Articles

Article Title: Beholding the veracity of Board of cricket control of India v. Cricket Association of Bihar and othe
Date of Article: January 7, 3800

Beholding the veracity of Board of cricket control of India v. Cricket Association of Bihar and others

Submitted by:

Aishwarya Hariharan

Prakash Boopal

School of Law, SASTRA University

Introduction

A state is defined as not just the formal governing apparatus, but the distinct society, culture & economy of a given region & community that exists under a single governmental authority. MODERN theory (Machiavelli, Thomas Hobbes) tends to see the state purely in terms of power.[1]As Holmes put it ―”a word in the constitution is not a crystal clear, transparent & the more important interpretative parts, the constitutional words are the skins of living thoughts which change with the times & as society changes.”[2] The reason for including the word “other authority” during the constituent assembly debates have been set out the Zee Telefilms Ltd v Union of India[3] and the court held that a society could also be included within the expression “other authorities” in A.12.[4] Although a body is constituted for commercial purpose when the nature of activities which that body carries out is subjected to that of a governmental function, then the said body falls under the expression “other authorities.”[5] Dr. B.R. Ambedkar said that “anybody who cared for the fundamental rights could not object to the definition.”[6] It is to be understood that the word “other authorities” fall within the meaning of Article 12.

Relevance of Public Function Test 

The criteria to classify an authority as “other authority” also falling within the net of A.12 is subject to satisfying certain tests. By considering Public Function Test when the functions performed by private bodies could be identified with state functions, they would become State Actors in relation to the public functions performed by them.[7]In AjayHasia v Khalid Mujib[8]a detailed test for determining whether a body is a state or not for the purpose of A. 12 of the constitution was laid down. The Supreme Court in Som Prakash Rekhi v Union of India[9] laid down preponderant considerations for pronouncing an entity as state agency or instrumentality. The test of instrumentality or agency was laid down as the most satisfactory one for determining whether a statutory corporation, body or other authority falls within the definition of the state.[10]  Thus, In Ajay Hasia case[11] it was held that a society registered under the Societies Registration Act could also be an instrument of State for the purpose of the term "other authorities" in A.12. The Supreme Court held that the function like selecting a team is a public function.[12]  Thus, the test laid down in Ajay Hasia is applicable which makes BCCI body an instrumentality or agency of the state.[13]

VERACITY OF THE ZEE TELEFILMS JUDGMENT

The zee telefilms is the significant case in the issue of consideration of BCCI as a state. The time factor plays a crucial role in the change in the view of the judgments from Pradeep Kumar Biswas, Zee telefilms to BCCI judgments where we can see the decade gap among all the three cases. The reason for having a diverted opinion from the discussion in the judgments is the obligation to follow the doctrine of Stare decisis, which is evident through the hesitation of the judges in the Zee telefilms case to abide by the 7 judge constitutional bench of Pradeep Kumar Biswas judgment. The strict interpretation is used by the judiciary regarding the criteria set up by the above judgment. To be a state, the body so questioned must be financially, functionally and administratively dominated or under the control of the state or central government and thus making it an instrumentality of the state or a public authority. But the strict interpretation results in the destruction of the nexus carried over by the enlightening judgments of Som Prakash Rekhi, Rammana D. Shetty and Ajay Hasia cases where liberal view has been used to bring the entities under the umbrella of state so that the functioning of crucial sovereign related and state functions can be undertaken by the State. Whereas we can see the reluctance in the Zee telefilms whereas the other sports are already under the care of the Ministry of the Youth and Sports Affairs.

Zee telefilms cannot be used to check or jump to the conclusion that BCCI is not a state as the material facts and issues are related to the telecommunication services which cannot be considered as a crucial state function and there must be equality in dissemination of the information as it will directly hit the Fundamental right of freedom of speech and expression. Whereas in the BCCI case in 2016 the issue is restricted to the internal functioning of the entity itself and thus the division bench has erred in its judgment by relying on the Zee telefilms. With this indirect immunity the administration is toyed by the influential politicians, business magnets and other powerful personalities. This paves way to other potential risks like corruption, nepotism which is ultimately affecting and spoiling the quality of cricket in India and stealing the opportunities of the talented at last degrading the country’s name.

CONFLICT OF REASONING IN BCCI AND ZEE CASES

It is known that the BCCI is given the de facto recognition by India and its government. There is no interruption in the functioning of the activities which includes the arrangement for accommodation and travel of the players, recommendation of the prestigious awards to the individuals, and permission to conduct, host or to participate in the international matches which is analogous to the functioning of the Ministry of Sports and Youth Affairs.

At this Juncture Justice Markandey Katju’s report on the BCCI case must be observed. It stresses on following the public function test as the scope of state is volatile and continuously changing with time and progress and the tests to check the status of being a ‘state’ must run in parallel to the go-ahead nature of the state.

Article 1 of Montevideo Convention says that the state must consist of definite territory, definite population, government and ability to enter into international agreements and relations. With the advent of globalization and cyber technologies the idea of definite and certainty has got erased. Territory becomes immaterial since with cyberspace the world itself is shrunk to a global village, the population is so dispersed that we can survive in any part of the world and the concept of population itself is dynamic. The government is for the effective functioning of the State which is inferior to the will of people. To obtain the international recognition as a state, the priority is given to the international standards which is possible only through the good and attractive projection and name/ fame of the state. But by delivering the absolute state functions, which will influence the standard of the country in the global scenario, the amount of risk taken is huge. The objective is not that the state functions can be performed but it must be regulated and no scope must be given for misusing the powers. The present case arose for BCCI because of its internal truffle and nepotism affecting the selection of team and also the talent of the team. The corruption is a huge element because of commercialization of the sports instead of levitating the sports standards. The annual turnover in thousands of crores filling the private pockets show the clear misuse of the power given to them. These factors will affect the dignity of the state in international relations and BCCI must be considered as a state to regulate its functions.

Since the concept of state is continuously changing, it is also necessary to reconsider the conditions of the state. Thus we can see the conflict among necessity, practicality and the law. The desideratum of formation of a bench larger than 7 judge bench makes the entire process tedious and the wish of the judiciary to defer in the definition of “other authorities” as established in Pradeep Kumar Biswas is seen in 2016 BCCI case. This can be brought to a conclusion by making the constitutional amendment and defining “other authorities” as an inclusive term capable of being interpreted when the dispute arises which will satisfy the judicial proceedings and logical reasoning. Every solution has its consequence, similarly the ill outcome of the above measure is the multiplicity of suits.

WHY THE PRADEEP KUMAR CASE IS FOLLOWED?

The cases prior to the Pradeep Kumar Biswas were so wide that it posed threat to all the entities capable of being brought into the term of “other authorities”. The inclusive phrases and ‘or’ conditions resulted in bringing destructing the ultimate economic and welfare principles of the country, the real shift which can be seen in the evident change in the economic policy from monopoly to competition and thus it becomes the role of the state to promote competition and capable of promoting healthy participation and uniting the global market with that of India. This is the finest gesture of the LPG (Liberalization, Privatization and Globalization), which is the ultimate motive of the World Trade Organization.

It is also to be noted that a lot of entities where brought before the Courts of Record for checking and vexatious inclusion of all entities under the garb of ‘state’ which projected the ultimate perversion of certain individuals against the socio-economic welfare of the state. Thus leading to frame the strict and few conditions to be complied be called a state.

This resulted in allowing even the entities that do the state functions to escape from the strict interpretation as one entity can deviate from any of the 3 conditions specified in the above case, (Zee telefilms is the outcome of the case) and lead the entity as they wish which result in the spoiling the country’s name because of the greed and exploitation character of private individuals.

The Board has extensive powers in selecting players of Indian cricket team to represent India in domestic and International cricket matches representing India in foreign countries and is tacitly acknowledged by the Indian government. BCCI has dominant position & controls almost all the state level cricket associations and it fixes the remuneration of players. This absolute authority of the Board is because of the recognition granted by the govt. of India, hence in effect it comes under "other authorities" for the purpose of A.12. Many of the vital activities of the Board like sending a team outside India and inviting a foreign team to play matches in India is subject to the prior approval of the govt. of India such as Visa clearance and other hidden charges and for majority of its stadium in India where govt. of India and state govt. have given huge piece of agricultural land at very meagre price. Thus BCCI has always been subjected to de-facto or de-jure control of the Ministry and as an Apex National Body for regulating the game of Cricket in India. What is necessary is to notice the functions of the Body concerned. By considering National Sports Policy, 2001 coherently it has stated that sports is considered as an indispensable part of education.[14]The function of BCCI is promoting the game of sport and sport being an education, BCCI is imparting education at large. Thus it is discharging “public function” by way of imparting education.[15]

Further, the word India at the end of BCCI suggest patronage of the govt. of India & it is violating §.3 of Emblems & Names (Prevention of improper use Act, 1950). Henceforth, the statement that BCCI has nothing to do with the government of India yet conveniently uses the word India at the end of its name showing absolute patronage of the government of India. Supreme Court stated that BCCI is bound to follow the doctrine of fairness & good faith in all its activities.[16] As the Board controls the profession of cricket, its actions are required to be judged and viewed by higher standards.[17] These certain facets of the activities of the Board did not come up for consideration in any one of the earlier cases including in Pradeep Kumar Biswas[18] case. These facets when considered clearly show that Board is an instrumentality of the state.

By invoking State Action doctrine and test:

The constitutional courts are not only required to take into consideration their own experience over the time, the international treaties and covenants but also keeping the doctrine of flexibility in mind.[19] The United States Supreme Court has created at least seven distinct tests to help courts deal with state action[20] and public rights have already been held subject to constitutional standards by applying various tests.[21]
i. Public functions doctrine In Marsh v. Alabama[22]  the Court opined that even in cases where the State had merely acquiesced to an entity performing an important public function, the entity would be subject to Constitutional standards.  In 1974 Court held that in order to attract the doctrine of State Action, the functions carried out by the Corporation must be public function closely related to the governmental functions.[23]
ii. Entanglement Test The Sport-association can be sued as a state actor because its actions and history have been "entangled" with state action and whether state action existed was a “necessary fact bound inquiry” and this can be found only when there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself". [24] With regard to BCCI, the society is formed by the support and patronage from the princes and kings of the provincial government under the colonial rule. We got cricket from our colonial rulers who were the state before independence. The body is formed with the prior permission of the Colonial rulers through the Princes and Kings who were the agents of the govt. This clearly shows that the state has conferred recognition and monopoly in cricket through patronage and support in forming BCCI with the objective of representing India in International matches and representing the country.
iii. The Nexus Test, "The action of a private party constitutes state action when there is a sufficiently close nexus between the state & the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself."[25]State regulation, no matter its extent[26], Public funding of a private group[27],  Minor presence of public officials on the board of a private entity; the mere approval or acquiescence of the state in private activity[28],  utilization of public services by private actors.[29]
iv. The Symbiotic Relationship Test This test is more unstructured than the Nexus Test and simply requires a high level of mutual interdependence between the private group and the state in order for state action to be found.[30]Interdependence factors include "mutually conferred benefits, a close fiscal relationship.[31]
v. The Joint Participation, this test concentrates on the actual interaction between the state & the private party i.e; the activity of the entity and not just the interrelatedness between the two. This test applies in situations where the state so closely encourages a party's activity that the private actor is said to be "cloaked with the authority of the state.

Conclusion

The traditional principles are inappropriate to meet the ends of justice in the BCCI case. Lord Denning recognized many years ago that domestic bodies like the Stock Exchange, the Jockey Club, the Football Association and major trade union have "quite as much power as statutory bodies and that they can make by their decisions.[32] Similar is the case of BCCI. Henceforth, if these principles are applied to BCCI it would become State under A.12 Therefore, it is to be noted that if BCCI is not to be brought under the purview of A.12 of the Constitution then by existent BCCI could be compared to Black Hole which would eventually bring cricket to nothingness due to the prevailing corruption &irregularities within.