'Public face of BCCI can be questioned'

As the cricket board fights a battle with the government in the Supreme Court, the Delhi High Court today held that the BCCI was open to judicial review under the Constitution, in the discharge of its public duties and a writ can lie against it while it will not be so in the case of its private functions.

"In so far as the public functions are concerned, a writ petition would be maintainable against the BCCI. At the same time, as regards private matters having no public law element, a writ would not lie," a Bench comprising Chief Justice BC Patel and Justice BD Ahmed said admitting a public interest litigation (PIL) filed against the board in 2000.

"BCCI cannot be said to be beyond the sweep of Article 226 in all eventualities for all times to come. That is the certificate that BCCI wants from this court. We are afraid, we cannot grant that. Consequently, this petition cannot be thrown out on the maintainability issue," the Bench said.

The PIL filed by two cricket lovers "" Advocate Rahul Mehra and Shantanu Sharma "" had alleged that the BCCI was functioning as private empires of some businessmen and traders, who have come to control it and abuse it for their own interests and profits.

They had sought an independent probe into the functioning of the BCCI and its accounts involving huge public money.

BCCI had contended that the government did not exercise any control over it and as a non-statutory body, no public duty was imposed upon it by statute.

It was a society, nothing but a "private club" and as such, issuance of writ against it would be completely beyond the scope of Article 226.

The court allayed the fear that making BCCI amenable to writ jurisdiction under Article 226 will undermine its independence and it will fall prey to governmental intervention and ultimately, spell its doom.

Without making any value judgement on the quality of governmental intervention, the Bench said, "...amenability to judicial review is in no way connected with governmental interference in the affairs of the BCCI, which is a self-regulated body, and will continue to be one...the only difference being, that in discharge of public duties and public functions (as distinct from private duties and functions) would be open to judicial review under Article 226 of the Constitution," the court said.

"This does not, ipso facto, translate into governmental intervention in the internal affairs of BCCI, which would remain a private body," the Bench said and posted the PIL for hearing on November 23.

If a public duty or public function was involved, anybody, public or a private, with regard to that duty or function and limited to that, would be subject to judicial scrutiny under the extrordinary writ jurisdiction.

"The BCCI, which is the sole repository of everything cricket in India, has attained this giant stature through its organisation skill, the craze for the game in India and last, but not the least, by the tacit approval of the government," the Bench observed.

"Its (BCCI) objects are the functions and duties it has arrogated to itself. Many of these are in the nature of public duties and functions. Others may be in the field of private law as such as private contracts, internal rules not affecting the public at large, etc," it said.