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The BCCI Case on “Public Function” and its Implications on Sports Governance

Special Series: Perspectives from Undergraduate Law Students
B.A/LL.B. (Hons) Student Contribution

–Aradhya Sethia, III Year, B.A. LL.B. (Hons.), National Law School of India University, Bangalore (India)

On January 22, 2015, the Supreme Court of India decided Board of Control for Cricket in India v. Cricket Association of Bihar (“Cricket case”). The Board of Control for Cricket in India (“BCCI”) regulates professional cricket in India. Its legal status is that of a society registered under the Tamil Nadu Registration of Societies Act, 1975, a state (provincial) law for the state of Tamil Nadu. The Act provides the procedure for registering a society for the purpose of promoting education, literature, science, charity, art, athletics, sports (including indoor games) recreation, public health and other objectives.

The Cricket Association of Bihar, a society registered under the Societies Registration Act, 1860 filed a writ petition in public interest seeking a writ of mandamus directing BCCI to recall its order constituting a probe panel to inquire into the allegations of betting and spot fixing in the Indian Premier League (IPL). The petition also challenged the amendment to BCCI Regulation 6.2.4 on the ground of mala fide exercise of power. Regulation 6.2.4 prohibited the administrators from having any commercial interests in the matches or events conducted by the BCCI. However, an amendment was brought to exclude IPL and Champions League T-20 from its ambit allegedly to serve the interest of the then-Chairman of the BCCI.

The traditional understanding is that the constitutional remedy of writs for the violation of fundamental rights cannot be issued against a private actor, like BCCI. Therefore, a preliminary question arose: may BCCI be subjected to the writ jurisdiction? In order to answer this question, the Court went on to inquire whether the BCCI performs a ‘public function’, the relevance of which will be discussed in the following section.

In this post, I explore and evaluate the public function analysis carried out by the Court. Further, I also identify some of the issues that the Court left unanswered for now but that will have to be answered eventually in connection with constitutional litigation in sports governance in India.  Specifically, the Cricket case opens up the doors for subjecting the sports governance bodies to constitutional and administrative law obligations including fundamental rights in India. Generally, it is also an important milestone in the process of the principled expansion of constitutional duties to non-state bodies.

The Relevance of the ‘Public Function’ Test in Indian Constitutional Law

Under Articles 32 and 226, respectively, the Constitution authorizes access directly to the Supreme Court (the highest court of law in India) and High Courts (the highest court of law at the state/provincial level in India) for allegations of fundamental rights violations. Through these articles, courts may issue appropriate writs to enforce fundamental rights.

In Zee Telefilms v. Union of India, the Supreme Court distinguished Article 32 from Article 226. Under Article 32, a fundamental rights violation can only be claimed against the ‘State’. However, the ambit of Article 226 is wider. Even if a body does not represent the ‘State’, it is susceptible to the writ jurisdiction of the High Court if it performs a ‘public function’.

In the Cricket case, the Court held that BCCI performs a public function, and thereby made it subject to the High Court’s writ jurisdiction. As a consequence, the Court authorized fundamental rights violation claims to be brought against BCCI even though its legal status is only that of a ‘society’ registered under a statute.

The Court had articulated the Indian locus classicus on what constitutes ‘public function’ in Sukhdev v. Bhagatram. There, the Court conducted an extensive analysis of the distinction between ‘state’ action and ‘private’ action. It can be narrowed down to these essential factors for finding that a private actor may be held to perform a public function: “when given function is of public importance and closely related to governmental functions” or “activities which are too fundamental to the society”. Financial aid from government is not a prerequisite. The Court placed strong reliance on case law from the United States Constitution on the same subject, including Marsh v. Alabama, New York v. United States and Nixon v. Condon. Sukhdev being a binding precedent, the Court in the Cricket case ruled that the BCCI satisfies this test.

Why does the BCCI Perform a Public Function?

The court considered the overall role of the BCCI in cricket to conclude that BCCI performs a public function. The BCCI formulates rules, regulations, norms and standards covering all aspect of the game of cricket. It enjoys the power of choosing the members of the national team and the umpires. It exercises the power of disqualifying players, which may at times put an end to the sporting career of a person. It spends tens of millions of rupees on building and maintaining infrastructure like stadia, running cricket academies and supporting State Associations. The BCCI also frames pension schemes and incurs expenditures on coaches, trainers and team staffs. It sells broadcast and telecast rights and collects admission fees to venues where the matches are played. All these activities are undertaken with the tacit concurrence of the State Government and the Government of India which are not only fully aware but supportive of the activities of the BCCI.

Further, the Court also made a rather intriguing observation while concluding that the BCCI performs a public function: 

Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old alike. Any organization or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity.

Unanswered Questions

The Court’s decision on public function was concentrated on the specific functions performed by the BCCI and rightly so since the case at hand raised that limited question. However, the ‘public’ element in these functions is the most important determination.

In case of the BCCI, the Court relied heavily on the ‘scale’ of its functions: “crores of rupees”, “national team” and “passion for this game”. These scale-based phrases leave us doubting where the Court would have ruled the same had the body under challenge been governing a sport that is rather obscure in the Indian context, or in other words not so ‘public’?

Further, though collectively these factors constitute a ‘public function’, the question arises whether these functions may individually constitute ‘public function’? Further, is sports governance itself a ‘public function’ or must there be some ‘public’ element to the sport which is based on its important social role, like that of cricket? Several sports have no national team as such. In that case, how pertinent is it that the body chooses ‘national’ team? What about those sports bodies which represent India in the international forum of a sport, but do not involve any financial stakes?

Further, do the state/district boards also perform a ‘public function’ if they have state or district level monopoly?

The public function doctrine lies at the heart of the horizontal application of fundamental rights in India. The judgment in the Cricket case goes a long way in expanding the scope of horizontality of fundamental rights in sports governance, leaving some of these questions open for future ligitation.

Perhaps some of these questions will soon be answered. Following the Cricket case, a writ petition against the Rajasthan State and Udaipur District board has been filed challenging its selection process on the ground of bias.

Suggested Citation: Aradhya Sethia, The BCCI Case on “Public Function” and its Implications on Sports Governance, Int’l J. Const. L. Blog, Mar. 21, 2015, at: http://www.iconnectblog.com/2015/03/bcci-case-on-public-function

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Published on March 21, 2015
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