Since Zee TV Network today refused to make a new bid for cricket telecast rights, the Bombay HC will have to deal with BCCI’s objection to the very right of ESPN-Star Sports (ESS) to file a writ petition.Though BCCI’s affidavit filed today has not been made public, it is most likely to be in line with the stand already taken last week at the first hearing of the case when its senior counsel K.K. Venugopal said the writ petition was not maintainable.While the Australian cricket tour of India starts in three weeks, the HC proceedings—due to resume on Thursday—will first have to deal with this constitutional question before examining the grounds on which ESS wants the award given to Zee to be set aside. For all their differences, ESS and Zee have agreed on the basic issue that a writ petition can be filed against BCCI because it is not merely a private society but an authority discharging a public function.But if the HC accepts BCCI’s contention that it is not an ‘‘instrumentality of state’’ and therefore cannot be subjected to writ jurisdiction, then the petition filed by ESS will be dismissed without going into its merits and the telecast rights will remain with Zee.Though Zee would also like the writ petition to be dismissed at the preliminary stage, its reasoning is different. Zee would like BCCI to be subjected to the HC’s writ jurisdiction because the Board will then be bound by the CVC rules on tenders.Citing a circular issued by the CVC in 2001, Zee’s affidavit filed today says BCCI should never have invited ESS for post-tender negotiations. This is because, in a bid to curb corruption and arbitrariness, the CVC stipulates that post-tender negotiations can be held only with the highest bidder. Since Zee was the highest bidder, it alone should have been invited for further negotiations.The technicality on which Zee is challenging the maintainability of the writ petition filed by ESS is its foreign antecedents. As admitted in its petition, ESPN-Star Sports is ‘‘a general partnership under the laws of the United States of America’’ and it ‘‘does not have any office/business operations in India’’. Zee is pleading for the dismissal of the petition on the ground that ESS, being a foreign entity, cannot lay claim to the freedom to carry on any business in India as it is a fundamental right under Article 19 available only to citizens.
