On the 22nd day of January 2015, the Supreme Court of India decided Board of Control for Cricket in India v. Cricket Association of Bihar . The BCCI, it regulates the professional conduct of the sport of cricket in India. Accordingly, its legal status is that of a society registered under the Tamil Nadu Registration of Societies Act, 1975, a law for the state of Tamil Nadu, India. The Act with respect to the society provides the procedure for registering a society for the purpose of promoting education, sports (including indoor games) recreation, public health literature, science, charity, art, athletics and other objectives.
A society registered under the Societies Registration Act, 1860, The Cricket Association of Bihar, filed a writ petition in public interest seeking a writ of mandamus directing the BCCI to recall its order with respect to constituting a examination panel to inquire into the assertions of betting and spot fixing in the Indian Premier League (IPL). The same petition also challenged the amendment of the BCCI Regulation 6.2.4 on the ground of mala fide, perfidious, and deceitful exercise of power. The regulation 6.2.4 of BCCI prohibited the administrators from having any commercial interests in the matches, competitions or events conducted by the BCCI. However, an amendment to the Regulation 6.2.4 was brought to omit Indian Premier League (IPL) and Champions League T-20 (an international event) from its ambit allegedly to serve the interest of the then-Chairman of the BCCI, N. Srinivasan.
The conventional understanding is that the constitutional remedy of writs with respect to the violation of fundamental rights cannot be disseminated against a private organization, body actor, like BCCI. Therefore, an initial question arose: whether BCCI be subjected to the writ jurisdiction? With the aim to answer this question, the Court inquired whether the BCCI performs a ‘public function’.
THE RELEVANCY OF THE ‘PUBLIC FUNCTION’ TEST IN THE INDIAN CONSTITUTIONAL LAW
Under Articles 32 and 226 of The Constitution Of India, respectively, the Constitution authorizes access directly to the Supreme Court (the supreme court of law in India) and High Courts (the highest court of law at the state-level in India) for allegations of fundamental rights encroachments and violations. Through the power granted to the judiciary bodies by the act of Constitution of India, 1959 courts may issue appropriate writs to enforce and impose fundamental rights.
In Zee Telefilms v. Union of India , the Supreme Court in its judgment distinguished Article 32 from Article 226. As per Article 32, only violation of fundamental rights can be claimed in opposition to the ‘State’. However, the scope of Article 226 is broader with respect to the fundamental rights violation when compared with respect to article 32. Even if a body does not represent the ‘State’, it is prone to the jurisdiction of the High Court with the help of a writ if it performs a function under the ambit of ‘public function’ under Article 226 of The Constitution of India.
In the present case, the Court held that BCCI performs its function within the ambit of public function, and thereby made it amenable to the High Court’s writ jurisdiction. As an outcome, the Court ratified fundamental rights violation assertions to be brought against the Board of Control for Cricket in India even though its legal status is not of a state but only that of a ‘society’ registered under a statute.
The Apex Court had articulated the Indian locus classicism on what constitutes a ‘public function’ in the landmark case of Sukhdev v. Bhagatram . There, the Court conducted an extensive study of the distinction between ‘state’ action and ‘private’ action by a body or an organization registered under the Societies Registration Act, 1860. It can be narrowed down to these basic factors for finding that a private body or an organization may be assumed to perform a public function: "a function is of public importance and meticulously related to governmental functions" or "activities which are basic or fundamental to the society as a whole" though the grant of financial aid from government is not a prerequisite for the same. The Court placed robust reliance on legal precedents from the United States Constitution on the similar subject, including New York v. United States , Nixon v. Condon and Marsh v. Alabama . Sukhdev being a landmark precedent, the Court in this ruled that BCCI satiates this test and shall be held liable.
The Apex court considered the overall role of the BCCI in cricket to conclude that BCCI performs function within the ambit of public functions. "The BCCI formulates regulations, rules, norms and standards covering all the related aspect with respect to the game of cricket. It enjoys the power of choosing the members of the national team and the umpires for national and international events. It exercises the power of disqualifying players, which may at times put an end to the sporting career of a person. It spends tens of millions of rupees on building and maintaining infrastructure like stadia, running cricket academies and supporting State Associations. The BCCI also frames pension schemes and incurs expenditures on coaches, trainers and team staffs. It sells broadcast and telecast rights and collects admission fees to venues where the matches are played. All these activities are undertaken with the tacit concurrence of the State Government and the Government of India which are not only fully aware but supportive of the activities of the BCCI."
Further, the Court also made a rather captivating observation while settling that the BCCI performs a public function:
"Such is the passion for this game in this country that youngsters, middle aged and the old as well see cricketers as icons alike. Any organization or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity".
Even after Supreme Court of India gave its verdict with respect to the issues and contentions made but few questions are still unanswered with this respect:
– The Court’s decision on public function was concentrated on the specific functions performed by the BCCI and rightly so since the case at hand raised that limited question. However, the ‘public’ element in these functions is the most imperative feature.
– In case of the BCCI, the Court relied heavily on the ‘scale’ of its functions: "huge amount of money", "national team" and "passion for this game amongst the general public or society as a whole". These phrases leave us suspicious where the Court would have ruled the same had the body under challenge been governing a sport that is rather obscure in the Indian context, or in other words not so ‘public’ or ‘huge amount of money’?
– Collectively these factors constitute and fall under the ambit of a ‘public function’, the issue arises whether these functions may individually constitute and fall under the ambit of a ‘public function’?
– Is sports governance itself a ‘public function’ or must there be some ‘public’ component to the sport which is based on its important societal role, like cricket. Numerous sports have no national teams in India. In that case, how appropriate is it that the body chooses team for the nation? What about those sports bodies which represent India in the international forum of a sport, but do not engross any fiscal stakes?
– Does the state or district boards also perform a ‘public function’ if they have state or district level monopoly?
The doctrine with respect to public functionalise at the heart of the parallel application of fundamental rights in India. The judgment in the present case goes an elongated way in expanding the scope of horizontality of fundamental rights in sports ascendancy, leaving some of these questions open for future litigation. Conceivably some of these questions will soon be answered. Subsequent the Cricket case, a writ petition against the Rajasthan State and Udaipur District board has been filed challenging its selection process on the ground of biasness. The Apex Court left unanswered questions for now but that will have to be answered eventually in connection with constitutional litigation in sports governance in India. Exclusively, the Cricket case opens up the doors for exposing the sports governance bodies and organization’s to constitutional and administrative law compulsions including fundamental rights in India. Generally, it is also a significant breakthrough in the process of the ethical enlargement of constitutional duties to bodies which do not fall under the ambit of definition of a state with respect to Article 12 of the constitution.