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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 Board’s 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, India’s 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 Court’s 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.
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