Guest Post – The IPL vis-à-vis Article 226: Is it Time to Characterize the Event?

[The following post is contributed
by Sujoy Chatterjee who is an Advocate
in New Delhi and an alumnus of the National Law University Jodhpur (’13)]
Cricket enthusiasts are lauding the
tough stand taken by the Supreme Court of India (SC) against the Board of
Control for Cricket in India (BCCI) regarding the recent spate of Indian
Premier League (IPL) controversies (IPL case). The SC came to be seized of the IPL
case through appeals filed by the Cricket Association of Bihar (CAB) and the
BCCI against CAB
, a Bombay High Court
(BHC) judgment. CAB v. BCCI throws up
some piquant questions about the maintainability of a writ petition under
Article 226 against the BCCI, especially in the context of the IPL. A brief
history of the BCCI’s recent IPL predicaments is instructive in this regard.
Extra Innings: A Quick Flashback
In the backdrop of investigations
by the Delhi Police and the Mumbai Police regarding spot-fixing and betting in
the IPL, the BCCI appointed a three member Disciplinary Commission (DC) on 28-29
May 2013 comprising one member from the BCCI (Sanjay Jagdale, who was Secretary of the BCCI and a member of the IPL
Code of Behavior Committee (IPL CBC)
at the time) and two independent members (Justice R. Balasubramaniam and Justice T. Jayaram
Chouta, both retired Judges of the Madras High Court). The DC’s mandate was
enquire into allegations against (i) Gurunath Meiyappan in his capacity as Team
Principal of the Chennai Super Kings franchise, and (ii) Raj Kundra in his
capacity as co-owner of the Rajasthan Royals franchise, for betting in IPL
matches. On 31 May 2013, Jagdale resigned from the post of Secretary to the BCCI
and membership of the IPL CBC –
he clarified that he would not continue as a member of the DC. On 6June 2013, Jagmohan
Dalmiya (who was acting as de facto
head of the BCCI at the time) decided that the DC would continue its enquiry
with the remaining two members – a decision which the Working Committee of the
BCCI ratified on 10th June, 2013.
On 15 June 2013, the CAB filed a Public
Interest Litigation (PIL) under Article 226 of the Constitution of India in the
BHC, challenging the DC’s constitution. The CAB prayed, inter alia, for (i) a writ of mandamus directing the BCCI to recall
its order constituting the DC, and (ii) an order constituting a panel of
retired Judges of the BHC to conduct the enquiry against Meiyappan and Kundra. On
30 July 2013, the BHC ruled that the DC was ultra
the IPL Operational Rules 2013 (IPL Rules), inasmuch as Rule 2.2 of
the IPL Rules “mandatorily requires a
member of the IPL Code of Behavior Committee to be on the Commission. In other
words a Commission cannot be constituted without at least one member of the IPL
Code of Behavior Committee
.” However, the BHC did not constitute a panel of
retired Judges to conduct an enquiry against Meiyappan and Kundra, reasoning
that it was the BCCI’s prerogative to appoint a DC in accordance with the IPL
Rules.The CAB and the BCCI both appealed to the SC, where the cross-appeals
were tagged and are being heard together as the IPL case.
Team Line-up: Writ Jurisdiction and Article 226
A preliminary objection had been raised
in CAB v. BCCI that the CAB’s petition
was not maintainable. The BCCI put forth various arguments to buttress this
point, which may be broadly categorized as follows:
(i)        The BCCI is not State under Article 12,
but is rather an autonomous body; and
(ii)       The IPL is a purely commercial activity
and the BCCI owes no duty to the public with respect to IPL matches. Therefore,
enquiries related to the IPL are in the
domain of the BCCI’s internal management and
do not impact any public
interest, irrespective of the nature of the allegations being enquired into.
The position of law on point (i) has
been settled by a Constitutional Bench of the SC in Zee
Telefilms v Union of India
, where the majority held that the BCCI is
not State under Article 12. CAB v. BCCI rightly
does not delve deeper into this issue. The BHC omits any discussion on point
(ii) as well by choosing to focus on whether the DC had been constituted in
accordance with the IPL Rules.The emphasis on the IPL Rules was perhaps the
BHC’s way of reiterating the settled position on when Article 226 can be invoked, i.e., for enforcing not only fundamental
rights but also any other legal right. However, by steering clear of
characterizing the nature of the IPL, the BHC has missed a crucial step –
against whom can writ jurisdiction
under Article 226 be invoked?
Strategic Time-out: The
“public function”[1]
Zee Telefilms clarified that the BCCI discharges certain duties
which are akin to public duties or State functions and that if any person was aggrieved
by such activities, he would not have recourse to Article 32 but the wider
remedy under Article 226 would still be available to him. The SC has also held
in other judgments that “a private body
discharging a public duty or a positive obligation of public nature
” would
be amenable to the High Court’s writ jurisdiction under Article 226 [See for
example, Anandi Mukta Trust
v. V.R. Rudani
]. A contentious question arises at this point – how
to determine whether a particular activity is
or is akin to a public duty/State
function/public function? While a one-size-fits-all definition is impossible,
the SC has over the years relied on a workable formula thatA function or activity is considered
‘public’ when
it seeks to achieve
some collective benefit for the public or a section of the public and is accepted by
the public or
that section of the public as having authority to do so.
” [See generally,
Jatya Pal
Singh v. Union of India
Coming back to the BCCI, Zee Telefilms had enumerated a few
instances where the BCCI’s activities would be akin to public duties – these
were “the selection of an Indian cricket
team, controlling the activities of the players and others involved in the game
of cricket
.” Prior to Zee Telefilms,
a Division Bench of the SC had ruled in BCCI v.
that the BCCI “exercises
enormous public functions
”. Netaji referred
to the “enormity of powers” exercised
by the BCCI through its (i) monopoly status, (ii) tax exemptions, (iii) use of
stadia at nominal annual rent, (iv) revenue earned from tickets and
broadcasting rights, (v) membership comprising of state cricket associations,(v)
representing India at the International Cricket Council, (vi) selection of
players, umpires and officials to represent India at international fora, (vii)
total control over the players, umpires and other officers, and (viii) ability
to ensure that no competitive cricket can be hosted either within or outside India
without its recognition. While Netaji concluded
that the BCCI’s “control over the sport
of competitive cricket is deeply pervasive and complete
” and that its
functions “fulfil the hopes and aspirations
of millions
”, it left two questions open:
(i)        Which of the above factors, or whether a
combination of all the above factors, amounted to public functions?; and
(ii)       Whether a private franchise-based cricket
tournament, which has the trappings of some of the above factors, is akin to a
public function?
Of course, both Netaji and Zee Telefilms were decided much before the IPL was even conceived
and therefore the SC could not have expressed any opinion on question (ii).
However the BHC had an opportunity to address this issue in CAB v. BCCI.
Spotting the Doosra: IPL as a
public function
The BCCI’s objections on
maintainability in CAB v. BCCI were
rejected by relying on Lalit
Kumar Modi v. BCCI
, a 2010 BHC judgment. In Lalit Kumar Modi, a writ petition had been filed under Article 226
challenging the appointment of certain persons to a disciplinary committee, which
had been constituted by the BCCI for investigating Lalit Modi’s conduct as
Commissioner of the IPL, on grounds of bias. The BHC held that “the constitution of the Disciplinary
Committee… could be subject-matter of Judicial scrutiny in Writ Jurisdiction
a finding which CAB v. BCCI endorsed
and followed. Unfortunately, neither Lalit
Kumar Modi
nor CAB v. BCCI
elaborate on how the IPL or BCCI-appointed enquiries related to the IPL are
public functions which “seek to achieve
some collective benefit for the public or
a section of the public
thereby justifying recourse to Article 226. Questions arise as to nature of the
precedents relied upon or to arrive at this conclusion.
CAB v. BCCI makes a feeble attempt at justifying the exercise of
writ jurisdiction by quoting the following paragraph from the SC’s judgment in Guruvayoor
Devaswom v. C.K. Rajan
“… in an appropriate case, although the
petitioner might have moved a court in his private interest and for redressal
of personal grievances, the Court in furtherance of the public interest may
treat it necessary to enquire into the state of affairs of the subject of
litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr
Mahesh Madhav Gosav)
Interestingly, Guruvayoor Devaswom arose out of a PIL
filed in the Kerala High Court in 1993 regarding maladministration in the Sree
Krishna Temple, Guruvayur – the Kerala Legislature had enacted a statute for
governing the administration of the temple in 1978. Shivajirao
Nilangekar Patil v. Dr Mahesh Madhav Gosav
, the SC judgment quoted in Guruvayoor Devaswom v. C.K. Rajan,
involved a PIL filed in the BHC regarding the conduct of examiners of Bombay
University, a body which is obviously State under Article 12. Neither case is
authority on how to determine whether non-statutory activities of private
bodies such as the BCCI are ‘public functions’ warranting exercise of writ
jurisdiction under Article 226. Closer to the point would have probably been Praga Tools
Corporation v. Shri C. A. Imanual
or Binny Limited
v. V. Sadasivan
Further, there is a glaring concern
in the passage from Lalit Kumar Modi, which is quoted by CAB v. BCCI. The BHC authoritatively claims in Lalit Kumar Modi that the SC held in Rameshwar
Prasad v. Union of India
“… though the Board is not created by a
statute, and cannot be considered to be an authority within the meaning of
Article 12 of the Constitution, but nevertheless, when a body has a public duty
to perform, the Court may entertain Writ Petition under Article 226 of the
However, a cursory reading of Rameshwar Prasad reveals that there is
no mention of either the BCCI or its public duties – the case dealt with
judicial review of proclamations of emergency!
Duckworth-Lewis method: Make of it what you will
The SC’s rationale for providing
interim relief through its order
dated 28 March, 2014 in the IPL case is “to
ensure that all those who love cricket continue to watch cricket in IPL 2014.

Nevertheless, all orders or directions which the SC issues in the IPL case,
whether specific to the BCCI’s “public functions” or even its private affairs,
will not face any jurisdictional issues – such ordersor directions can always
be traced back to the SC’s power to do “complete justice” under Article 142.
However, as far as a High Court’s writ jurisdiction over the BCCI or the IPL is
concerned, the SC has the opportunity to set the record straight.
The Competition Commission of
India has already provided some clarity with regard to the unique position
occupied by the BCCI and inter alia
the IPL in the Indian legal framework, albeit in the context of competition
law, through its order
dated 8 February. However, till such time as the SC clarifies the extent to
which the BCCI is subject to Article 226, we have to wonder whether the “public
function” element of the IPL comes from a private franchise-based Twenty 20
cricket tournament’s ability to “fulfil the hopes and aspirations of millions”
or the entertainment generated by a heady mix of money, music, celebrities and
cheerleaders for “the collective benefit of the public”.

– Sujoy Chatterjee

[1] The phrases ‘public duty’, ‘State function’
and ‘public function’ are used interchangeably – for the purposes of this post,
it is assumed that there is no distinction between them. This assumption can
perhaps be elaborated upon or even challenged in a subsequent post.

About the author

Umakanth Varottil

Umakanth Varottil is an Associate Professor at the Faculty of Law, National University of Singapore. He specializes in corporate law and governance, mergers and acquisitions and cross-border investments. Prior to his foray into academia, Umakanth was a partner at a pre-eminent law firm in India.

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