Abstract: “In India BCCI is primarily engaged in promoting and controlling cricket, it is a society registered under Tamil Nadu Societies Registration Act. It not only selects the team for representing India in various matches like Twenty 20, Test Match, ODI, which are played either in India or Abroad but also frames rules and is unofficially recognized as “Apex National Body for regulating the game of Cricket in India” by the Government of India. But the essential point comes on the function performed by BCCI Vis a Vis its status since the functions perform by BCCI is a public function and even its monopoly is not restricted by government. It is asserted that BCCI represents Sovereignty and integrity of India and hence it is a basically a State within the meaning of Article 12 of the Constitution and is a statutory body. Indian courts on various occasions has got the opportunity to decide upon the Legal Status of BCCI under Article 12, the court in landmark judgment of Zee telefilms by 3:2 held that BCCI is a private autonomous body and rejected the claim that entity regulating Fundamental rights under Article 19(1) (g) is a state within the meaning of Article 12. In the light of such judgment it is clear that BCCI is neither a state under Article 12 nor a statutory body under any law made by parliament it is a privately owned body. But the recent pronouncement has held that even though BCCI is not a State but it is definitely amenable under Article 226 and since it performs public function the Supreme Court formed Lodha Committee for reformation and revamping BCCI but it as distinctly said that this power does not means any governmental interference in the internal matter of board”

Key words: BCCI, Public Function, Monopoly, Judicial review

  1. Introduction: Role of BCCI

Board of Control for cricket in India is a national governing body of Cricket in India which was formed under the Tamil Nadu Societies Registration Act. It is an autonomous body which regulates cricket in India and enjoys monopoly there is no other competitor which stands opposite to BCCI. For a long time the debate has been going on as to the role and status of BCCI. Apparently the stand of BCCI and Government is different as far as this issue is concerned. In Zee Telefilms case the Affidavit which was filed by union was comprising the facts that Board performs public function indisputably it has a government recognized monopoly which can be said to be state conferred and that the teams selected by board represents on the name of India as considered as country’s official Team and for any foreign teams to visit India permission of GOI is mandatory and BCCI is accountable to Government as well as Public at large but the pertinent issue arises here is whether or not this is acceptable to BCCI.

Supreme Court of India declared by 3:2 majority that BCCI is private it is an autonomous and non-statutory body and there is no deep and pervasive control of Government on BCCI, it has its own revenues out which it organizes cricket at various national and International level although court recognized the fact that board performs certain public functions but it also said that merely on this basis board can’t be said to be State under Article 12.

Again in the case of Board of Control for Cricket vs Cricket Association of Bihar[2] Justice T.S Thakur and Justice F.M Ibrahim Kalifulla has observed that even though Board does not fall into the category of State but indisputably it performs public function on the basis of the tacit concurrence of Union and State Government in all its activities and hence exercising the power under Article 226 Supreme Court formed ‘Lodha panel’[3] to bring reforms in BCCI because the enormous power of the board demands transparency and accountability in the administration and is required to ensure fairness and good faith in its activities.

Till now BCCI is not granted the status of state despite of performing various public functions although it’s been a long journey to bring the board under judicial review but a long way to go for bringing it under the purview of Article 12.

  1. Status of BCCI under Article 12

Article 12 States that “The State includes the Government and Parliament of India and the Government and the Legislature of each state and all local or other authorities within the India or under the control of India”[4]

“Board of Control for Cricket in India vs Bihar Cricket Board Association”[5] or Crickets Case The first question in this case was formed ‘whether or not BCCI is State under Article 12’ and the Court held that it is not state but it performs public functions which is apparent through its activities and hence it is subjected to Article 226 since the bench reiterated the same principles now it’s pertinent to see on what grounds Zee telefilms was decided[6]

Zee Telefilms Ltd & Another v. Union India & Others[7]: A landmark judgment pertaining to the status of BCCI whether or not it performs public function and comes under the purview of Article 12 of the constitution of India. For deciding whether BCCI falls into the Category of State it is essential to analyze this judgment and the arguments and counter arguments of Petitioners & Respondent.

Whether or not board performs public functions and comes under the purview of State under Article 12?

The entire arguments in determining the status of BCCI falls into the category of other authorities. It was duly submitted that Board is state in the submission of petitioners’ in both ‘Zee Telefilms case’[8] and ‘Cricket’s Case’[9] stated that because of de facto recognition of Government board enjoys monopoly and selects players and determine that whether or not they would represent the country, whatever activities it performs it has tacit consent of government from spending crores of rupees on building stadiums to selling broadcasting rights and earning revenues.  It was asserted that since players choose it as a profession and hence board controls the fundamental rights under Article 19(1) (g) and not only this but the vital activities of board which includes sending and inviting teams to India is not on the discretion of board but it is subjected to prior approval of Union. This all contentions show that Union of India has a pervasive control on the activities of board and hence it comes under “other authorities”[10]

As from the Respondent’s side it was asserted that, “other authorities is wide enough to include within it every authority created by a Statute on which powers are conferred to carry out governmental or quasi-governmental[11] functioning under the control of government of India or within the territory of India. If we apply this principle it can be said that the Board is not created by a statute.[12]

The Supreme Court by 3:2 held that board is not state under Article 12 by giving various reasoning. Majorly the judgment is dependent on Pradeep Kumar Biswas case[13] the court applied the principles of this case to these facts and said:

  1. That it is apparent that there is no element which shows that board has any financial, functional or administrative dominance by either Government of India or under the control of government of India. And the little control which government has is merely a regulatory control and which can’t be said to be pervasive in nature.
  2. To the point of public duty the court added that merely because a non-governmental body is performing public duty without any authorization it does not make it instrumentality of State. The writ petition under article 32 was held to be non-maintainable following the guidelines given in Pradeep Kumar Biswas[14] case
  3. The court by refuting the argument of Article 19(1) (g) held that by assuming that board is capable of violating fundamental rights it can’t be brought under Article 12. The court said for bringing this point foremost thing is to prove that board is state and then it would be relevant to point out that it could violate the fundamental rights and not that since it violates fundamental rights since it should be held as state.

Although the minority opinion[15] disagreed  with the opinion that Board is not the instrumentality of state under Article 12 the minority opinion by taking into consideration the affidavit filed by Union which states that BCCI has been granted recognition and hence is a state said that the board represents the country on both national and international levels and enjoys the monopoly status which is de facto granted by Government of India and the functions performed by board comes under public function and hence if we go by the legal meaning of Article 12 it would lead to the conclusion that Board is state by reason of its nature of activities.[16]

  • Amenability under Article 226 and Public Function Test

Board of Control for Cricket in India v. Cricket Association of Bihar[17] regarding the maintainability of writ petition under Article 226 and Public function of board bench comprising of Justice Thakur and Justice Kalifulla held that the functions performed by Board are undoubtedly public functions. If government allows any private body or autonomous body to perform such functions which government can regulate or takeover and not only allows but gives its assistance as well to such autonomous or non-government bodies to discharge such functions then it cannot be said that these functions are not public functions and that the body discharging the such functions are not answerable to any one and are not amenable to the application of judicial review of State action.

 “Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old 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.”[18]

  1. Judicial Approach towards Determining Legal Status of BCCI

The judiciary has tried to establish the status of BCCI and all these cases are very pertinent in the sense that it determines the position of Board in the eyes of Judiciary through these cases Mohinder Amarnath & others v. BCCI, Ajay Jadeja v. Union of India & others, Rahul Mehra & Anr v. Union of India, BCCI v Netaji Cricket Club and Ors, A.C. Muthiah v. BCCI and Anr, Board of Control for Cricket in India v. Cricket Association of Bihar (“Cricket case”)

  • In the case of ‘Mohinder Amarnath vs BCCI’[19] it was held that board is not the instrumentality of state. The court said that: “We have examined ourselves all the functions of the Board and heard the submissions of the counsel. We are of the opinion that it does not qualify to be called an instrumentality of the State under Article 12 of the Constitution.”[20]

  • In the case of ‘Ajay Jadeja vs Union of India’[21] the Delhi high court held the writ to be maintainable although the court said that the question whether BCCI is state or not is not essential to determine in this case it was said that “In the instant case the nature of the duty would amount to a public duty which would allow the High Court to exercise jurisdiction under Article[22]

  • In the case of ‘Rahul Mehra vs Union of India’[23] again the question came up that Board is not amenable to the jurisdiction under Article 226, it was held that it is a self-regulatory body and will continue to be so but in the eyes of court it would be open to judicial review under Article 226 since it discharges public functions and public duties but then also it would remain private body. “The BCCI which is the smile repository of everything cricket in India has attained this giant stature through its organization, 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.”[24]

The Court however remained silent regarding the question on status of BCCI as an instrumentality of State. Although it accepted that board performs public functions.


  • In the case of BCCI v. Netaji Cricket Club[25] the monopoly status of Board was upheld by the Court and it was further said that having regard to the enormous power which the board possess the power which is exercised by the board in all its activities necessarily requires to follow the principle of “fairness and good faith” and since it has to fulfill the aspirations dreams and hopes of millions it can’t act in an arbitrary capricious and whimsical manner  and has a duty to act reasonably and because it controls cricket its action are viewed and judged accordingly as per higher standards[26]

  • In the case of Zee Telefims v. Union[27] of India the Supreme Court categorically held that board is not state since it not financially functionally and administratively dominated by government and the monopoly status that it enjoys is not created by any statute. Government of India does not exercise any control over it and mere performance of certain public function in absence of any authorization does not mean that it is an instrumentality of State under Article 12.[28]

  • In the case of Muthiah v. BCCI and Anr[29] before this Zee Telefilms was already pronounced and it was held that board is not an instrumentality of state under Article 12 as per the guidelines laid down in Pradeep Kumar Biswas case. So in this case the Supreme Court reiterated the principle laid down in Zee telefilms case that by assuming that Board violates fundamental rights does not makes it state under Article 12.

  • Board of Control for Cricket in India vs Bihar Cricket Board Association[30] Lodha Committee was formed by considering the activities of Board as public function and in one of the recommendation the Panel suggested that since Board performs public function it is also public Authority under Right to Information Act to which the supreme court also agreed and left it to Law commission to recommend legislature on this matter.[31]

  1. Conclusion

The legal status of BCCI is merely that of a society which is registered under an act but with the changing scenarios various approach has been adopted to clear the position of BCCI with regard to its status under Article 12 of the constitution of India.  From Mohinder Amarnath’s case till Cricket’s case various positions have been taken but through the landmark judgment of Zee Telefilms one thing was made clear that the board is not state under Article 12 because it does not fall into the category specified by a 7 judge bench in Pradeep Kumar Biswas’s case the court also out rightly rejected the contention that since it can violate Article 19(1) (g) because of which it should be held as instrumentality of State. But the question again came up whether or not BCCI performs public function through Cricket’s case in 2015 it was made clear that Board performs public function because of the indefinite and enormous powers it possess in the domain of Cricket and not only this but it also has tacit consent of the government since all the activities it performs it gets support from Government of India and the formation of Lodha Panel pursuant to that judgment shows that Board performs public functions but that does not mean that it is State Article 12.

 While making the recommendation of Lodha Panel as legitimate the S.C has distinctly said that the recommendations made are pursuant to an order under Article 226 which gives due regard to Zee Telefilms case. ‘Lodha Panel’ has recommended to bring BCCI under the Purview of Right to Information act to which Supreme Court has left the matter to Law commission to suggest as to whether it should be brought under RTI or not so up till now board is not public authority under RTI act.

Now the last thing which needed deliberation was whether it is amenable to Judicial review and the answer which came up was affirmative the bench in Cricket’s case categorically held that a body like Board even though autonomous if performs public function is such a wider manner it cannot be said that it is unanswerable to higher standards of Judicial review and hence even this position is made clear now that being subjected to judicial review under Article 226 does not mean that it has to be a state.

[2] Board of Control for Cricket vs Cricket Association of Bihar, MANU/SC/0069/2015 : (2015) 3 SCC 251 available at last assessed on 7th February 2017 decided on 22.01.2015.

[4] The Constitution of India, Article 12, pg. 9 (Eastern Book Company, 5th ed.).

[5] Supra note 1, para 27.

[6] The Court analyzed the judgments given in the cases of Sukhdev v. Bhagatram Sardar Singh Raghuvanshi  MANU/SC/0667/1975 : (1975) 1 SCC 421, Marsh v. Alabama (3) 326 U.S. 501: 19 L.ed. 265 to hold that even where a corporation is privately performing a public function it is bound by the constitutional standard applicable to all State actions, Ramana Dayaram Shetty v. International Airport Authority of India and Ors. MANU/SC/0048/1979 : (1979) 3 SCC 489 in Evans v. Newton that “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State” of course, with the growth of the welfare State, it is very difficult to define what functions are governmental and what are not. Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. MANU/SC/0498/1980 : (1981) 1 SCC 722 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. MANU/SC/0330/2002 : (2002) 5 SCC 111, India and Anr. v. Netaji Cricket Club and Ors MANU/SC/0019/2005 : (2005) 4 SCC 741.

[7] Zee Telefilms Ltd. v. Union of India., MANU/SC/0074/2005 : (2005) 4 SCC 649 available at last assessed on 7th February 2017.

[8] Supra note 6, para 4.

[9] Supra note, 1 para 29.

[10] B.W. Devadas v. The Selection Committee for Admission of Students to the Karnatak Engineering College and Ors. MANU/KA/0067/1964, The University of Madras v. Shantha Bai and Anr. MANU/TN/0096/, In the case of Rajasthan State Electricity Board v. Mohan Lal and Ors. MANU/SC/0360/1967 “a Constitution Bench of Supreme Court decided that the expression “other authorities” under Article 12 is wide enough to include every authority which is created by a Statute and on which powers are conferred so as to carry out either governmental or quasi-governmental functions and which are functioning within the Indian Territory or under the control of the Indian Government i.e. Government of India.” available at last assessed on 7th February 2017.

[11] Ibid.

[12] Supra note 2, para 23.

  1. Government does not hold any part of share capital of the board.
  2. To meet the whole expenditure of Board no financial assistance is given by the government of India
  3. The monopoly status which is enjoyed by the Board is not provided by the state and has not even been conferred by the state and no where it is mentioned that government would protect this status.
  4. There is no element of deep and pervasive control of state on Board, state has only regulatory control which is also applicable on other similar bodies which is not specifically given and exercised according to any special statute for board and hence all the functions of board are neither related to governmental function nor comes under Public function.
  5. The board is an autonomous body since it is not created by transfer of a Government owned corporation

[13] Pradeep Kumar Biswas v. Union of India MANU/SC/0330/2002 : (2002) 5 SCC available at last assessed on 7th February 2017.

 The guidelines laid down in this case were:

  1. Principles laid down in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must ex hypothesis, be considered to be a State within the meaning of Article 12.
  2. The Question in each case will have to be considered on the bases of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government.
  3. Such control must be particular to the body in question and must be pervasive.
  4. Mere regulatory control whether under statute or otherwise would not serve to make a body a State.

[14] Supra note 12.

[15] While considering the status of the Board vis a vis Article 12 of the Constitution of India, the Central Government’s reluctance to interfere with its day to day affairs or allowing it to work as an autonomous body, non-assistance in terms of money or the administrative control there over may not be of much relevance as it was not only given de facto recognition but also it is aided, facilitated or supported in all other respects by it.

[16] We, therefore, are of the opinion that law requires to be expanded in this field and it must be held that the Board answers the description of “Other Authorities” as contained in Article 12 of the Constitution of India and satisfies the requisite legal tests, as noticed hereinbefore. It would, therefore, be a ‘State’.

[17] Supra note 1, para 30.

[18] “The majority opinion hence favors the view that even though board is not state as per the meaning of Article 12 but it is amenable to the jurisdiction under article 226. The rationale underlying that view if we may say with utmost respect lies in the “functions and nature of duties” which the BCCI performs.  Board has a complete sway over the game of cricket in this country. It regulates and controls the game to the exclusion of all others. It exercises the power of disqualifying players which may at times put an end to the sporting career of a person. It spends crores of rupees on building and maintaining infrastructure like stadia, running of cricket academies and Supporting State Associations.  All these activities are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board.”

[19] Mohinder Amarnath vs. BCCI, CW.NO.632/89.

[20] Ibid, even otherwise, the legal relationship between the parties is regulated by a private contract. Whether there is any breach of contract and what are its consequences can be decided only on evidence adduced by the parties. Although this judgment of Delhi High court held not to be binding by the judgment of Fashion Linker’s case which clearly makes it not binding on the Single Judge.

[21] Ajay Jadeja vs. Union of India, MANU/DE/1169/2001 : 2002(61)DRJ639 available at last assessed on 17th February 2017.

[22] The essential question, therefore, would be:

(i) What is the nature of the duty performed by the respondent with regard to which the cause of action has arisen. (ii) What is the nature of the right whose infringement the petitioner complains of.

[23] Rahul Mehra vs Union of India, MANU/DE/0846/2004 : (2005)4CompLJ268(Del), 114(2004)DLT323 available at last assessed on 13th February 2017.

[24] Supra note 7, para 17.

[25] BCCI v. Netaji Cricket Club, MANU/SC/0019/2005 : (2005)4SCC741, last assessed on 7th February 2017.

[26] Ibid, the court also mentioned that BCCI exercises enormous public functions. It has the authority to select players, umpires and officials to represent the country in the international fora. It exercises total control over the players, umpires and other officers. The Rules of the Board clearly demonstrate that without its recognition no competitive cricket can be hosted either within or outside the country. Its control over the sport of competitive cricket is deep pervasive and complete.

[27] Supra note 6, para 36.

[28] Ibid.

[29] Muthiah v. BCCI and Anr, MANU/SC/0526/2011 : (2011)6SCC617, available at last assessed on 7th February2017.

[30] Supra note 1, para 30

[31] Board of Control for Cricket vs. Cricket Association of Bihar MANU/SC/0781/2016 : (2016)8SCC535 available at last assessed on 7th February 2017 Decided on 18th July 2016

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