Thursday, April 3, 2014

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 v. BCCI, 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 to 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 vires 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] debate

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. Netaji 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 Constitution.”

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.

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