Zee Tele Films Ltd. and Another v. Union of India and Others.

DATE OF JUDGMENT:   02/02/2005

COURT: Supreme Court of India

JUDGES: N. Santosh Hegde, S.N. Variava, B.P. Singh, H.K. Sema and S.B. Sinha

REFERENCE: Writ Petition (civil) 541 of 2004

PARTIES:

Petitioner:     Zee Telefilms Ltd. and Anr. , Respondent: Union of India and Ors.

SUBJECT: The Judgment brings out various judicial interpretations given to the term “other authorities” under Article 12 of the Indian Constitution which defines the term “State”. In this case, the question before the Hon’ble SC was whether the Board of Control for Cricket in India (BCCI) was State within the ambit of Article 12 of the Constitution.

FACTS: The Board of Control for Cricket in India (BCCI) is a Society registered under the Tamil Nadu Societies Registration Act which is said to be recognized by the Union of India, Ministry of Youth Affairs and Sports. On 07.08.2004 the Board floated a notice inviting tender for grant of exclusive television rights for a period of four years. Pursuant to the notice several entertaining groups including Zee Telefilms Ltd. and ESPN Star Sports gave their offers. The Board accepted the offer of Zee Telefilms after holding several negotiations. However, this was challenged by ESPN Star Sports before the Bombay High Court under Article 226 of the Indian Constitution. Later on 21.9.2004, the Board stated that it purported to have cancelled the entire tender process on the premise that no concluded contract was reached between the parties as no letter of intent had therefore been issued. Owing to the cancellation of the tender, ESPN Star Sports withdrew its petition from the Bombay HC. However, Zee Telefilms filed a writ of mandamus under Art.32 of the Indian Constitution to direct the Board to act as per the terms and conditions of the tender. They also stated that such a withdrawal of the tender notice by the Board was an arbitrary act and stands against the principles of Article 14 of the Constitution.

IMPORTANT PROVISIONS:

Constitution of India

• Article 12: Definition In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
• Article 19(1)(a): right to freedom of speech and expression.
• Article 19(1)(g): to practise any profession, or to carry on any occupation, trade or business.
• Article 32: Remedies for enforcement of rights conferred by part III : The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
• The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

ISSUES:

The main questions for consideration before the hon’ble SC were:

1. Whether the writ petition filed by the petitioners Zee Telefilms Ltd. is maintainable under Article 32 of the Constitution?
2. Whether BCCI is State within the meaning of the term “other authorities” under Article 12 of the Indian Constitution?
3. Whether BCCI performs public function?

JUDGEMENT:

The fundamental rights under Part III of the Indian Constitution are guaranteed by the State to its citizens hence it is only the State who must protect the same. Therefore, a writ petition which is filled to claim a remedy for the violation of fundamental right is enforceable only against the State and not against any private entity. In other words, the pre-requisite for invoking the enforcement of a fundamental right under Article 32 is that the violator of that right should be a State first.

Mr. KK. Venugopal the counsel for the board raised a preliminary issue in the case contending that, the Board was not State under Article 12 and hence the petition is not maintainable. He also raised the following objections:

• BCCI is not a statutory body but is only registered under the Societies Registration Act,1860 and hence the Board has the autonomy to handle its administrative affairs.
• Neither does BCCI take any financial assistance form the government nor is it subjected to any financial control by the Government or its accounts are subject to the scrutiny of the Government.
• It is an accepted fact that, BCCI enjoys monopoly status in the filed of Cricket but the same is not conferred on it by any statute or any order of the Government. It enjoys that monopoly status only by virtue of its first mover advantage and its continuance as the solitary player in the field of cricket control. Also, there is no law which prohibits the coming into existence of any other parallel organisation.
• No part of the share capital of the Board is held by the Government.
• The Board is not under a deep and pervasive State control.
• All functions of the Board are not public functions nor are they closely related to governmental functions.

• The Board is not created by transfer of a Government owned corporation. It is an autonomous body.

Placing reliance on Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors [2002 5 SCC 111] and Ajay Hasia & Ors v. Khalid Mujib Sehravardi & Ors [1981 1 SCC 722] the respondents contended that, a body will be considered as State under Article 12 only if the Government of India has deep and pervasive control over its administrative affairs, but the minimal amount of control that the Government has over the Board is just regulatory in nature and not pervasive.

Addressing the Contentions raised by the respondent the petitioner submitted that,

• As per the Memorandum, Articles of Association, rules and regulations of the Board the BCCI has extensive powers in selecting the “members to the Indian national Cricket team”.
• The Board is the sole authority for organising major cricketing events in India and has the disciplinary power over the players/umpires and other officials involved in the game and sports which being a subject under the control of the States under Entry 33 of List II of the Seventh Schedule of the Constitution of India, in substance the Board exercises governmental functions in the area of Cricket. And this monopoly status is conferred on it by the Government of India.
• The Board has the authority to determine whether a player would represent the country or not. Further, since playing cricket is a profession the Board controls the fundamental right of a citizen under Article 19 (1) (g) of the Constitution.
• Prior approval from the government of India is a mandate which the Board has to obtain before sending the players to represent India internationally and also to host international matches in India.
• The players wear uniform that carries the national flag and are treated as sports ambassadors of India.
• The petitioners also pointed out an occasion where the team selected by the Board was rejected permission to represent India for a match in Pakistan. Hence, the Government of India has pervasive control over the Board.

The petitioner placed reliance in the case of Secretary, Ministry of Information & Broadcasting, Government of India and Others etc. v. Cricket Association of Bengal and Others etc [(1995) 2 SCC 161] where the court held that, “a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self-expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained. The former is the right of the telecaster and the latter that of the viewers. The right to telecast sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that free- speech element is absent from his right”.

Being satisfied by the arguments advanced by the petitioner the Court concluded that BCCI is State within the meaning of “other authorities” under Article 12 as it performed public function and held that the writ petition is maintainable.

CONCLUSION: The judicial system has always proved that words of a legislation may be the same, but it will adapt itself towards the changing circumstances by way of judicial interpretation. Considering that India is a mixed economy with welfare motives, rights of the citizens is of utmost importance to the State. The judiciary has widened the ambit of the term State in the present judgment in such a way that any organisation which performs public function has to abide by the principles of justice and equity as enshrined in the Constitution.