M J Antony: No unanimity on what the 'state' is

OUT OF COURT

There are certain issues on which the Supreme Court judges apparently cannot deliver a unanimous judgement. The definition of state "or other authorities" within the meaning of Article 12 of the Constitution is one of them.

Last week, the Constitution bench was again divided 3:2 on this issue in Zee Telefilms Ltd vs Union of India. The majority and minority judges, between them, cited nearly 100 earlier decisions of the courts in India, the US and the Commonwealth countries to buttress their respective viewpoints.

Ultimately, the majority ruled that the Board of Control for Cricket in India (BCCI) is not an arm of the state and Zee's writ petition was not maintainable.

The interpretation of the words in Article 12 is important because the enforcement of the fundamental rights of the citizens depends upon it.

Every citizen must be in a position to claim those rights. These rights must also be binding upon every authority created by law. The Constitution cannot name all the authorities each time the fundamental rights are mentioned.

Therefore, it used a composite phrase for economy of words. The judges thus have the task of interpreting the phrase in the factual context when a dispute arises.

This judicial responsibility has not been easy, going by the number of judgements delivered by the Supreme Court during the past decades. Soon after the Constitution came into force, questions arose about the status of universities, selection committees of government colleges and other bodies that have the colour of government authority.

In the socialistic era, the government also went on creating companies, corporations and other institutions that performed public functions in commercial and social fields.

If all them were exempted from the purview of Article 12, the fundamental rights would be severely diluted. The Supreme Court gave a liberal interpretation to the phrases in Article 12 to prevent the government from bypassing its constitutional obligations.

This has become a continuous process.

Several Constitution benches have tried to lay down guidelines to pinpoint state authorities.

Some of the leading cases are Sukhdev Singh vs Bhagat Ram (1975), Ramana Dayaram Shetty vs International Airports Authority of India (1979) and more recently, Pradeep Kumar Biswas vs Indian Institute of Chemical Biology (2002).

Despite the guidelines set in them, controversies have dogged this field. When it came to the status of the BCCI, the dissenting judges wrote 126 pages against the majority view of 31 pages.

While the majority judges preferred to follow the precedents, the minority judges laid down seven new tests which, according to them, "have not been considered independently in any other decision of the Supreme Court".

Though these guidelines are of academic value in view of the final decision of the court, they mark a new judicial thinking on the subject.

The new tests introduced are: whether the body acts as a public authority and has a public duty to perform; whether it is bound to protect human rights; whether it regulates a profession or vocation; whether it regulates the freedom of expression including the right to view games; whether it exercises a virtual monopoly; whether the state outsources its legislative power in its favour; and whether it has a positive obligation of a public nature.

Viewed from this perspective, the BCCI has the trappings of the state, according to this set of judges.

In recent times, the game of cricket has contributed to the expansion of the freedoms guaranteed by the Constitution. In Secy, Ministry of I&B vs Cricket Assn (1995), the Supreme Court asserted the right of the telecasters to educate, inform and entertain the viewers as well the right of the latter to be educated, informed and entertained.

The present judgement contains a discussion under the sub-heading: "What cricket means to India". It concludes: "To some lovers of the game, it is a passion, to a lot more it is an obsession, nay a craze.

For a large number of viewers, it is not enthusiasm alone but involvement." Cricket, apart from being a pursuit of pleasure, has helped expand the meaning of fundamental rights under the Constitution.