Background

Entry 33 of State List in the Seventh Schedule of the Constitution governs Sports within the territory of India.

The particular Entry of the Seventh Schedule broadly deals with entertainment and amusements. However, due to presence of international sporting events, Department of Sports was set up which was converted to Department of Youth Affairs and Sports. In 2000, the Department was granted full powers and converted to a full Ministry, which was thereafter, bifurcated under Independent Secretaries in 2008. The powers of both Independent Secretaries were specified in the Government of India (Allocation of Business) Rules, 1961 dated January 14, 1961.

The functions of the particular Departments need not be enumerated. However, one of the functions that find reference in the functions enumerated is "(6) Matters relating to the Indian Olympic Association and National Sports Federations."

National Sports Federations are established as autonomous bodies which are not under direct control of the Government. Therefore, they are essentially private bodies that carry out functions which are public in nature.

Taking a cue from the Government of India Rules, 1961, administration of sports disciplines at the Centre was carried out by the National Sports Federations ("NSF") and administration of Sports within States was to be carried out by Sports Associations of particular States. Examples of NSF are "All India Tennis Association" and "All India Football Federation" amongst others and examples of State Federations can be "Cricket Association of Bengal", "Delhi Basketball Association", etc. Each of these Federations and Associations have their own Rules, Regulations, bye-laws etc. which they utilise to regulate conduct of athletes and specify the procedural aspects connected to their particular sporting discipline.

Apart from domestic sporting tournaments, International Sporting Tournaments are also conducted over which NSF does not have any jurisdiction. Provision for this has also been made in the Government of India Rules, 1961 by granting recognition to the Indian Olympic Association, which while being instituted under the Olympic Movement, nevertheless is indicative of the Indian presence at Commonwealth Games, Olympic Games, Asian Games and other similar international tournaments. Any disputes connected to the International Arena are automatically referred to Disciplinary Committee of the International Olympic Committee or the Olympic Council of Asia, without recourse to domestic courts.

Having regard to India, it is seen that Sports, while being administered by private bodies are nevertheless, being carried out as public functions. These functions, therefore, require regulation by the State. Such Federations were therefore, sought to be projected as "other authorities" under Article 12 of the Constitution of India.

Article 12 of the Constitution of India gives an inclusive definition to the expression ‘State’, and says that for purposes of Part III of the Constitution, the expression ‘State’ includes the Parliament of India, the Government and the Legislature of each of the States and Local or other authorities within the territory of India or under the control of the Government of India.

The issue, therefore, is not simply whether Sports Federations should be "State" within the overall aegis of the Constitution, but whether such Sports Federations are competent to be Judicially reviewed for their actions. The holistic umbrella of "State" has only been sought to be imposed to grant accountability to such public functions and to permit review of actions which would ensure an overall improvement in the standard of Sports Administration within India. For the sake of clarification, 'Public Functions' in relation to NSF means selling of tickets, holding of tournaments, maintenance of sporting complexes and incidentally advertising about sports tournaments.

A five-judge bench of the Supreme Court of India in 1981 ⁽¹⁾ laid down six tests to determine when an institution may be considred to be a "State".

These tests, while being general in nature, nevertheless laid down the determining criteria. ⁽²⁾ Arriving at a determination as to this fundamental factor would go on to swiftly resolve all doubts. The significance of Article 12 lies in the fact that it lies within the Fundamental Rights covered under Part-III of the Constitution, which grants recourse against any infringement under Articles 32 and 226 of the Constitution. This recourse is important as it permits a sense of closure to affected parties, who might otherwise feel that they have no place to turn in the event that their rights are infringed.

The present discussion is hinged around a recent judgment delivered by a two-judge bench of the Supreme Court of India on January 22, 2015 titled as BCCI Vs. Cricket Association of Bihar and others - Civil Appeal No. 4235 of 2014. One of the many issues framed for determination was whether the BCCI could be considered to be "State".

Zee Telefilms

The direct issue that arose in this case i.e. "Zee Telefilms Ltd. and another Vs. Union of India and others reported in (2005) 4 SCC 649" was whether BCCI could be considered to be a State. The background facts in that case was that Zee Telefilms had bid for telecast rights for certain tournaments which had been cancelled by BCCI. Against this, Zee Telefilms had filed a Civil Writ Petition under Article 32 of the Constitution of India on the ground that the Board being recognized by the Union of India, Ministry of Youth Affairs and Sports could be considered to be 'other authority' for purpose of Article 12 of the Constitution of India and therefore capable of coming under Article 32/226 of the Constitution of India.

The Hon'ble Court by a majority of 3:2 held that when private bodies exercise public functions, they may be amenable to writ proceedings under Article 226 of the Constitution, even though the private body may not be a State within the meaning of Article 12 of the Constitution. The main reason for not holding BCCI to be a State in the 2005 case was due to a "floodgates" principle that had been evolved. As per this reasoning, construing BCCI as a State would have wide reaching implications inasmuch as BCCI as well as sixty-four other federations as well as other institutions performing public functions would open themselves to a floodgate of litigation qua such federations and institution of matters under Article 32. The Courts have repeatedly held that Article 226 is wider than Article 32 and therefore, a distinction needs to be made between discretion to approach the Courts under these Articles. The majority, therefore, categorically held that BCCI was not "state" for purposes of Article 12.

The minority on the other hand, held that floodgates litigation should be taken with a pinch of salt as there is always a reasoned principle of judicial review that can be exercised in such cases. The dissenting judgment went on to reason that even if the board was performing public duties, not all duties were in the public domain, and therefore, only in respect of those functions which were ostensibly in the public domain would a writ lie. Therefore, there was no disability in considering BCCI to be a State for purposes of Article 12. A writ would not lie where the lis involves only private law character. The floodgates principle was an doctrine that had evolved through common law by British Courts, who did not have a written constitution to fall back on.

BCCI Decision

In the backdrop of Zee Telefilms, the present determination of BCCI can be looked into. As pointed out before, one of the issues that was framed was whether BCCI could be considered to be "State" for the purposes of Article 12 of the Constitution. After looking at a number of judgments and decisions of various benches, the Learned Bench observed that even though the Board performed important public functions that were akin to State functions, (para 29 of the judgment), they can come under provisions of Article 226 and not Article 32. In BCCI, the Learned Bench formulated a "nature of duties and functions" test which could be the Indicia for determining criteria for categorising an institute as "State". As seen from para 30 of the judgment, the Court detailed the number of functions that the Board performed and concluded that these functions were being carried out with the tacit concurrence of the State Government/Central Government who were supportive of the activities of the Board. The functions of the Board, therefore, are clearly in the public domain, which can be taken over by the State at any time, despite the fact that they are ostensibly a private body. Therefore, the Courts concluded keeping in mind all the public functions that although BCCI can be covered under Article 226, it may not be considered to be "State" for the purposes of Article 12.

On a prima facie view, therefore, there is similarity of opinion between Zee Telefilms and BCCI. However, BCCI expanded the scope of the "State", by incorporating the "nature of duties and functions" test which charts a middle part between the strictly held Zee Telefilms and a loose tendency towards identifying it as State.

What the "nature of duties and functions" test implies is that the duties and functions that institutions carry out determines the profile of the institute. If, in spite of the fact that the institution being private bodies are carrying out functions that are pre-dominantly public in nature, such institutes may be considered to be regulated under Article 226 of the Constitution.

While granting of "State" recognition to Sports Federations, (as opined in the dissenting judgment of Zee Telefilms) is still far away, and which would have been a real game-changer, what BCCI, does is that it expands on the "floodgates principle" by looking at the "nature of functions and duties test" and arriving at a reasoned determination of what would amount to be "State".

All sports federations and other institutions having a similar mode of operations have therefore, been covered by the instant judgment.

This while liberalising Sports Administration within the Indian sub-continent, is nevertheless an effective arrangement till future determinations finally hold Sports federations to be "State". It is not in dispute that the jurisprudence of "State" has shifted from holding that the sports federations are not "State" to stating that "while they may not be state, they are nevertheless amenable to Article 226." It is now, but a short step to holding that sports federations can be considered to be "State" in the years to come.

This is indeed going to be a significant game-changer in the manner in which Administration of Sports takes place within the Indian sub-continent.

Rajiv Dutta is a senior advocate of the Supreme Court of India

1 Ajay Hasia and Others v. Khalid Mujib Sehravardi and Others (1981)1 SCC 722.

2 (1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.

(3) It may also be a relevant factor...whether the corporation enjoys monopoly status which is the State conferred or State protected.

(4) Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.

(5) If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.

(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.