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Constitutional Law – I

TOPIC: CONCEPT OF STATE PART II

COURSE INSTRUCTOR: PROF. SOURAV MANDAL &
SATISH RAI
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Readings and cases

 Cases
 Zee Telefilms v. Union of India (2005) 4 SCC 649
 Board of Cricket Control of India v. Cricket Association of Bihar and others
[2015] 3 SCC 251
 Janet Jeyapal v. SRM University 2016 (1) ESC 31 (SC)
 Zee Telefilms v. Union of India 3
(2005) 4 SCC 649

 The question involved was whether the Board of Cricket for Control in India (the
“BCCI”) was ‘State’ within the meaning of Article 12.
 The Supreme Court held that the BCCI, a society registered under the provisions of
Tamil Nadu Registration of Societies Act,1975 is not a State within the meaning of
Article 12 of the Constitution of India but it is amenable to the writ jurisdiction of
Article 226 of the Constitution because the duties and functions performed by BCCI
are of public nature.
Zee Telefilms v. Union of India 4
(2005) 4 SCC 649

The activities to be performed by the BCCI are as under:

 It formulates rules, regulations, norms and standards covering all aspects of the game.
 It has the power to disqualify the players which may at times put an end to the sporting
career of the person.
 It spends crores of rupees on building and maintaining infrastructure like stadium,
running of cricket academies and supporting State Association.
 It frames pension schemes and incurs expenditure on coaches and trainers etc.
 It collects admission fees and the telecast and broadcast rights of the matches are sold
by the BCCI.
Zee Telefilms v. Union of India (2005) 4 5
SCC 649

 The BCCI is not created by a statute.

 The Government holds no part of the share capital of the BCCI.
 Practically no financial assistance is given by the Government to meet the whole or the
entire expenditure of the BCCI.
 The BCCI does enjoy a monopoly status in the field of cricket but such status is not
State conferred or State protected.
 There is no existence of a deep and pervasive State control. The control if any is only
regulatory in nature as applicable to other similar bodies. This control is not
specifically exercised under any special statute applicable to the BCCI.
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Zee Telefilms v. Union of India (2005) 4 SCC 649

 The BCCI is not created by transfer of a Government owned corporation. It is an

autonomous body.
 The facts established do not cumulatively show that the BCCI is financially,
functionally or administratively dominated or is under the control of the Government.
 Thus, the little control that the Government may be said to have on the BCCI is not
pervasive in nature. Such limited control is purely regulatory control and nothing
more.
 To argue that every entity, which validly or invalidly arrogates to itself the right to
regulate or for that matter even starts regulating the fundamental right of the citizen
under Article 19(1) (g), is a State within the meaning of Article 12 is to put the cart
before the horse.
Zee Telefilms v. Union of India (2005) 4 SCC 7
649

 If the argument of the learned counsel for the petitioner is to be accepted then the
petitioner will have to first establish that the BCCI is a State under Article 12 and it is
violating the fundamental rights of the petitioner.
 The Court held that the petitioner has failed to establish that the BCCI is State within
the meaning of Article 12.
 In the absence of any authorization, if a private body chooses to discharge any such
function that is not prohibited by law then it would be incorrect to hold that such action
of the body would make it an instrumentality of the State.
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Zee Telefilms v. Union of India (2005) 4 SCC 649

 The Union of India has tried to make out a case that the BCCI discharges these
functions because of the de facto recognition granted by it to the BCCI under the
guidelines framed by it.
 But the BCCI has denied the same.
 In this regard the Court held that the Union of India had failed to prove that there is
any recognition by the Union of India under the guidelines framed by it and that the
BCCI is discharging these functions on its own as an autonomous body.
 It cannot be denied that the BCCI does discharge some duties that can be said to be
akin to public duties or State functions and if there is any violation of any
constitutional or statutory obligation or rights of other citizens, the aggrieved party
may not have a relief by way of a petition under Article 32.
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Zee Telefilms v UOI (2005) 4 SCC 649

 But that does not mean that the violator of such right would go scot-free merely
because it is not a State.
 Though the remedy under Article 32 is not available, an aggrieved party can always
seek a remedy under the ordinary course of law or by way of a writ petition under
Article 226 of the Constitution, which is much wider than Article 32.
Board of Cricket Control of India v Cricket 10
Association of Bihar and others [2015] 3 SCC
251
Facts
 In 2013 the Delhi Police had acted upon information received of spot-fixing in IPL
and charges were levied against the owners of two teams: Rajasthan Royals and
Chennai Super kings.
 Raj Kundra was the owner of Rajasthan Royals while Gurunath Meiyappan of
Chennai Super Kings; Meiyappan was also the son-in-law of N. Srinivasan, secretary
of the Board of Cricket Control of India (the “BCCI”).
 In order to investigate the matter, BCCI constituted a committee.
 This committee was headed by Shri Sanjay Jagdale and two retired judges of the
Madras High Court.
Board of Cricket Control of India v Cricket 11
Association of Bihar and others [2015] 3 SCC
251
Facts
 A PIL was filed by Cricket Association of Bihar before the Bombay High Court
seeking the constitution of committee to be declared ultra vires of the Constitution of
India and sought the appointment of retired Supreme Court judges in the panel.
 They also prayed for the termination of contract of IPL franchisee Chennai Super
Kings and Rajasthan Royals with BCCI and initiation of disciplinary proceedings
against N. Srinivasan.
 The Court in an order dated 30.07.2013 declared the constitution of Probe
Commission in contravention to Provisions 2.2 and 6 of IPL operational rules.
Board of Cricket Control of India v Cricket 12
Association of Bihar and others [2015] 3 SCC
251
Facts:
 The High Court however denied relief in the form of constitution of commission
consisting of retired judges.
 An appeal was filed before the Supreme Court by the Appellant board.
 Meanwhile, the matter came before the Supreme Court.
 N. Srinivasan had become the President of BCCI.
 The Apex Court constituted a Committee under the supervision of Justice Mukul
Mudgal to intervene into the alleged match fixing allegations.
Board of Cricket Control of India v Cricket 13
Association of Bihar and others [2015] 3 SCC
251
Issue:
 Whether BCCI is ‘State’ under Article 12 of the Constitution of India?
Decision & Reasoning:
 The Court held that BCCI was not ‘State’ within the ambit of Article 12 of the
Constitution of India.
 In doing so, the Court applied the principles of the absence of deep and pervasive
control and lack of substantial government funding.
Board of Cricket Control of India v Cricket 14
Association of Bihar and others [2015] 3 SCC
251
Decision & Reasoning:
 The Court enumerated the following five factors, which would determine whether a
body comes under the definition of State as defined in Article 12 of the Constitution:
 Financial assistance given by the State and magnitude of such assistance.
 Any other forms of assistance whether of the usual kind or extraordinary.
 Control of management and policies of the corporation by the State – nature and
extent of control.
 State conferred or State protected monopoly status and
 Functions carried out by the corporation, whether public functions closely related
to governmental functions.
Board of Cricket Control of India v Cricket 15
Association of Bihar and others [2015] 3 SCC
251
Decision & Reasoning:
 On the application of these factors, the Court decided that BCCI is not an
‘Instrumentality of the State’.
 The decision of the Court to set up a committee to monitor and investigate into the
matter of spot fixing and the structure of BCCI is of great importance as the BCCI is
responsible for regulating one of the most followed sports of the country and a balance
has to be struck with historical reality and the need for adopting a pragmatic, uniform
and principled approach aimed at reforming and rationalizing BCCI’s structural
edifice.
 The Court observed that the BCCI even though not a ‘State’ under Article 12, it did
perform certain public functions like selection of the team to represent the country in
international arena and had a complete say on the game of cricket, which made it
Janet Jeyapal v. SRM University 16

Facts:
 The appellant, Dr. Janet Jeyapaul, was a Senior Lecturer in the Department of
Biotechnology at SRM University.
 The SRM University alleged that the appellant had failed to take classes for two
batches.
 The SRM University had constituted an Enquiry Committee that communicated that
the action was based on several complaints made by students.
 A petition was filed under Article 226 before a Single Judge of the Madras High Court
which ruled in her favor by ordering that she should be reinstated into the service.
Janet Jeyapal v. SRM University 17

Facts:
 The University in turn filed an appeal before a Division Bench of the Madras High
Court against the said order.
 The Division Bench reversed the order as it held that the respondent was not a State
under Article 12, and thus could not be subject to writ jurisdiction under Article 226.
 This case came to the Supreme Court by way of a Special Leave Petition against the
decision of the Division bench that viewed the University to not be a State for the
purpose of Article 12.
Janet Jeyapal v. SRM University 18

Issue:
 Whether the SRM University is state within the meaning of Article 12 of the
Constitution of India?
Decision & Reasoning:
 It was thus held that the Division Bench of the High Court erred in its opinion by
holding that the respondent could not be subject to the jurisdiction of Article 226.
 The respondent was a “Deemed University” according to Section 3 of the UGC. This
meant that the UGC’s decisions would be binding upon the respondent and that it
would govern its functioning.
Janet Jeyapal v. SRM University 19

Decision & Reasoning:

 The Court held that once an institution is declared a “Deemed University” it would be
an authority under Article 12 as it carried out a public function of imparting education.
 Thus, the institution will be subject to the writ jurisdiction of High Courts under Article
226.
 The respondent University performed a public function by imparting education and
being governed by the UGC resulted in it being an authority against whom fundamental
rights and writs were exercisable.
 Interpretation of the term “other authorities” has undergone a fundamental shift as it has
strayed away from the erstwhile application of ejusdem generis to a more progressive
one that relies on the type of function and the level of governmental control.