Important pointBoard of Control for Cricket in India cannot be held to be a State for the purpose of Article 12 of the Constitution.

Majority Judgment

Santosh Hegde, J. (on behalf of B.P. Singh and H.K. Sema, JJ. and for Himself)—I have had the benefit of reading the judgment of Sinha, J. I regret I cannot persuade myself to agree with the conclusions recorded in the said judgment, hence this separate opinion. The Judgment of Sinha, J. has elaborately dealt with the facts, relevant rules and bye-laws of the Board of Control for Cricket in India (the Board). Hence, I consider it not necessary for me to reproduce the same including the lengthy arguments advanced on behalf of the parties except to make reference to the same to the extent necessary in the course of this judgment.

2. Mr. K.K. Venugopal, learned senior counsel appearing for the Board has raised the preliminary issue in regard to the maintainability of this petition on the ground that under Article 32, a petition is not maintainable against the Board since the same is not “State” within the meaning of Article 12 of the Constitution of India. It is this issue which is being considered in this judgment.

3. In support of his argument Mr. K.K. Venugopal has contended the Board is not created by any statute and is only registered under the Societies Registration Act, 1860 and that it is an autonomous body, administration of which is not controlled by any other authority including Union of India, (U.O.I) the first respondent herein. He further submitted that it also does not take any financial assistance from the Government nor is it subjected to any financial control by the Government or its accounts are subject to the scrutiny of the Government. It is his submission that though in the field of Cricket it enjoys a monopoly status the same is not conferred on the Board by any statute or by any order of the Government. It enjoys that monopoly status only by virtue of its first mover advantage and its continuance as the solitary player in the field of cricket control. He also submitted that there is no law which prohibits the coming into existence of any other parallel organisation. The learned counsel further submitted that as per the parameters laid down by this Court in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology & Ors. (2002 5 SCC 111), the Board cannot be construed as a State for the purpose of Article 12 and the said judgment being a judgment of Seven Judge Bench of this Court is binding on this Bench. The argument of Mr. K.K. Venugopal is supplemented and supported by the arguments of Dr. A.M. Singhvi and Soli J. Sorabjee appearing for the other contesting respondents.

4. Mr. Harish N. Salve, learned senior counsel appearing on behalf of the petitioners opposing the preliminary objections submitted that the perusal of the Memorandum and Articles of the Association of the Board as also the rules and regulations framed by the Board indicate that the Board has extensive powers in selecting players for the Indian National team representing India in test matches domestically and internationally. He also pointed out that the Board has the authority of inviting foreign teams to play in India. He also further contended that the Board is the sole authority for organising major cricketing events in India and has the disciplinary power over the players/umpires and other officials involved in the game and sports being a subject under the control of the States, in substance the Board exercises governmental functions in the area of Cricket. He submitted that this absolute authority of the Board is because of the recognition granted by the Government of India, hence in effect even though it is as an autonomous body the same comes under “other authorities” for the purpose of Article 12. He also contended that the Board has the authority to determine whether a player would represent the country or not. Further, since playing cricket is a profession the Board controls the fundamental right of a citizen under Article 19(1)(g) of the Constitution. It is his further contention that many of the vital activ