In a major judgement upholding the autonomy of all private bodies regulating sport in India, the Supreme Court on Wednesday ruled that the Board of Control for Cricket in India is not a 'State' within the meaning of the Constitution and it cannot be sued in a court for alleged violation of fundamental rights.
A five-Judge constitution bench, comprising Justice N Santosh Hegde, Justice S N Variava, Justice B P Singh, Justice H K Sema and Justice S B Sinha, gave this landmark ruling while dismissing a writ petition filed by Zee Telefilms Ltd seeking relief against the Board for alleged arbitrary cancellation of its bid for telecast rights of all cricket matches played in India for a period of four years.
The ruling was given by a 3:2 majority. While Justice Hegde, Justice Singh and Justice Sema held that the BCCI is not a State and dismissed Zee's petition, Justice Variava and Justice Sinha held that the Board is a State within the meaning of Article 12 of the Constitution.
Zee had argued that the BCCI in India is a 'State' as it selects the Indian team and was given de facto recognition by the Union Government to carry out the functions, and requested the court to scrutinise its action of cancelling the bid for telecast under writ authority.
Justice Hegde, writing the majority judgement, observed that the Government of India had not passed any law authorising the BCCI to select the Indian team, and the control exercised by it over the regulating body for cricket, at best, could be termed as regulatory, which is not enough to declare BCCI as a 'State'.
The majority judgement noted that "the Union Government had failed to prove that it has given de facto recognition to BCCI for discharging the functions" relating to regulation of the popular game of cricket.
"The attempt to show the control exercised by the government over BCCI was not administrative in nature and could best be termed as regulatory in nature," the bench said.
Taking into consideration the parameters laid down by the apex court in various judgements for classification of a body as a 'State', the bench said that the BCCI and the function discharged by it could not be remotely said to be falling within these parameters.
It also accepted the arguments of senior advocate K K Venugopal, who appeared for the BCCI, that if the cricket Board is declared as a 'State', then it would be discriminatory as there were as many as 64 private bodies controlling various disciplines of sport in the country.
The court also accepted the argument that if the cricket Board was to be declared a 'State' because it selected the Indian team, then those who organise "Miss India" show should also be declared as 'State'.
"In the absence of any authorisation given by the Union Government, if a private body is discharging these functions, it would not be sufficient ground for holding the private body to be a 'State' within the meaning of Article 12 of the Constitution," the bench said.
The Board had also argued that if it is termed a 'State' then every player, who had not been selected to the Indian team would then approach the high court and the Supreme Court under the writ jurisdiction claiming that his right to livelihood under Article 19(1)(g) has been violated.
"Every employer who regulates employees then has to be treated to be a 'State'," the apex Court said, adding the onus was on the petitioner to first show that BCCI was a 'State' and then claim relief against it rather than saying that the functions discharged by the Board made it akin to a body under the government control.
The court said that assuming that the cricket board discharges public functions by selecting the Indian team and a panel of umpires, these are not suficient ground to hold the regulatory private body to be a 'State'. Zee has failed to establish that BCCI could be termed as a 'State', it added.
"Merely because a non-governmental body exercises certain public functions does not mean that it is a 'State' within the meaning of Article 12 of the Constitution," it said.
However, the court clarified that the judgement did not mean that the sports bodies could get away with whatever irregularities committed by them.
"Each aggrieved person could take recourse to the normal course of justice or approach the high courts which have a wider jurisidiction to deal with such matters," it concluded.
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