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.