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Tag: HK Sema

  • BCCI not a ‘State’: Supreme Court

    BCCI not a ‘State’: Supreme Court

    NEW DELHI: In what can be termed disappointing news for Zee Telefilms, the Supreme Court today ruled that the Indian cricket board was not a ‘State as defined under Article 12 of the Indian Constitution and, hence, cannot be sued for alleged violation of fundamental rights.
     
    However, the apex court also suggested that some lower court could take up such cases under Article 226. The three-two split SC ruling is important, as the Indian cricket boards case would have major impact on the autonomy of various sports bodies in the country and their subsequent functioning.

    Dismissing the case, the court observed, “The petitioner has failed to establish that the Board of Control for Cricket in India (BCCI) is a state body.”

    Zee’s shares fell as much as 4 per cent to Rs 148 as the news fanned out to reach the stock markets. At the end of the day, however, the stock recovered to close on the Bombay Stock Exchange at Rs 154.10 (down 0.8 per cent from yesterday’s close) as the company maintained that it will continue its legal battle against the BCCI. Zee’s shares have fallen nearly 11 per cent this year.

    A five-judge Constitution bench, comprising Justices N Santosh Hegde, SN Variava, BP Singh, HK Sema and SB Sinha gave the landmark ruling, while dismissing a writ petition filed by Zee Telefilms Ltd seeking relief against the Board of Control or Cricket in India (BCCI) for alleged arbitrary cancellation of its bid for telecast rights of Indian cricket till 2007.

    The ruling was given by 3:2 majority. While Justices Hegde, Singh and Sema held that the BCCI was not a ‘State’, Justices Variava and Sinha were of the opinion that the cricket board was a ‘State’ within the meaning of Article 12.

    Zee Telefilms contention had been that the BCCI was a ‘State’ as it was selecting the Indian team and was given de facto recognition by the Indian government to carry out its functions. The petition had requested the apex court to scrutinise the Boards action of canceling the bid for telecast under writ authority.

    According to a Press Trust of India report, Justice Hegde, writing the majority judgement, observed that the government of India had not passed any law authorising the cricket board to select the Indian team and the control exercised by it over the regulating body for cricket, at best, could be termed as regulatory, which was not enough to declare BCCI as a ‘State’.

    Zee remains optimistic

    Meanwhile, Zee Telefilms, Indias largest media and entertainment conglomerate, today “hailed” the decision of the Supreme Court stating that BCCI was performing a public duty under Article 226.

    Ashish Kaul, spokesperson for the Essel group, the parent entity of Zee Telefilms, said Zee would be approaching a high court very soon, preferably in Delhi, to pursue the matter.

    Zee Telefilms had originally won the cricket rights by bidding the highest amount of $ 260 million on 5 September, 2004 amongst other competitors that included ESPN Star Sports ($ 230 million), Indian pubcaster Prasar Bharati ($ 150 million), Sony Entertainment TV India ($ 140 million) and Dubai-based Ten Sports ($ 115 million).

    Subsequently, as a drama unfolded revolving around the bidding process and various aspects of it, including technical criteria, Zee committed another Rs 940 million for the development of domestic cricket. ESS too got into the act and upped the ante with a mind-boggling bid figure of $ 308 million, which Zee subsequently matched to be awarded the rights.

    Then ESS, apart from legally challenging the award of the telecast rights by BCCI to Zee, later approached the Supreme Court seeking legal redressal against cancellation of the bidding process by the cricket board.

    As the Supreme Court dwelt on a clutch of cricket-related cases, including one involving Prasar Bharati and Ten Sports, Zee was hoping to get a stronger decision in its favour. In a rare interview given in recent times, Zee Tele CMD Subhash Chandra had told indiantelevision.com that the company would pursue the matter of cricket with zeal and was
    confident of winning the case ultimately.

    Zee plans to launch a dedicated sports channel in the second quarter of 2005, and India cricket rights would represent a lucrative property to build on.

    What does Article 226 mean?

    The high courts have a parallel power under Article 226 to enforce the fundamental rights. Article 226 differs from Article 12 and/or 32 in the sense whereas Article 32 can be invoked only for the enforcement of Fundamental Rights, Article 226 can be invoked not only for the enforcement of Fundamental Rights but for any “other purpose” as well.

    This means that the Supreme Courts power under Article 12 and Article 32 is restricted as compared with the power of a High Court under Article 226, for, if an administrative action does not affect a Fundamental Right, then it can be challenged only in the High Court under Article 226, and not in the Supreme Court under Article 32.

    Another corollary to this difference is that a PIL (Public Interest Litigation) can be filed in Supreme Court under Article 32 only if a question concerning the enforcement of a fundamental right is involved. Under Article 226, a writ petition can be filed in a high court whether or not a Fundamental Right is involved.

    The provision of legal aid is fundamental to promoting access to courts. The Supreme Court of India has taken imaginative measures to promote access to justice when people would otherwise be denied their fundamental rights. It has done this by the twin strategy of loosening the traditional rules of locus standi, and relaxing procedural rules in such cases.

    Several sections of the constitution such as Articles 13 (laws inconsistent with or in derogation of the Fundamental Rights (are void)); Article 14 (Equality before law); Article 20 (Protection in respect of conviction for offenses); Article 21 (Protection of life and personal liberty); Article 22 (Protection against arrest and detention in certain cases); Article 38
    (State to secure a social order for the promotion of welfare of the people); and Article 39 (certain principles of policy to be followed by the State) have been interpreted in conjunction with Articles 32 and 226 to extend right of access to courts and judicial redress in various matters.

  • BCCI argues Zee writ not maintainable

    BCCI argues Zee writ not maintainable

    NEW DELHI: Arguments relating to the Indian cricket rights issue opened today in the Supreme Court. The Indian cricket board and ESPN-Star Sports were the first to present their point of view and both questioned the maintainability of the writ petition filed by Zee Telefilms challenging cancellation of exclusive telecast rights purported to have been granted to it earlier.

    Senior counsel KK Venugopal, appearing for the Board of Control for Cricket in India (BCCI), raised objection against the maintainability of the Zee petition at the very outset of the hearing today before a five-judge constitutional Bench.

    Venugopal argued that since the BCCI was neither a state nor an instrumentality of the state within the meaning of Article 12 of the Constitution, the Zee petition was not maintainable and it should be dismissed.

    The five-judge bench comprises Justices N Santosh Hegde, SN Variava, BP Singh, HK Sema and SB Sinha.

    Reiterating that Zee’s petition is not maintainable, Venugopal argued that the BCCI cannot be termed to be under any government control as it is an autonomous body and does not receive any funds from the Central or the state governments and does not have any government representative on its board.

    “So far as cricket is concerned, it’s not part of the government. It’s a sport, an entertainment,” Venugopal argued, trying to suggest that the government does not have any direct or indirect control over the BCCI, which is free to conduct the affairs of sports as it chooses.

    What Venugopal did admit in the court today, where the hearing began around 10:30 am to a near-packed house and continued non-stop till the lunch break, was that like any other apex body of sports in the country, the BCCI is the apex sports body for cricket in India, “recognised by the government (of India).”

    According to Venugopal, BCCI’s funding is not regulated by the government and the only way that government diktat can seem to be running over the cricket board relates to the Societies Registration Act, under which BCCI is registered as a non-profit organisation.

    To a question from one of the judges as to who exercises the rights on telecast rights, BCCI counsel submitted that the cricket board has the “right to choose who should get the telecast rights.”

    It was also pointed out that BCCI is one of the member bodies of the International Cricket Council (ICC). But at this point one of the judges did observe that BCCI is member of the ICC as the country’s cricket representative because the government of India recognises it and the cricket board is dependant for its status on the government.

    While concluding his lengthy arguments, which had references to the Council of Scientific and Industrial Research (CSIR), Venugopal said since the BCCI, amongst other things, conducts its own business, “no part of its functioning can be treated governmental.”

    The arguments for ESPN-Star Sports were presented by former advocate-general Soli Sorabjee and was on similar lines to the petition it filed in the Bombay High Court challenging the “initial” award of the cricket rights to Zee.

    ESPN-Star Sports has contended, amongst other things, the following in its counter-affidavit in the Supreme Court today:

    * There is no concluded contract between Zee Telefilms and the BCCI

    * Zee had failed to disclose the fact to Bombay High Court that a careful reading of the draft letter of intent (from the BCCI) highlighted that that the LoI was not a conclusive understanding between BCCI and Zee on the telecasting and broadcasting rights.

    * Though there’s an arbitration clause (in the cricket tender document), Zee has dragged the matter to the court.

    * The invitation to tender required the broadcasters to have at least two years of experience and that Zee gets disqualified under clause 2 of the tender document, read with clause 3.2 b.

    * Zee’s counsel had admitted in the Bombay High Court that Zee does not have the necessary experience required.

    * Valuation by PriceWaterhouse Cooper (PwC), the audit firm that vetted the various bids, was an essential criterion of the tender process. The failure to involve PwC for the purpose of a full and proper evaluation has resulted in the entire process being liable to be set aside.

    The apex court had yesterday issued notices to BCCI, ESPN-Star Sports, PwC and the government of India on a petition filed by Zee challenging the cancellation of the award of cricket match telecast rights to it.

    Zee’s counsel Harish Salve could not conclude his arguments today.

    In its petition, Zee has said the cricket board had entered in a malafide manner to cancel the award of telecast rights to it and alleged that the entire drama before the Bombay High Court was enacted to benefit one foreign sports channel.