Constitution of India(Whether BCCI is a State or not?)
Prepared by Assist. Professor Rekha Khandelwal
Part – III Fundamental Rights ( General)
Fundamental Rights ( An Introduction)
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The Concept of State ( Article – 12)
Question- Whether the University is a State or not?
Question – Whether Judiciary is State or not ?
Question – Whether BCCI is State or not?
Question: Whether BCCI(Board of Cricket for Control in India)is a State or not?
In Zee Telefilms Ltd. v. Union of India, AIR 2005 SC 2677[1]
Whether the Board of Cricket for Control in India was a ‘State’ within the meaning of article 12. The Board was not created by any statute, nor was a part of the share capital held by the Government. There was practically no financial assistance given to the Board by the Government and even then the Board did enjoy in monopoly status in the field of cricket. Control, if any, was just as routine as it applies to other similar agencies. All functions of the Board were not public functions nor were they closely related to governmental functions. The Board was not created by transfer of a Government owned Corporation and was an autonomous body.
To bring it under the purview of the State, Article 12, the Board was not financially, functionally or administratively under the control or control of the Government.The Supreme Court did not accept the argument that since the Board was discharging functions of public nature, It was ‘State’ within the meaning of article 12.
The Court held – The Board selects a team to represent India in International matches. The board makes rules that govern the activities of cricketers, umpires and others involved in cricket activities. Even if the above mentioned functions of the Board do amount to public duties or State functions, the Board is not discharging State functions. The State / Union has not chosen the Board to perform these duties nor has it legally authorized the Board to carry out these functions under any Law or agreement. It has left the activities of the Cricket to be controlled by private bodies out of such bodies own volition ( Self arrogated). In the absence of any authorization, if a private body choose to discharge any such function which is not prohibited by law then it would be incorrect to hold By such actions of that body it will become the instrument of the state.
Due to the tireless efforts of the court, the law was gradually broken and now it seems to have been settled in view of the judgment of the seven constitutional benches of the Supreme Court. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology(2002) 5 SCC
In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology,[2](2002) 5 SCC
It was concluded while referring to certain authorities that the tests given in R. D. Shetty and gathered in Ajay Hasia Judgment were not rigid, that if a body passes any principle the then it is to be declared as an instrumentality of state.
“The main test according to them was of funding and control. Few answers to certain questions can help to identify if the body falls under the definition of the instrumentality of the state.[3]
- Is the entire share capital or a major part of it held by the government?
- Is the body in question effectively controlled by the government not only in the making of its policy but also in carrying out its functions?
- Does the government foot a substantial part of the bill for running the operations of the concerned body?
- Is the administration of the body in the hands of the government-appointed directors and are they subject to government control in the discharge of their functions?
- Does the state exercise deep and pervasive control over the body in question?
- Whether the operation of the corporation is an important public function closely related to governmental functions?
- Does the body enjoy monopoly status conferred
The above test, however, was not entirely complete but was descriptive. If it is not easy to determine the body in question by the tests prescribed in the classic judgments, it is up to the court to decide whether it falls within the State under Article 12
[1] In Zee Telefilms Ltd. v. Union of India, AIR 2005 SC 2677
[2] In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology,(2002) 5 SCC
[3] Jain MP, Indian Constitutional law, (7th ed, 2014) p. 860.
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