M-S. ZEE TELE FILMS LTD. AND ANR. v. UNION OF INDIA AND ORS

Citation: [2005] 1 S.C.R. 913

Court: Supreme Court of India

Bench: N. SANTOSH HEGDE, S.N. VARIAVA, B.P. SINGH, H.K. SEMA, S.B. SINHA

Case summary

M-S. ZEE TELE FILMS LTD. AND ANR. v. UNION OF INDIA AND ORS.pdf

Judgment text

MIS. ZEE TELE FILMS LTD. AND ANR. V. UNION OF INDIA AND ORS. FEBRUARY 2, 2005 [N. SANTOSH HEGDE, S. N. VARIAVA, B. P. SINC. H, rl.. K. SEMA AND S. B. SINHA, JJ. ] Constitution ofIndia, 1950; Articles 12, 14, 15, 16, 19, 32, 136, 141 226 and 298; Entry Nos. 45 and 97 of Union list, 33 of State list and 25 of Concurrent List: Grant ofright to telecast cricket matches for certain period infavour of appellant by Board ofCricket Control in /ndia-Cancellation---Challenge to-- Held by the Court: Board is not an authority/other authority-Hence, writ against it not maintainable.

Held, per majority : An authority must be created by statute having powers to make laws/rules/regulations could only be called as other authority in terms of Article 12 of the Constitution-However, Supreme Court could assign the term 'authority' a wider meaning byjudicial interpretation to prevent the Governmentfrom by-passing its constitutional obligations-Merely because a non-governmental body performing some public duty that by itselfwould not suffice to make such a body other authority-Board is not financially! administratively/functionally under the effective control ofthe Government - Since Board has not been performing its functions as an authorized representative of the State, it cannot be called as an instrumentality of the State-Moreover, Central Government's control over certain activities ofthe Board is regulatory in nature and, thus, cannot be termed as pervasive contra/- Hence, the Board is not an authority.

Held, per minority : Constitution is an ongoing document and thus should be interpreted liberally-Article 12 of the Constitution must receive a purposive interpretation-Board has been allowed by the Government ofIndia to exercise enormous powers to control the game ofcricket and even to trespass across the jimdamental rights ofcitizens-Any activity having direct influence on the 913 II citi=ens could be idenlifled as an aclivity ofStale, and thus p11h/icfi111clions- Presence! ahsence ofa pariicular eleme1111101 determi11a1ive ofcharacreristics ofan aulhority, ifon overall consideration it salisfies ingredients ofArticle 12 of the Co11stitulio11-Si11ce Board regulates and exercise comrol over the competitive crickel/members and represent a sovereign counllJ'.

India, while participating in national/internaliona/ events, it is an aulhority/state-Since the Board is performing regulatory fimctions, it could be compelled by the Court of Law to abide by rule of law-Writ jurisdiction of Supreme Court! High Court could be invoked against it. Article 141-Law laid down by the Supreme Court-Applicability of Stalutory Authority vis-a-vis public authority-Distinction between. Functioning of a body-Judicial Review-Scope of-Discussed The question which arose for consideration was as to whether the Board of Cricket Control in India falls within the definition of 'the State' as contemplated by Article 12 of the Constitution of India. + It was contended for the petitioners that the Board enjoys extensive ..

powers in terms of the Memorandum and Articles of the Association, in selecting players for the Indian National Team, representing India in cricket matches domestically and internationally; that the Board enjoys disciplinary power over the players/umpires and other officials involved in the game; that the Board exercises Governmental functions in the game of Cricket; that since playing cricket is a profession, the Board controls the fundamental right of a citizen under Article 19(l)(g) of the Constitution; and that since Union of India has pervasive control over the' activities of the Board, it could appropriately be termed as "other ... / authority" in terms of Article 12 of the Constitution. ,, It was contended by Respondent No.

2 - Board that a petition under Article 12 of the Constitution is not maintainable against it since it is not "State" within the meaning of Article 12 of the Constitution of India; tha1t it is not created by any statute but registered under the Societies Registration Act; that it is an autonomous body, administration of which is not controlled by any other authority including Union of India; that it t does not take any financial assistance from the Government nor is it subjected to any financial control by the Government nor its accounts are subject to the scrutiny of the Government; that it is not conferred with ZEE TELE flLMS LTD. v. U. 0. 1. 915 monopoly status in the game of cricket by any statute or by any order of the Government; that there is no law which prohibits th:; coming into existence of any other parallel organization; that as per the parameters laid down by the Seven Judge Bench of this Court in the case of Fradeep Kumar &nms v.

Indian Institute of Chemical Biology and Ors. the Board cannot be construed as State for the purpose of Article 12 of the Constitution. Dismissing the writ petition, the Court }. HELD: Per Majority (N. Santosh Hegde, J. for himself, B. P. Singh and H. K. Sema, JJ. ) : I. I. The intention of the Constitution framers in incorporating Article 12 was to treat such authority which has been created by law and which has got certain powers to make laws, to make rules and regulations to be included in the term "other authorities" as found presently in Article 12 of the Constitution. Because of the change in the socio-economic policies of the Government this Court considered it necessary by judicial interpretation to give a wider meaning to the term "other authorities .. in Article 12 so as to include such bodies which were created by Act of Legislature.

This judicial expansion of the term "other authorities" came about primarily with a view to prevent the Government from by-passing its constitutional obligations by creating companies, corporations etc. to perform its duties. (935-D; 937-A-B( The University ofMadras v. Shantha Bai and Anr. , AIR (1954) Madras, 67 and B. W. Devadas v. The Selection Commitlee for Admission ofStudents to the Karnalak Engineering College and Ors.. AIR (1964) Mysore 6, referred to. 1. 2. Applying the principles laid down by seven Judge Bench in the case of Pradeep Kumar Biswas to the facts and circumstances of the present case, it would be clear that the facts established do not cumulatively show that the Board is financially, functionally or administratively dominated by or is under the control of the Government. The little control which the Government may be said to have on the Board is also not pervasive in nature. Besides, such limited control is purely regulatory control and nothing more.

Though some of the functions being performed by the Board do partake the nature of public duties or State actions but they being in a very limited area of the activities of the Board. Even otherwise assuming that there is some clement of public duty involved in the discharge of the Board's functions even then that by itself would not suffice for bringing the Board within the net of "other authorities" for the purpose of Article 12 of the Constitution. (942-B-C-DI Pradeep Kumar Biswas v. Indian Institute ofChemical Biology and Ors. , 120021ssec111, followed. 2. 1. There is no doubt that Article 19(l)(g) of the Constitution guarantees to all citizens the fundamental right to practise any profession or to carry on any trade, occupation or business and that such a right can only be regulated by the State by virtue of Article 19(6).

Hence, it follows as a logical corollary that any violation of this right will have to be claimed only against the State and unlike the rights under Articles 17 or 21 which can be claimed against non state actors including individuals, the right under Article 19(l)(g) cannot be claimed against an individual or a non State entity. Thus, to argue that every entity, which validly or invalidly arrogates to itself the right to regulate or for that matter even starts regulating the fundamental right of the citizen under Article + 19(1)(g), is a State within the meaning ofArticle 12 is to put the cart before the horse. If such logic were to be applied every employer who regulates the manner in which his employee works would also have to be treated as State. 1943-A-B-CJ 2. 2. The pre-requisite for invoking the enforcement of a fundamental right under Article 32 is that the violator of that right should be a State first.

The petitioner has failed to establish that the Board is State within the meaning of Article 12. Assuming there is violation of any fundamental right by the Board that will not make the Board a "State" for the purpose of Article 12. (943-D-EI 3. 1. It should be borne in mind that the State/Union has not chosen the Board to perform the duties being performed by it nor has it legally authorized the Board to carry out these functions under any law or agreement. It has chosen to leave the activities of cricket to be controlled by private bodies out of such bodies' own volition. In such circumstances when the actions of the Board are not actions as an authorized representative of the State, it can not be said that the Board is discharging State functions. 1943-H; 944-AI 3. 2. It is true that the Union of India has been exercising certain ZEE TELE FILMS LTD. v. U. 0. 1.

917 control over the activities of the Board in regard to organizing cricket matches and travel of the Indian team abroad as also granting of permission to allow foreign teams to come to India. But this control over the activities of the Board cannot be construed as an administrative control. At best it could be termed as purely regulatory control and the same is not a factor indicating a pervasive State control of the Board. 1944-D-E) 4. 1. If the Board which controls the game of Cricket is to be held to be a State for the purpose of Article 12, there is absolutely no reason why other similarly placed bodies should not be treated as State. The fact that the game of Cricket is very popular in India also cannot be a ground to differentiate these bodies from the Board.

Any such differentiation dependent upon popularity, finances and public opinion of the body concerned would definitely violate Article 14 of the Constitution, as any discrimination to be valid must be based on hard facts and not mere surmises. Therefore neither the Board could be singly identified as "other authority" nor the State/other federations/bodies could be considered as a A-- "State" for the purpose of Article 12. Thus, none of the other federations or bodies including the Board can be considered as a "State" for the . _. purpose of Article 12. (946-A-B-C) State ofKera/av. T. P. Roshana, [197911 SCC 572, relied on. 4. 2. The term "other authorities" in Article 12 of the Constitution was introduced at the time of framing of the Constitution with a limited objective of granting judicial review of actions of such authorities which are created under the Statute and which discharge State functions.

However, because of the need of the day and keeping in view the socioeconomic policy of the country, this Court in the cases of Rajasthan State Electricity Board and Sukhdev Singh thought it fit to expand the definition of the term "other authorities" to include bodies other than statutory bodies. This development of law by judicial interpretation culminated in the judgment of the 7-Judge Bench in the case of Pradeep Kumar Biswas. In the meantime the socio-economic policy of the Government of India has changed and the State is today distancing itself from commercial activities and concentrating on governance rather than on business. Therefore, the situation prevailing earlier is not in existence at least for the time being, hence, there seems to be no need to further expand the scope of "other authorities" in Article 12 by judicial interpretation at least for the time being.

It should also be borne in mind that in a democracy there is a dividing line between a State enterprise and a non-State enterprise, which is distinct and the judiciary should not be an instrument to erase the dividing line unless, of course, the circumstances of the day require it to do so. (946-E-F-G-H( Rajasthan State Electricity Board v. Mohan Lal and Ors. , AIR. (1967) SC 185; Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. , (1975( 3 SCR 619 and Pradeep Kumar Biswas v. Indian institute ofChemical Biology and Ors. , (2002] 5 SCC 111, followed. Ba/co Employees' Union (Regd. ) v. Union ofIndia and Ors. , (20021 2 sec 333, relied on. 4. 3. When a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the m:dinary law but also under the Constitution, by way of a writ petition under Article 226.

Therefore, merely because a non-governmental body exercises some public duty that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant case the activities of the Board + do not come under the guidelines laid down by this Court in the case of Pradeep Kumar Biswas, hence this petition under Article 32 of the . , Constitution is not maintainable. (945-E-F( Pradeep Kumar Biswas v. Indian Institute ofChemical Biology and Ors. , 120021 5 sec 111, followed. Per Minority (Sinha, J. for himself and S. N. Variava, J. ) : I. I. Constitution of India is an ongoing document and, thus, should be interpreted liberally. Interpretation of Article 12, having regard to the exclusive control and management of sport of cricket by the Board and enormous power exercised by it calls for a new approach.

The Constitution, it is trite, should be interpreted in the light of whole experience after its commencement and not merely in that of what was the state of law at the commencement of the Constitution. 1955-GI Missouri v. Holland, (252 US 416 (433) and Kapila Hingorani •1. State ofBihar, j200316 SCC I and John Vallamattom and Anr. v. Union ofIndia, JT (2003) 6 SC 37, relied on. Liverpool & London S. P. & I Association ltd v. M. V. Sea Success I and Anr. , 120041 9 sec 512, referred to. ZEE TELE FILMS LTD. v. U. 0. 1. 919 Human Rights and Article 18 ofthe United Nations Covenant on Civil and Political Rig/us. (/ 966) and 'Statu101y Interpretation', Fourth Edition by Francis Bennion, referred to. 1. 2. Flexibility is the hallmark of our Constitution. The growth of the Constitution shall be organic, the rate of change glacial. 1966-GI TM. A. Pai Foundation and Ors. v. State ofKarnataka and Ors. , 120021 8 SCC 481; Islamic Academy of Education and Anr. v. State of Karnataka and Ors.

, 1200316 SCC 697 and Jiby P. Chacko v. Mediciti School ofNursing, Ghanpur, Ranga Reddy District and Anr. , (2002) 2 ALO 827, referred to. Poplar Housing and Regeneration Community Association Ltd. v. Donoghue, (2002) Q. B. 48 and R (on the application ofHeather and Ors. ) v. Leonard Cheshire Foundation and Anr. , (2002) 2 All ER 936, referred to. R. Stevens: The English Judges: Their Role in the Changing Constitution (Oxford 2002), p. (xiii) Q11oted by Lord Woe// in 'The Rule of Law and Change in the Constitution, 2004 Cambridge Law Journal 317, referred to. 1. 3. The State by reason of a legislative action cannot confer on it extra territorial jurisdiction in relation to sports, entertainment etc. Education, however, is in Concurrent List being Item No. 25 of List III. Sport is considered to be a part of Education (within its expanded meaning). Sports has been included in the Human Resource Development as a larger part of education.

1958-EI Secretary, Ministry ofInformation & Broadcasting, Government ofIndia and Ors. etc. v. Cricket Association of Bengal and Ors. etc. , 11995) 2 SCC 161, referred to. 2. 1. The expression "A11thority" has a definite connotation. It has different dimensions and, thus, must receive a liberal interpretation. To arrive at a conclusion, as to which "other authorities" could come within the purview of Article 12, one may notice the meaning of the word "authority". The word "Other Authorities" contained in Article 12 is not to be treated as ejusdam generis. Broadly, there are three different concepts which exist for determining the question which fall within the expression "other authorities". There cannot be same standard or yardstick for judging different bodies for the purpose of ascertaining as to whether it fulfils the requirements of law therefor or not. 1960-B-G; E, HI · Pradeep Kumar Biswas v. Indian Institute ofChemical Biology and Ors. , 120021 5 sec 111, followed.

Black Diamond Beverages and Anr. v. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta and Ors. , 11998) l SCC 458, relied on. 2. 2. A 'State' has different meanings in different contexts. In a traditional sense, it can be a body politic but in modern international practice, a State is an organization which receives the general recognition accorded to it by the existing group of other States. Union of India recognizes the Board as its representative. The expression "other authorities" in Article 12 of the Constitution of India is 'State' within the territory of India as contradistinguished from a State within the control of the Government of India. The concept of State under Article 12 of the Constitution is in relation to the fundamental rights guaranteed by Part- 111 of the Constitution and Directive Principles of the State Policy as contained in Part-IV thereof.

The contents of these two parts manifest that Article 12 is not confined to its ordinary or constitutional sense of an independent or sovereign meaning so as to include within its fold whatever comes within the purview thereof so as to instil the public confidence in it. (961-D-EJ 3. 1. The feature that the Board has been allowed to exercise the powers enabling it to trespass across the fundamental rights of a citizen is of great significance. In terms of the Memorandum of Association even the States are required to approach the Board for its direction. If the Constitution Bench judgment of this Court in the case of Sukhdev Singh and Ors. v. Bhagatram Sardar Singh and development of law made therefrom is to be given full effect, it is net only the functions of the Government alone which would enable a body to become a State but also . ~ when a body performs governmental functions or quasi-governmental functions as also when its business is of public importance and is ' .

fundamental for the life of the people. This Court in expanding the definition of State did not advisedly confine itself to the debates of Constitutional Assembly. It considered each case on its own merit. "Other authorities", inter-alia, would be there which inter alia function within the territory of India and the same need not necessarily be the Government of India, the Parliament of India, the Government of each of the States tor the legislation of the States. 1961-f'-G-H; 962-A-B-CI Sukhdev Singh and urs. v. Bhagatram Sardar Singh, 1197511 SCC 421, followed. ZEE TELE FILMS LTD. v. U. 0. 1. 921 _. ~ 3. 2. The right of Indian players is comparable to their constitutional right contained in Article 19(1)(g) of the Constitution of India which would include a right to work and a right to pursue one's occupation. The Board while enjoying monopoly in cricket exercises enormous power.

Its action may disable a person from pursuing his vocation and in that process subject a citizen to hostile discrimination or impose an embargo which would make or mar a player's career. 1981-E-FI 4. 1. Article 12 must receive a purposive interpretation as by reason of Part III of the Constitution a charter ofliberties against oppression and arbitrariness of all kinds of repositories of power have been conferred the object being to limit and control power wherever it is found. A body exercising significant functions of public importance would be an authority in respect of these functions. In those respects it would be same as is Executive Government established under the Constitution and the establishments of organizations funded or controlled by the Government. 1962-D-E-FI 4. 2. It is not that every body or association which is regulated in its ,.. \o private functions becomes a 'State'.

What matters is the quality and character offunctions discharged by the body and the State control flowing ·~ therefrom. 1962-Fl Daniel Lee v. Vera Katz, 276 F. 3d 550, referred to. 4. 3. The concept that all public sector undertakings incorporated under the Indian Companies Act or Societies Registration Act or any other Act for answering the description of State must be financed by the Central Government and be under its deep and pervasive control has undergone a sea change. The thrust now is not upon the composition of the body but lo. upon the duties and functions performed by it. 1963-C-DI ... UP Stale Cooperative land Development Bank ltd. v. Chandra Bhan Dubey and Ors.. AIR (1999) SC 753, relied on. Federal Bank Ltd v. Sagar Thomas and Ors. , 120031 to SCC 733; K. R. Anitha and Ors. v. Regional Director, ES! Corporation and Anr. , 120031 10 SCC 303 and G. Bassi Reddy v. International Crops Research Institute and Am'. , 120031 4 SCC 225, referred to. 4. 4.

The expansion in the definition of State is not to be kept confined only to business activities of Union of India or other State Governments in terms of Article 298 of the Constitution of India but must also take ·L within its fold any other activity which has a direct influence on 1he citizens. 1966-EI 5. I. A body although self-regulating, if performs public duty by uay of exercise of regulatory machinery, a judicial review wauld lie agai11st it. The question has since been considered from a slightly different angle, viz. , when such action affects the human right of the person concerned holding that the same would be public function. Greig and Ors. v. Insole and Ors. , (1978( 3 All ER 449; R. v. Panel on Take-overs and Mergers, ex parte Datafin pie and Anr. , 1198711 All ER 564 and Poplar Housing and Regeneration Community Association Ltd. v. Donoghue, (2001 ( 4 All ER 604, referred to. 5. 2.

If the action of the Board impinges upon the fundamental or other constitutional rights of a citizen or if the same is ultra vires or hy reason thereof an injury or material prejudice is caused to its member ·or a person connected with cricket, judicial review would lie. Such functio~s on the part of the Board being public function, any violation of or departure or deviation from abiding by the rules and regulation framed ,, by it would be subject to judicial review. 1981-H; 982-AI 5. 3. The concept of public law function is yet to be crystalised. However, the power ofjudicial review can be exercised by this Court und·er Article 32 and by the High Courts under Article 226 of the Constitution of India only in a case where the dispute involves a public law element as contradistinguished from a private law dispute.

General view is that whenever a State or an instrumentality of a ~tate is involved, it will he regarded as an issue within the meaning of public law but where individuals are at loggerheads, the remedy therefor has to be resorted m private law field. Situation, however, changes with the advancement of tl1e .... State function particularly when it enters in the fields of commerce, industry and business as a result whereof either private bodies take up public functions and duties or they are allowed to do so. The distinctiun has narrowed down but such a distinction still exists. Thus, it may be safely inferred that when essential Governmental functions were placed or allowed to be performed by the private body, they must be held to hne undertaken public duty or public functions. 1982-D-E-F-GI Dwarka Prasad Agarwal (DJ by LRs.. and Anr. v. B. D. Agarwal and Or~.. 120031 6 sec 230, relied on. ZEE TELE FILMS LTD. v. U. 0. 1. 923 O'Reilly v. Mackman, (1982) 3 WLR 604, referred to. ..

American Constitutional law" by Laurence H. Tribe, referred to. S. 4. No legislation has been made either by any State or by the Union or'lndia regulating and controlling the cricketing activities in the country. The Board authorized itself to make law regulating cricket in India :Which it did and which it was allowed to do by the States either overtly or covertly. The States left the decision making responsibility in the hands of the Board, otherwise so-called private hands. They maintain silence despite the Board's proclamation of its authority to make law of sports for the entire country. (983-A( S. S. Performance of a public function in the context of the Constitution of India would be to allow an entity to perform the function as an, authority within the meaning of Article 12 which makes it subject to the constitutional discipline of fundamental rights. The duty to act fairly is inherent in body which exercises such enormous power.

Such a duty can be envisioned only under Article 14 of the Constitution and not under the Administrative Law. (983-F-G( Ramana Dayaram Shetty v. International Airport Authority ofIndia and Ors. , (1979] 3 SCC 489, relied on. S. 6. Even when public duties are conferred by statute, powers and duties do not thereunder limit the ambit of'a statute as there are instanr. es when the conferment of powers involves the imposition of duty to exercise it, or to perform some other incidental act, such as obedience to the principles of natural justice. Many public duties are implied by the Courts rather than commanded by the legislature; some can even be said to be assumed voluntarily. Some statutory public duties are 'prescriptive .... patterns of conduct' in the sense that they are treated as duties to act reasonably so that the prescription in these cases is indeed provided by the courts, not merely recognized by them.

There are, however, public duties which arise from sources other than a statute. These duties may be more important than they are often thought to be or perceived. The functions of the Board, thus, having regard to its nature and character of functions would be public functions. (984-8-D, H; 98S-A( 'Public Duties and Public Law' by A. J. Harding, pp. 6 to 14, referred to. 6. 1. The traditional tests which had impelled this Court in the case of Ajay Hasia to lay down the tests for determining the question as to whether a body comes within the purview of"Other Authorities" are not exhaustive. This case, moreover, is required to be proceed on the premise that some other tests had also been propounded if the functions of the body falls within the description of the public function, absence of State financial aid would not influence the conclusion to the contrary. (989-A-B; 990-lli:( Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. , (1981 ( I SCC 722, relied on. Marsh v.

Alabama 326 US 501, referred to. 6. 2. Drawing the contrast between the governmental activities which are private and private activities which are governmental, it was noticed in the case ofSukhdev Singh that besides the so-called traditional functions, the modern State operates a multitude of public enterprises. What is, therefore, relevant and material is the nature of the function could IJe resolved keeping in view the following : (i) When the body acts as a public authority and has a public duty to perform; (ii) When it is bound to protect human rights. (iii) When it regulates a profession or vocation of a citizen which is otherwise a fundamental right under a statute or its own rule. (iv) When it regulates the right of a citizen contained in Artide 19(1)(a) of the Constitution of India available to the general public and viewers of the game of cricket in particular. ..

(v) When it exercises a de facto or a de jure monopoly; (vi) When the State out-sources its legislative power in its favour; (vii) When it has a positive obligation of public nature. (990-B, C, D, E( Sukhdev Singh and Ors. v. Bhagatram Sardar Singh, (1975( I SCC 4:~1, relied on. ZEE TELE FILMS LTD. v. U. 0. 1. 925 6. 3. The tests laid down in earlier cases may not be applicable in case where the body like the Board was established as a private body long time back. It was allowed by the State to represent the State or the country in international fora. It became a representative body of the international organizations as representing the country.

When the nature of function of such a body becomes such that having regard to the enormity thereof it acquires the status of monopoly for all practical purposes; regulates and control the fundamental rights of a citizen as regard their right of speech or right of occupation, becomes representative of the country either overtly or covertly and has a final say in the matter of registration of players, umpires and others connected with a very popular sport. The organizers of competitive test cricket between one association and another or representing different States or different organizations having the status of a State are allowed to make laws on the subject which is essentially a State function in terms of Entry 33 List II of the Seventh Schedule of the Constitution of India. In such a case, different tests have to be applied. (991-H; 992-A-B-CJ 6. 4.

An entity or organization constituting a State for the purpose of Part III of the Constitution would not necessarily continue to be so for ' ' all times to come. Converse is also true. A body or an organization although created for a private purpose by reason of extension of its activities may not only start performing governmental functions but also may become a hybrid body and continue to act both in its private capacity or public capacity. What is necessary to answer the question would be to consider the host of factors and not just a single factor. The presence or absence of a particular element would not be determinative of the issue, if on an overall consideration it becomes apparent that functionally it is an authority within the meaning of Article 12 of the Constitution of India. (992-F-GJ 6. 5.

It is true that regulatory measures applicable to all the persons similarly situated, in terms of the provisions of a st11tute would by itself not make an organization a State in all circumstances. Conversely, in a case of this nature non-interference in the functioning of an autonomous body by the Government by itself may also not be a determinative factor as the Government may not consider any need therefor despite the fact that the body or organization had been discharging essentially a public function. Such non-interference would not make the public body a private body. (993-B-CI II 6. 6. The Board for all intent and purport was a recognized body. Probably in that view of the matter, the Board did not think it necessarJ' to apply for grant of such recognition of the Union of India asking it for passing a formal order.

However, the Board had all along been obtainin1: the requisite permission for sending an Indian team abroad or for inviting a foreign team in India in the prescribed form. 11000-DI 6. 7. The conduct of both the Board and the Union of India clearly go to show that sub silentio both the parties had been acting on the premise~ that the Board is recognized as the only recognized National Federation for the purpose of regulating the game of cricket in India. 11001-G-HI Rahul Mehra and Anr. v. Union ofIndia and Ors. , (Civil Writ Petition No. ! 680 of2000) disposed ofby Supreme Court on 4th October, (2004), reliecl on. 6. 8. A public authority would be an authority which not only can: regulate and control the entire sports activities in relation to cricket but: also the decisive character it plays in formulatinl,l the game in all aspect~ Even the Federations controlled by the State and other public bodies a!

: la'3o the State themselves, in view of the Board's Memorandum ol' Association and the Rules and Regulations framed by it, are under its complete control. Thus, it would be subject to a judicial review. 11003-G, H; 1004-Al 6. 9. Although, there are domestic events, indisputably only those whCI are members of the Board and/or recognized by it can take part therein and none else. This also goes to show that the Board regulates the domestk competitive cricket to the fullest measure and exercises control over it! : members. 11006-Cf 6. 10. In the constitutional scheme rule of law would, by all means. , ·•" prevail over rule of cricket. A body regulating the game of cricket woul , pending before the different High Courts and now even in the Supreme Court, depending upon the writ petitioners involved.

He pointed out that in the stand taken by the Government of India in a writ petition filed before the Delhi High Court and before the Bombay High Court as also in the first affidavit filed before this Court it had categorically stated' that Government of India does not control the Board and that it is not a State under Article 12 of the Constitution of India. He pointed out from the said affidavits that the first respondent had taken a stand in those petitions that the Government plays no role in the affairs of any member association and it does not provide any financial assistance to the Board for any purpose. It had also taken the f. stand before the Delhi High Court that the Board is an autonomous body and that the government had no control over the Board. The learned counsel has also relied upon an affidavit filed by the Board in this Court wherein the Board has specifically denied that the first respondent has ever granted any recognition to the Board.

,~ Hence the question for consideration in this petition is whether the Board falls within the definition of"the State" as contemplated under Article 12 of the Constitution. Article l2 reads thus : "12. 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. " A perusal of the above Article shows that the definition of State in the said Article includes the Government of India, Parliament of India, Government of the State, Legislatures of the States, local authorities as also "other authorities". It is the argument of the Board that it does not come under the term "other authorities", hence is not a State for the purpose of Article 12.

While the petitioner contends to the contrary on the ground that the various activities of the Board are in the nature of public duties. A literal reading of the definition of State under Article 12 would not bring the Board under the term "other authorities" for the purpose of Article 12. However, the process ofjudicial interpretation has expanded the scope ofthe term "other authorities" in its various judgments. It is on this basis that the petitioners contend that the Board would come under the expanded meaning of the term "other authorities" in Article 12 because of its activities which is that of a public ;, body discharging public functior.. Therefore, to understand the expanded meaning of the term "other authorities" in Article 12, it is necessary to trace the origin and scope of Articie 12 in the Indian Constitution. Present Article 12 was introduced in the Draft Constitution as Article 7.

While initiating a debate on this Article in the Draft Constitution in the Constituent Assembly, Dr. Ambedkar described the scope of this Article and the reasons why this Article was placed in the Chapter on fundamental rights as follows : "The object of the fundamental rights is twofold. First, that every citizen must \Je in a position to claim those rights. Secondly, they . ' must be binding upon every authority - l shall presently explain what the word 'authority' means upon every authority which has got either the power to make laws or the power to have discretion vested in it. Therefore, it is quite clear that if the fundamental rights are to be clear, then they must be binding not only upon the Central Government, they must not only be binding upon the Provincial Government, they must not only be binding upon the Governments established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even village panchayats and taluk boards. ) ...

ZEE TELE FILMS LTD. v. U. 0. 1. [SANTOSH l-IEGDE. . I. ] 935 1..... t in fact, every authority which has been created by law and which has got certain power to make laws, to make rules, or make bye-laws. If that proposition is accepted - and I do not see anyone who cares for Fundamental Rights can object to such a universal obligation being imposed upon every authority created by law then, what are we to do to make our intention clear ? There are two ways of doing it. One way is to use a composite phrase such as 'the State', as we have done in Article 7; or, to keep on repeating every time, 'the Central Government, the Provincial Government, the State Government, the ~ Municipality, the Local Board, the Port Trust, or any other authority'. It seems to me not only most cumbersome but stupid to keep on repeating this phraseology every time we have to make a reference to some authority. The wisest course is to have this comprehensive , ' ·phrase and to economise in words. " (1948 (Vol.

VII) CAD 61 OJ (Emphasis supplied) From the above, it is seen that the intention of the Constitution framers in incorporating this Article was to treat such authority which has been created ). by law and which has got certain powers to make laws to make rules and regulations to be included in the term "other authorities" as found presently ~. in Article 12. Till about the year 1967 the courts in India had taken the view that even statutory bodies like Universities, Selection Committee for admission to Government Colleges were not "other authorities" for the purpose of Article 12 (See The University of Madras v. Shantha Bai and Anr. , AIR (1954) Madras, 67, B. W. Devadas v. The Selection Committee for Admission of Students to the Karnatak Engineering College and Ors. , AIR (1964) Mysore 6. In the year 1967 the case of Rajasthan State Electricity Board v. Mohan ...... Lal and Ors.

, AIR (1967) SC 1857 a Constitution Bench of this Court held f ' that the expression "other authorities" is wide enough to include within it every authority created by a Statute on which powers are conferred /(}-carry out governmental or quasi-governmental functions and functioning within the territory of India or under the control of the Government of India. (Emphasis supplied) Even while holding so Shah, J. in a separate but concurring judgment observed that every constitutional or, statutory authority . I~ on whom powers are conferred by law is not "other authority" within the meaning of Article 12.

He also observed further that it is only those authorities which are invested with sovereign powers, that is, power to make rules or regulations and to administer or enforce them to the detriment of citizens and ,,__, others that fall within the definition of"State" in Article 12: hut constitutional or statutory bodies invested with power but not sharing the sovereign power of the State are not "State" within the meaning of that Article. (Emphasis supplied) Almost a decade later another Constitution Bench ofthis Court somewhat expanded this concept of "other authority" in the case of Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr.. (1975] 3 SCR 619, in this case the Court held the bodies like Oil and Natural Gas Commission, Industrial Finance Corporation and Life Insurance Corporation which were ~ created by statutes because of the nature of their activities do come within the term "other authorities" in Article 12.

Even though in reality they were really constituted for commercial purposes while so holding Mathew J. gave the following reasons for necessitating to expand the definition ofthe term "other authorities" in the following words :- "The concept of State has undergone drastic changes in recent years. Today State cannot be conceived of simply as a coercive machinery wielding the thunderbolt of authority. It has to be viewed mainly as a service Corporation. A State is an abstract entity. It can only act J. , through the instrumentality or agency or natural or juridical persons. .. There is nothing strange in the notion of the State acting through a Corporation and making it an agency or instrumentality of the State. With the advent of a welfare State the framework of civil service administration became increasingly insufficient for handling the new tasks which were often of a specialised and highly technical character.

The distrust of Government by civil service was a powerful factor in the development of a policy of pubIi~ administration through separate . Corporations which wouId operate largely according to business principles and be separately accountable. The Public Corporation, ' ~ therefore, became a third arm of the Government. The employees of public Corporation are not civil servants. In so far as public corporations fulfil public tasks on behalf of government they are public authorities and as such subject to control by Government. The public Corporation being a creation of the State is subject to the constitutional limitation as the State itself. The governing power wherever located must be subject to the fundamental constitutional ~. limitations. The ultimate question which is relevant for our purpose is whether the Corporation is an agency of instrumentality -, SCC 111, it would not be a 'State'.

Our attention, in this behalf, has been drawn to paragraphs 25, 27, 30, 31, 38, 42 to 45, 48, 49, 50, 51, 52 to 55 of the said judgment . It was contended that the Board is an autonomous body and the Central Government does not have any control thereover either financially or administratively or functionally. It was urged that neither the Central Government gives any monetary grant nor nominates any member in the Governing Body of the Board nor has anything to do with its internal affairs. It was pointed out by the learned counsel that even the Union of India had agreed before the Bombay High Court that the Board had the exclusive telecasting rights as owner of the events. The Board furthermore does not ..... exercise any sovereign or governmental functions; Mr. Venugopal would ; . argue that furthermore the Board has not even been recognized by the Union of India nor has it any role to play as regard framing of its rules and regulations. Dr. A. M.

Singhvi, learned Senior Counsel appearing on behalf of the Third Respondent herein, would supplement the arguments of Mr. Venugopal contending that the activity of a body like Board does not involve any public I duty or public function and although its action is public in nature, the same . J would not amount to a governmental action. Reliance, in this connection, has been placed on R. v. Football Association Ltd. , ex parte Football League Ltd. (1993) 2 AER 833 and R. v. Disciplinary Commillee ofthe Jockey Club, ex parte Aga Khan (I993) 2 AER 853. The leaned counsel has also drawn our I_ ' attention to a decision of this Court in Federal Bank ltd. v. Sagar Thomas and Ors. , [2003] IO SCC 733. According to Dr. Singhvi, there exists a distinction between A11icles 32 and 226 of the Constitution of India. Reliance in this behalf has been placed on a decision of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R.

Rudani and Ors. , [1989] 2 SCC 691. Mr. Soli J. Sorabjee, the learned Senior Counsel appearing on behalf > the fifth Respondent, would contend that the nature of the function of the .. concerned authority plays an important role in determining the question and only where the function is governmental in nature or where the authority is vested under a statute, it would attract the definition of "other authorities" ' within the meaning of Article 12 of the Constitution and not otherwise. The learned counsel would, however, submit that in Aga Khan (supra), the Court of Appeal has accepted that there may be some cases where the judicial review would be maintainable. Drawing our attention to a decision of this Court in G. Bassi Reddy v. International Crops Research Institute and Anr. , [2003] 4 SCC 225, the learned counsel would urge that Board does not fulfil the tests laid down therein. A. Mr.

Harish Salve, learned Senior Counsel appearing on behalf of the Writ Petitioners, on the other hand, would take us through the Memorandum and Articles of Association of the Board as also the rules and regulations framed by it and contend that from a perusal thereof it would be manifest that it exercises extensive power in selecting players for the Indian National team in the international events. The Board, also exercises stringent disciplinary powers over players, umpires, members of the team and other officers. It is the contention of Mr. Salve that the activities of the Board in effect and substance are governmental functions in the area of sports. An exclusive right has been granted to it to regulate the sport in the name of the country ~ resulting in exercise of functions of larger dimension of public entertainment.

When a body like the Board has received recognition from the Union of India to allow it to represent India as a country, its character must be held to have changed from private body to a public authority. It was submitted that the players put on colours of National Flag on their attire. Because of the nature of its actions the International Cricket Council has recognized the Board not in its capacity as a cricket playing club but as a representative of India, a • cricket playing country. By its disciplinary action, Mr. Salve would argue, the Board may debar a player from representing the country as a result whereof his fundamental right under Article 19( I)(g) of the Constitution of ZEE TELE FILMS LTD. v. U. 0. 1. [S. B. SINHA, J. ) 955 India would be affected. He would submit that the Board, therefore, is not an autonomous body discharging a private function only and in fact it deals with sporting events of the country.

The learned counsel would argue that the Board acts strictly in terms of the foreign policy of the country as it refused to recognize a player who played in South Africa, as apartheid was being practiced therein which was consistent with India's foreign policy. It was further submitted that the cricket match between India and Pakistan could be held only with the permission of the Union of India as and when the relationship between the two countries improved. Mr.

Salve, therefore, submits that the Board is a 'State' within the meaning of Article 12 of the Constitution of India as : (i) it regulates cricket; (ii) It has a virtual monopoly; (iii) it seeks to put restrictions on the fundamental rights ofthe players and umpires to earn their livelihood as envisaged under Article 19(1)(g) of the Constitution of India; (iv) The cricket events managed by the third Respondent have a definite concept, connotation and significance which have a bearing on the performance of individual players as also the team as a national team representing the country in the entire field of cricket. Mr. Mohan Parasaran, learned counsel appearing on behalf of Unior. of India would contend that the functions of the Board are of public importance and closely related to governmental functions. Functions of the Board, the learned counsel would urge, also control free speech rights of citizens within a public forum which is essentially a governmental function.

Reference in this connection has been made to Daniel Lee v. Vera Katz, 276 F. 3d 550. CONSTITUTIONAL DEVELOPMENT : Our Constitution is an ongoing document and, thus, should be. interpreted liberally. Interpretation of Article 12, having regard to the exclusive control and management of sport of cricket by the Board and enormous power . J exercised by it calls for a new approach. The Constitution, it is trite, should be interpreted in the light of our whole experience and not merely in that of what was the state of law at the commencement of the Constitution. [See Missouri v. Holland, (252 US 416 (433) and Kapila Hingorani v. State of Bihar, [2003] 6 sec 1]. Furthennore in John Val/amattom and Anr. v. Union ofIndia, JT (2003) 6 SC 37 while referring to an amendment made in U. K. in relation to a provision which was in pari materia with Section 118 of the Indian Succession Act, 1925, this Court observed : "...

The constitutionality of a provision, it is trite, wiil have to be judged keeping in view the interpretive changes of the statute effected by passage of time. " Referring to the changing scenario of the law and having regard to the declaration on the right to development adopted by the World Conference on Human Rights and Article 18 of the United Nations Covenant on Civil and Political Rights, 1966, this Court held : "It is trite that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be considered on the basis of laws existing on 26th January, 1950, but while doing so the court is not precluded from taking into consideration the subsequent events which have taken place thereafter. It is further trite that that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation.

Justice Cardoze said : "The law has its epochs of ebb and flow, the flood tides are on us. The old order may change yielding place to new; but the transition is never an easy process". Albert Campus stated : - . "The wheel turns, history changes". Stability and change are the two sides of the same law-coin. In their pure form they are antagonistic poles; without stability the law becomes not a chart of conduct, but a gare of chance: with only stability the law is as the still waters in which there is only stagnation and death. " ~. In any view of the matter even if a provision was not unconstitutional on the day on which it was enacted or the Constitution came into force, by reason of facts emerging out thereafter, the same may be ZEE TELE FILMS LTD. v. U. 0. 1. [S. B. SINHA. J. ) 957 rendered unconstitutional. " In Liverpool & London S. P. & I Association Ltd. v. M. V. Sea Success I and Anr. , (2004] 9 SCC 512, this Court observed: "Referring to Motor General Traders and Anr. v.

State of Andhra Pradesh and Ors. , (1984] I SCC 222, Rattan A1ya and Ors. v. State of Tamil Nad11 and Anr. , (1986] 3 SCC 385 and Synthetics and Chemicals Ltd. and Ors. , v. State of UP. and Ors. , (1990] I SCC 109, this Court held: (SCC p. 608, para 49) "There cannot be any doubt whatsoever that a law which was at one point of time constitutional may be rendered unconstitutional because of passage of time. We may note that apart from the decisions cited by Mr. Sanghi, recently a similar view has been taken in Kapila Hingorani v. State ' ofBihar, JT (2003) 5 SC I and John Vallamattom and Anr. v. Union of India, JT (2003) 6 SC 37. " Constitution of India is an ongoing document. It must be interpreted accordingly.

In Francis Bennion's 'Statutory Interpretation', Fourth Edition at page 762, it is stated : "It is presumed that Parliament intends the court to apply to ongoing Act a construction that continuously updates its wording tC\ allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. At page 764, it is commented : "In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred, since the Act's passing, in law, social conditions, technology, the meaning of words, and other matters.

Just as the US Constitution is regarded as 'a living Constitution', so an ongoing British Act is I regarded as 'a living Act'. That today's con~truction involves the \,_ . supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that constructio1i. Parliament. in the wording of an enactment, is expected to anticipate temporal developments. The drafter will try to foresee the future, and allow for it in the wording. " LEGISLATIVE POWERS: Although we will advert to various rival contentions raised at the Bar at some details a litter later but suffice it to notice at this stage that encouragement of games and sports is State function in terms of Entry 33 of List II of the Seventh Schedule of the Constitution of India which reads thus: "33. Theaters and dramatic performances; cinemas subject to the provisions of entry 60 of List I; sports, entertainments and amusements.

" The State by reason of a legislative action cannot confer on it extra territorial jurisdiction in relation to sports, entertainment etc. Education, however, is in Concurrent List being Item No. 25 of List III. Sport is considered to be a part of Education (within its expanded meaning). Sport has been included in the Human Resource Development as a larger part of education. The Ministry of Youth Affairs and Sports was earlier a department of the Ministry of Human Resource Development. Now a separate Ministry of Youth Affairs and Sports has come intQ being, in terms ofthe Allocation of Business Rules. In Secretary, Ministry ofInformation & Broadcasting, Government of India and Ors. etc. v. Cricket Association ofBengal and Ors. etc. , [1995] 2 SCC 161, this Court held : "... It may be true that what is protected by Article 19(1)(a) is an expression of thought and feeling and not ofthe physical or intellectual prowess or skill.

It is also true that a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self-expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, . informed and entertained. The former is the right ofthe telecaster and the latter that ZEE TELE FILMS LTD. v. U. 0. l. [S. B. SINHA.. I. ] 959 t. __,( of the viewers. The right to telecast sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say thatfree-speech element is absent from his right.

The degree of the element will depend upon the character of the telecaster who claims the right An organizer such as the BCCI or CAB in the present case which are indisputably devoted to the promotion of the game of cricket, cannot be placed in the same scale as the business organizations whose only intention is to make as large a profit as can be made by telecasting the game.... " [Emphasis supplied) It was held that sport is a form of expressive conduct. We may notice at this juncture that the Union of India in exercise of its executive functions in terms of the Allocation of Business Rules framed under Article 77 of the Constitution of India created a separate Ministry of . ). Youth Affairs and Sports for the said purpose. One of the objects of the Ministry is to work in close coordination with national federations that regulate sports.

Keeping in view the fact that the Union of India is required to promote sports throughout India, it, as of necessity is required to coordinate between the activities of different States and furthermore having regard to the International arena, it is only the Union of India which can exercise such power in terms of Entry I0, List I of the Seventh Schedule of the Constitution of India and it may also be held to have requisite legislative competence in terms of Entry 97, List I ofthe Seventh Schedule ofthe Constitution of India. ARTICLE 12: ~ } Before adverting to the core issues at some length we may take a look at Article 12 of the Constitution of India which reads as under : "12. 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.

" In this Article, the 'State' has not been defined. It is merely an inclusive definition. It includes all other authorities within the territory of India or " ' under the control of the Government of India. It does not say that such other authorities must be under the control of the Government of India. The word 'or' is disjunctive and not conjunctive. The expression "Authority" has a definite connotation. It has different dimensions and, thus, must receive a liberal interpretation. To arrive at a .. conclusion, as to which "other authorities" could come within the purview of Article 12, we may notice the meaning of the word "authority". J( The word "Other Authorities" contained in Article 12 is not to be treated as ejusdam generis. In Concise Oxford English Dictionary, 10th Edition, the word 'authority' has been defined as under : "I. the power or right to give orders and enforce obedience. 2.

a person or organization exerting control in a particular political or ' administrative sphere. 3. the power to influence others based on recognized knowledge or expertise. " . "" Broadly, there are three different concepts which exist for determining the question which fall within the expression "other authorities". (i) The Corporations and the Societies created by the State for carrying on its trading activities in terms of Article 298 of the Constitution wherefor the capital, infrastructure, initial investment and rinancial aid etc. are provided by the State and it also exercises regulation and control thereover. (ii) Bodies created for research and other developmental works which ~ is otherwise a governmental function but may or may not be a part of the sovereign function. .

' (iii) A private body is allowed to discharge public duty or positive obligation of public nature and furthermore is allowed to perform ·" regulatory and controlling functions and activities which were otherwise the job of the government. There cannot be same standard or yardstick for judging different bodies -. for the purpose of ascertaining as to whether it fulfills the requirements of law therefor or not. ZEE TELE FILMS LTD. v. U. O. I. [S. B. SINHA. . I. ] 961 I _, In Pradeep Kumar Biswas (supra), a Seven-Judge Bench held : "That an "inclusive" definition is generally not exhaustive is statement of the obvious and as far as Article 12 is concerned, has been so held by this Court Ujjam Bai v. State ofU. P. , AIR (1962) SC 1621 : (1963) l SCR 778 at 968.

The words "State" and "authority" used in Article 12 therefore remain, to use the words of Cardozo (Benjamin Cardozo : The Nature of the Judicial Process), among "the great generalities of the Constitution" the content of which has been and continues to be supplied by courts from time to time. " (See also Black Diamond Beverages and Anr. v. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta and Ors. , (1998] 1 SCC 458. What is necessary is to notice the functions of the Body concerned. A 'State' has different meanings in different context. In a traditional sense, it can be a body politic but in modern international practice, a State is an organization which receives the general recognition accorded to it by the existing group of other States. Union of India recognizes the Board as its ).. representative.

The expression "other authorities" in Article 12 of the Constitution of India is 'State' within the territory of India as contradistinguished from a State within the control of the Government of India. The concept of State under Article 12 is in relation to the fundamental rights guaranteed by Part-Iii of the Constitution and Directive Principles of the State Policy contained in Part-IV thereof. The contents of these two parts manifest that Article 12 is not confined to its ordinary or constitutional sense of an independent or sovereign meaning so as to include within its fold whatever comes within the purview thereof so as to instill the public confidence in it. ~ The feature that the Board has been allowed to exercise the powers enabling it to trespass across the fundamental rights of a citizen is of great significance. In terms of the Memorandum of Association even the States are required to approach the Board for its direction.

If the Constitution Bench judgment of this Court in Sukhdev Singh and Ors. v. Bhagatram Sardar Singh, (1975] I SCC 421 and development of law made therefrom is to be given full effect,. it is not only the functions of the Government alone which ,r-J would enable a body to become a State but also when a body performs governmental functions or quasi-governmental functions as also when its business is of public importance and is fundamental for the life of the people. For the said purpose, we must notice that this Court in expanding the definition of State did not advisedly confine itself to the debates of Constitutional Assembly. It considered each case on its own merit. In Sukhdev Singh (supra), Mathew, J. stated that even big industrial houses and big trade unions would come in the purview thereof. While doing so the courts did not lose sight of the difference between the State activity and the individual activity.

This Court took into consideration the fact that new rights in the citizens have been created and if any such right is violated, they must have access to justice which is a human right. No doubt, there is an ongoing debate as regard the effect of the globalization and/or opening up of market by reason of liberalization policy of the Government as to whether that the notion of sovereignty ofthe State is being thereby eroded or not but we are not concerned with the said question in this case. "Other authorities", inter-alia, would be there which inter alia function within the territory of India and the same need not necessarily be the Government of India, the Parliament of India, the Government of each of the States which constitute the Union of India or the legislation of the States.

Article 12 must receive a purposive interpretation as by reason of Part Ill ofthe Constitution a charter of liberties against oppression and arbitrariness ·' of all kinds of repositories of power have been conferred the object being to limit and control power wherever it is found. A body exercising significant functions of public importance would be an authority in respect of these functions. Jn those respects it would be same as is executive government established under the Constitution and the establishments of organizations funded or controlled by the Government. A traffic constable remains an authority even if his salary is paid from the parking charges inasmuch as he still would have the right to control the traffic and anybody violating the traffic rules may be prosecuted at his instance. It is not that every body or association which is regulated in its private . , functions becomes a 'State'.

What matters is the quality and character of functions discharged by the body and the State control flowing therefrom. In Daniel lee (supra), it was held : 'The OAC's functionally exclusive regulation of free speech within.... a public forum, is a traditional - ~ The conflict between Ajay Hasia (supra) and Sabhajit Tewary v. Union of India and Ors. , [1975] I SCC 485 has been resolved in Pradeep Kumar Biswas (supra) by overruling Sabhajit Tewary (supra) and, thus, there does not exist any conflict. The principles laid down in Ajay Hasia (supra) are not rigid ones and, thus, it is permissible to consider the question from altogether a different angle. It is interesting to note that Bhagwati, J. in Ramana Dayaram Shetty p (supra) followed the minority opinion of Douglas, J. in Jackson v. Metropolitan Edison Company, [42 L. Ed. (2d) 477] as against the majority opinion of -... Rehnquist, J. which was specifically noticed in MC. Mehta and Anr. v. · • Union of India and Ors.

, [1987] I SCC 395. [SCC para 29] In Air India Statutory Corporation and Ors. v. United Labour Union and Ors. , [1997] 9 sec 377, (since overruled on another point) in Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. , [2001] 7 SCC I, this Court deliberated upon the distinction between the "' Private Law and Public Law. [SCC para 26]. ZEE TELE FILMS LTD. v. U. 0. 1. [S. B. SINHA. . I. ] 969 i~ FOREIGN CASE LAW : UNITED KINGDOM In Nagle v. Feilden and Ors. , [1966) 2 QB 633, the Jockey Club was entitled to issue licence enabling the persons to train horses meant for races. The Respondent's application for grant of licence was rejected on the ground that she was a woman. The action of the Club which was otherwise a private club was struck down holding that it exercises the function of licensing authority and controls the profession and, thus, its actions are required to be judged and viewed by higher standards.

It was held that it cannot act arbitrarily. In Greig and Ors. v. /nsole and Ors. , [1978) 3 All ER 449, a Chancery Division considered in great details the rules framed by the ICC as also the Test and County Cricket Board of United Kingdom. The question which arose therein was as to whether the ICC and consequently the TCCB could debar a cricketer from playing official cricket as also county cricket only because the plaintiffs therein, who were well-known and talented professional cricketers and had played for English County Club for some years and tests A_ matches, could take part in the World Series Cricket which promoted sporting "- ~ events of various kinds. · In R. v. Panel on Take-overs and Mergers, ex parte Datafin pie and Anr. , (1987) I All ER 564, the Court exercised the power of the judicial review over a private body.

The grounds on which judicial review was given are : (a) The Panel, although self-regulating, do not operate consensually or voluntary but had imposed a collective code on those within its ambit; -r (b) The Panel had been performing a public duty as manifested by ' the government's willingness to limit legislation in the area and to use the Panel as a part of its regulatory machinery. There had been an "implied devolution of power" by the Government to the Panel in view of the fact that certain legislation presupposed its existence. -~ (c) Its source of power was partly moral persuasive. Such a power \ would be exercised under a statute by the Government and the Bank of England. Lloyd LJ. in his separate speech opined : "On the policy level, I find myself unpersu::ided. Counsel for the panel made much of the word 'self-regulating'. No doubt selfregulation has many advantages.

But I was unable to see why the mere fact that a body is self-regulating makes it less appropriate for judicial review. Of course there will be many self-regulating bodies which are wholly inappropriate for judicial review. The committee of an ordinary club affords an obvious example. But the reason why a club is not subject to judicial review is not just because it is self regulating. The panel wields enonnous power. It has a giant's strength. The/act that it is selfregulation, which means, presumably, that it is not subject to regulation by others, and in particular the Department of Trade and Industry, makes it not less but more appropriate that it should be subject to judicial review by the courts. " (Emphasis supplied) [See also Aston Cantlow, Wilmcote and Billesley Parochial Church Council v. Wallbank, (200 I] 3 W. L. R. 1323]. ,A In Poplar Housing and Regeneration Community Association Ltd v.

- Donoghue, (200 I] 4 All ER 604, a question arose as to whether eviction of the defendant therein by a housing association known as Poplar Housing and Regeneration Community Association from one of the premises violated the provisions of the Human Rights Act. Lord Woolf CJ upon considering the provisions thereofas also a large number of decisions held that the Association discharges public function stating : "... The emphasis on public functions reflects the approach adopted in judicial review by the courts and text books since the decision of the ~( Court of Appeal (the judgment of Lloyd LJ) in R v. Panel on Take- . overs and Mergers, ex p Datafin pie (Norton Opax pie intervening) [1987] I All ER 564, [1987] QB 815. (ii) Tower Hamlets, in transferring its housing stock to Poplar, does not transfer its primary public duties to Poplar. Poplar is no more than the means by which it seeks to perform those duties... " J,..

[Emphasis supplied] I' Donoghue (supra) was, however, distinguished in Leonard Cheshire Foundation (supra) holding that the respondent therein having regard to its ZEE TELE FILMS"LTD. v. U. 0. 1. [S. B. SINHA. J. ] 971 ' ~)~ activities did not perfonn any public function. [See also R (on the application of West) v. Lloyd's of London, [2004)3 All ER 251] Despite the same it was held that a judicial review cannot be refused at the threshold. Tests evolved by the courts have, thus, been expanded· from time to time and applied having regard to the factual matrix obtaining in each case. Development in this branch of law as in others has always found differences. ... Development of law had never been an easy task and probably would never be. A different note, however, was struck in Football Association Ltd. (supra) and Aga Khan (supra). In Football Association Ltd (supra), the Football Association was the governing authority for football and all clubs had to be affiliated to it.

With a view to facilitate the top clubs breaking away from the Football league, the Association declared void certain rules of the League and made it difficult ,' ~ for the clubs to terminate their relationship with it. The League sought judicial ·.. > review wherein an argument of exercise of monopoly for the game by the Association was advanced but Rose, J. held that it was not susceptible to judicial review. In Aga Khan (supra), the applicant was an owner of the racehorses and, thus, made himself bound to register with the Jockey Club. His hor. :e was disqualified although it had won a major race whereafter he sought judicial review. The Court of Appeal opined that the Club could not be subjected to judicial review. It preferred to follow 'law v. National Greyhound Racing Club Ltd, (1983) I WLR 1302 in preference to Datafin (supra). The Court 1-"" I therein, however, acknowledged that the Club regulated a national activity. Sir. Thomas Bingham M. R.

, however, opined therein that if it did not regulate the sport then the government would in all probability be bound to do so. It was held that private power although may affect the public interest and livelihood of many individuals but a sporting body would not be subject to public law remedy. One of the factors which appears to have influenced ,. ; the court in arriving at the said decision was that if these bodies are deemed to fall within the public law then "where should we stop"? It is interesting to note that despite the same it held that judicial review would lie in certain areas. We with great respect to the learned Judges do not find ourselves in agreement with the aforementioned views for the reasons stated in the later part of this judgment. Chancery Division and Court ofAppeal, in our opinion, were not correct in not applying the law laid down in Jockey Club (supra) and Datafin (supra) to the sporting bodies.

In Football Association (supra) and Aga Khan (supra) earlier decisions were not followed. We have noticed that when an action of such a body infringed the right of work of a citizen or was in ·restraint of trade, the same had been struck down by the English Courts. In England, there are statutory rights; but in India a right to carry on an occupation is a fundamental right. Right to work although is not a fundamental right but a right to livelihood is in terms of Article 21 of the Constitution of India. This Court, it may be recorded, need not follow the decisions of the English Courts. [See Liverpool & London S. P. & I Association Ltd (supra)] CRITIQUE OF ENGLISH DECISION IN FOOTBALL ASSOCIATION (SUPRA) AND AGA KHAN (SUPRA) Michael J. Beloff in his article 'Pitch, Pool, Rink, Court?

Judicial Review in the Sporting World' reported in 1989 Public Law 95 while citing several instances as to when no relief was granted in case of arbitrary action on the part of such strong and essential sport bodies advocated for a judicial review stating : "... As for the argument that the sports bodies know best, experience may perpetuate, not eliminate error; and Wilberforce J. indicated in Eastham that the rules of sporting bodies cannot be treated as the Mosaic or Medan Jaw. It is, I suspect, the floodgates argument that is the unspoken premise of the Vice-Chancellarial observations, the fear that limited court time will be absorbed by a new and elastic category of case with much scope for abusive or captious litigation. It is an argument which intellectually has little to commend it, and pragmatically is usually shown to be. ill-founded.

For it is often the case that, once the courts have shown the willingness to intervene, the standards of the bodies at risk of their intervention tend to improve. The threat of litigation averts its actuality. There is therefore no reason why the field of sport cannot define ZEE TELE FILMS LTD. v. U. 0. 1. [S. B. SINHA, . I. ) 973 ) ... J. law's new, or at any rate next, frontier; and if Britain can no longer head the world in spo1t itself, perhaps it can do so in sporting litigation. Members of the bar, on your marks! " (Emphasis supplied) P. P. Craig in his Administrative Law at page 817 noticing the aforementioned judgments and upon enumerating the reasons therefor, observed : ). "There is no doubt that people will differ as to the cogency of these reasons. The line drawn by the cases considered within this section has, not surprisingly, been contested. Pannick has argued that the exercise of monopolistic power should serve to bring bodies within the ambit ofjudicial review.

To speak of a consensual foundation for a body's power is largely beside the point where those who wish to partake in the activity will have no realistic choice but to accept that power. Black has argued that the emphasis given to the contractual foundations for a body's power as the reason for withholding review J.. are misplaced. She contends that the courts are confusing contract as I an instrument of economic exchange, with contract as a regulatory ~ instrument. She argues further that the reliance placed on private law controls, such as restraint of trade and competition law, may also be misplaced here. Such controls· are designed for the regulation of economic activity in the market place, and they may not be best suited to control potential abuse of regulatory power itself. " (Emphasis added) SCOTLAND: r In St. Johnstone Football Club limited v.

Scottish Football Association ' limited, (1965) SLT 171, a Scottish Court held the Council with regard to its nature of function to the effect that it can impose fine or expel a member would be amenable to judicial review. If they attempt to exercise upon member a power or authority which he by becoming a member did not give them, i. e. , acting ultra vires or if by so acting they have done him injury, he ' -J will not be precluded from seeking redress, nor the Court of law hold themselves precluded from giving him redress. It was emphasized that in case of this nature they are bound by the rules of natural justice. NEW ZEALAND : In Finnigan v. New Zealand Rugby Football Union Inc. , (I 985) 2 NZLR 159, the Court noticed the factors which carry weight in entertaining judicial review, stating inter a/ia : "2. As the wrong body argument fails, the sole issue is whether the New Zealand (179) Union has acted against its objects of promoting, fostering and developing the game.

This cannot be dismissed as only a matter of internal management or administration; it goes to fundamentals. 3. In its bearing on the image, standing and future of rugby as a national sport, the decision challenged is probably at least as important as - if not more important than - any other in the history of the game in New Zealand. 4. The decision affects the New Zealand community as a whole and so relations between the community and those, like the plaintiffs, specifically and legally associated with the sport. Indeed judicial notice can be taken of the obvious fact that in the view of a significant number of people, but no doubt contrary to the view of another significant number, the decision affects the international relations or standing of New Zealand. 5. While technically a private and voluntary sporting association, the Rugby Union is in relation to this decision in a position of major national importance, for the reasons already outlined.

In this particular case, therefore, we are not willing to apply to the question of standing the narrowest of criteria that might be drawn from private law fields. In truth the case has some analogy with public law issues. This is not •-"'( to be pressed too far. We are not holding that, nor even discussing whether, the decision is the exercise of a statutory power - although that was argued. We are saying simply that it falls into a special area where, in the New Zealand context, a sharp boundary between public and private law cannot realistically be drawn. " It was opined that the petitioner therein had the necessary standing to .... seek judicial review. The Court observed that the floodgate argument advanced against entertaining judicial review could not be accepted as the case was so special that the argument carries even less conviction than it is usually apt to do when invoked against some moderate advance in the common law. ZEE TELE FILMS LTD. v. U. 0. l. [S. B. SINHA J.

) 975 AUSTRALIA: In Romeo v. Conservation Commission ofthe Northern Territory, (1998) 72 ALJR 208, Kirby J. noticed that in the arena of liability of public authority declaring the limits of the common law liability of the public authority has been criticized as unsatisfactory and unsettled, as lacking foreseeable and practical outcomes and as operating ineffectively ad i,1efficiently. Therein a question arose as to whether the publit: authorities have duty to care envisaging reasonable possibility of damage. The learned Judge opined: "Once again this Court has been asked to declare the limits of the common law liability of a public authority. This is an area ofthe law which has been much criticized as unsatisfactory and unsettled, as lacking foreseeable and practical outcomes and as operating ineffectively and inefficiently. Particular decisions, such as Nagle v.

Rottnest Island Authority, have been said to have caused "a degree of con5temation in public authorities and their insurers". It is claimed that they have occasioned great uncertainty amongst the officers of such authorities as to the steps which they can take to reduce their potential liability for injuries to visitors, brought about largely by the visitors' own conduct. In response to what is described as ')udicial paternalism" the Local Government Ministers of Australia and New Zealand have commissioned a report on policy options to provide statutory limitations on the liability of local authorities. " In Neat Domestic Trading Pty Ltd v. AWB Ltd and Anr. , (77 ALJR 1263] the court was concerned with the Australian Wheat Board (International) Ltd. (AWBI) a private corporation established in terms of Wheat Marketing Act, 1989