THE HIGH
COURT OF DELHI AT NEW DELHI
SUBJECT:PIL
ON CRICKET
WP (C) 1680/2000
Judgment
reserved on:18.08.2004
Judgment
pronounced on: 04.10.2004
RAHUL MEHRA & ANOTHER ...Petitioners
Versus
UNION OF INDIA & OTHERS ...Respondents
Advocates who appeared in this case:
For the Petitioners :
Mr Rahul Mehra
For the Respondent No.2 : Dr A.M. Singhvi, Sr Advocate with Ms Radha Rangaswamy
and
Mr Viraj Datar
For the Respondent/UoI :
Mr Vineet Bhatia
For the Respondent No.3. : Ms Sunita Mittal
CORAM:-
HON'BLE MR JUSTICE B.C. PATEL, CHIEF JUSTICE
HON'BLE MR JUSTICE BADAR DURREZ AHMED
BADAR DURREZ AHMED, J
"There must be no Alsatia1 in England2 where
the King's3 writ does not run."4
1. This writ petition has been filed in public interest
claiming various reliefs against, inter alia, the Board Of Control For Cricket
In India (Respondent No.2)(hereinafter referred to as "BCCI") and the
Delhi & District Cricket Association (Respondent No.3)(hereinafter referred
to as "DDCA") which is a member association of the BCCI. As claimed in the first paragraph of the
petition, it has been filed to ensure that organizations such as BCCI &
DDCA which have been created for the purpose of promotion of cricket in the
country and which have acquired a monopoly status by virtue of alleged
Government recognition and patronage, perform their duties and obligations
which is to promote and develop cricket in the country and that they do not
function as private empires of some businessmen and traders who have allegedly
come to control it and abuse it for their own interests and profits. The petitioners contend that BCCI & DCCA
function as Government recognised monopolies and, as such, perform State
functions of promoting cricket in the country.
They further contend that BCCI & DDCA cannot be permitted to
function as purely private organisations without any accountability or
obligation to the people of this country.
The petitioners further seek directions to the Government of India to
ensure that BCCI & DDCA function in an accountable manner and for the
objects for which they have been created and recognised by the Government,
failing which the Government must withdraw its recognition and patronage from
these organizations.
2. Without going into the merits or demerits of the case, a
serious objection has been taken by the BCCI to the maitainability
of this petition. They contend that they are not amenable to the
extraordinary writ jurisdiction.
Arguments were, therefore, heard only on this preliminary issue.
2.1 On his part, the first petitioner (Mr Rahul Mehra), who
appeared in person, relied heavily on the judgement dated 17.9.2001 delivered
by a Single Judge of this Court in CW 867/2001 (Shri
Ajay Jadeja v. Union of India & Ors: (2002) 95 DLT 14). He initially submitted that the issue was
decided in that case that a writ petition could be entertained against the
BCCI. However, as there was an objection
raised by the learned counsel for the BCCI that the said judgement had been set
aside by a Division Bench of this Court, the petitioner submitted that, though
the Division Bench had not set aside the said judgement on merits but merely on
the basis of a consent order, he was free to adopt the reasoning of the learned
Single Judge in the said judgement as his submissions before this court to
contend that BCCI was amenable to the writ jurisdiction under article 226 of
the Constitution of India.
3. Since there was some controversy with regard to the legal
effect of the setting aside of the said judgement of the learned Single Judge
in Ajay Jadeja's case (supra), it is best to deal with it straight away. The decision dated 17.9.2001 disposed of the
preliminary objection to maintainability of the writ petition by holding that a
writ petition against BCCI was maintainable as it performed a public duty or a
public function. BCCI, being aggrieved
by this decision filed a Letters Patent Appeal being LPA 531/2001. The writ petition (CW 867/2001- Ajay Jadeja v UOI & Ors) was, after it was held to be
maintainable as aforesaid, placed before a Division Bench of this Court for
hearing on merits. The LPA was also
placed before the same Division Bench.
In fact, even the present writ petition was heard together with these
two matters by the same Division Bench.
That Bench passed separate orders
in these three matters on 30.10.2002.
4. The first being the order in Ajay Jadeja's writ petition (CW
867/2001). The order recorded that the
parties had "agreed to get the matter resolved through
arbitration". The order further
read as under:-
"We clarify that this order
is in special circumstances of this case and will not be treated as a precedent
in any other case of whatsoever nature."
"In view of the matter
having been referred to the Arbitrator, the petition stands dismissed as
withdrawn. All interim orders including the order dated 17th September, 2001
stand vacated."
In other words, the writ petition
filed by Ajay Jadeja was withdrawn by him as he agreed to have the matter
settled by an Arbitrator. And, the Division Bench was careful enough to record
that the order was not to be treated as a precedent. It is in view of these special circumstances
and the withdrawal of the writ petition itself that the order dated 17.9.2001
passed by the Single Judge stood vacated.
Thus, this order of the Division Bench cannot be regarded as having
reversed the decision of the Single Judge on merits. In other words, it cannot be understood to
mean that the Division Bench held that the writ petition against BCCI was not
maintainable or that it took any view on the question of maintainability. Hence, the argument of Dr Singhvi
appearing for the BCCI that this bench is bound by the decision of that
Division Bench is misplaced and reliance on the Supreme Court decision in State
of A.P. v. V.C. Subbarayudu & Ors:
(1998) 2 SCC 5165 is not apposite. Here, the earlier Division Bench did not
take any view on maintainability and itself recorded that the order was not to
be treated as a precedent.
5. This brings us to the second order of 30.10.2002, that is
the one passed in the said LPA filed by BCCI.
It reads as under :-
"Mr..... appearing for BCCI
says that in view of the respondent no.1 having withdrawn the writ petition and
the matter having been referred to the Arbitrator, he is not pressing the
appeal. The appeal as such is dismissed
as withdrawn."
And, the third order of
30.10.2002 was passed in the present petition to the following effect:-
"This is a public interest
litigation. Let it be listed before the
bench as per roster on 1st Novemeber, 2002."
Thus, it is clear that the
Division Bench did not decide on the maintainability of a writ petition against
BCCI. Though, it is also clear that
because of the withdrawal of the writ petition by Ajay Jadeja, the order dated
17.9.2001 was also vacated. However, as
the petitioner contends, it can be read as part of his submissions before this
court. And, that is how we read the
same.
6. Another point which needs to be put aside is that the
petitioner straight away contended that, in this petition, he is not advancing
the argument that BCCI falls within the meaning of "State" as defined
in Article 12 of the Constitution. He
further submitted that he is also not raising the issue as to whether
BCCI is an instrumentality of the State or not.
It is his contention that a writ petition under article 226 of the
Constitution may be directed against "any person" and it is not at
all necessary that the reliefs must be sought against the "State",
"Government" or "authority" or "instrumentality of the
State". Therefore, we are not
called upon to decide the issue whether BCCI would fall within the definition
of "State" under Article 12.
Though, the counsel for the BCCI has given elaborate written submissions
on this aspect contending that BCCI was neither "State" nor an
"instrumentality of the State" relying upon the test laid down in
Ajay Hasia v. Khalid Mujib:
(1981) 1 SCC 722, we need not refer to them as this issue is not before
us. It may be mentioned that by an order
dated 23.8.1989 passed in a writ petition (cw
632/1989 : Mohinder Amarnath
v. BCCI & Ors) a Division Bench of this Court held that the BCCI did not
"qualify to be called an instrumentality of the State under Article 12 of
the Constitution" and declined to entertain the writ petition. In the Special Leave Petition [SLP(civil) No.
10142/89] preferred against this order of 23.8.1989, the Supreme Court passed
an order on 26.9.1989 disposing of the same in the following manner:-
"Since the punishment
imposed on the petitioner has been revoked, the petition is disposed of without
expressing any opinion on the view taken by the High Court of Delhi."
So, the Supreme Court neither
endorsed the view taken by the Division Bench of this Court, nor rejected
it. Anyhow, we are not required to
examine these aspects because the issue as to whether the BCCI is, or is not,
an instrumentality of the State within the meaning of Article 12 of the
Constitution is not before us.
7. The core question, therefore, is -- whether BCCI is amenable
to the writ jurisdiction under article 226 of the Constitution? Sub-article (1) thereof reads as under:-
"226. POWER OF HIGH COURTS
TO ISSUE CERTAIN WRITS.
(1) Notwithstanding anything in
article 32, every High Court shall have
powers, throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in appropriate
cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other
purpose.
xxxx xxxx xxxx xxxx"
A plain reading would suggest
that the powers are plenary6 and the High Court can issue directions, orders or
writs to "any person" for the enforcement
of any fundamental right and "for any other purpose". However, these wide powers have been
regulated by judicial pronouncements so as to avoid interference in matters
where alternative remedies are available7 as also where the dispute is purely
of a private nature having no "public law" element8. The traditional view was that wherever the
State or its instrumentality was involved, it was regarded as an issue within
the domain of public law. Likewise,
where individuals were at loggerheads, the remedy lay within the precincts of
private law. This was all very well as
long as governments stuck to governance and private persons or bodies confined
their activities to pursuits of a private nature. But, when the state entered into the fields
of commerce, industry and business and when private bodies took up public
functions and duties, this distinction between public law and private law based
on the public or private character of the institution was no longer
clear-cut9. Therefore, it was no longer
safe to rely solely upon the character of the institution to decide whether it
was amenable to writ jurisdiction or not.
For instance, where there is a dispute of a purely contractual nature
(not being a statutory contract), it does not matter that one of the parties is
the "State" or a "statutory body" or "instrumentality of the State",
such a matter falls within the arena of private law and judicial review under
article 226 would not lie10. And, the
converse would be equally true. In other
words, a dispute in which the State is not directly involved may yet be a
public law issue if a public duty or a public function is performed by a
private body.
8. Governments have ventured into the private arena and private
bodies, likewise, have undertaken public duties or public functions. There is a degree of overlap and the
distinction is no longer clear-cut or watertight. The law must be alive to these dynamics. Accordingly, the question of maintainability
of a writ petition must not be addressed from the standpoint of
amenability. Everybody is amenable to
the jurisdiction of the High Courts under article 226. However, Courts have exercised restraint and
they exercise these powers only in cases which involve public law. Therefore, the "litmus" test for
invoking the writ jurisdiction is whether the act complained of is in the
discharge of a public duty or a public function. It matters little as to who discharges the
public duty or performs the public function.
And so too, the source of the power to discharge or perform such duty or
function. Whether the person is empowered by statute or some governmental order
or whether such person arrogates to himself the power to perform a public
function or discharge a public duty, is of no consequence. What is to be seen
is whether there is an infraction in the discharge of such duty or
function. If there is, the High Court
has power to correct it by issuing an order, direction or writ to any
person. Funding is also not an issue. A privately funded private organisation but
discharging a public duty would still be within the "net" of article
226.
9. In Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani:
(1989) 2 SCC 691 [at page 700], the Supreme Court succinctly put this issue
beyond the pale of controversy in the following words :-
"20. The term
"authority" used in Article 226, in the context, must receive a
liberal meaning unlike the term in Article 12. Article 12 is relevant only for
the purpose of enforcement of fundamental rights under Article 32. Article 226
confers power on the High Courts to issue writs for enforcement of the
fundamental rights as well as non-fundamental rights. The words "any
person or authority" used in Article 226 are, therefore, not to be
confined only to statutory authorities and instrumentalities of the State. They
may cover any other person or body performing public duty. The form of the body
concerned is not very much relevant. What is relevant is the nature of the duty
imposed on the body. The duty must be judged in the light of positive obligation
owed by the person or authority to the affected party. No matter by what means
the duty is imposed, if a positive obligation exists, mandamus cannot be
denied."
(underlining
added)
The decision in Andi Mukta (supra) was further
explained in Vst Industries Ltd. v. Vst Industries Workers' Union: (2001) 1 SCC 298 where the
Supreme Court observed as follows [at page 306] :-
"In Anadi11 Mukta case this Court examined the various aspects and the
distinction between an authority and a person and after analysis of the
decisions referred in that regard came to the conclusion that it is only in the
circumstances when the authority or the person performs a public function or
discharges a public duty that Article 226 of the Constitution can be invoked."
And, then in G. Bassi Reddy v. International Crops Research
Institute:(2003) 4 SCC 225, [at page 236] the Supreme Court held:-
"28. A writ under Article
226 can lie against a "person" if it is a statutory body or performs
a public function or discharges a public or statutory duty (Praga
Tools Corpn. v. C.A. Imanual12, Shri
Anadi13 Mukta Sadguru Trust
v. V.R. Rudani14 SCC at p. 698 and VST Industries Ltd. v. Workers'
Union15)...... Although, it is not easy to define what a public function or
public duty is, it can reasonably be said that such functions are similar to or
closely related to those performable by the State in its sovereign
capacity."
Ultimately, in Federal Bank Ltd.
v. Sagar Thomas:(2003) 10 SCC 733, [at page 748]:
"From the decisions referred
to above, the position that emerges is that a writ petition under Article 226
of the Constitution of India may be maintainable against (i) the State
(Government); (ii) an authority; (iii) a statutory body; (iv) an
instrumentality or agency of the State; (v) a company which is financed and
owned by the State; (vi) a private body run substantially on State funding;
(vii) a private body discharging public duty or positive obligation of public
nature; and (viii) a person or a body under liability to discharge any function
under any statute, to compel it to perform such a statutory function."
(underlining added)
10. To say that cricket is a great game would be a value
judgement. For, there may be people who
regard it as an abomination. But, to say
that cricket is a craze in India would not be far from the truth. Indeed, it is a passion, an obsession. A victory by the Indian team sends a thrill
of exhilaration amongst the masses. Equally, a defeat brings despair and
gloom. And, in extreme cases, anger,
violence and riots. Every nuance of the game is debated, every umpiring decision
is dissected and every ball bowled and run taken is watched by millions with
rapt attention. To say that the Indian
public is vitally interested in the game and the fate of its team would be an
understatement.
11. BCCI is a Society and was registered as such on 28.11.1940
under the Tamil Nadu Societies Registration Act, 1860. Its objects include:-
"(a) To control the game of
Cricket in India and give its decision on all matters which may be referred to
it by any State, Regional or other Association;
(b) To encourage the formation of
State, Regional or other Cricket Associations and the organisation of
Inter-State and other tournaments;
(c) To arrange, control, regulate
and if necessary finance visits of teams that are members of the International
Cricket Council and teams of other countries in India;
(d) To arrange, control, regulate
and finance visits of an India Cricket Team to tour countries that are members
of the International Cricket Council or elsewhere in conjunction with the
bodies governing cricket in the countries to be visited;
xxxx xxxx xxxx xxxx
(g) To frame the Laws of Cricket
in India and to make alteration, amendment or addition to the laws of Cricket
in India whenever desirable or necessary;
xxxx xxxx xxxx xxxx
(o) To impart physical education
through the medium of Cricket and take all steps to assist the citizens to
develop their physique;
xxxx xxxx xxxx xxxx
(r) To take such action as may be
necessary to coordinate the activities of affiliated Associations, Institutions
and their members in relation to the Board and amongst themselves;
(s) To select teams to represent India in test
matches, official or unofficial played in India or abroad, and to select such
other teams as the Board may decide from time to time;
xxxx xxxx xxxx xxxx"
12. A look at the Rules and Regulations of the BCCI would show
that India has been divided into 5 zones: North, South, East, West and Central,
and each zone in turn has several member associations. In all there are 30
member associations such as the Andhra Cricket Association, Assam Cricket
Association, Bombay Cricket Association, Delhi & District Cricket
Association, Karnataka Cricket Association, Punjab Cricket Association, Tamilnadu Cricket Association, Railway Sports Control
Board, Services Sports Control Board. Rule
32 prescribes the Standing Committees and their powers. The Standing Committees include the "All
India Selection Committee"16, "All India Junior Selection
Committee", "Umpires Committee", "Tour, Programme and
Fixtures Committee", "Technical Committee" and the "Junior
Cricket Committee". To demonstrate
the all-pervasive nature of the BCCI over cricket in India, it would be
sufficient to refer to functions and duties of the Junior Cricket Committee
which is required to:
"(a) draw programme of coaching at zonal
and national levels;
(b) appoint coaches as required from time to time;
(c) establish
Coaching Centres at zonal and national levels;
(d) organise and conduct junior tournaments of the Board;
(e) organise junior tours of foreign countries;
(f) decide any dispute in regard to junior tournaments;
(g) generally have control over junior cricket (i.e. For players
under the age of 19 years)."
By virtue of Rule 33, no club
affiliated to a member or any other organisation can conduct or organise any
tournament or, any match in which players/teams from the region within the
jurisdiction of a member are participating or are likely to participate without
the previous permission of the member affiliated to the BCCI. Further, if a member association wants to
conduct or organise any tournament in which players/teams from outside regions
are likely to participate, then it cannot do so unless and until it has the
previous permission of the BCCI. Similar
is the position in respect of a member association contemplating to organise an
international tournament or match. More
importantly, there is a complete prohibition on "Private
organisations" staging international matches or involving foreign players. The ban is contained in Rule 33(d) which
reads as under:-
"Private organisations shall
not be allowed to organise an International Tournament or International
match/matches in which foreign players/ teams are participating or likely to
participate. If at all such a tournament/
match/ matches is to be staged, then it should be exclusively by the affiliated
member which recommends the proposal and within whose jurisdiction the
tournament/ match/ matches will be staged."
Just as virtually no cricket
match can be organised without the previous consent of the BCCI, no club or
player can participate in any tournament or a match for which the permission of
the BCCI has not been previously obtained.
If a player contravenes this rule (ie., Rule
34), it shall be construed as misconduct and he shall be dealt with in the
procedure laid down in Rule 38. Rule 35
is also significant and it reads as under:-
"No organisation other than
a Member or Associate Member, Clubs or Institutions affiliated to such members
shall organise foreign tours to or invite teams from abroad. Members or Associate Members or such clubs or
institutions, desirous of undertaking tours abroad or inviting foreign teams
shall obtain the previous permission of the Board. Such permission may be given in accordance
with the Rules framed by the Board."
In short, organised cricket in
India at all levels -- junior, senior, state, zonal,
national or international, is fully and solely controlled and administered by
the BCCI. Some of its members such as
the Railway Sports Control Board and Services Sports Control Board appear to be
governmental/semi-governmental bodies.
No player dreaming of playing for his State or Zone or India can be
outside the sweep and control of the BCCI.
It, by itself or through its arms17, selects teams, appoints umpires and
referees, organises matches, tournaments, imparts coaching, provides funds to
needy players through benefit matches etc.
The Team that it selects to represent India, is known as the Indian team
and wears the India logo. Likewise,
teams selected by the member associations for say the Ranji Trophy are known as
the State teams (except for the Railways and the Services). A Ranji match between Delhi and Karnataka is
known as such. Not as DDCA XI v KSCA XI.
The two teams represent Delhi and Karnataka respectively. When a foreign team visits India, apart from
playing test matches or one day internationals it also usually plays matches
with State teams and other teams. One
such team is termed as the Board President's XI. Now, that team may comprise of all the eleven
who play for India, but it is not the Indian team. People do not recognise it as the Indian
team. Even, the BCCI does not consider
it to be the Indian team. A player who plays for India with pride, would have
only a fraction of this pride left if he were told that he does not play for
India but for the BCCI XI. We have dwelt
on this aspect because an inexplicable
argument was advanced on behalf of the BCCI that, in point of fact, the
Indian team is not a national side in the sense of having the sanction of the
Government, but a side picked by the BCCI amongst Indian players. The teeming millions regard it as the
national team, the players feel that they are playing for India and the
opponent teams, be they from Australia or Pakistan, all know that they are
playing against India. The BCCI ought to
take pride in the fact that all this is achieved not on the basis of any
statutory power but because it has arrogated this to itself and the Government
has let it do so and of course, most importantly, because of general public
acceptability. There is nothing wrong in
this. The only point that we are
emphasizing is that the BCCI discharges these functions which normally ought to
have been discharged by the sovereign state.
Many of these functions are clearly in the nature of public
functions. There are many which are
purely private in nature. Insofar as the
public functions are concerned a writ petition would be maintainable against
the BCCI. At the same time, as regards
private matters having no public law element, a writ would not lie.
13. The BCCI has a monopoly over organised cricket in India. Every youngster, maybe an aspiring Rahul
Dravid or an Irfan Pathan, who dreams to play cricket
for his State or zone or India cannot do so without the permission and approval
of the BCCI. We must not forget that
cricket, is no longer what it used to be. It is not just a sport which people
dressed in white flannels and rolled up shirt-sleeves enjoyed on lazy summer's
afternoons in England between sips of tea and munches of scones. It is no longer the reserve of the nawabs, the maharajas, the brown sahebs
and the rich who had the time and the inclination. It now permeates all levels of society. To many
it presents itself as an opportunity to a better livelihood. Cases abound in India, where cricket has brought
financial succour to persons and their families who were otherwise doomed to
lead lives enslaved in poverty. Cricket
is regarded as a profession, an avocation.
Many in India, play cricket not just for the love of the game but for
their own suvival.
The BCCI performs the vital public duty and function of providing this
opportunity. It has an elaborate network and is a massive organisation
controlling every aspect of cricket in India. Dr Singhvi,
the learned senior counsel who appeared on behalf of BCCI, submitted that no
part of the capital of BCCI is held by the Government; no financial assistance
of the State is enjoyed by it; the Government does not exercise any control
over it; BCCI is a non-statutory body; no public duty is imposed upon it by
statute; it is a society, nothing but a "private club" and as such
issuance of a writ against it would be completely beyond the scope of article
226 of the Constitution of India. This
argument is untenable in the light of the discussion above. Attention to the source of the power is
misplaced. Perhaps, the error arises in
viewing the classical prerogative writs of, inter alia, certiorari, mandamus
and prohibition in the traditional sense as being used only against the
government or public authorities. English law is struggling to break out of
this tradition and the scope of judicial review, while it is expanding is doing
so ever so slowly and lags behind even Scots law18. In India, we have no such difficulty as the
framers of our Constitution have unshackled us from the traditional fetters and
have given us Article 226 which is much wider because it contemplates the issuance
of "directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred
by Part III and for any other purpose" to "any person or authority,
including in appropriate cases, any Government". The fact that the
Government has no financial stake in or control over BCCI is, therefore, not
relevant. We are not examining the issue
as to whether BCCI falls within the meaning of "State" as defined in
article 12. And, we need not, because
the word "State" does not appear in article 226 at all! We are
examining the question of issuance of orders, directions or writs
to "any person". Assuming that
the BCCI is merely a "private club", even then a writ could be issued
to it provided, of course, it was for remedying an infraction of a public duty
or public function.
14. Dr Singhvi then contended that if it
were held that BCCI was amenable to writ jurisdiction "startling and legally
untenable consequences would follow".
For example, it may be conceivable to hold that the selection of a
cricket team is discriminatory or arbitrary.
There are several answers, none startling and all legally tenable. Firstly, not every action of the BCCI would
fall under the scope of judicial review under article 226. It must not be forgotten that "the High
Court does not act like a proverbial "bull in a china shop" in the
exercise of its jurisdiction under Article 226"19. It will not interfere in matters which do not
have any element of public law.
Secondly, "catching the bull by its horns", as it were,
suppose the selection procedure of the BCCI prescribed20 that players from a
particular region, or a state or belonging to a particular community were not
to be selected for the Indian team.
Would it be so preposterous if the High Court stepped in under article
226 and quashed such a prescription? Let
us take another example. Suppose the
Selection Committee of the BCCI were to alter its rules and select a team to
represent India not on merit but on the basis of bids. Meaning, the highest bidders got to play for
India. Would the High Court then be
justified in throwing out a petition of aspiring, meritorious but poor players
on the ground that a writ cannot be issued to the BCCI because, as they
contend, it has a carte blanche to do as it pleases? We think not. Thirdly,
even in cases of judicial review, the High Court exercises self-imposed
restraints. It does not substitute its views in place of those under review.
Although it has become a hackneyed cliché, it bears repetition that in exercise
of powers under article 226, the High Court is not so much concerned with the
decision itself in the sense as to whether an action is "right or wrong",
but with the decision making process signifying as to whether the action is
"lawful or unlawful". So, if
the selection of the team is lawfully made, the Court would not be concerned
with the composition of the team.
15. The petitioner iterated the following observations of the
learned single Judge in Ajay Jadeja (supra), adopting the same as his
submissions:-
"When the Government stands
by and lets a body like BCCI assume the prerogative of being a sole
representative of India for cricket by permitting BCCI to choose the team for
India for appearance in events like the World Cup, then it necessarily imbues
BCCI with the public functions at least in or far as the selection of the team
to represent India and India's representation in International Cricket fora and regulation of Cricket in India is concerned. Thus
the monopoly status of the respondent No. 2 is evident. It is also clear that
such monopoly status is indisputably state recognized as evident from the later
of Ministry of Culture, Youth Affairs an Sports dated 22nd December 2000 and
indeed by acquiescence of the Government, can be considered state conferred.
Similarly the plea of the BCCI that it does not own or lease the stadia is of
no consequence as the stadia are owned and leased by its members and it is not
disputed that all international matches are played in such stadia. Similarly
membership of BCCI of the International Cricket Conference (ICC) cannot ipso
facto imply that it is not amenable to writ jurisdiction. In fact BCCI
represented India on this own showing and depending upon the nature of the
action impugned, would be amenable to writ jurisdiction."
We agree. BCCI, like everyone else, is amenable to writ
jurisdiction. However, not every action
of BCCI would be subject to the scrutiny of judicial review. Only those actions which fall within the
ambit of public law would call for any direction, order or writ under article
226. Disputes or acts in the sphere of
pure private law having no traces of public law would not be the subject matter
of writs, directions or order to be issued under article 226.
16. Another fear of the BCCI must be allayed. It was submitted and, with some anxiety, that
if the court were to hold that BCCI was within the scope of Article 226 then
the splendid institution that has been so assiduously built-up would lose its
independence and would fall prey to Governmental intervention and ultimately
spell its doom. Without making any value
judgement on quality of Governmental intervention, we may straight away say
that amenability to judicial review is in no way connected with Governmental intereference in the affairs of the BCCI which is a
self-regulated body and will continue to be one. The only difference being, that its discharge
of public duties and public functions (as distinct from private duties and
functions) would be open to judicial review under article 226 of the
Constitution. This does not, ipso facto,
translate into governmental intervention in the internal affairs of BCCI which
would remain a private body.
17. At the cost of repetition, we may state that the whole
"amenability" issue is misplaced.
A body, public or private, cannot be categorised as "amenable"
or "not amenable" to writ jurisdiction. The "function" test is the correct
one to test maintainability. If a public
duty or public function is involved, any body, public
or private, qua that duty or function, and limited to that, would be subject to
judicial scrutiny under the extraordinary writ jurisdiction of article
226. The BCCI which is the sole
repository of everything cricket in India has attained this "giant"
stature through its organisation, skill, the craze for the game in India and
last but not the least by the tacit approval of the Government. Its objects are the functions and duties it
has arrogated to itself. Many of these
are in the nature of public duties and functions. Others may be in the field of private law
such as private contracts, internal rules not affecting the public at large
etc.,. Therefore, BCCI cannot be said to
be beyond the sweep of article 226 in all eventualities for all times to
come. That is the certificate that BCCI
wants from this court. We are afraid, we
cannot grant that. Consequently, this
petition cannot be thrown out on the maintainability issue. This does not necessarily mean that the
petitioners would be entitled to the orders, directions or writs that they
seek. That will have to be examined on
merits.
BADAR DURREZ AHMED, J
CHIEF JUSTICE
October 04, 2004