NOTE

Cricket Board, ICC rules and right of exhibition/telecast to some co.

"12. Definition - In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India."

"The object of the fundamental rights is two fold. First, that every citizen must be in a position to claim those rights. Secondly, they must be binding upon every authority - I shall presently explain what the word 'authority' means - upon every authority which has got either the power to make laws or the power to have discretion vested in it. Therefore, it is quite clear that if the fundamental rights are to be clear, then they must be binding not only upon the Central Government, they must not only be binding upon the Provincial Government, they must not only be binding upon the Governments established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even village panchayats and tauk boards, in fact, every authority which has been created by law and which has got certain power to make laws, to make rules, or make bye-laws.

If that proposition is accepted - and I do not see anyone who cares for Fundamental Rights can object to such a universal obligation being imposed upon every authority created by law then, what are we to do to make our intention clear ? There are two ways of doing it. One way is to use a composite phrase such as the State, as we have done in Article 7 or, to keep on repeating every time, the Central Government, the Provincial Government the State Government, the Municipality, the Local Board, the Port Trust, or any other authority. It seems to me not only most cumbersome but stupid to keep on repeating this phraseology every time we have to make a reference to some authority. The wisest course is to have this comprehensive phrase and to economise in words." (1948 (Vol. VII) CAD 610]

(Emphasis supplied)

"The concept of State has undergone drastic changes in recent years. Today State cannot be conceived of simply as a coercive machinery wielding the thunderbolt of authority. It has to be viewed mainly as a service Corporation. A State is an abstract entity. It can only act through the instrumentality or agency or natural or juridical persons. There is nothing strange in the notion of the State acting through a Corporation and making it an agency or instrumentality of the State. With the advent of a welfare State the framework of civil service administration became increasingly insufficient for handling the new tasks which were often of specialised and highly technical character. The distrust of Government by civil service was powerful factor in the development of a policy of public administration through separate Corporations which would operate largely according to business principles and be separately accountable. The Public Corporation, therefore, became a third arm of the Government. The employees of the public Corporation are not civil servants. In so far as public corporations fulfil public tasks on behalf of Government they are public authorities and as such subject to control by Government. The public Corporation being a creation of the State is subject to the constitutional limitation as the State itself. The governing power wherever located must by subject to the fundamental constitutional limitations. The ultimate question which is relevant for our purpose is whether the Corporation is an agency of instrumentality of the Government for carrying on a business for the benefit of the public."

"To-day the Government in a welfare State, is the regulator and dispenser of special services and provider of a larger number of benefits. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to Government are of many kind : leases, licenses, contracts and so forth. With the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, it cannot be said that they do not enjoy any legal protection nor can they be regarded as that they do not enjoy any legal protection nor can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure.

The law has not be slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interest in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking Government discretion in the matter of grant of such largess. The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will.

"(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. (SCC p. 507, para 14)

(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. (SCC p. 508, para 15)

(3) It may also be a relevant factor.....whether the corporation enjoys monopoly status which is State-conferred or State-protected. (SCC p. 508, para 15)

(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15)

(5) If the functions of the corporation are 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. (SCC p. 509 para 16)

(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 (SCC p. 510, para 18)" (extracted from Pradeep Kumar Biswas's case (supra)

"Perhaps this rather overenthusiastic application of the broad limits set by Ajay Hasia may have persuaded this Court to curb the tendency in Chander Mohan Khanna v. National Council of Education Research and Training. The Court referred to the tests formulated in Sukhdev Singh, Ramana, Ajay Hasia and Som Prakash Rekhi but striking a note of caution said that (at SCC p. 580, para 2) "these are merely indicative indicia and are by no means conclusive or clinching in any case". In that case, the question arose whether the National Council of Education Research (NCERT) was a "State" as defined under Article 12 of the Constitution. NCERT his a society registered under the Societies Registration Act. After considering the provisions of its memorandum of association as well as the rules of NCERT, this Court came to the conclusion that since NCERT was largely an autonomous body and the activities of NCERT were not wholly related to governmental functions and that the governmental control was confined only to the proper utilisation of the grant and since its funding was not entirely from Government resources, the case did not satisfy the requirements of the State under Article 12 of the Constitution. The Court relied principally on the decision in Tekraj Vasandi v. Union of India. However, as far as the decision in Sabhajit Tewary v. Union of India was concerned, it was noted (at SCC p. 583 para 8) that the "decision has been distinguished and watered down in the subsequent decisions." (para 38)

"The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid sct of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." (para 40)

(1) Principles laid down in Ajay Hasis are not a rigid set of principles so that if a body falls within any one of them it must ex hypothesi, be considered to be a State within the meaning of Article 12.

(2) The Question in each case will have to be considered on the basis of facts available as to whether in the light of cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government.

(3) Such control must be particular to the body in question and must be pervasive.

(4) Mere regulatory control whether under statute or otherwise would not serve to make a body a State.

1. Board is not created by a statute.

2. No part of the share capital of the Board is 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. The Board does enjoy a monopoly status in the field of cricket but such status is not State conferred or State protected.

5. There is no existence of a deep and pervasive State control. The control if any is only regulatory in nature as applicable to other similar bodies. This control is not specifically exercised under any special statute applicable to the Board. All functions of the Board are not public functions nor are they closely related to governmental functions.

6. The Board is not created by transfer of a Government owned corporation. It is an autonomous body.

"Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226 writs can be issued to "any person or authority". The term "authority" used in the context, must receive a liberal meaning unlike the term in Article 12 which is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers powers on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation affected party, no matter by what means the duty is imposed. If a positive obligation owned by the person or authority to the exists mandamus cannot be denied."

"In the larger interest of the game of cricket and due to the stalemate that has been created in the grant of Television Rights for the ensuing Test Series owing to litigation and as informed before the Hon'ble High Court at Bombay this day, the Board of Control for Cricket in India (BCCI) hereby cancels the entire process of tender by invoking Clause 5.3, 5.4(c) and 5.4(d) of the invitation to tender (ITT) dated 7 August, 2004, the terms of which were accepted and acknowledged by you.

The Security in the form of Bank Guarantee and/or money deposited by you is being returned immediately."

"These petitions involve a question related to the interpretation of the Constitution of India which will have to be heard by a Bench not less than 5 Judges as contemplated under Article 145(3) of the Constitution. Place this matter before Hon'ble the Chief Justice for further orders.

Since the matter involved requires urgent consideration, we request the Chief Justice to place this matter before the Constitution Bench for further orders on 28.9.2004.

We direct the Attorney General to take notice on behalf of first respondent. The petitioner shall take steps to serve respondent No. 6 dasti. The same shall be served today indicating that the matter will be heard tomorrow."

"a. It undertakes all activities in relation to Cricket including entering into the contracts for awarding telecast and broadcasting rights, for advertisement revenues in the Stadium etc.

b. The team fielded by the BCCI plays as "Indian Team" while playing One Day Internationals or Test Matches - it cannot be gainsaid that the team purports to represent India as a nation and its wins are matters of national prestige. They wear uniform that carries the national flag and are treated as sports ambassadors of India.

c. The sportsmen of today are professionals who devote their life to playing the game. They are paid a handsome remuneration by the BCCI for their participation in the team. Thus, they are not amateurs who participate on an honorary basis. Consequently they have a right under Article 19(1)(g) to be considered for participation in the game. The BCCI claims the power to debar players from playing cricket in exercise of its disciplinary powers. Obviously, it is submitted, a body that purports to exercise powers that impinge on the fundamental rights of citizens would constitute at least an "authority" within the meaning of Article 12 of the Constitution - it can hardly contend that it has the power to arbitrarily deny players all rights to even be considered for participation in a tournament which they are included as a team from "India".

d. This Hon'ble Court has already, by its interim orders., directed a free to air telecast of the matches that were played in Pakistan in which a team selected by the Respondent BCCI participated. This was done, it is respectfully submitted, keeping in view the larger public interest involved in telecasting of such a sport. Surely, the regulatory body that controls solely and to the exclusion of all others, the power to organise such games and to select a team that would participate in such games is performing a public function that must be discharged in a manner that complies with the constitutional discipline of Part III of the Constitution. If the events organised are public events, then it is submitted that the body that is the controlling authority of such public events would surely be subject to the discipline of Articles 14 and 19 of the Constitution.

e. It is also submitted that even domestically, all representative cricket can only be under its aegis. No representative tournament can be organised without the permission of BCCI or its affiliates at any level of cricket.

f. The BCCI and its affiliates are the recipients of State largesse, inter alia, in the form of nominal rent for stadia. It is submitted that the BCCI is performing one of the most important public functions for the country with the authorisation and recognition by the Government of India, is amenable to the writ jurisdiction of this Hon'ble Court under the provisions of the Constitution of India."

"(a) Board of Control of Cricket in India, the Respondent No. 2 is an autonomous non-profit making Association limited and restricted to its Members only and registered under the Tamil Nadu Societies Registration Act. It is a private organisation whose objects are to promote the game of Cricket. Its functions are regulated and governed by its own Rules and Regulations independent of any statute and are only related to its members. The Rules and Regulations of the Respondent No. 2 have neither any statutory force nor it has any statutory powers to make rules or regulations having statutory force.

(b) The Working Committee elected from amongst its members in accordance with its own Rules controls the entire affairs and management of the Respondent No. 2. There is no representation of the Government or any Statutory Body of whatsoever nature by whatever form in the Respondent No. 2. There exists no control of the Government over the function, finance, administration, management and affairs of the Respondent No. 2.

(c) ...... The Respondent No. 2 does not discharge or perform any public or statutory duty.

(d) The Respondent No. 2 receives no grant of assistance in any form or manner from the Government in this context. It may be stated that in a writ petition in the case of Rahul Mehra v. Union of India in the Hon'ble High Court at Delhi. "Union of India" filed Affidavits stating categorically that there is no Government control of any nature upon the Board of Control for Cricket in India and as it does not follow the Government Guidelines which have been consolidated and issued under the title "Sports India Operation Excellence" vide Circular No. F.1-27/86-DESK-1 (SP- IV) dated 16th February, 1988 issued by the Department of Youth Affairs and Sports, Government of India has neither extended any financial assistance to the Board of Control for Cricket in India nor has any relationship of whatsoever nature with it and no financial assistance is also extended for participation of any tournament, competition or otherwise organised by the Respondent No. 2. Copies of the said Affidavits are annexed hereto as Exhibits "A" and "B" respectively.

(e) The Respondent No. 2 organizes cricket matches and/or tournaments between the Teams of its Members and with the Teams of the members of International Cricket Council (ICC) which is also an autonomous Body dehors any Government control.......Matches that are organised are played at places either belonging to Members in India or at the places of either belonging to its Members of ICC only. Only when for the purpose of organising any match or tournament with foreign participants, the Respondent No. 2 requires normal and scheduled permissions from the Ministry of Sports for travel of foreign teams, it obtains the same like any other private organization, particularly in the subject matter of foreign exchange. The Respondent No. 2 is the only autonomous sporting body which not only does not obtain any financial grants but on the contrary earns foreign exchange.

(f) Organising Cricket Matches and/or Tournaments between the Teams of the Members of the Respondent No. 2 and/or with the co-members of International Cricket Council cannot be said to be a facet of public function or Government in character. No monopoly status has been conferred upon the Respondent No. 2 either by Statute or by the Government. Any other body could organise any matches on its own and neither the Respondent No. 2 nor the Government could oppose the same. As a matter of fact, number of cricket matches including International matches are played in the Country which have nothing to do with the Respondent No. 2. Respondent No. 2 has no monopoly over sending teams overseas for the game of cricket and to control the entire game of cricket in India. Matches which are sanctioned or recognised by the ICC are only known as Official Test matches or One day International Matches. Respondent No. 2 is entitled to invite teams of other members of ICC or send teams to participate in such matches by virtue of its membership of ICC."

(i) it regulates cricket;

(ii) It has a virtual monopoly;

(iii) it seeks to put restrictions on the fundamental rights of the players and umpires to earn their livelihood as envisaged under Article 19(1)(g) of the Constitution of India;

(iv) The cricket events managed by the third Respondent have a definite concept, connotation and significance which have a bearing on the performance of individual players as also the team as a national team representing the country in the entire field of cricket.

"...The constitutionality of a provision, it is trite, will have to be judged keeping in view the interpretive changes of the statute effected by passage of time."

"It is trite that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be considered on the basis of laws existing on 26th January, 1950, but while doing so the court is not precluded from taking into consideration the subsequent events which have taken place thereafter. It is further trite that that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation."

"The law has its epochs of ebb and flow, the flood tides are on us. The old order may change yielding place to new; but the transition is never an easy process".

"The wheel turns, history changes". Stability and change are the two sides of the same law-coin. In their pure form they are antagonistic poles; without stability the law becomes not a chart of conduct, but a gare of chance: with only stability the law is as the still waters in which there is only stagnation and death."

"Referring to Motor General Traders and Another v. State of Andhra Pradesh and Others [(1984) 1 SCC 222], Rattan Arya and Others v. State of Tamil Nadu and Another [(1986) 3 SCC 385] and Synthetics and Chemicals Ltd. and Others v. State of U.P. and Others [(1990) 1 SCC 109], this Court held : (SCC p. 608, para 49)

"There cannot be any doubt whatsoever that a law which was at one point of time constitutional may be rendered unconstitutional because of passage of time. We may note that apart from the decisions cited by Mr. Sanghi, recently a similar view has been taken in Kapila Hingorani v. State of Bihar [JT 2003(5) SC 1] and John Vallamattom and Anr. v. Union of India [JT 2003(6) SC 37]."

"It is presumed that Parliament intends the court to apply to ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law."

"In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred, since the Act's passing, in law, social conditions, technology, the meaning of words and other matters. Just as the US Constitution is regarded as 'a living Constitution', so an ongoing British Act is regarded as 'a living Act'. That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will try to foresee the future and allow for it in the wording."

"33. Theaters and dramatic performances; cinemas subject to the provisions of entry 60 of List 1; sports, entertainments and amusements."

"It may be true that what is protected by Article 19(1)(a) is an expression of thought and feeling and not of the physical or intellectual prowess or skill. It is also true that a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self-expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained. The former is the right of the telecaster and the latter that of the viewers. The right to telecast sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that free-speech element is absent from his right. The degree of the element will depend upon the character of the telecaster who claims the right. An organizer such as the BCCI or CAB in the present case which are indisputably devoted to the promotion of the game of cricket, cannot be placed in the same scale as the business organizations whose only intention is to make as large a profit as can be made by telecasting the game...."

[Emphasis supplied]

"12. In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India."

"1. the power or right to give orders and enforce obedience. 2. a person or organisation exerting control in a particular political or administrative sphere. 3. the power to influence others based on recognised knowledge or expertise."

(i) The Corporations and the Societies created by the State for carrying on its trading activities in terms of Article 298 of the Constitution wherefor the capital, infrastructure, initial investment and financial aid etc. are provided by the State and it also exercises regulation and control thereover.

(ii) Bodies created for research and other developmental works which is otherwise a governmental function but may or may not be a part of the sovereign function.

(iii) A private body is allowed to discharge public duty or positive obligation of public nature and furthermore is allowed to perform regulatory and controlling functions and activities which were otherwise the job of the government.

"That an "inclusive" definition is generally not exhaustive is a statement of the obvious and as far as Article 12 is concerned, has been so held by this Court (Ujjam Bai v. State of U.P., (1963) 1 SCR 778 at 968). The words "State" and "authority" used in Article 12 therefore remain, to use the words of Cardozo (Benjamin Cardozo : The Nature of the Judicial Process), among "the great generalities of the Constitution" the content of which has been and continues to be supplied by courts from time to time."

"The OAC's functionally exclusive regulation of free speech within.....a public forum, is a traditional and exclusive function of the State."

"20....It is not necessary for us to quote various other sections and rules but all these provisions unmistakably show that the affairs of the appellant are controlled by the State Government though it functions as a cooperative society and it is certainly an extended arm of the State and thus an instrumentality of the State or authority as mentioned under Article 12 of the Constitution."

"Should then our courts not advance with the times ? Should they still continue to cling to outmoded concepts and outworn ideologies ? Should we not adjust our thinking caps to match the fashion of the day ? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories ? Should the strong be permitted to push the weak to the wall ? Should they be allowed to ride roughshod over the weak ? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak ?"

"26. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said : 'When I hear any man talk of an unaltelrable law, I am convinced that he is an unalterable fool.' The law must, therefore, in a changing society march in tune with the changed ideas and ideologies..."

"In view of the aforesaid discussion we hold that in consonance with the spirit and content of Articles 19(1)(g) and 21 of the Constitution the manufacturers of beverages namely Pepsi-Cola & Coca-Cola and other manufacturers of beverages and soft drinks, are bound to clearly specify on the bottle or package containing the carbonated beverages or soft drink, as the case may be, or on a label or a wrapper wrapped around it, the details of its composition and nature and quantity of pesticides and chemicals, if any, present therein."

"Mr. Harish N. Salve, learned senior counsel appearing for the petitioner in SLP(C) No. 24266-24268/2004 and Mr. Arun Jaitley, learned senior counsel appearing for the petitioners in SLP(C) Nos. 24413/2004 and 24661-24663/2004 state that the petitioners will be advised to approach the High Court to seek clarification of exactly what kind of disclosure the High Court requires them to make. We record the statement and dismiss the special leave petitions giving liberty to the petitioners to approach the High Court for that purpose. In case the petitioners feel aggrieved by the order passed by the High Court on the clarification application, the dismissal of these special leave petitions will not come in their way in challenging the said order.

We may, however, place on record that the learned senior counsel for the petitioners intended to argue larger constitutional issues touching Articles 19 and 21 of the Constitution which have not been raised on a second thinking and we leave them open to be decided in some other appropriate case.

Though the special leave petitions are dismissed, but the operation of the order dated 3.11.2004 passed by the High Court suspending the operation of its judgment for six weeks, is extended by another two weeks from today."

"In so far as public corporations fulfill public tasks on behalf of government, they are public authorities and as such subject to control by government." (SCC Para 87)

(a) The Panel, although self-regulating, do not operate consensually or voluntary but had imposed a collective code on those within its ambit;

(b) The Panel had been performing a public duty as manifested by the government's willingness to limit legislation in the area and to use the Panel as a part of its regulatory machinery. There had been an "implied devolution of power" by the Government to the Panel in view of the fact that certain legislation presupposed its existence.

(c) Its source of power was partly moral persuasive. Such a power would be exercised under a statute by the Government and the Bank of England.

"On the policy level, I find myself unpersuaded. Counsel for the panel made much of the word 'self-regulating'. No doubt self-regulation has many advantages. But I was unable to see why the mere fact that a body is self-regulating makes it less appropriate for judicial review. Of course there will be many self-regulating bodies which are wholly inappropriate for judicial review. The committee of an ordinary club affords an obvious example. But the reason why a club is not subject to judicial review is not just because it is self-regulating. The panel wields enormous power. It has a giant's strength. The fact that it is self-regulation, which means, presumably, that it is not subject to regulation by others and in particular the Department of Trade and Industry, makes it not less but more appropriate that it should be subject to judicial review by the courts."

(Emphasis supplied)

".......The emphasis on public functions reflects the approach adopted in judicial review by the courts and text books since the decision of the Court of Appeal (the judgment of Lloyd LJ) in R v Panel on Take-overs and Mergers, ex p Datafin plc (Norton Opax plc intervening) [1987] 1 All England Reporter 564, [1987] QB 815. (ii) Tower Hamlets, in transferring its housing stock to Poplar, does not transfer its primary public duties to Poplar. Poplar is no more than the means by which it seeks to perform those duties......."

[Emphasis supplied]

"...As for the argument that the sports bodies know best, experience may perpetuate, not eliminate error; and Wilberforce J. indicated in Eastham that the rules of sporting bodies cannot be treated as the Mosaic or Medan law.

It is, I suspect, the floodgates argument that is the unspoken premise of the Vice-Chancellarial observations, the fear that limited court time will be absorbed by a new and elastic category of case with much scope for abusive or captious litigation. It is an argument which intellectually has little to commend it and pragmatically is usually shown to be ill-founded. For it is often the case that, once the courts have shown the willingness to intervene, the standards of the bodies at risk of their intervention tend to improve. The threat of litigation averts its actuality.

There is therefore no reason why the field of sport cannot define law's new, or at any rate next, frontier; and if Britain can no longer head the world in sport itself, perhaps it can do so in sporting litigation. Members of the bar, on your marks !"

(Emphasis supplied)

"There is no doubt that people will differ as to the cogency of these reasons. The line drawn by the cases considered within this section has, not surprisingly, been contested. Pannick has argued that the exercise of monopolistic power should serve to bring bodies within the ambit of judicial review. To speak of a consensual foundation for a body's power is largely beside the point where those who wish to partake in the activity will have no realistic choice but to accept that power. Black has argued that the emphasis given to the contractual foundations for a body's power as the reason for withholding review are misplaced. She contends that the courts are confusing contract as an instrument of economic exchange, with contract as a regulatory instrument. She argues further that the reliance placed on private law controls, such as restraint of trade and competition law, may also be misplaced here. Such controls are designed for the regulation of economic activity in the market place and they may not be best suited to control potential abuse of regulatory power itself."

(Emphasis added)

"2. As the wrong body argument fails, the sole issue is whether the New Zealand (179) Union has acted against its objects of promoting, fostering and developing the game. This cannot be dismissed as only a matter of internal management or administration; it goes to fundamentals.

3. In its bearing on the image, standing and future of rugby as a national sport, the decision challenged is probably at least as important as - if not more important than - any other in the history of the game in New Zealand.

4. The decision affects the New Zealand community as a whole and so relations between the community and those, like the plaintiffs, specifically and legally associated with the sport. Indeed judicial notice can be taken of the obvious fact that in the view of a significant number of people, but no doubt contrary to the view of another significant number, the decision affects the international relations or standing of New Zealand.

5. While technically a private and voluntary sporting association, the Rugby Union is in relation to this decision in a position of major national importance, for the reasons already outlined. In this particular case, therefore, we are not willing to apply to the question of standing the narrowest of criteria that might be drawn from private law fields. In truth the case has some analogy with public law issues. This is not to be pressed too far. We are not holding that, nor even discussing whether, the decision is the exercise of a statutory power - although that was argued. We are saying simply that it falls into a special area where, in the New Zealand context, a sharp boundary between public and private law cannot realistically be drawn."

"Once again this Court has been asked to declare the limits of the common law liability of a public authority. This is an area of the law which has been much criticized as unsatisfactory and unsettled, as lacking foreseeable and practical outcomes and as operating ineffectively and inefficiently. Particular decisions, such as Nagle v. Rottnest Island Authority, have been said to have caused "a degree of consternation in public authorities and their insurers". It is claimed that they have occasioned great uncertainty amongst the officers of such authorities as to the steps which they can take to reduce their potential liability for injuries to visitors, brought about largely by the visitors' own conduct. In response to what is described as "judicial paternalism" the Local Government Ministers of Australia and New Zealand have commissioned a report on policy options to provide statutory limitations on the liability of local authorities."

"67. This appeal presents an opportunity for this Court to reaffirm that principle in circumstances, now increasingly common, where the exercise of public power, contemplated by legislation, is "outsourced" to a body having the features of a private sector corporation. The question of principle presented is whether, in the performance of a function provided to it by federal legislation, a private corporation is accountable according to the norms and values of public law or is cut adrift from such mechanisms of accountability and is answerable only to its shareholders and to the requirements of corporations law or like rules."

[Emphasis supplied]

"134. It may be that the statutory conferral of monopoly status on AWBI as a private corporation, in itself (particularly when viewed with the added fact that it was formed from what was once a public body) could impose obligations to observe the norms and values of public law, adapted by analogy, in particular instances of its decision-making. In such circumstances, quite apart from administrative law, it has sometimes been viewed as appropriate to impose duties to the community upon such corporations out of recognition of the particular powers they enjoy..."

"American athletes will go into these same [1980 Olympic] games as products of our way of life. I do not believe that it is the purpose of the games to set one way of life against another. But it cannot be denied that spectators, both in Moscow and all over the world, certainly will have such a thought in mind when the events take place. So it would be good for our nation and for the athletes who represent us if the cooperation, spirit of individuality and personal freedom that are the great virtues of our system are allowed to exert their full influence in the games. 124 Cong. Rec. 31662 (1978)."

"Our cases have identified a host of fact that can bear on the fairness of such an attribution. We have, for example, held that a challenged activity may be state action when it results from the State's exercise of "coercive power," Blum, 457 US 1004, 73 L Ed 2d 534, 102 S Ct 2777 when the State provides "significant encouragement, either overt or covert," ibid., or when a private actor operates as a "willful participant in joint activity with the State or its agents," Lugar, supra, at 941, 73 L Ed 2d 482, 102 S Ct 2744 (internal quotation marks omitted). We have treated a nominally private entity as a state actor when it is controlled by an "agency of the State," Pennsylvania v Board of Directors of City Trusts of Philadelphia, 353 US 230, 231, 1 L Ed 2d 792, 77 S Ct 806 (1957) (per incuriam), when it has been delegated a public function by the State, cf., e.g., West v Atkins, supra at 56, 101 L Ed 2d 40, 108 S Ct 2250; Edmonson v Leesville Concrete Co., 500 US 614, 627-628, 114 L Ed 2d 660, 111 S Ct 2077 (1991), when it is "entwined with governmental policies," or when Government is "entwined in [its] management or control," Evans v Newton, 382 US 296, 299, 301, 15 L Ed 2d 373, 86 S Ct 486 (1966).

Amidst such variety, examples may be the best teachers and examples from our cases are unequivocal in showing that the character of a legal entity is determined neither by its expressly private characterization in statutory law, nor by the failure of the law to acknowledge the entity's inseparability from recognised Government officials or agencies "

"The law has been driven from these familiar moorings by the impetus of expanding judicial review, which has been extended to two kinds of non-statutory action. One is where bodies which are unquestionably governmental do things for which no statutory power is necessary, such as issuing circulars or other forms of information..."

"It is not fortuitous that the public bodies have stood shoulder to shoulder with the private contractors in resisting the application of the HRA and ordinary judicial review, to the contractors.

It will under the existing law, be difficult to maintain an action against the public body itself, either under the HRA, or via ordinary judicial review, where there has been contracting out. The public body will still be subject to the HRA and to judicial review. This should not mask the reality that contracting out will serve to preclude any meaningful action against the public body. Claims that could have been made against the public body if it had performed the service in house will no longer be possible where it has contracted this out.

It has been argued in this article that the judicial conclusions as to the applicability of the HRA and judicial review in cases of contracting out were neither legally inevitable, nor desirable in normative terms. The contractualisation of Government is not a transient phenomenon. It is here to stay for the foreseeable future. The courts have in the past developed doctrinal tools to meet challenges posed by changing pattern of government. They should not forget this heritage."

"If the scope of review is extended thus far then careful attention will have to be given to whether the procedural and substantive norms applied against traditional public bodies should also be applied against private bodies. Many of the cases within this section are concerned with the application of procedural norms. If we were to follow Lord Woolf's suggestion then we would also have to consider whether substantive public law should be applied to such bodies. Would we insist that sporting bodies with monopoly power, or large companies with similar power, take account of all relevant considerations before deciding upon a course of action ? Would we demand that their actions be subject to a principle of proportionality, assuming that it becomes an accepted part of our substantive control ? If there is an affirmative answer, then the change would be significant to say the very least. It would have ramifications for other subjects, such as company law, commercial law and contract. It would increase the courts' judicial review case load. It would involve difficult questions as to how such substantive public law principles fit with previously accepted doctrines of private law. This is not to deny that similar broad principles can operate within the public and private spheres. It is to argue that the broader the reach of "public law", the more nuanced we would have to be about the application of public law principles to those bodies brought within the ambit of judicial review."

"The High Court's decision in Agar is not without its difficulties, but it is well-founded in so far as it established that there is generally no liability in negligence for the creation or amendment of the rules of amateur sports played by adults. Even so, there is still room for argument that sporting administrators will be liable in negligence in relation to the nature and conduct of their sports. It is conceivable that there could be liability for employers in relation to the rules of professional sports. Any type of administrator could be liable for misrepresentations. And liability could potentially arise for failing to fulfil a duty to warn in situations where controllers become aware of new information pointing to a higher level of risk than was generally appreciated.

It may be that the judgments in Agar, to use the words of Gowans J in Carlton Cricket and Football Social Club v Joseph, "are not going to be very interesting to those who have more familiarity with the rules of [rugby] football than they have with the rules of law". Nevertheless, the decision is an important one for sporting administrators. What is more, the potential for legal liability to be imposed on sporting administrators has been but partially resolved by the High Court's decision. The ball is, one might say, still in play."

"18-5. The "Public Function" Cases :

When the state "merely" authorizes a given "private" action - imagine a green light at a street corner authorising pedestrians to cross if they wish - that action cannot automatically become one taken under "state authority" in any sense that makes the Constitution applicable. Which authorizations have that Constitution - triggering effect will necessarily turn on the character of the decision-making responsibility thereby placed (or left) in private hands. However described, there must exist a category of responsibilities regarded at any given time as so "public" or "governmental" that their discharge by private persons, pursuant to state authorisation even though not necessarily in accord with state direction, is subject to the federal constitutional norms that would apply to pubic officials discharging those same responsibilities. For example, deciding to cross the street when a police officer says you may is not such a "public function;" but authoritatively deciding who is free to cross and who must stop is a "public function" whether or not the person entrusted under state law to perform that function wears a police uniform and is paid a salary from State revenues or wears civilian garb and serves as a volunteer crossing guard..."

"1. There is, for certain purposes (particularly for the remedy of mandamus or its equivalent), a distinct body of public law.

2. Certain bodies are regarded under that law as being amenable to it.

3. Certain functions of these bodies are regarded under that law as prescribing as opposed to merely permitting certain conduct.

4. These prescriptions are public duties."

"58. We agree with Mr. Luba's submissions that the definition of who is a public authority and what is a public function, for the purposes of Section 6 of the 1998 Act, should be given a generous interpretation..."

"....This feature, that a core public authority is incapable of having Convention rights of its own, is a matter to be borne in mind when considering whether or not a particular body is a core public authority...."

(a) Where the institution is governed by a statute which imposes legal duties upon it;

(b) Where the institution is 'State' within the meaning of Article 12;

(c) Where even though the institution is not 'State' within the purview of Article 12, it performs some public function, whether statutory or otherwise.

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

(5) If the functions of the corporation are 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.

"The growing power of the industrial giants, of the labour unions and of certain other organised groups, compels a reassessment of the relation between group power and the modern State on the one hand and the freedom of the individual on the other. The corporate organisations of business and labour have long ceased to be private phenomena."

(Emphasis supplied)

"The governing power wherever located must be subject to the fundamental constitutional limitations. The need to subject the power centers to the control of Constitution requires an expansion of the concept of State action."

"Although private in the property sense, it was public in the functional sense. The substance of the doctrine there laid down is that where a corporation is privately performing a 'public function' it is held to the constitutional standards regarding civil rights and equal protection of the laws that apply to the State itself. The Court held that administration of private property of such a town, though privately carried on, was, nevertheless, in the nature of a 'public function', that the private rights of the corporation must therefore be exercised within constitutional limitations and the conviction for trespass was reversed."

"In other words, it is against state action that fundamental rights are guaranteed. Wrongful individual acts unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings are not prohibited."

"Another factor which might be considered is whether the operation is an important public function. The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion."

"The State may aid a private operation in various ways other than by direct financial assistance. It may give the organisation the power of eminent domain, it may grant tax exemptions, or it may give it a monopolistic status for certain purposes."

"In America, corporations or associations, private in character, but dealing with public rights, have already been held subject to constitutional standards. Political parties, for example, even though they are not statutory organisations and are in form private clubs, are within this category. So also are labour unions on which statutes confer the right of collective bargaining."

(Emphasis supplied)

(i) When the body acts as a public authority and has a public duty to perform;

(ii) When it is bound to protect human rights.

(iii) When it regulates a profession or vocation of a citizen which is otherwise a fundamental right under a statute or its own rule.

(iv) When it regulates the right of a citizen contained in Article 19(1)(a) of the Constitution of India available to the general public and viewers of the game of cricket in particular.

(v) When it exercises a de facto or a de jure monopoly;

(vi) When the State out-sources its legislative power in its favour;

(vii) When it has a positive obligation of public nature.

"1. INTERPRETATION :

(i) "REPRESENTATIVE" of a Member or an Associate Member means a person duly nominated as such by the Member or the Associate Member.

(l) "TOURNAMENT RULES" means the Rules governing the conduct of Tournaments such as Irani, Duleep, Ranji, Deodhar, Cooch Behar, C.K. Nayudu, M.A. Chidambaram, Vijay Hazare, Vijay Merchant Trophy and Madhavrao Scindia Trophy Tournaments and such other Tournaments conducted by the Board from time to time.

(q) DISCIPLINARY COMMITTEE : The Board shall at every Annual General Meeting appoint a Committee consisting of three persons of whom the President shall be one of them to inquire into and deal with the matter relating to any act of indiscipline or misconduct or violation of any of the Rules or Regulation by any Player, Umpire, Team Official, Administrator, Selector or any person appointed or employed by BCCI. The Committee shall have full power and authority to summon any person(s) and call for any evidence it may deem fit and necessary and make and publish its decision including imposing penalties if so required, as provided in the Memorandum and Rules and Regulations."

(a) To grant affiliations as provided in the Rules or to disaffiliate Members on disciplinary grounds.

(b) To arrange, control and regulate visits of foreign cricket teams to India and visits of Indian teams to foreign countries and to settle the terms on which such visits shall be conducted.

(c) To lay down conditions on which Indian players shall take part in a tour to any foreign country and by which such players shall be governed, including terms of payments to such players.

(d) To frame bye-laws and lay down conditions including those of travel, accommodation and allowances under which Indian players shall take part in Cricket Tournaments/Matches or Exhibition, Festival and Charity matches organised by the Board or by a Member under the authority of the Board in the course of a visit or tour of a foreign Cricket team to India.

(f) To permit under conditions laid down by the Board or refuse to permit any visit by a team of players to a foreign country or to India.

(g) To frame the Laws of Cricket in India and to make alteration, amendment or addition to the laws of Cricket in India whenever desirable or necessary.

(n) To take disciplinary action against a player or a Member of Board.

(o) To appoint Manager and/or other official of Indian teams.

"No club or player shall participate in any tournament or a match for which the permission of the Board has not been previously obtained. A player contravening this Rule shall be dealt with in accordance with the procedure laid down in Rule 38."

"No organisation other than a Member or Associate Member, Clubs or Institutions affiliated to such members shall organise foreign tours to or invite teams from abroad. Members or Associate Members or such clubs or institutions, desirous of undertaking tours abroad or inviting foreign teams shall obtain the previous permission of the Board. Such permission may be given in accordance with the Rules framed by the Board."

"Cricket Authority" a body (whether incorporated or not) which is recognised by the Council as the governing body responsible for the administration, management and development of cricket in a Cricket Playing Country (being at the date of incorporation of the Council the bodies of that description shown in the names and addresses of subscribers to the Memorandum of Association);

"Full Member Country(ies)" any Member Country whose Cricket Authority is a Full Member and shall, when the context requires, include the Cricket Authority of that Member Country;

"Member Country (ies)" any country or countries associated for cricket purposes or geographical area, the governing body for cricket of which is a Full Member, an Associate Member or an Affiliate Member, as the context may require;"

"A country applying for admission as a Full Member of ICC should use the following criteria."

"ODI status is not an ICC membership category, but rather a sub-category of Associate Membership. ODI status was created to provide a vehicle by which leading Associate Members could play official One Day International matches against Full Members in order to better equip them to apply for Full Membership at the appropriate time.

The criteria for ODI status are extremely demanding and ODI status will only be conferred when the applicant country has a history of excellence in both playing and administration. As a precondition the applicant must be a leading Associate Member and meet all the criteria of Associate Membership.

"(a) Definitions

... ... ...

(b) Qualification Criteria

1. A cricketer is qualified to play Representative Cricket for a Member Country of which he is a national or, in cases of non-nationals, in which he was born...

2. A player who has resided for a minimum of 183 days in a Member Country in each of the 4 immediately preceding years shall be a "deemed national" of that country for the purpose of these Rules.

*** *** ***

(c) Transfer of "Playing Nationality"

1. Cricketers qualified to play for a Member Country can continue to represent that country without negating their eligibility or interrupting their qualification period for another Member Country up until the stage that the cricketer has played for the first Member Country at under 19 level or above...

(d) Applications

1. Each Member Country shall require each player to certify his eligibility to represent that Member Country....

*** ***

(f) Register of Cricketers and Proof of Qualification

2. Each Member Country shall from time to time provide to the Chief Executive ICC on request and at the expense of that Member Country details as to any entries made in its register of cricketers in respect of any year, including copies of the register or of the relevant extracts therefrom.

3. Each Member Country shall from time to time provide to the Chief Executive ICC on request and at the expense of that Member Country, any relevant information as to the fulfillment by a particular player or players of any one or more of the applicable qualification criteria (including as appropriate the Development Criteria) under these Rules."

"Any cricket match of not more than 5 days scheduled duration played between two teams selected by full members as representatives of their member countries and accorded the status of test match by the Council."

"There would be only one recognised Federation for each discipline of sport, irrespective of the fact that the particular sport caters to youngsters, men, women or veterans. However, this condition shall not apply to Federations already recognised by the Department."

"1. I am informed that this Hon'ble Court required to be apprised as to whether it was mandatory for all sporting bodies including private entities or clubs to seek permission and to obtain the same for playing in tournaments abroad.

2. In response to the issue raised before this Hon'ble Court, it is respectfully submitted that only the recognised National Sports Federations are required to apply in the prescribed format for seeking permission to go abroad to play as a Team representing India. There have been instances where club teams, organizations engaged in sports activities etc. have applied for such permission but the Ministry has considered their request only when they were received through the National Sports Federation - BCCI in this case."

"The promotion of the game of cricket in the country is the responsibility of the Board of Control for Cricket in India (BCCI) which is an autonomous organization."

"... We would like to reiterate that the Annual Reports of BCCI are already available with your Ministry."

"Control-power or authority to manage, direct, superintend, restrict, regulate, govern, administer, oversee."

"14. National Flags are intended to project the identity of the country. They represent and foster national spirit. Their distinctive designs and colours embody each nation's particular character and proclaim the country's separate existence. Thus it is veritably common to all nations that a national flag has a great amount of significance..."

"We have pointed out that that argument is not factually correct and what in fact the BCCI/CAB is asserting is a right under Article 19(1)(a). While asserting the said right, it is incidentally going to earn some revenue. In the circumstances, it has the right to choose the best method to earn the maximum revenue possible. In fact, it can be accused of negligence and may be attributed improper motives, if it fails to explore the most profitable avenue of telecasting the event, when in any case, in achieving the object of promoting and popularising the sport, it has to endeavour to telecast the cricket matches."

" It is trite that any observation made during the course of reasoning in a judgment should not be read divorced from the context in which they were used."

"11. This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremth Ltd., (1941) 1 KB 675 and it was laid down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment."

"The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the actions of the authority need to fall in the realm of public law be it a legislative act or the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question is required to be determined in each case having regard to the nature of and extent of authority vested in the State. However, it may not be possible to generalise the nature of the action which would come either under public law remedy or private law field nor is it desirable to give exhaustive list of such actions.

(Emphasis supplied)

"Before parting with the case, it is necessary for us to clarify that even though a body, entity or Corporation is held to be a 'State' within the definition of Article 12 of the Constitution what relief to the aggrieved person or employee of such a body or entity is to be granted is a subject matter in each case for the court to determine on the basis of the structure of that society and also its financial capability and viability. The subject of denial or grant of relief partially or fully has to be decided in each particular case by the court dealing with the grievances brought by an aggrieved person against the bodies covered by the definition of 'State' under Article 12 of the Constitution."

"It has been suggested by the Chief Education Officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed to the new comprehensive schools, the pupils allotted their places and so forth. It would be next to impossible, he says, to reverse all these arrangements without complete chaos and damage to teachers, pupils and public. I must say this: if a local authority does not fulfil the requirements of the law, this court will see that it does fulfil them. It will not listen readily to suggestions of "chaos". The department of education and the council are subject to the rule of law and must comply with it just like everyone else. Even if chaos should result still the law must be obeyed but I do not think that chaos will result. The evidence convinces me that the "chaos" is much over-stated.....I see no reason why the position should not be restored, so that the eight school retain their previous character until the statutory requirements are fulfilled. I can well see that there may be a considerable upset for a number of people, but I think it far more important to uphold the rule of law. Parliament has laid down these requirements so as to ensure that the electors can make their objections and have them properly considered. We must see that their rights are upheld."