Zee Telefilms Ltd. And Another v.

Union of India and Ors

(2005) 4 SCC 649
Bench: N Santosh Hedge, SB Sinha, BP Singh, HK Verma, SN Variva
Dissenting opinion: SB Sinha, SN Variva
Facts

• The petitioner Zee Telefilms a media house in India had been awarded with a tender by the
Board of Control of Cricket in India granting exclusive television rights for Cricket matches
in India.

• ESPN Star Sports, another media house who had made an offer for the same tender filed a
writ petition in Bombay High Court against awarding tender to petitioners.

• During court proceedings of the same, BCCI cancelled the entire tender process stating no
contract had been concluded with any of the parties. The petitioners however contended
that an agreement had been concluded with BCCI

• Thus, the petitioners filed a writ petition before the Supreme Court, under Article 32 of the
Constitution, stating that the termination of contract by BCCI is arbitrary and violative of
Article 14 of the Constitution
Issue

The issue in this case was regarding the maintainability of the writ petition filed
under Article 32 of the Constitution, on the ground that BCCI is not subject to the
term ‘other authorities’ for the purpose of a ‘state’ under Article 12 of the
Constitution.
Laws
Article 12 in The Constitution Of India 1949: Definition In this part, unless the
context otherwise requires, the State includes the Government and Parliament of
India and the Government and the Legislature of each of the States and all local or
other authorities within the territory of India or under the control of the Government
of India

Article 14 in The Constitution Of India 1949: Equality before law The State shall
not deny to any person equality before the law or the equal protection of the laws
within the territory of India Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth
Article 32 of the Constitution of India: The Supreme Court shall have power to issue
directions or orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by this Part

Article 226 in The Constitution Of India 1949: Power of High Courts to issue certain writs
Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise 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, prohibitions, 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
ARGUMENTS - PETITIONERS:
• BCCI is a state under Article 12 of the Constitution as it undertakes all activities related to
Cricket in India.

• Further, the Board is involved in selecting players who represent India as a nation, and is
the sole authority that regulates the sport.

• BCCI also exercises disciplinary powers over players, umpires and other officials, with
power to ban players from professional Cricket, thereby controlling the fundamental rights
of a citizen under Article 19(1)(g) of the Constitution.

• Many of the Board’s activities such as inviting foreign teams, sending Indian players
abroad are subject to approval of the Government.

• Hence, there exists a pervasive control by the government over the Board’s activities and it
comes under the ambit of ‘other authorities’ under Article 12.
AFFIDAVIT -THE UNION OF INDIA

• Union of India submitted that BCCI was always under the control of Ministry of
Youth Affairs and Sports.

• It also said that the Board can carry out its functions as a result of the recognition
given to it by the government, which is necessary for the team selected by the board to
represent itself as the Indian cricket team.

• BCCI also requires permission of the government whenever the Indian team travels
overseas.
RESPONDENTS/ BCCI:

• BCCI in its reply argued that it is registered under the Tamil Nadu Societies Registration
Act, 1860 and was critical of the government for taking contrary stance on the status of
the board in different cases.

• The Board does not come under any of the tests laid down in the case of Pradeep Kumar
Biswas v. Indian Institute of Chemical Biology, and is not a state.

• The board does not receive any financial assistance from the central government and is not
subject to any financial, administrative or functional control by the government.

• The activities of the board do not involve any public duty or public function although, its
action is public in nature. For these reasons, it was contended by the respondents that
BCCI is not a state under Article 12.
JUDGMENT
Justice Hegde begins by tracing out the origin and development of Article 12 in
the Indian Constitution.

• He refers to the Constituent Assembly Debates where Dr. Ambedkar described

the scope of the above Article. Dr. Ambedkar said that if the objective of
fundamental rights had to be achieved, then they must be binding on every
authority which has been created by law and has got the power to make laws
and rules. Therefore, the framers of the constitution intended to include any
body created by law and that which had the power to make laws in the term
‘other authorities’.
• The scope of the term ‘other authorities’ has been expanded through judicial
interpretation in various cases. In Rajasthan State Electricity Board v. Mohan Lal,
it was held that "other authorities" is wide enough to include every authority created
by a Statute on which powers are conferred to carry out governmental or quasi-
governmental functions.

• In RD Shetty v. International Airport Authority, the Supreme Court laid down

parameters for identifying whether a body comes under the ambit of ‘other
authorities’. These parameters were accepted by the constitution bench of the
Supreme Court in Ajay Hasia v. Khalid Mujib.
PARAMETERS:
(1) Entire share capital of the corporation is held by Government.
(2) Financial assistance of the State is so much as to meet almost entire expenditure of
the corporation
(3) Monopoly status which is State-conferred or State-protected.
(4) Existence of deep and pervasive State control.
(5) Functions of the corporation are of public importance and closely related to
governmental functions.
(6) Department of Government is transferred to a corporation
• However, in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical
Biology, a seven-judge bench of the Supreme Court held that the tests laid down
in the Ajay Hasia case were not rigid set of principles.

• The judges then went on to say that for a body to be considered as a state, it
must be financially, functionally and administratively controlled by the
government and the control must be pervasive in nature
The Supreme Court applied the test laid down in Pradeep Kumar Biswas to the facts of this
case and held as follows :
1. Board is not created by a statute.
2. No part of the share capital of the Board is held by the Government.
3. Practically no financial assistance is given by the Government to meet the whole or entire
expenditure of the Board.
4. The Board does enjoy a monopoly status in the field of cricket but such status is not State
conferred or State protected.
5. 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.
6. The Board is not created by transfer of a Government owned corporation. It is an
autonomous body. Therefore BCCI is not a state.
• Therefore, it cannot be said that the board is functionally, administratively or
financially controlled by the government. Hence, BCCI could not said to be a
state under Article 12 of the Constitution.

• However, the court observed that BCCI does discharge some public functions
such as selection of the Indian Cricket team and exercises disciplinary control
over players. If there is a violation of constitutional rights in respect of these
functions, although there is no remedy under Article 32, citizens can seek remedy
under Article 226 of the Constitution
• The Supreme Court in the case of Andi Mukta Sadguru smarak Trust and Ors v.
Rudani and Ors (1989)IILLJ324SC has held that Article 226 confers wide powers
on the High Courts to issue writs in the nature of prerogative writs. Under Article
226, writs can be issued to "any person or authority".
• The court in the instant case has also held that Article 226 confers powers on the
High Courts to issue writs for enforcement of the fundamental rights as well as
non-fundamental rights.
• Therefore, the judges have expressly laid down that BCCI is subject to Article 226
of the constitution and cannot escape the clutches of the law merely because it is
not a state under Article 12
DISSENT:

• Justice Sinha in his dissenting opinion held that since BCCI was allowed by the
government to represent the country internationally, it became a representative body
of the international organizations as representing the country. Such a body acquires
the status of monopoly for all practical purposes; regulates and controls the
fundamental rights of a citizen.

• Justice Sinha also noted that the Board had been obtaining the requisite permission for
sending an Indian team abroad or for inviting a foreign team to India in the prescribed
form. Such permission had been sought for in the form prescribed left no doubt that
the Board had asked for and the Union of India had granted de facto recognition.
Thereby Justice Sinha held that BCCI was in fact a state under Article 12 and was
bound to respect the fundamental rights.