Zee Telefilms Ltd. vs Union of India

Introduction

The first article under Part III of the Indian Constitution is Article 12, which does not guarantee any right but specifies the authorities and the bodies, that are deemed to be “state” and against whom the fundamental rights can be enforced.[1] The apex court of the country through its various landmark judgments has laid down the tests for determining whether a body would fall within the meaning of the term local authorities and other authorities and hence would be considered “state” or not. [2] Here, in the case of Zee Telefilms Ltd. vs Union of India [3], the test laid down in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology[4] was used to determine whether BCCI is a state or not.

Background

Zee Telefilms Ltd is a media and entertainment group based in India. The second respondent, the Board of Control for Cricket in India, is a Tamil Nadu-based society that claims to be recognized by the Ministry of Youth Affairs and Sports of the Union of India. The contract giving exclusive television rights for a four-year term was terminated by the Board of Control of Cricket on September 21, 2004. A writ petition was filed under Article 32, arguing that the contract termination was arbitrary and in violation of Article 14. On the day of the hearing, Mr. K.K Venugopal, learned Senior Counsel appearing for the Second Respondent, raised the preliminary issue of the petition’s maintainability, arguing that a petition against the Board is not maintainable under Article 32 because it is not a “State” within the meaning of Article 12 of the Indian Constitution. [5] Since the issue was treated as a critical one, it was heard right away.

Major Arguments by Petitioner

(a) The BCCI is responsible for all cricket-related activities, and the squad it fields is known as the “Indian Team “, they wear uniforms with the national flag and are recognized as India’s sporting ambassadors.

(b) Today’s players are professionals who commit their lives to the game, and players have the right to be considered for participation in the game under Article 19(1)(g). In exercising its disciplinary powers, the BCCI can ban players from playing cricket.

(c) It is also submitted that even domestically, all representative crickets can only be under its aegis. At any level of cricket, no representative tournament can be held without the authorization of the BCCI or its affiliates.[6]

Major Arguments by Respondent

(a) There is no representation of the Government or any Statutory Body. And the government has no control over the function, finance, administration, management, or affairs, nor does it receive any grant of assistance from the government in any form or manner in this regard.

(b) Respondent no.2 organizes cricket matches and/or tournaments between the Teams of its Members and with the Teams of the members of the International Cricket Council (ICC) which is also an autonomous Body dehors any Government control.

(c) Respondent No.2 has never been granted monopoly status, either by statute or by the government. Any other organization might organize its own matches, and neither Respondent No. 2 nor the Government could object.[7]

Judgement

The petition under Article 32 could not be sustained, according to the Majority Judges, because they agreed with most of the points made by the respondent in this matter. It was held that just because a non-governmental organization does something public does not make it a “State” for the purposes of Article 12.[8] Also, the Board’s actions do not meet the criteria outlined in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology[9] to qualify it as a “State” under Article 12. However, according to the Minority judges, the board was a state since, despite the fact that it was not constituted by legislation, the board’s Monopoly Status was undeniable, and hence the petition was maintainable as per minority opinion.

Analysis

1. Article 12 :

I agree with the majority bench that BCCI won’t come under the definition of “State” as the Board does not come within the purview of any of the six legal tests laid down by the Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology to make it a “State” under Article 12. Hence, I feel that the petition was rightly dismissed. The Pradeep Kumar Biswas v. Indian Institute of Chemical Biology[10] case is significant in this regard because the court took into account all previous precedents, interpreted the term “other authorities” for the purposes of Part III of the constitution, removing all doubts about the same because the definition of State was previously treated as exhaustive and limited to the authorities or those that could be read ejusdem generis with the authorities mentioned in the definition of article 12 itself. The court itself held that the principles formulated in the case of Ajay Hasia v. Khalid Mujib[11] were not rigid and therefore a body falls within any of them, it’s to be considered to be a state within the meaning of Article 12.

It is important to understand that treating the Board as a “State” will have far-reaching consequences for other national sports federations as well as some other bodies that represent India in international forums in the fields of art, culture, beauty pageants, cultural activities, music and dance, science and technology, or other such competitions as they will be required to be treated as “States” within the meaning of Article 12, potentially opening the floodgates of litigation under Article 32. Many of the federations or entities described above perform tasks and/or exercise powers that are, if not identical, at least comparable to those performed by the Board. Many athletes and others who represent their respective organizations make a living from it (e.g. football, tennis, golf, beauty pageants, etc.). As a result, if the Cricket Board is considered a State for the purposes of Article 12, there is no reason why other organizations in comparable positions may not be considered “State” as well. The fact that cricket is a popular sport in India cannot be used to distinguish these organizations from the Board.[12] Any distinction based on the body’s popularity, finances, or public opinion would be a clear violation of Article 14 of the Constitution, as justifiable discrimination must be founded on actual facts, not mere assumptions. As a result, the Board cannot be singled out as “other authority” for the purposes of Article 12. For the reasons described above, I believe that none of the other federations or organizations mentioned above, including the Board, can be regarded as a “State” for the purposes of Article 12.

2. Monopoly:

It is true that the second Respondent wields immense authority, from selecting and preparing players at the grassroots level to organizing the Duleep Trophy, Ranji Trophy, and other tournaments, as well as selecting teams and umpires for international competitions. BCCI has a monopoly on the market. However, there is no law prohibiting other organizations from forming a similar organization. Respondent No.2 has never been granted monopoly status, either by statute or by the government. As rightly contended by respondent 2 that it only has a monopoly because of its first-mover advantage and the fact that it is the only player in the field of cricket control. Any other body can organize its own matches, and neither Respondent No. 2 nor the Government could object. The clearest example is Subash Chandra, the owner of Zee Telefilms, who decided to take matters into his own hands and began recruiting various domestic and foreign players, promising them big sums of money in exchange for playing Indian Cricket League.[13]

Although the BCCI immediately declared the league and the players who signed up for it to be rebels, the main reason for the ICL’s failure was that it failed to capture the imagination of Indian fans, partly due to the absence of big-ticket Indian superstars and partly due to the ICL’s inability to take the tournament to different venues to create regional rivalries. If ICL had been successful, it may have given the BCCI a tough time and could have put an end to its monopoly, but there is no doubting that similar organizations or leagues like ICL could be formed in the future with better planning to compete with the BCCI. The memory of ICL serves as a continual reminder to BCCI to maintain high levels of play both at home and abroad, lest free-market economics allow another, more enthusiastic player to stage a coup and run away with the game.[14]

3. Article 19(1)(g):

Yes, I agree that the BCCI has a monopoly in cricket, and it would be quite difficult for any organization to establish a similar body and compete with it. However, I disagree that it violates the cricketer’s fundamental right under Article 19(1) (g). The petitioners contend that because cricket has become a profession, players and today the Board controls the said rights of a citizen. The petitioners also stated that the Board has all-pervasive powers to control a person’s cricketing career under the Memorandum of Association and the rules and regulations, as well as due to its monopolistic control over the game of cricket, as it has the sole authority to decide on a person’s membership and affiliation to any particular Cricketing Association, which would affect his right to play cricket at any level in India and abroad. As a result, the petitioners believe that the BCCI should be considered a state.

However, if this argument were to be used, every employer that governs how his employees work would be considered a state.[15] Although BCCI’s rules prohibit an Indian player, whether contracted or uncontracted, from playing franchise cricket – T20 leagues, T10 leagues, or any other competition of “that format” – outside India, but BCCI does allow players to play first-class and List A matches outside the country. A good example is Cheteshwar Pujara, India’s Test specialist, who was recently signed by Sussex, an English county cricket side, for the 2022 season. He will also represent the club in the Royal One-Day Cup, which begins on August 2nd. As a result, it can’t be argued that the BCCI forbids players from playing elsewhere because any BCCI-affiliated player can enter any competition with the BCCI’s approval. Former BCCI General Manager Karim Saba argued that if the BCCI enables its senior and junior players to participate in global T20 tournaments, there will be very few cricketers left to play domestic cricket, which is rational. A huge void will be created in BCCI cricket, just as it has been in other nations that have permitted its players to participate.[16]

And, although there is no doubt that Article 19(1)(g) gives all citizens the fundamental right to practice any profession, trade, employment, or business[17], and that such a right may only be controlled by the State under Article 19(1)(g)(6). As a result, any breach of this right must be brought solely against the State; unlike the rights under Articles 17 and 21, which may be brought against non-state entities, including persons, the right under Article 19(1)(g) cannot be brought against an individual or a non-State institution. Thus, to argue that every entity, which validly or invalidly arrogates to itself the right to regulate or for that matter even starts regulating the fundamental right of the citizen under Article 19(1)(g), is a State within the meaning of Article 12 is to put the cart before the horse. The pre-requisite for invoking the enforcement of a fundamental right under Article 32 is that the violator of that right should be a State first. Therefore, the petitioner cannot allege that the board violates fundamental rights and is, therefore, State within Article 12. And as the petitioner has failed to establish that the Board is State within the meaning of Article 12.[18] Therefore, assuming there is a violation of any fundamental right by the Board that will not make the Board a “State” for the purpose of Article 12. Hence. while Board enjoys a monopoly in cricket exercising enormous power which is neither in doubt nor in dispute, I don’t think BCCI in any way infringes the fundamental right of any cricketer.

Conclusion

The court through its interpretations has time and again tried to include more and more bodies within the definition of state so that maximum people can enforce their fundamental rights. In this case, it was rightly contended by respondent 2 that the Board has never been granted monopoly status, either by statute or by the government and that there is no law prohibiting other organizations from forming a similar organization. The court using the test laid down in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology rightly ruled that the petition under Article 32 cannot be maintained as BCCI is not a “State”. Also, the right under Article 19(1)(g) cannot be brought against an individual or a non-State institution. Hence, I feel that the petition was rightly dismissed.

[1] The Constitution of India, s 12

[2] Manshi Sinha, ‘Explained: Article 12 of the Indian Constitution'(LexForti,12 May 2021) < https://lexforti.com/legal-news/article-12-constitution/ >accessed 3 April 2022

[3] (2005) 4 SCC 649

[4] (2002) 5 SCC 111

[5] Zee Telefilms Ltd. vs Union of India (2005) 4 SCC 649

[6] Zee Telefilms Ltd. vs Union of India (2005) 4 SCC 649

[7] Zee Telefilms Ltd. vs Union of India (2005) 4 SCC 649

[8] Zee Telefilms Ltd. vs Union of India (2005) 4 SCC 649

[9] (2002) 5 SCC 111

[10] (2002) 5 SCC 111

[11] (1981) 1 SCC 722; AIR 1981 SC 487

[12] Zee Telefilms Ltd. vs Union of India (2005) 4 SCC 649

[13] Rajesh Tiwary, ‘Remembering Indian Cricket League, the ‘rebel’ that led to IPL would have turned 10 today'(Firstpost,30 Nov 2017) < https://www.firstpost.com/firstcricket/sports-news/remembering-indian-cricket-league-the-rebel-that-led-to-ipl-would-have-turned-10-today-4235115.html>accessed 3 April 2022

[14] Rajesh Tiwary, ‘Remembering Indian Cricket League, the ‘rebel’ that led to IPL would have turned 10 today'(Firstpost,30 Nov 2017) < https://www.firstpost.com/firstcricket/sports-news/remembering-indian-cricket-league-the-rebel-that-led-to-ipl-would-have-turned-10-today-4235115.html>accessed 3 April 2022