The board though discharges some element of public duty involving selection of the India team; it is not sufficient to include it within the meaning of the 'state.' If the cricket board, which controls the popular game of cricket, was to be held an instrumentality of the Government, then all other sports bodies which control the game should also be declared as 'state,' the five judge Bench held by 3:2 majority.
The petitioners had contended that board was discharging public duty by selecting the Indian team and the umpires, which were all in the nature of state functions.
Rejecting this argument, the court said, assuming that these functions were in the nature of public duty this would not be sufficient grounds to hold the board to be an instrumentality of the state.
"In the absence of any such authorisation, if a private board discharges these functions, it would be not proper for the court to hold the same body as an instrumentality of the state.The Government had failed to prove that it has given de facto recognition to the cricket board for discharging these function," the Bench said.
Assailing the Government of taking a stand the board has been de facto recognised to carry out public functions, the court said, "The control exercised by the Indian Government in the Board was not administrative in nature but only regulatory."
The court said an aggrieved party could seek redressal of its grievance by taking recourse to the ordinary course of law or by approaching the High Court under Article 226 of the Constitution, which is much wider.
The two judges who differed with the minority judgment held that BCCI was a state within the meaning of Article 12 of the Constitution and hence the writ petition is maintainable.