The Telegraph
Since 1st March, 1999
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Countdown to TV decider
- HC frowns on BCCI contention on eve of SC hearing

Oct. 4: One uncertainty has lifted, only to deliver a damper: Sachin Tendulkar has been ruled out for the first Test beginning Wednesday.

The other cloud ' which channel will telecast the match ' is expected to clear tomorrow in the Supreme Court when it resumes hearing on a petition of Zee Telefilms challenging the cricket board's denial of telecast rights.

Doordarshan, which has struck a deal with BCCI, is the frontrunner but the final say lies with the apex court. The counsel for Prasar Bharati, Doordarshan's parent, is also expected to be in court.

An unexpected twist was added on the eve of the crucial hearing with Delhi High Court saying that the 'public functions' of the cricket board are open to 'judicial review' under the Constitution.

'In so far as the public functions are concerned, a writ petition would be maintainable against the BCCI. At the same time, as regards private matters having no public law element, a writ would not lie,' the court said, admitting a PIL filed in 2000 by 'cricket lovers' Rahul Mehra and Shantanu Sharma. They sought an independent probe into the functioning of BCCI and its accounts involving public money.

Though unconnected to the Zee writ petition in the apex court, the high court's assertion offers the channel hope. The high court stand goes against the contention of BCCI ' which has argued that it is not a 'state' and hence could not be challenged on constitutional grounds ' that a writ is not sufficient to contest the cancellation of the telecast bidding process.

BCCI had made this the crux of its case to question the maintainability of the writ ' as opposed to a suit which would have entailed a huge court fee ' filed by Zee in the Supreme Court.

At the last hearing, the apex court had indicated that it was not impressed with the arguments put forth by the government, which insisted that the board was under its control. The BCCI counsel had then said that the cricket team plays for the board, not India, to illustrate its independence.

The high court's decision to draw a distinction between BCCI's 'private' and 'public' functions raises a question: under which category will a contract such as the one for telecast fall'

The Zee petition is about a contract between two organisations ' apparently a private affair. But in the contract's execution, the public function of telecast of a cricket series comes into play.

As in the Zee case, in the high court, too, the BCCI argued that the government does not exercise any control over it and no public duty is imposed on it by statute. But the high court said the board owes its 'giant stature' partly to the 'tacit approval of the government'. 'Its (BCCI's) objects are the functions and duties it has arrogated to itself. Many of these are in the nature of public duties and functions.'

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