THE STATE (ARTICLE 12) AND PRIVATE BODIES: PART 2

In Zee Telefilms v UOI, the SC held that BCCI  is not a State under the aegis of A.12, for it is an autonomous body and the control exercised by the government over BCCI was merely regulatory in nature and not pervasive. The court relied on the guidelines devised in PK Biswas and concluded that:

  1. BCCI was created by a statute.
  2. No part of the share capital of the Board was held by the Government.
  3. Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the Board.
  4. BCCI enjoyed a monopoly status in the field of cricket but this status was not State conferred or protected. 
  5. There was no existence of a deep and pervasive State control. The control, if any is only regulatory. All functions of the BCCI are not public functions nor are they closely related to governmental functions.
  6. The BCCI is not created by transfer of a Government owned corporation. It is an autonomous body.

Further, to these facts if the principles laid down in PK Biswas are applied, BCCI is not financially/functionally/administratively controlled by the Government. The Court took advantage of a major deficiency in the ‘all-or-nothing’ approach of characterising a body as State.[1] BCCI, was hence not State under A.12. The majority took note of two considerations that would typically present themselves in a functional approach, to fortify the structurally aligned ‘functional, financial and administrative control’ test laid down in PK Biswas. These considerations were:

  1. The ‘floodgates’ argument
  2. The shift in socio-economic policy to usher in privatisation and the consequent distancing of the State from the commercial realm.

Moreover, the Court also devised a ‘nature and duties’ test to serve as an indicator of State. As observed in para25 of the judgement, BCCI performed public functions akin to State functions, and petitions were admissible under A.226 not A.32. Thus, the writ petition filed under A.32 was not maintainable and was dismissed.

The rationale behind arriving at the decision, that BCCI is amenable to the writ jurisdiction albeit A.226 of the Constitution was that BCCI’s control over the sport of cricket in India was deep and pervasive and BCCI enjoys a monopoly status so far as the game of cricket in India is concerned. BCCI formulates rules, regulations, norms and standards covering all aspects of the game of cricket in India.

These activities fructify owing to the tacit concurrence of the State Government and the Government of India, which are not just fully aware but are also fully supportive of BCCI’s activities. Therefore, considering the doctrine of fairness and good faith, BCCI has a huge responsibility to look after the sport of cricket in India which is of a great public importance and value. Thus, although BCCI is a private body formed under the Tamil Nadu Registration of Societies Act, 1975, it is subject to the writ jurisdiction vide A.226, with little regards to the fact that it is not financially, functionally or administratively dominated by the Government.

In BCCI v Cricket Association of Bihar[2], the Court re-affirmed its decision in the Zee Telefilms case wherein the Court had declared BCCI to be a non-state entity, amenable under the writ jurisdiction of the High Court’s under Article 226 of the Constitution of India and discharging functions of public importance.

The larger debate here is whether private entities should be brought within the purview of ‘State’, and whether the court can be moved for violation of FRs by private entities. Economic liberalisation is throwing challenges to the constitution and public interest.

In Shrilekha Vidyarthi v State of UP[3], the court observed state activity affects day-do-day life of members of society and with its in our economic activity, the impact of this action is also on public interest. However, this was back in 1991. In light of private corporations touching almost every aspect of our lives, the public-private-divide created by A.12 cannot be continued with. Actions of private corporations can have adverse consequences for the public at large.

The real question is whether the  ‘private sector’ is really ‘private’. It is only indulging in private management of public capital. Most are recipients of large public funds from public financial institutions and banks.[4] They are dealing with money of the public at large.

With the process of economic liberalisation, an increasing role being contemplated for private sector and in the absence of any regulatory framework it is time to re-evaluate the concept of public-private divide contemplated by A.12. If state action for reasons of presence of public element in it, is subject to certain restrictions contained in the Constitution, ‘private’ sector, which is only using the corporate veil to shield its public identity should be subjected to the same restrictions which the state is subject to, by piercing the corporate veil.[5]

The ambit of the Constitution, particularly of A.12 should be expanded in the light of emergence of corporations as entities with immense power. The emergence of this new jurisprudence would be an essential safeguard against their activities.[6] It will not be possible to transpose the positive duty mandated upon the state on the corporation, but private corporations should be made answerable to constitutional guarantees of fundamental rights. Any private entity which holds itself open to the ‘public’, has ‘public element’ in it and its activities should be made answerable to the guarantees of fundamental rights.[7] Such a proposition would be in conformity with fundamental basis of the Constitution: the guarantee of basic rights to individuals.

Purposive interpretation of the term ‘State’ u/A.12 is required, so that its meaning is inclusive and exhaustive, and is not exclusive and restrictive. This is required more- so because protection of fundamental rights qua the citizens stands, albeit in direct consequence of, the manner in which the ‘State’ is understood and interpreted. What requires, thus, is a beneficial construction of the term State vis-à-vis A.12.


[1] Padmanabhan A, “Rights: Breadth, Scope, and Applicability” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press 2016) 

[2] BCCI v Cricket Association of Bihar (2016) 8 SCC 535

[3]Shrilekha Vidyarthi v State of UP 1991 AIR 537

[4] Vishwanathan L and Anuradha RV, “Liberalisation, Public Interest and Indian Constitution” (1994) 36 Journal of the Indian Law Institute <https://www.jstor.org/stable/43952352?seq=1#metadata_info_tab_contents&gt; accessed June 29, 2021 

[5] ibid.

[6] ibid.

[7] ibid.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.