This article pertains to the contentious issue of the legal status of Board of Cricket Control in India or the BCCI, a debate which has been ongoing since the first litigation was filed to that effect in 2005, the Zee Telefilms Case that was decided by the Supreme Court by a 3:2 majority. The main issue raised in the aforesaid case was whether the BCCI can be considered State under Article 12 of the Constitution by bringing it under the ambit of ‘Other Authorities’. The Supreme Court very smartly provided aid to the petitioner by first holding that the BCCI cannot be considered State because it is a private body and then it went on to saying that, in situations where private bodies such as the BCCI perform public functions, they can be made amenable to the writ jurisdiction of the High Courts under Article 226 of the Constitution. The main reasoning that the court provided for not declaring BCCI as Other Authorities or State under Article 12 was that it would open floodgates to severe unnecessary litigations on such federations and institutional matters. On the other hand, the minority in this case observed that though BCCI’s functions had an inherent public nature involved, all of its functions were not in public domain and so a writ petitions can lie only if the contentions involved are based on public functions performed by the BCCI.
The controversy related to BCCI and its functioning has arose again in the legal domain after various incidents of alleged corruption in the primary governing body of the sport came in limelight. The recent SC decision in BCCI v. Cricket Association of Bihar brought back all the discussion over this issue and a look into all the judgments was given by the two-judge bench that included CJI T.S. Thakur. The SC in this case again reiterated that even if the BCCI is performing public functions, it can be taken to court under Article 226 and not Article 32. In holding the same, the two-judge bench evolved a new test called “nature of duties and functions” test. Under this, the SC laid down various activities performed by BCCI in which direct assistance is taken from Central/State governments. Adding to the same, they held that BCCI is predominantly a body performing public functions with trite assent of the governments. Further, the court ordered the BCCI to follow the recommendations laid out by the Lodha Committee in order to revamp the BCCI and make its functioning more accountable.
A third-person analysis of the abovementioned judgment will let us delve into one question, if BCCI gets assistance from the governments and also gets protection from State Police and in other ways, why can’t it be termed as “Other Authority” within the ambit of Article 12. We fail to understand why this question has not been appropriately addressed and this view negated, even after coming to the fore time and again.
Building up on Justice Katju’s report on BCCI restructuring, we can say that the judgment in BCCI v. Cricket Association of Bihar was partly flawed because it overlooked precedent decision which were binding on the two-judge bench while ordering BCCI to follow recommendations. Adding on to this point, even the court accepts that BCCI is a private body and is registered under Tamil Nadu Societies Act, then such an order asking for restructuring is one involving major judicial overreach. The power to do the same lies with the BCCI itself, or the State Legislature and Parliament. In light of the same problems, the BCCI is planning to file a review petition against the judgment in the SC and it will be interesting to see whether the SC admits it, keeping in mind the current record of the SC to reject majority of the review petitions.