Case Analysis: M/S. Zee Telefilms Ltd. V.

 Union of India1

Introduction

With the socio, economic and technological development in a country, the country need more
regulatory bodies to govern and regulate the affairs of various ranges of activities which a vital
role in a country. In the same way, India is a country which has its supreme law which is the
foundation of legal system. The constitution provides for the fundamental rights to the citizens so
that they can play an active role in the development of country.2

The constitution is that basic document which casts the duty upon various bodies so recognized
therein, to protect the rights of citizens. The fundamental rights available to the citizens, are
majorly against the state. The state, is a term which is most debatable as well as most important
term to be interpreted. Though, the Indian Constitution is world’s largest constitution and
provides for those included within the ambit of state, yet the vagueness existed with respect to
interpretation of other authorities so stated in the definition of state under Article 12 other than
the government of India, parliament of India, state legislatures, government of states and local
authorities.

The expression Local Authorities can include any body or entity which fulfills the criteria of
declaring as other Authorities under the state. There are Numerous Authorities in India regulate
and administer the affairs of Activities such as sports. Sports have been widely developed in
India which emphasized on the need of regulation by the bodies can be statutory or otherwise.
Further, in sports the cricket is most recognized sports which is being administered by the
regulatory body i.e. BCCI. BCCI regulates cricket in India at all levels.3

1
Zee Telefilms Ltd. v. Union of India., MANU/SC/0074/2005 : (2005) 4 SCC 649
2
V.N. Shukla. Constitution of India. Lucknow: Eastern Book Company, 2003, 10th ed. p.20
3
BCCI Regulations, Available at: https://bcci-static-files.s3.amazonaws.com/bcci/document/2018/12/12/f676ccc4-
4eec-4bb5-b89e-7afd6730fa82/5b7bfc8a5c2f5-Registered-New-BCCI-Constitution-21-08-2018-.pdf
Background of the case

The Board of Control for Cricket in India (BCCI) is a society registered under the Tamil Nadu
Societies Registration Act, 1975. As stated under the Memorandum of Association of the BCCI,
the purpose of BCCI is to regulate the all matters related to cricket in India. The legal status of
BCCI has been in question in various cases. It has been an issue in various cases that the BCCI is
a state under Article 12 or not.

In the same direction, Judiciary had made attempts to determine the status of BCCI through
various judicial Interpretations.

 In Mohinder Amarnath & others. v. BCCI 4, “The court held that BCCI is not
instrumentality or agency of State, it is autonomous body and thus cannot be covered under
Article 12 of the Constitution.”
 In Ajay Jadeja v. Union of India5, The Delhi high court allowed the writ petition filed before
the Hon’ble court against the BCCI without giving any opinion as to the status of the BCCI
under the Article 12.
 In Rahul Mehra v. Union of India6, the question as to whether BCCI is a state or not, was
again raised before the court. The court recognized that the BCCI performs public functions
and public duties as a self-regulatory body. The court affirmed positively to extend judicial
review to BCCI under Article 226. However, the court remained silent on a question as to
legal status of BCCI under Article 12.
 In BCCI v. Netaji Cricket Club7 , The Supreme Court observed that BCCI holds monopoly
status. Further, the court recognized that the BCCI has enormous powers to exercise the
functions so entrusted upon it. Therefore, it is bound to follow doctrine of fairness and good
faith in all its activities so undertaken. In the same line, the BCCI has to act reasonably and it
cannot act arbitrarily, whimsically or capriciously.

4
Mohinder Amarnath vs. BCCI, CW.NO.632/89.
5
Ajay Jadeja vs. Union of India, MANU/DE/1169/2001 : 2002(61)DRJ639
6
Rahul Mehra v. Union of India, MANU/DE/0846/2004 : (2005)4CompLJ268(Del),
7
BCCI v. Netaji Cricket Club, MANU/SC/0019/2005 : (2005)4SCC741
Facts of the case

In the present case, BCCI issues a notice for inviting tender for grant of exclusive television
rights for a period of four years. In furtherance of that, various entertainment groups including
the Zee Telefilms Ltd. (the petitioner) and ESPN Star Sports (fifth respondent) gave their offers.
Zee Telefilms Ltd and ESPN Star Sports were eligible on that behalf. Finally, BCCI decided to
accept offer of the Zee Telefilms Ltd after negotiation and thus, the negotiated amount was
deposited by the. In pursuant to that, Zee Telefilms Ltd. agreed to adhere with the terms and Zee
Telefilms Ltd conditions so mentioned.

Meanwhile, ESPN Star Sports filed a writ petition before the Bombay High Court. BCCI
submitted affidavit stating about the acceptance of offer of Zee Telefilms Ltd. Later on, before
the commencement of argument the BCCI stated about the cancellation of entire tender process.
In the same line, BCCI issued order of terminating the contract with the Zee Telefilms Ltd by
invoking power so entrusted upon it by contract, on ground of public interest.

As a result of termination of contract, the Zee Telefilms Ltd filed writ petition before the
supreme court on the ground that the action of the BCCI regarding termination of contract, was
arbitrary and thus, violative of Article 14 of the Constitution.

Issues Involved in the case:

1. Whether Writ Petition against Board of Control for Cricket in India is maintainable?

2. Whether BCCI is a State within meaning of Art.12?

Pleas of the petitioners:

1. That the BCCI is the sole authority for managing major cricketing events in India and
also has the disciplinary power over the players/umpires and other officials. As sport is a
subject under the control of the States and BCCI exercises governmental functions in the
area of Cricket, thus it is a state under Article.
2. That the absolute authority has been conferred upon BCCI and recognized even by the
Government of India, Thereby It comes in under “other authorities“ for the purpose of
Article 12 though it is an autonomous body.
 3. That union of India has pervasive control over the activities of BCCI regarding taking of
prior approval of Union of India for sending a team outside India or inviting foreign
teams to India. Therefore, the Board can be covered under “other authorities” within the
meaning of Article 12.
4. That cricket has become a profession and that thereby, cricketers have a fundamental
right under Article 19 (1) (g) to pursue their professional career as cricketers. This right
of cricketer is subject to control of rules and regulations made by BCCI. Therefore, it can
be inferred that the Board is an instrumentality of the State.
5. That BCCI performs one of the most important public functions for the country with the
authorization and recognition by the Government of India, thus amenable to the writ
jurisdiction of the Court under the provisions of the Constitution.

Pleas of BCCI:

1. That BCCI is registered under the Tamil Nadu Societies Registration Act, 1975 and it is
an autonomous body, administration of which is not controlled by any other authority
including Union of India, (U.O.I.) and it is not a statutory body.
2. That BCCI as a self regulating body, does not take any financial assistance from the
Government nor is it subjected to any financial control by the Government or its accounts
are subject to the scrutiny of the Government
3. That though it enjoys a monopoly status in the field of Cricket the same is not conferred
on the Board by any statute or by any order of the Government.
4. That the Government has no control over the management, regulation, administration and
member association.
5. That though Union of India grants permission regarding allowing of foreign teams to
come to India, thus it exercises only certain control over the activities of the Board, But
this control over the activities of the Board cannot be construed as an administrative
control and is not a factor indicating a pervasive State control of the Board.8

8
Available at: http://www.nja.nic.in/P-950_Reading_Material_5-NOV-15/3.%20Zee_Telefilms_Ltd.pdf
Judgment

After hearing the arguments of both the parties and analyzing all the submissions made before it,
the Hon’ble court by a majority of 3:2 held that-

Majority View: Justice N. Santosh Hegde, Justice B.P. Singh and Justice H.K. Sema

- That the BCCI is not state under Article 12

For considering the question as to the legal status of the BCCI, the definition of "the State" as
contemplated under Article 12 of the Constitution has been analyzed. The definition of State in
the said Article includes the Government of India, Parliament of India, Government of the State,
Legislatures of the States, local authorities and also "other authorities". A literal reading of the
definition of State under Article 12 would not bring the Board under the term "other authorities"
for the purpose of Article 12. Thereafter, the approach of judiciary has been shifted from narrow
to wide Interpretation.

Earlier, even statutory bodies like Universities, Selection Committee for admission to
Government Colleges were not "other authorities" for the purpose of Article 129. Subsequently,
the interpretation of the said term has been extended to include within it every statutory authority
on which governmental or quasi governmental functions powers are conferred.10

The court expanded the scope of the expression “State” by holding bodies such as Oil and
Natural Gas Commission, industrial Finance Corporation and Life Insurance Corporation though
were created by statutes, but really constituted for commercial purposes. The scope was so
extended to include the statutory bodies or public corporations as instrumentality of sate to
perform public functions.

Subsequently, the court adopted the broad and liberal Interpretation of the expression “other
Authority” in the Article 12. In Ramana Dayaram Shetty v. International Airport Authority of
India,11 the court laid down the test for determining that whether a body is an instrumentality of
state or not. However, the parameters were extended by the 7 Judge bench of the Hon’ble court

9
The University of Madras v. Shantha Bai and Anr. MANU/TN/0096/1954 : AIR1954Mad67
10
Rajasthan State Electricity Board v. Mohan Lal and Ors. MANU/SC/0360/1967 : (1968)ILLJ257SC
11
Ramana Dayaram Shetty v. International Airport Authority of India MANU/SC/0048/1979 : (1979)IILLJ217SC
in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors.12 Following are the
guidelines so laid down to determine a body as other Authority under Article 12.

1. The Body, status of which is in question must be financially, functionally,

administratively dominated, by or under the control of the Government.
2. Such control must be particular to the body in question and must be pervasive.
3. Mere regulatory control whether under statute or otherwise would not serve to make a
body a State.

In the present case, the following point about the BCCI have been so established by applying the
test laid down in pradeep kumar case that –

1. BCCI is not created by a statute.

2. No part of the share capital of the BCCI is held by the Government.

3. Practically no financial assistance is given by the Government to meet the whole or entire
expenditure of the BCCI.

4. BCCI does enjoy a monopoly status in the field of cricket but such status is not State conferred
or State protected.

5. As BCCI is self governing body, thus there is no existence of a deep and pervasive State
control. If there is any element of control is present which is merely regulatory in nature and not
statutory in nature. Only some functions of the BCCI are public functions, not all and even not
closely related to governmental functions.

6. BCCI is an autonomous body and there is involvement of government in its functioning.

From the abovementioned facts about the BCCI, it is clear that BCCI do not follow the test so
laid down to establish a body as other Authorities under Article 12. Therefore, BCCI cannot be
held as State under Article 12.

12
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors, MANU/SC/0330/2002 : [2002]3SCR100
Minority View : Hon'ble Mr. Justice S.N. Variava, Hon'ble Mr. Justice S.B. Sinha

The dissenting judgment in the present case was one way ahead of the traditional approaches and
tests to determine whether a body comes under other authority so enumerated in the definition of
State. Other than the traditional tests, there must be evolution of new test as observed by Justice
S.B. Sinha by keeping in mind a body which is a private body but acts as a public authority and
has a positive obligation of public nature and bound to protect human rights and to regulate a
profession of a citizen which is a fundamental right contained in Article 19(1)(a) of the
Constitution of India. Therefore, it was emphasized to bring a change in the judicial approach of
treating a body as other Authority. The Administrative, Financial and other control is not a
touchstone for a body to fall under the definition of state, the factor such as its public function
and obligation also plays key role which has been ignored by the majority view.

- The present writ petition is maintainable against BCCI

Majority was of the view that BCCI cannot held as other authority under the definition of state,
therefore, it is not amenable for writ jurisdiction under Article 32, further the writ petition cannot
filed against BCCI as it is not state. It has also been observed that writ jurisdiction under Article
226 is wider than writ jurisdiction under Article 32, in pursuant to that, a body which is a state
under Article 12, only against that a writ can be issued under Article 32 while under Article 226,
writ petition can filed against a private body exercising public function.

Further developments after this judgment

Even After the decision of supreme court in the Zee telefilms case, the issue regarding the legal
status of BCCI has not been resolved, thereafter in Muthiah v. BCCI and Anr,13 The Hon’ble
apex court reaffirmed the decision of Zee telefilms regarding the legal status of BCCI under
Article 12 that it is not state for the purpose of invoking writ jurisdiction under Article 32 of the
Constitution of India.

Board of Control for Cricket vs. Cricket Association of Bihar 14, In this case, one of the issues
involved was the legal status of BCCI under Article 12. The two judge bench of the Hon’ble
court gave new direction by upholding that BCCI is though not a state under Article 12, yet it
13
Muthiah v. BCCI and Anr, MANU/SC/0526/2011 : (2011) 6 SCC 617.
14
Board of Control for Cricket v. Cricket Association of Bihar, MANU/SC/0781/2016 : (2016)8SCC535 
performs public functions and has public obligation, in consonance to that, BCCI is amenable to
proceedings under Article 226 of the Constitution of India.

The above view of the supreme court though similar as that of majority view in Zee telefilms
case. The major difference lies in the fact that the Apex court in BCCI case evolved the public
duties and function test which was ignored in the Zee Telefilms case. 15

Analysis and Conclusion

It can be concluded that Indian constitution guarantees fundamental rights to the citizens which
are available against the state only as the state is duty bound to protect the rights of citizen. The
most important aspect which plays important role is the definition of state. Though the
constituent assembly made attempt to define state under Article 12 by the exhaustive definition
cannot be given at that time by considering the socio – economic condition. This is the reason the
definition of state is open ended and wide by virtue of term other authority which in enshrined in
the definition of state under Article 12.

There are various Bodies which play vital role in administering and monitoring various activities
include sports. With respect to cricket, BCCI is the self regulatory body and in pursuant to that
its legal status has been in question from very long time. Then, the apex court made an attempt to
determine its legal status which was not held as state under Article 12. Furthermore, the judiciary
has affirmatively stated that BCCI is subject to judicial review under Article 226 of the
Constitution of India though it is not amenable to writ jurisdiction under Article 32 of the Indian
Constitution. That decision opens the room for evolution of new tests to determine the legal
status of a private body discharging public functions likewise BCCI. It has also been observed
that it is of equal importance to consider the functions perform by a body and the extent to which
such functions affect the rights and duties of public at large.

15
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