CASE ANALYSIS:

ZEE TELEFILMS LTD & ANR V. UNION OF INDIA & OTHERS

BY

Bhawna Tuteja ,
First-year law student
Department of Laws, Panjab University, Chandigarh.

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 CASE ANALYSIS:
ZEE TELEFILMS LTD & ANR V. UNION OF INDIA & OTHERS
IS BCCI A STATE UNDER ARTICLE 12?
ZEE TELEFILMS LTD. & ANR V. UNION OF INDIA & OTHERS [FEB 2,
2005]
Article 12 of the Constitution of India 1949(Definition of the State), Article
32 of the Constitution of India 1949(Right to Constitutional Remedy), Article
226 of the Constitution of India(Power of High Court to issue certain writs),
Article 19(1)(g) of the Constitution of India ( to practice any profession, or to
carry on any occupation, trade or business), The Protection of Human Rights
Act 1993, The Societies Registration Act 1860, The Indian
Companies(Amendment)Act 1930, Article 14 of the Constitution of India
1949(Equality before Law).

BACKGROUND OF THE CASE

Zee Telefilms Ltd., a leading entertainment technology company with

vertical digital media filed a writ against The Board of Control of
Cricket (BCCI) for cessation of the contract dated 21.09.2004 awarding
exclusive television rights for a four-year term.
Zee Telefilms Ltd., herein after called the First Petitioner and the Union
of India is referred as First Respondent. The Second Respondent to this
issue, the BCCI is a society registered under the Act of Tamil Nadu
Societies Registration, 1975 recognized by the Union of India, the
Ministry of Youth Affairs and Sports. The President and the Secretary of
the Second Respondent are the Third and Fourth Respondents,
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respectively. The Fifth Respondent, “ESPN Star Sports” is a USA based
partnership firm having subsidiary in Singapore, branded as “ESS”. The
Sixth Respondent is a Chartered Accountant Firm which was named by
the Board with respect to the tender on 07.08.2004. In the assistance of a
notification welcoming bids for the award of elite TV rights for the time
of four-year tender, various entertainment groups including the
applicants and Fifth Respondent thus gave their offers. With the end
goal of this issue, we would assume that both the Petitioner and said
Respondent were found to be qualified. The First Petitioner offered a bid
to the tune of USD 260,756,756.76 (equivalent to INR 12,060,000,000/-
or USD 281,189,189.19 (equivalent to INR 13,005,000,000/-).
After holding dealings with the First Petitioner as likewise the Fifth
Respondent, the Board chose to acknowledge the idea of the former; as
per and in assistance whereof a total of INR 92.50 Crore equal to the
USD 20 Million was kept in the State Bank of Travancore. In light of
“Zee Telefilms Ltd. & Anr. Vs Union of India & Others”1 AIR 2005
SC a draft of purpose was sent by the board; the First Petitioner
consented to comply with the terms and states of offer subject to
conditioned referenced in the same.
The Fifth Respondent in the interim documented a writ request under the
watchful eye of the Bombay High Court which was set apart as Writ
Petition (L) No. 2462 of 2004. The gatherings thereto documented their

1
Zee Telefilms Vs Union of India, AIR 2005 SC 2677.

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sworn statements in the said continuance. In its affirmation, the Board
advocated its activity in allowing the agreement for the First Petitioner.
On 21.09.2004, the Board before beginning its contention expressed that
it implied to have dropped the whole delicate procedure on the reason
that no finished-up contract was reached between the parties as no letter
of purpose had therefore been given. The First Petitioner, in any case,
raised a conflict that such a finished-up contract had been formed. The
Fifth Respondent, taking into account the announcements made by the
advice for the Board, appealed to a court for withdrawal of the writ
request, which was allowed. On 21.09.2004 itself, the Board ended the
agreement of the First Petitioner.

FACTS IN THE ISSUE

On initiation of hearing, Mr. K.K Venugopal, learned Senior Counsel

showing up for the benefit of the Second Respondent raised an issue as
respect viability of the writ request under Article 32 on the reason that
the Board is not a ‘State’ within the ambit of Article 12 of the
Constitution of India. The said issue having been treated as a
fundamental issue, the same was heard immediately. This judgment is
limited to the said issue alone.

PETITIONER’S ARGUMENT

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1) The BCCI embraces all exercises corresponding to cricket
including going into agreements for granting broadcasting rights,
for promotional incomes in the stadium, and so on.
2) In One Day Internationals or Test Matches the team fielded by
BCCI plays as an “Indian Team” and it can’t be denied that the
team indicates to speak to India as a country, and its victories are
matters of national distinction. They wear uniforms that convey the
national banner, and are treated as sports envoys of India.
3) The sportsmen are paid an attractive compensation by the BCCI
for committing their life to playing the game. Subsequently, they
have a privilege under Article 19(1)(g) to be considered for support
in the game. The BCCI claims the capacity to suspend players
from playing cricket in the exercise of its disciplinary forces.
Clearly, it is presented as a body that implies to practice controls
on the major privileges of players and would establish in any event
an “authority” under the importance of Article 12 of the
Constitution of India.
4) The administrative body that exclusively controls and to the
rejection of all others, the power to organize such games, and to
choose a team that would participate in such a game is performing
a public function and must conform to the constitutional discipline
of Part III of the Constitution. If the events sorted out are public
events, then the body i.e. controlling authority would

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 unquestionably be upon the order of Article 14 and Article 19 of
the Constitution.
5) No delegate competition can be sorted out without the consent of
BCCI or its members at any level of cricket.
6) The BCCI and its affiliates are the beneficiaries of State
benefaction, inter alia, in the form of nominal rent for stadiums.

RESPONDENT’S ARGUMENT

1) Registered under the Tamil Nadu Societies Registration Act, the

Board of Control of Cricket in India, Respondent No.2 is a self -
governing non-profit making association constrained and confined
to its Members only. It is a private association whose article is to
advance the sport of Cricket. The Rules and Regulations of the
Respondent no.2 have neither any legal power nor it has any legal
forces to make rules or guidelines having legal power.
2) The undertakings and management of the Respondent No.2 are
controlled by the Working Committee elected from amongst its
members. There exists no control of any other authority including
the Union of India, the First Respondent herein over the capacity,
fund, administration, management, and issues of Respondent No.
2.
3) No public or legislative obligation is fulfilled by the Respondent
No.2.

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 4) Respondent No. 2 receives no government assistance in any
manner or form.
5) All the cricket matches and tournaments are organized by
Respondent No.2 between the Teams of its Members and the
Teams of the individuals from the International Cricket Council
(ICC) which is likewise a self-governing body dehors any
Government control. Just when to sort out any match or
competition with outside members, the Respondent no.2 requires
typical and planned authorization from the Ministry of Sports for
movement of foreign teams, it acquires a similar status like other
private associations, especially in the subject matter of foreign
exchange.
No monopoly status has been conferred upon the Respondent No. 2
either by statute or by the government. Organizing Cricket Matches and
Tournaments between the Teams of the Members of the Respondent
No.2 and with the co-members of ICC cannot be said to be a facet of a
public function or government in character.

ARTICLE 12 OF THE INDIAN CONSTITUTION

Article 12 of the Constitution of India reads as follows:-

“12. In this Part, unless the context otherwise requires, “The State”
includes the Government and Parliament of India and Government and
the Legislature of each of the States and all local or other authorities

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within the territory of India or under the control of the Government of
India.”
For the purpose of Part III of the Constitution of India, the definition of
the State determines the authorities and instrumentalities functioning
within the territory of India or under the control of the Government of
India which will be considered to be the State. The definition is inclusive
and not exhausted. The word ‘or’ is disjunctive and not conjunctive.
The expression “Authority” has a definite connotation. It has various
dimensions and, therefore, must get a liberal translation. To come to an
end result, concerning which “other authorities” could come within the
purview of Article 12, we may see the meaning of “authority.”
The word authority actually means a person or a body exercising power
or command. In the setting of Article 12, the term authority implies the
ability to make laws, requests, guidelines, and bye-laws, and so forth.,
having the power of law and also the power to enforce them.
The Madras High court in University of Madras V. Shantha Bai2
deciphered the expression “Other Authority” for the first time. Alluding
to Article 12 the Madras High Court held that the words “local
authorities” must be interpreted “ejusdem generis” with government or
legislature and so construed could only mean authorities exercising
governmental function.

2
University of Madras V. Shantha Bai, AIR 1954 MAD. 67

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In Rajasthan State Power Board V Mohan Lal3, the question of the
definition of the expression “other authorities” was considered in depth
by the Supreme Court. Under the Electricity Supply Act,1948, the Board
was established as a body corporate, by transferring the State Electrical
and Mechanical Department to the Board. The Supreme Court alluded
to the meaning of the term “State” in Article 12 and held that the
Rajasthan State Electricity Board was clearly an authority to which the
provisions of Part III of the Constitution were pertinent.
It was a bit much that the statutory authority ought to be occupied with
performing governmental or sovereign functions. In support, the court
referred to Article 19(1)(g) and Article 298, which contemplate the
commitment of the state in the trade or business, and Article 46 which
requires the state to promote the educational and financial interest of the
weaker sections of the individuals. In these cases “other authorities”
would cover bodies made to perform commercial activities or for
advancing the educational and monetary interests of the more fragile
segments of individuals. This decision in effect overruled earlier
decisions excluding the Universities from the definition of “The State”
within the meaning of Article 12. As needs be, the Universities have
been later held to be the State.
The court saw that the expression “other authorities” in Article 12 was
wide enough to incorporate inside it each made by a Statute and

3
Rajasthan State Power Board V Mohan Lal, AIR 1967 SC 1857

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functioning within the territory of India or under the control of the
Government of India, and there was no reason to limit this importance in
the context in which the words “other authorities” were used in Article
12.
The following noteworthy proclamation of the court with respect to the
understanding of the expression “other authorities” was in Sukhdev
Singh V Bhagatram4. In this case, the Supreme Court, by the majority
of 4:1, held that the Oil and Natural Gas Commission, the Life Insurance
Corporation and the Industrial Finance Corporation were authorities
within the meaning of the expression “other authorities” and henceforth
“State” under Article 12.
The inquiry identifying the extent of the expression “other authority” in
Article 12 was viewed as more altogether in Raman Dayaram Shetty V
International Airport Authority5. The International Airport Authority
(IAA), a body corporate, was established under the International
Authority Act, 1971. The Chairman and members of the IAA are
selected by the Central Government, who is vested with the capacity to
end their appointment or to remove them in specified circumstances. The
Central Government is additionally vested with the ability to remove the
board of any air terminal from the IAA and to entrust it to any other
person or authority. It can give restricting headings recorded as a hard
copy to the IAA on inquiries of approach. The capital required for

4
Sukhdev Singh V Bhagatram, AIR 1975 SC 1331
5
Raman Dayaram Shetty V International Airport Authority, AIR 1981 SC 487

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completing its capacities by the IAA is completely given by the Central
Government. The International Airport Authority is to deal with the
organization of the air terminal and air navigation administrations which
were prior performed by the Central Government. The IAA is vested
with the capacity to outline guidelines and to give that contradiction of
certain predefined guidelines will involve reformatory results.
Alluding to the important arrangements of the International Airport
Authority Act, 1971, whereunder the said authority was constituted, the
court held that the tests talked about for the assurance, were fulfilled by
the respondent Authority and subsequently saw that IAA was an
instrumentality or organization of the Central Government and fell
inside the meaning of State under Article 12 and, along these lines,
exposed to the restrictions contained in Part III of the constitution.
In Som Prakash Rekhi V Union of India6, the court arrived at the
conclusion that there was sufficient material to hold that the Bharat
Petroleum Corporation registered under the Companies Act, 1956 was
“the State” within the meaning of Article 12. Consequent upon takeover
of Bumrah Shell under the Bumrah Shell (Acquisition of Undertakings
in India) Act,1956, the right, title, and enthusiasm of the company stood
moved and vested in the Government of India. From there on, the
Central Government acting Section 7 of that Act made important strides

6
Som Prakash Rekhi V Union of India, AIR 1981 SC 212

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for vesting the endeavor in the Bharat Petroleum Corporation Ltd. which
turned into the legal successor of the petitioner’s boss.
In Som Prakash V Union of India, it is mentioned that in Article 12 the
word “other authorities” will include, if found to be an agency or device,
not merely a statutory authority, but a non-statutory authority including a
state corporation.
In Ajay Hasia V Khalid Mujib Sehravardi7, proposals developed for
R.D Shetty V International Airport Authority were separated out as
tests to decide with respect to when a corporation could be said to be an
instrumentality or organization of the Government. These tests are
abridged as follows:-
1. If the entire share capital is held by the government, it would go a
long way towards indicating that the corporation is an instrumentality or
agency of the Government.
2. Whether the corporation enjoys monopoly status conferred by State or
protected by State.
3. The existence of deep and pervasive State control may afford an
indication that the corporation is an instrumentality or agency of the
State.
4. Transfer of a Government department to a corporation would be a
strong factor supporting this inference of the corporation being an
instrumentality or agency of the Government.

7
Ajay Hasia V Khalid Mujib Sehravardi, AIR 1981 SC 487

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5. If the functions of the corporation are of public importance and
closely related to governmental functions, it would be a relevant factor
governmental functions, it would be a relevant factor in classifying the
corporation as an instrumentality or agency of the Government.

PUBLIC FUNCTION

When a socially significant role is closely aligned with governmental

roles or activities too fundamental to society. The Supreme Court under
Article 32 and the High Court under Article 226 of the Constitution of
India can exercise the power of judicial review in cases where dispute
includes an aspect of public law that is contrary to private law. Private
law is that part of a civil law legal system that is part of the jus
commune that involves relationship between individuals and should be
separated from Public law, which deals with connections between both
natural and artificial persons(i.e., organizations) and the State, including
administrative rules, reformatory law and other law that influences the
public order. General view, nonetheless, is that at whatever point a state
or an instrumentality of a state is included, it will be a subject matter of
public law. Circumstance, notwithstanding, changes with the
progression of the State work especially when it enters the field of trade,
industry, and business as a result whereof either private bodies take-up
public functions and duties or they are permitted to do as such.
The court considered the general job of the BCCI in cricket to infer that
BCCI performs a public function. The BCCI details rules, guidelines,
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standards, and measures covering all parts of the sport of cricket. It
appreciates the intensity of picking the individuals from the national
group and the umpires. It practices the intensity of precluding players,
which may now and again shut down the wearing profession of an
individual. The BCCI additionally outlines benefits that include pension
schemes and consumptions on mentors, coaches, and team staff. It sells
communicate and broadcast rights and collects affirmation expenses to
settings where the matches are played. All of these exercises are
undertaken with the implied concurrence of the State Government and
Government of India which are completely mindful as well as
supportive of the activities of the BCCI.
Execution of public function with regards to the Constitutional of India
is permitted an element to play out the capacity as an authority under the
ambit of Article 12 which makes it subject to the constitutional
discipline of fundamental rights. Except on account of disciplinary
measures, the Board has not made any standard to act decently or
sensible, in its capacity. The board as an individual from the ICC or in
any case likewise will undoubtedly act in a sensible way. The obligation
to act decently is innate in the body which activities such huge force,
such an obligation can be envisioned only under Article 14 of the
Constitution.

AUTHORITY

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Power exercised by a person in virtue of his/her position or jurisdiction
or a right to command. The Authority is both public and statutory. An
Authority, however, does not require a statutory or public authority in its
etymological context. Public authorities have public duties to perform.

UNITED KINGDOM:

The Jockey Club was allowed to grant a license enabling the persons to
train horses for race in Nagle V Feilden and Others8 [1966(2) QB 633].
The Respondent’s application for award of a permit was dismissed on
the ground that she was a lady. It was a private club that exercised its
role as licensing authority and regulates the profession and so its
activities are required to be judged and seen by higher standards. It was
held it can’t act discretionarily.
The court exercised judicial review authority over a private body in R. V
Panel on Takeovers and Mergers, ex parte Datafin plc and others9
[1987(1) all ER 564].
The grounds on which judicial review was given are:
a) The Panel, though self-regulatory does not act on a consensus or
voluntary basis but has placed the collective code on those within its
jurisdiction.
b) The Panel was carrying out a public duty, as evidenced by the
readiness of the government to regulate law in that area and use the

8
Nagle V Feilden and Others, 1966(2) QB 633.
9
R. V Panel on Takeovers and Mergers, ex parte Datafin plc and others, 1987(1) all ER 564

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panel as part of its regulatory framework. In the view of the fact that
certain legislation presupposed its presence, the Government had
“implied transfer of authority” to the Panel.
c)Its power source was mostly good enticing. The Government and the
Bank of England would use such a force in compliance with a Statute.

SCOTLAND:

In St. Johnstone Football Club Limited V Scottish Football

Association Limited10 [1965 SLS 171], a Scottish court ruled that the
Council must force remove a Member on a legal basis as to the nature of
the function. When they attempt to exert the power or jurisdiction on a
Member which he by becoming a member did not give them, i.e., acting
ultra vires, or if they have done him injury by doing so, the court of law
shall not hesitate to pursue redress, nor shall it refuse to give remedies to
him. It was emphasized that they are bound by the laws of natural justice
in a situation such as this.

AUSTRALIA:

In Neat Domestic Trading Pty Ltd V AWB Ltd. and another 11 [77
ALJR 1263], the court was concerned about the Australian Wheat
Board(International)Ltd.(AWBI)a private organization established under
the Wheat Marketing Act 1989, which was solely entitled to export

10
St. Johnstone Football Club Limited V Scottish Football Association Limited, 1965 SLS 171.
11
Neat Domestic Trading Pty Ltd V AWB Ltd. and another, 77 ALJR 1263.

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wheat. It had additionally the duty regarding the business parts of wheat
advertising through working wheat pools. The AWBI competing
appellant applied for an award of a grant for the mass wheat export
however the equivalent was declined whereupon it was fought that the
AWBI was contradicting the Trade Practices Act, 1974. The decision by
AWBI was challenged that it included an ill-advised exercise of
discretion. The following interesting observation was made therein:
“This appeal presents an opportunity for this court to reaffirm that
principle in circumstances, now increasingly common, where the
exercise of public 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 adrift from
such mechanisms of accountability and is answerable only to its
shareholders and to the requirements of corporations law or like rules.”

JUDGMENT IN A GLANCE

A Constitution Bench of Supreme Court ruled that under the Indian

Jurisprudence, there was always a just remedy for the violation of a right
of a citizen. Holding on the facts of the case, it was held that the Board
of Control for Cricket (BCCI) did not fall within the purview of the term
“State”.

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 OVERVIEW OF THE JUDGMENT

Simply because a body answers the portrayal of a public authority,

releases public law functions, and have public duties would it not, on its
own, lead to the conclusion that all its functions are public functions.
In each case, the question would be whether, in the light of total realities
as set up, the body is financially, functionally, and authoritatively
overwhelmed by or heavily influenced by the Government. Such control
must be specific to the body being referred to and must be unavoidable.
On the off chance that this is discovered, at that point, that body is a
State under the ambit of Article 12. Then again, when the control is just
regulatory whether, under statute or else, it would not serve to make the
body a State. The details of the case in hand have to be checked on the
criterion touchstone set out in the case of Pradeep Kumar Biswas’
case. Before doing so it would be advantageous by and by to summarize
what are the rules set down in Pradeep Kumar Biswas’ case for a body
to be a State under Article 12. They are:
1) Principles laid down in Ajay Hasia are not a rigid set of principles
so that if a body falls within any one of them it must ex hypothesi,
be considered to be a state within the meaning of Article 12.
2) The question in each case will have to be considered on the bases
of facts available as to whether in the light of the cumulative facts
as established, the body is financially, functionally,

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 administratively dominated, by or under the control of the
Government.
3) Such control must be to the body in question and must be
pervasive.
4) Mere regulatory control whether under statute or otherwise would
not serve to make a body a state.
In this case, the facts defined are:-
1) The Government does not own a majority of the Board’s share
capital.
2) Basically no money related help is given by the Government to
meet the entire or whole use of the Board.
3) The Board enjoys a restraining infrastructure status in the field of
cricket however such status isn’t state given or state ensured.
4) The Board isn’t made by a move of a government claimed
organization. It is an autonomous body.
5) There is no presence of profound and pervasive State control. The
control if any is just regulatory in nature as pertinent to other
similar bodies. This control isn’t explicitly practiced under any
exceptional resolution relevant to the Board. All elements of the
Board are not public functions nor are they closely related to
Governmental functions.
6) Board is not created by a Statute.

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In this context, it would be clear that the facts set out do not
cumulatively indicate that the Board is controlled, politically, technically
or administratively, by or is subject to government control, if standards
set in Pradeep Kumar Biswa are applied. In this way, the little control
that the Government might be said to have on the Board isn’t
inescapable in nature. Such constrained control is absolutely
administrative control and that’s it.
The court propounded:
……...that when a private body exercises its public functions
even if it is not a State, the aggrieved person has a remedy not only
under the ordinary law but also under the Constitution by way of a writ
petition under Article 226.
So said, the court held that BCCI discharged public duties and for that,
the aggrieved, could proceed against it by way of a public law remedy
against the BCCI under Article 226.

REFERENCES

● Zee Telefilms Ltd & Anr V Union of India, AIR 2005 SC 2677
● University of Madras V Shantha Bai, AIR 1954 Mad.67
● Rajasthan State Power Board V Mohan Lal, AIR 1967 SC 1857
● Sukhdev Singh V Bhagatram, AIR 1975 SC 1331
● Raman Dayaram Shetty V International Airport Authority, AIR
1979 SC 1628
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● Som Prakash Rekhi V Union of India, AIR 1981 SC 212
● Ajay Hasia V Khalid Mujib Sehravandi, AIR 1981 SC 487
● Nagle V Feilden & Ors, 1966(2) QB 633
● R. V Panels on Takeovers & Mergers, ex parte Detafin Plc & Ors,
1987(1) all ER 564
● St. Johnstone Football Club Limited V Scottish Football
Association Limited, 1965 SLS 171
● Neat Domestic Trading Pty Ltd V ANB Ltd. & Anr, 77 ALJR 1263

BRIEF ABOUT AUTHOR

Bhawna Tuteja is a first-year law student at the Department of Laws, Panjab University,
Chandigarh. She has pursued her Bachelors in Commerce from the University of Delhi. She
has volunteered at Intra moot court competition held at Panjab University. She has gained a
Diploma in Financial Accounting. She is a nature lover, photography enthusiast, and a chef at
heart as she is fond of food blogging too. She enjoys listening to music and takes long walks
to unwind herself. She is keenly interested in increasing her legal skills and knowledge
through all-round exposure to gain competence in legal affairs.

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