Is BCCI “State” under Article 12 of the Indian Constitution?

In yet another judgement, the Supreme Court held that the BCCI did not come under the ambit of 'State' under Ariticle 12. Read this case analysis to understand the Court's reasoning behind the same.
TITLEBoard of Control for Cricket Vs. Cricket Association of Bihar 
CITATION(2016) 8 SCC 535
COURTSupreme Court of India
JUDGES/CORAMJustice T.S. Thakur, Justice Fakir Kalifulla
DATE OF JUDGEMENT18.07.2016

INTRODUCTION

This famous case deals with the powers and functions of the Board of Control for Cricket in India (BCCI). The Court herein elaborated upon the role of BCCI as a ‘State’ under Article 12 of the Constitution of India.

FACTS

The facts of the case are as follows: In 2007, the BCCI took the decision of inaugurating Indian Premier League (IPL). On 27th of September 2008 Mr N. Srinivasan was appointed as the Secretary of the Board. Simultaneously the BCCI amended its Regulation 6.2.4 with an intent to exclude IPL and Champions League T20 from its purview.  

In 2013 the Delhi Police had acted upon information received of spot-fixing in IPL and charges were levied against the owners of two teams: Rajasthan Royals and Chennai Super Kings. Raj Kundra was the owner of Rajasthan Royals while Gurunath Meiyappan of Chennai Super Kings. Meiyappan was also the son-in-law of N. Srinivasan (Secretary of BCCI). 

BCCI constituted a committee to investigate into the matter. The Committe was headed by Shri Sanjay Jagdale and two retired judges of Madras High Court. 

The Cricket Association of Bihar filed a PIL before the Bombay High Court, seeking the constitution of committee to be declared ultra-vires of the Constitution of India. It further sought the appointment of retired Supreme Court judges in the panel. They prayed for the termination of IPL contract of franchisee Chennai Super Kings and Rajasthan Royals with BCCI and initiation of disciplinary proceedings against N. Srinivasan. 

The Court in an order dated 30.07.2013 declared constitution of Probe Commission in contravention to Provisions 2.2 and 6 of IPL operational rules. The High Court however denied relief in the form of constitution of commission consisting of retired judges. 

An appeal was filed before the Supreme Court by the Appellant board. Meanwhile, the matter came before the Supreme Court on 8.10.2013 and simultaneously N. Srinivasan became the president of BCCI. The Apex Court constituted a Committee under the supervision of Justice Mukul Mudgal. This Committe was tasked to intervene into the alleged match fixing allegations surfacing the IPL.

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ISSUES

The main issues in the case were:

  1. Whether or not BCCI was ‘State’ under Article 12 of the Constitution of India and if not, whether it was amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India.
  2. Whether or not Amendment to Rule 6.2.4 of IPL regulations was, to the extent it permitted administrators to have commercial interest in the IPL, Champions League and Twenty-20 events, illegal.

SUMMARY OF COURT DECISION AND JUDGEMENT

The Court relied upon the principles penned in the cases of  R.D. Shetty v Union of India and Ajay Hasia v Khalid Mujib in order to decide whether BCCI was ‘State’ within the ambit of Article 12 of the Constitution of India. The Court took into account the principles of absence of “deep and pervasive control and lack of substantial government funding” to rule out BCCI as ‘State’ under Article 12 of the Constitution of India.

In the process, the Court re-affirmed its decision in the case of Zee Telefilms v Union of India. In this case, the Court had declared BCCI to be a non-state entity, amenable under the writ jurisdiction of the High Court’s under Article 226 of the Constitution of India and discharging functions of public importance. 

The answer to the first issue was in negative as Court excluded BCCI from the definition of the word ‘State’ under Article 12 of the Constitution. However, the Court observed that the BCCI even though not a ‘State’ under Article 12, it did perform certain public functions like selection of the team to represent the country in international arena and had a complete sway on the game of cricket which made it amenable to the writ jurisdiction of the High Court under Article 226

On the issue of amendment of Regulation of 6.2.4 which states that, “except Indian Premier League and Champions League Twenty20, no administrator, officer, player or umpire shall have any direct or indirect commercial interest in the matches or events conducted by the board”, the Court observed that:  

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an amendment which strikes at the very essence of the game as stated in the Anti-Corruption Code cannot obviously co-exist with the fundamental imperatives. Conflict of interest situation is a complete anti-thesis to everything recognized by BCCI as constituting fundamental imperatives of the game hence unsustainable and impermissible in law

The Court held that the amendment contradicted its own fundamental principles and rules thus could not be permissible in law.

ANALYSIS

Article 12 of Constitution of India provides that “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.’

The Court in R. D. Shetty’s case held that there is no cut and dried formula which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not. It enumerated the following five factors, which would determine whether a body comes under the definition of State as defined in Article 12 of the Constitution:

  1. Financial assistance given by the State and magnitude of such
  2. Any other forms of assistance whether of the usual kind or extraordinary.
  3. Control of management and policies of the corporation by the State – nature and extent of control.
  4. State conferred or State protected monopoly status and
  5. Functions carried out by the corporation, whether public functions closely related to governmental functions, would determine whether a corporation is an instrumentality or agency of the State or not.

The Court ruled out BCCI from the purview of it being an ‘Instrumentality of the State’. However, these tests are not definitive as has been time and again specified by the Court.

The decision of the Court to set up a committee to monitor and investigate into the matter of spot fixing and the structure of BCCI is of great importance. The BCCI is responsible for regulating one of the most followed sport of the country and a balance has to be struck with historical reality and the need for adopting a pragmatic, uniform and principled approach aimed at reforming and rationalizing BCCI’s structural edifice. 

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The author opines that any conflict of interest of people associated or related in any way to the BCCI cannot be accepted as it would go against the purpose of cricket operations in India. That being said I would also like to mention that merely taking action against BCCI officials or people related with it cannot be sufficient in order to induce transparency into the sport. 

The tests laid to determine whether a body is a ‘State’ under Article 12 is neither conclusive nor definitive. Thus, the reluctance of the Supreme Court to include BCCI under the purview of Article 12 is the primary reason behind the unregulated powers exercised by BCCI and people related to it. Another major reason for such problems is lack of proper legislations governing the sport (cricket). Such a lack gives space for corruption and lack of accountability in the administration of the sport in this country.

CONCLUSION

As mentioned above the BCCI is one of the oldest regulating bodies. It is responsible for one of the most followed sports of the Country. Thus proper regulations, laws and framework must be made in India to monitor its functioning and to bring accountability upon the officials functioning in the Board and exercising powers. BCCI should be included as an Instrumentality of the state Article 12 of the Constitution.

–END OF CASE COMMENT–