India: The BCCI's Status As A State Instrument Under Article 12 Of The Indian Constitution.

Introduction

In the era of globalization, delegating power to non-governmental bodies within a country raises concerns about upholding constitutional rights. This shift began with the promotion of worldwide Economic Neo-liberalism through the Washington Consensus, resulting in the emergence of a global economy marked by global production and markets for goods, services, and finance. The sports industry has also been deeply affected, transforming into a global phenomenon driven by a world media system, corporate capitalism, and a vast consumer audience.

Sports have evolved into a business for corporate entities, with international and national sports federations taking on a more prominent role in legal regulation. These federations operate independently of national governments and make decisions that significantly impact players' careers and the sport's economic aspects. In the case of cricket, the International Cricket Conference( ICC) oversees transnational play, while the Board of Control of Cricket in India( BCCI) manages the sport at all situations within India. Cricket, which began as an aristocratic pastime in 14th- century England, gained fashionability in India during the social period. It served as a means of socialization, allowing people from different backgrounds to interact on an equal footing, fostering a sense of unity. The Imperial Cricket Conference, later known as the ICC, was formed in 1909, initially seen as an extension of the British Colonial State. When the Indian cricket team joined the ICC, the BCCI was established with the support of elites. Initially an unregistered association, it later became registered under various acts, finally falling under the Tamil Nadu Registration Act of 1975.

India‟s Globalised Cricket Regime – the Indian Premier League

The Indian Premier League( IPL), introduced in 2008 by Lalit Modi, played a transformative part in cricket. It espoused a ballot- grounded Twenty20 format at a time when cricket's fashionability was declining, following India's disappointing performance in the 2007 World Cup. The IPL abused India's growing frugality and large population, turning justice into a media- driven commercial enterprise feeding to guarantors, media companies, and stakeholders, rather than suckers.

The liberalization of India's market in 1991 marked a significant turning point for cricket by ending the state-run Doordarshan's broadcasting monopoly. This allowed global media players like ESPN and Zee Sports to enter the scene, making cricket a highly-rated television event. The IPL combined elements close to the hearts of emerging India, including Bollywood, corporate culture, and cricket, creating a mega entertainment spectacle featuring cricketers and film stars.

The link between cricket and Bollywood serves as a mechanism to market entertainment products and celebrities, boosting profits through the fusion of cricket and Bollywood's appeal. This sports culture, dominated by cricket in India, is closely tied to the forces of capitalism. Capitalist societies rely heavily on cultural products, including sports, as they provide new avenues for growth, dynamism, profit, and control.

However, deregulation in the era of economic globalization has weakened the state's influence and inadvertently led to an increased tolerance for corruption. Cricket, including the IPL, has had its share of dishonors, with BCCI officers getting involved in loose practices, darkening the sport's traditional image as a" gentlemen's game." The government subventions duty immunity and other benefits to the BCCI, raising enterprises about the principles of social justice elevated in the Indian Constitution.Cricket's association with politics has further complicated matters, with politicians from various parties prioritizing profit over the sport's integrity. Economic and political globalization has empowered the BCCI, granting it substantial economic and political influence, akin to a small nation. To address these issues, transparency in the BCCI's administration, integrity among officials, and potential legislative regulation are called for. Courts' supervisory jurisdiction is seen as a means to ensure that private bodies like the BCCI do not misuse their power and act fairly, making the organization subject to judicial review under the Indian Constitution. A critical examination is needed to determine whether the BCCI qualifies as a "State" under Article 12.¹

The legal status of the Board of Control for Cricket

In India (BCCI) under Article 12 of the Indian Constitution has been a matter of contention in various legal cases. These cases include Mohinder Amarnath & others v. BCCI², Ajay Jadeja v. Union of India³, and Rahul Mehra And Anr. v. Union Of India⁴ before the Delhi High Court. Supreme Court decisions, such as BCCI v. Netaji Cricket Club and Ors.⁵, Zee Telefilms Ltd & Anr v. Union India & Ors.⁶, and A.C. Muthiah v. BCCI & Anr.⁷, have also contributed to this discussion.

In Mohinder Amarnath's case, the BCCI was not considered an instrumentality of the State, whereas in Ajay Jadeja's case, the Delhi High Court allowed a writ petition against the BCCI. However, the latter decision was not treated as a precedent in the Rahul Mehra case, which confirmed that writ petitions against the BCCI are maintainable. Nonetheless, the court did not express a clear opinion on whether the BCCI qualifies as an instrumentality of the State.

In the Netaji's case, the Supreme Court upheld the BCCI's monopoly status and stressed the importance of fairness, good faith, and reasonable conduct in its activities, given its significant power and the expectations of millions of cricket fans.

In the Zee Telefilms case, the Supreme Court thoroughly examined the BCCI's status as an instrumentality of the State under Article 12. The court applied a test from the Pradeep Kumar Biswas case and concluded that the BCCI lacks financial, functional, and administrative control by the government, making it ineligible for classification as a State. As a result, writ petitions under Article 12 are not maintainable. This decision was reaffirmed in the Muthiahs' case, emphasizing that the BCCI is a private autonomous body and should be evaluated like any other authority performing public functions.

The Supreme Court further emphasized that in cases involving fundamental rights violations, the petitioner must establish that the BCCI is a State under Article 12 before invoking Article 32 to allege fundamental rights violations. In the period of globalization, this approach is no longer entirely accurate, as profitable and political power is also vested in private actors. The bar plays a pivotal part in upholding abecedarian rights, and a more innovative and liberal approach that aligns with the spirit and values of the Constitution is demanded to address issues involving private or non-state actors.

Conclusion

The vertical application of fundamental rights, rooted in the theory of Classical Liberalism, aims to safeguard the private sphere from undue state interference. However, the advent of neoliberal policies like deregulation, privatization, and disinvestment has diminished the scope of state power. Neoliberalization has enabled private entities to encroach upon people's fundamental rights, challenging the efficacy of constitutional rights in the era of globalization. An effective solution to this challenge is to subject private actors to constitutional constraints by expanding the definition of "State" under Article 12. This expansion is essential for realizing the objectives and intentions of the framers of the Constitution. As Justice Holmes aptly noted, constitutional words are not static but evolve with changing times and society.

Suggestion

In light of these considerations, it is suggested that Lord Denning's recognition of the power held by non-governmental bodies should also apply to the BCCI. Although the BCCI is independent and doesn't admit fiscal support from the government, it plays a significant part in public functions and is laterally supported by the state. Given these factors, there's a reasonable case for considering the BCCI as an machinery of the State under Composition 12 of the Indian Constitution. It is recommended that an amendment to Article 12 be considered to encompass private non-state entities like the BCCI, which perform vital quasi-governmental or public functions impacting the community's welfare. Furthermore, the concept of "public policy" concerning the BCCI should not be limited solely to its rules and regulations or the Societies Registration Act but should also consider constitutional provisions.

Footnotes

1. https://indiankanoon.org/doc/609139/

2. https://indiankanoon.org/doc/527494/

3. https://indiankanoon.org/doc/527494/#:~:text=it%20was%20held%20that%20there,of%20the%20Constitution%20of%20India.

4. https://indiankanoon.org/doc/1620518/

5. https://indiankanoon.org/doc/1662742/

6.https://indiankanoon.org/doc/404603/

7.https://indiankanoon.org/doc/1333395/