| But the arguments before the Constitution bench turned into a tedious debate on whether the BCCI is "state" or not under the statute. It was a preliminary point and the court is yet to give its judgement. |
| Meanwhile, another bench delivered a judgement last week, once again going into the perennial question "" what is "state" under Article 12 of the Constitution (Virendra Kumar vs UP Rajya Karmachari Kalyan Nigam)? |
| The status of an organisation makes a difference to a dispute because if it is a state organisation, it has to implement the fundamental rights provisions in the Constitution. |
| An aggrieved individual, in such cases, can move a writ petition in a high court or the Supreme Court. If it is a private organisation, its obligations are not so wide. |
| In this case, the state government employees' welfare corporation dismissed an employee. He moved a writ petition in the Allahabad High Court. The corporation put forward a preliminary objection asserting that it was not a state organ and, therefore, the petition should be dismissed at the threshold itself. |
| The high court allowed its petition, relying on Supreme Court precedents. When the employee appealed to the Supreme Court, it overruled the high court, citing the same precedents. This only points to the uncertainty prevailing in this field. |
| When one considers the public sector undertakings, universities or the railways, there is little doubt that they function as a part of the government. |
| However, when it comes to the Central Research Institute for Yoga, the Indian Leprosy Association or the Cochin Devaswom Board, ordinary people would have doubts about their status. But the Supreme Court has held that they are also state. |
| The last Constitution bench judgement on this point was in Pradeep Kumar vs Indian Institute of Chemical Biology (2002). The seven-judge bench in that case overruled the decision of a five-judge bench in Sabhajit Tewary vs Union of India (1975). |
| By explaining and relying on the leading decision of the Supreme Court in Ajay Hasia vs Khalid Mujid (1981), by a majority of five against two, the court laid down a multiple test for determining whether a particular corporation or body could be held to be included within the definition of "state" under Article 12 of the Constitution. |
| Ultimately, it said that the tests formulated in the Ajay Hasia case were not a rigid set of principles. |
| "The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the government," the judgement said. "Such control must be particular to the body in question and must be pervasive." |
| Though the tests laid down in various judgements of the Supreme Court appear to be clear, the question arises again and again in various courts. The application of the principles, too, may result in varying outcomes. |
| In last week's judgement, the Supreme Court analysed the object for which the corporation was set up as well as the administrative, financial and function control of the government on the corporation, to arrive at the conclusion that it was part of "state". Therefore, the courts must verify these factors to get the right answer. |
| If the exercise was so simple, the cricket case would not have been stuck at the toss stage for so long. One is reminded of the remark of an American statesman about the situation there: "The Supreme Court is an oracle that gives an answer requiring several decades of further elucidation." |
| The question of "state" came to the fore prominently in the 1970s, and even now the Constitution benches are searching for specific tests applicable to all situations. |
| Meanwhile, the significance of the question itself appears to be fading as the state is getting less involved in commercial activities. But when everything seemed quiet, the BCCI case has revived the issue once again. |
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