the conclusion that the Board is a State. It is true that while developing the law operating in the field a strict meaning was not adhered to by this Court but it may not now be possible to put the clock back. We must remind ourselves that if Article 12 is subjected to strict constructions as was sought D to be canvassed by Lahoti, J. in his minority opinion in Pradeep Kumar Biswas (supra), the same would give way to the majority opinion.

In sum, the control of the Board over the sport of competitive cricket is deep and pervasive, nay complete.

E The word 'control' has been defined in Black's Law Dictionary in the following terms :

"Control-power or authority to manage, direct, superintend, restrict, regulate, govern, administer, oversee."

p In Bank of New South Wales v. Common Wealth, [76 CLR 1], Dixon, J., observed that the word 'control' is 'an unfortunate word of such wide and ....._.• ambiguous import that it has been taken to mean something weaker than 'restraint', something.equivalent to 'regulation'. Having regard to the purport and object of activities of the Board, its control over 'cricket' must be held to be of wide amplitude. G It is not correct that the Board represents itself in international area. If it represents the country, indisputably it must have the implied sanction of the Government of India to do so. Its activities, thus, have so far-reaching effect .

H The Union of India has since filed affidavits categorically stating that

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA . .I.] 1009 ....( the Board is a 'State' within the meaning of Article 12 of the Constitution of A ,. India. It has further been stated that not only the Board is recognized de facto but it had all along been seeking permission for going abroad from the Ministry of Human Resource Development (Ministry of Youth Affairs and Sports).

The players who participate in the competitiw cricket whether domestic B or international are not amateurs; but professionals. They play on receipt of remuneration therefor and furthermore make a lot of earnings by way of advertisements. They participate in the game for a purpose.

The Board's commands bind all who are connected with cricket. The rules and regulations framed by it for all intent and purport are "the code" c which regulate an important aspect of national life. Such codes on the premise whereof the Board has been permitted by all concerned including the Union of India and the States to operate so as to regulate and control not only the sport of cricket as such but also all other intimately connected therewith and in particular the professionals . D A ... It is not in dispute that the players wear national colours in their attires and it also appears from the correspondences that the Board drew the attention to the Government of India that the players to show their pride of being Indian also exhibit Ashok Chakra on their helmets. E We may notice that in Union of India v. Naveen Jindal and Anr., [2004] 2 SCC 510, this Court as regard right of a citizen to fly the Indian National Flag observed :

"14. National Flags are intended to project the identity of the country. They represent and foster national spirit. Their distinctive designs F ', ~- and colours embody each nation's particular character and proclaim > the country's separate existence. Thus it is veritably common to all nations that a national flag has a great amount of significance ... "

The State had been taking on more and more sports related activities and thus courts have examined the purport and ambit of activities of such G bodies keeping in view wider and wider range of measures the executive and t ... the Central Government adopt.

The Board, having regard to its functions and object, had also been granted exemption from payment of Income-tax. Such exemption has been H

1010 SUPREME COURT REPORTS [2005) I S.C.R. l- A granted with a view to fulfill its objectives to promote sports of cricket. The Board, thus, in terms of ICC Rules, is representative of India. The .. membership although is in the name of the Board; it is the country which matters. It may be that when the Board and the ICC were constituted the concept was that the game of cricket would be played by clubs but with the B passage of time, the concept has undergone a sea change. In any event, the .... ICC does not say that it does not recognize the country and merely recognizes the clubs. ,, The Board (although such a contention has not been raised in any affidavit but in the written submissions only) allegedly spends crores of c rupees in providing funds to construction of stadia, running zonal cricket academies under national cricket academy, providing the State Associations with modern gymnasium equipments, medical expenses of the players, pension scheme and expenditure on coaches, physiotherapists, trainers, etc., but it is not disputed that it earns a lot of revenue through sale of tickets, advertisements in the stadia, selling of advertisement in the electronic media, giving out contracts by way of food stalls and installation of other stalls, selling of broadcasting and telecast rights, highlight programmes. The Board is ~ - admittedly not a charitable trust.

The State legislature as also the Parliament have the legislative competence to make legislation in respect of sports, but no such legislation has yet seen the light of the day. We have noticed hereinbefore that the Board in terms of its Memorandum of Association as also rules and regulations framed by it is entitled to make laws for Cricket in India. The States and the Union of India despite knowledge did not object thereto. They, thus, made themselves bound by the said Rules and Regulations. In that sense, exercise of law making power contemplated by legislation has been outsourced to the ~- Board.

The Board which represents a nation with or without a statutory flavour has duties to perform towards the players, coaches, umpires, administrators and other team officials. They have a duty to create safe rules for the sport, if by reason thereof a physical injury to the player is to be avoided and to keep safety aspect under ongoing review. A body may be autonomous but with autonomy comes responsibility. Sport is a "good thing" wherefor a societal end is to be provided. Sport must receive encouragement from the State and the general public or at least not discouraged. Health, sociability H

ZEE TELE FILMS LTD. v. U.O.I. [S.B. SINHA, J.) l 011 and play are considered to be important values to be recognized in a human. A

Encouragement of games and sports in terms of Entry 33 of the State List and Entries 45 and 97 of the Union List is a State function. We have noticed the main objects of the Board which are to promote, control, regulate, make laws for the country and encourage the game of cricket. The Union of India or the respective Governments of the States in stead and place of B making a legislation have thought it fit to allow the sports bodies to grow from its grass-root· ievel by applying the reverse pyramid rules and by encouraging all associations and federations from village level to national level. We have seen that whereas in each State there is a State federation, they must as of practice or precedent become a member of the Board. State C Federations and some other organizations essentially having regard to their respective nature of functions only are members of the Board. They include Association oflndian Universities, Railway Sports Control Board and Services Sports Control Board.

Furthermore, having regard to the nature of activities, viz., the Board D represents a sovereign country while selecting and fielding a team for the country with another sovereign country promoting and aiming at good relations with the said country as also peace and prosperity for the people, even at the domestic level the citizens of the said country may be held to be entitled to the right to invoke the writ jurisdiction of this Court even if thereby no personal fundamental right is directly infringed. E With the opening up of economy and globalization, more and more governmental functions are being performed and allowed to be performed by private bodies. When the functions of a body are identifiable witllthe State functions, they would be State actors only in relation thereto. F An authority necessarily need not be a creature of the statute. The powers enjoyed and duties attached to the Board need not directly flow from a statute. The Board may not be subjected to a statutory control or enjoy any statutory power but the source of power exercised by them may be traced to the legislative entries and if the rules and regulations evolved by it are akin G thereto, its actions. would be State actions. For the said purpose, what is necessary is to find out as to whether by reason of its nature of activities, the functions of the Board are public functions. It regulates and controls the field of cricket to the exclusion of others. Its activities impinge upon the fundamental rights of the players and other persons as also the rights,, hopes and aspirations H

1012 SUPREME COURT REPORTS [2005] I S.C.R.

A of the cricket loving public. The right to see the game of cricket live or on television also forms an important facet of the Board. A body which makes a law for the sports in India (which otherwise is the function of the State), ·- conferring upon itself not only enormous powers but also final say in the disciplinary matter and, thus, being responsible for making or marring a B citizen's sports career, it would be an authority which answers the description of "other authorities".

The Board, it appears, even nominates cricketers for the Arjuna Awards.

The game of cricket both in the domestic fora as also the international fora cannot reach the desired results unless the Board acts in terms of the c governmental policies or the government is entwined in its management or control of the Board or any of its agencies - statutory or otherwise. Apart from the above, the other tests laid down in Brentwood Academy (supra), viz., "willful participant in joint activity with the State or its agents'', in our opinion, would make the Board as a State actor. D The activities undertaken by the Board were taken note of in the case of Cricket Association of Bengal (supra). Therein this Court inter a/ia rejected the contention of the Ministry of Information and Broadcasting that the activities of the Association was a commercial one and it had been claiming a commercial right to exploit the sporting event as they did not have the right to telecast the sporting event through an agency of their choice in the following terms :

"We have pointed out that that argument is not factually correct and what in fact the BCCI/CAB is asserting is a right under Article 19(1 )(a). While asserting the said right, it is incidentally going to earn some revenue. In the circumstances, it has the right to choose the best method to earn the maximum revenue possible. In fact, it can be accused of negligence and may be attributed improper motives, if it fails to explore the most profitable avenue of telecasting the event, when in any case, in achieving the object of promoting and popularizing the sport, it has to endeavour to telecast the cricket matches."

The aforementioned findings pose a question. Could this Court arrive at such a finding, had it not been for the fact that the association exercises enormous power or it is a 'State' within the meaning of Article 12. If Cricket H Association of Bengal (supra) was considered to lie a pure private body

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA, .1.) 1013 where was the occasion for this Court to say that 'if it fails to explore the A most profitable avenue of telecasting the event whereby it would achieve the object of promoting and popularizing the sport, it may be accused ofnegligence and may be attributed improper motives?'

Applying the tests laid down hereinbefore to the facts of the present case, the Board, in our considered opinion, said description. It discharges a B public function. It has its duties towards the public. The public at large will -; look forward to the Board for selection of the best team to represent the country. It must manage its housekeeping in such a manner so as to fulfill the hopes and aspirations of millions. It has, thus, a duty to act fairly. It cannot act arbitrarily, whimsically or capriciously. Public interest is, thus, involved C in the activities of the Board. It is, thus, a State actor.

We, therefore, are of the opinion that law requires to be expanded in this field and it must be held that the Board answers the description of"Other Authorities" as contained in Article 12 of the Constitution of India and satisfies the requisite legal tests, as noticed hereinbefore. It would, therefore, be a D 'State'.

PRECEDENT:

Are we bound hands and feet by Pradeep Kumar Biswas (supra)? The answer to the question must. be found in the law of precedent. A decision, it E is trite, should not be read as a statute. A decision is an authority for the questions of law determined by it. Such a question is determined having regard to the fact situation obtaining therein. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for consideration. A '· • judgment, as is well-known, must be read in its entirety and the observations F } made therein should receive consideration in the light of the questions raised before it. [See Punjab National Bank v. R.L. Vaid and Ors., [2004] 7 SCC

Although, decisions are galore on this point, we may refer to a recent G one in State of Gujarat and Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal and Ors., AIR (2004) SC 3894 wherein this Court held :

" ... It is trite that any observation made during the course of reasoning in a judgment should not be read divorced from the context in which they were used." H

1014 SUPREME COURT REPORTS (2005] I S.C.R. ;_ A It is further well-settled that a decision is not an authority for the proposition which did not fall for its consideration. .... It is also a trite law that a point not raised before a Court would not be an authority on the said question.

B In A-One Granites v. State of U.P. and Ors., [2001] 3 SCC 537, it is stated as follows :-

"11. This question was considered by the Court of Appeal in Lancaster ~·

Motor Co. (London) ltd. v. Bremth ltd., (1941) I KB 675, and it was laid down that when no consideration was given to the question, the c decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment.

[See also State of U.P. and Anr. v. Synthetics and Chemicals ltd. and Anr., [ 1991] 4 SCC 139, Amit Das v. State of Bihar, (2000] 5 SCC 488 (Para 20), Bhavnagar University v. Palitana Sugar Mill (P) ltd. and Ors., [2003] D 2 SCC 111, Cement Corporation of India ltd. v. Purya and Ors., (2004] 8 SCC 270, Bharat Forge Co. ltd v. Uttam Manohar Nalw.te, JT (2005) I SC ,.. 303 and Kalyan Chandra Sarkar v. Rajesh Ranjan @Pappu Yadav and Anr., para 42, (2005) I SCALE 385].

We have noticed, hereinbefore, that in Pradeep Kumar Biswas (supra) E .the only question which arose for consideration was as to whether the decision of the Constitution Bench in Sabhajit Tewary (supra) was correctly rendered by a Constitution Bench of 5-Judges. As the said decision centered around the activities of CSIR vis-a-vis the tests laid down therefor in Sabhajit Tewary (supra), the ratio must be understood to have been laid down in respect of the F questions raised therein. The questions raised herein were neither canvassed .... . nor was there any necessity therefor. Pradeep Kumar Biswas (supra), therefore, cannot be treated to be a binding precedent within the meaning of Article 141 of the Constitution of India having been rendered in a completely different situation.

G The question has been considered by us on the touchstone of new tests and from a new angle. " ALLA YING THE APPREHENSION :

Only because a body answers the description of a public authority, H

ZEE TELE FILMS LTD. v. U.0.1. [S.13. SINHA ..I.] 1015 discharges public law functions and have public duties, the same by itself A would not lead to the conclusion that all its functions are public functions. They are not. (See Donoghue (supra)) Many duties in public law would not be public duties as, for example, duty to pay taxes.

By way of illustration, we may point out that whereas mandamus can issue directing a private body discharging public utility services in terms of B a statute for supply of water and electricity energy, its other functions like flowing from a contract etc. would not generally be amenable to judicial '~· review. (See Constitutional and Administrative Law By A.W. Bradley and K.D. Ewing - Page 303)

There are numerous decisions of this Court where such a distinction C between public law function and private law function has been drawn by this Court. [See Life Insurance Corporation of India v. Escorts Lid. and Ors., (1986] l SCC 264 at 343 and 344, para 101, Kera/a State Electricity Board and Anr. v. Kurien E. Ka/athil and Ors., (2000] 6 SCC 293 at 299, Johri Mal (supra) page 729 and State of Maharashtra and Ors. v. Raghunath Gajanan D Waingankar, (2004) AIR SCW 4701]

In Johri Mal (supra) it is stated :

"The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the actions of the authority need to fall in the realm of public law be it a legislative act or the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question is required to be determined in each case having regard to the nature of and extent of authority vested in the State. However, it may not be possible to generalize the nature of the action which would come ! either under public law remedy or private law field nor is it desirable to give exhaustive list of such actions.

(Emphasis supplied) G The submission of the learned counsel for the Board that once it is declared to be a 'State'; the consequences would be devastating inasmuch as all its activities would be subject to government control, with respect, cannot be accepted as in absence of any statute or statutory rules no such control can ordinarily be exercised by Union of India or State. H

1016 SUPREME COURT REPORTS (2005) I S.C.R.

A It is not necessary for us to consider as to whether for entering into a contract with the players or for their induction in a team, the provisions of Articles 14 and 16 are required to be complied with as no occasion threrefor has yet arisen. It is, however, necessary to mention that a question as to whether a function of the Board would be a public function or a private function would depend upon the nature and character thereof. This Court cannot be asked to give a hypothetical answer to a hypothetical question.

The contention of Mr. Venugopal to the effect that the consequences of treating the Boara as State will be disastrous inasmuch as all the national ·>' sports federations as well as those bodies which represent India in the international fora in the field of art, culture, beauty competitions, cultural events, music and dance, science and other conferences or competitions relating to any subject would become a 'State' is one of the desperation.

We clarify that this judgment is rendered on the facts of this case. It does not lay down a law that all national sports federations would be State. D Amongst other federations, one of the important factors which has been taken note of in rendering the decision is the fact that the game of cricket has a special place in India. No other game attracts so much attention or favour. Further, no other sport, in India, affords an opportunity to make a livelihood out of it. Of course, each case may have to be considered on its own merit not only having regard to its public functions but also the memorandum of E association and the rules and regulations framed by it.

Furthermore, only because a corporation or a society is a State, the same would not necessarily mean that all of its actions should be subject to ... ' judicial review. The court's jurisdiction in such matter is limited. [SeeJohrimal (supra). H

ZEE TELE FILMS LTD. v. U.0.1. [S.B. SINHA . .I.] 1017

It is furthermore well-settled that issuance of a writ is discretionary in nature. The Court may in a given case and in larger interest may not issue any writ at all.

Mr. Venugopal vehemently argued that if the Board is held to be a State within the meaning of Article 12 of the Constitution, the doors of this Court and the High Courts would be knocked at very frequently questioning all and single action of the Board which may include selection of players for Indian Team, day to day functioning et al. We do not agree.

Recently in Virendra Kumar Srivastava (supra), this Court held :

"Before parting with the case, it is necessary for us to clarify that even though a body, entity or Corporation is held to be a 'State' within the definition of Article 12 of the Constitution what relief to the aggrieved person or employee of such a body or entity is to be granted is a subject matter in each case for the court to determine on the basis of the structure of that society and also its financial capability and viability. The subject of denial or grant of relief partially or fully has to be decided in each particular case by the court dealing with the grievances brought by an aggrieved person against the bodies covered by the definition of 'State' under Article 12 of the Constitution."

The "in terrorem" submission of Mr. Venugopal that a floodgate of litigation would open up ifthe Board is held to be a State within the meaning of A11icle 12 of the Constitution cannot also be accepted. Floodgate arguments about the claimed devastating effect of being declared a State must be taken with a grain of salt. The courts, firstly, while determining a constitutional question considers such a question to be more or less irrelevant. [See G;,iruvayoor Devaswom Managing Committee and Another Anr. v. C.K. Rajan F and Ors., [2003) 7 SCC 546, para 69). Secondly, as would be noticed ) hereinafter that this Court has evolved principles of judicial restraint as regards interfering with the activities of a body in policy matters. It would further appear from the discussions made hereinbefore that as all actions of the Board would not be subject to judicial review. A writ would not lie where G the lis involves only private law character.

' .. We are not oblivious of the fact that one of the grounds why the English Courts refused to broaden the judicial review concept so far as the sporting associations are concerned, that the same would open floodgate. (See P.P. Craig's Administrative Law) H

1018 SUPREME COURT REPORTS [2005] I S.C.R.

A Unlike England, India has a written Constitution, and, thus, this Court cannot refuse to answer a question only because there may be some repercussions thereto. As indicated hereinbefore, even the decisions of this Court would take care of such apprehension.

It is interesting to note that Lord Denning M.R. in Bradbury and Ors B v. London Borough of Enfield, [1967} 3 All ER 434] held :- "It has been suggested by the Chief Education Officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed to the new comprehensive schools, the pupils allotted their places, and so forth. c It would be next to impossible, he says, to. reverse all these arrangements without complete chaos and damage to teachers, pupils and public. I must say this: if a local authority does not fulfil the requirements of the law, this court will see that it does fulfil them. It will not listen readily to suggestions of "chaos". The department of education and the council are subject to the rule of law and must comply with it just like everyone else, Even if chaos should result still the law must be obeyed but I do not think that chaos will result. The evidence convinces me that the "chaos" is much over-stated ..... .! see no reason why the position should not be restored, so that the eight school retain their previous character until the statutory requirements are fulfilled. I can well see that there may be a considerable upset for a number of people, but I think it far more important to uphold the rule of law. Parliament has laid down these requirements so as to ensure that the electors can make their objections and have them properly considered. '.Ve must see that their rights are upheld."

CONCLUSION :

For the reasons aforementioned, we are of the considered view that the writ petition under Article 32 of the Constitution of India is maintainable. It G is ordered accordingly.

S.K.S. Petition dismissed. .. '