The whole point of economic reforms is to pull the government out of business and wherever else it does not need to be. The ongoing legal battle over cricket telecast rights has however raised fears of doing just the opposite, of bringing “the state” into the functioning of BCCI. These fears are exaggerated, if not entirely misplaced.Undoubtedly, with Zee TV Network refusing to make a further bid, the Bombay high court will now have to take a call on whether BCCI, despite being a private society, can be held accountable on a writ petition filed by ESPN-Star Sports (ESS). This question has to be answered because of the legal strategy adopted by ESS to resolve its commercial dispute with BCCI. Rather than filing a suit, ESS has taken recourse to the writ petition. This despite the fact that the writ petition, by its very nature, cannot be limited to the terms of a tender. It elevates the dispute to the plane of fundamental rights guaranteed by the Constitution. Which is the reason why a writ petition is ordinarily meant to be filed only against bodies that can be considered to be part of “the state”. But if the Bombay high court overrules BCCI’s objection to the maintainability of the writ petition, it does not necessarily bring the board under the definition of “the state” and reduce its autonomy. For, a high court is empowered under Article 226 of the Constitution to issue writs to “any person or authority” who has little or nothing to do with the government.To be sure, once the Bombay high court decides to entertain the writ petition against BCCI, it will have implications that go way beyond who will have exclusive telecast rights over international cricket matches played in India over the next four years. The most important fallout will be that, despite all its autonomy, BCCI will be accountable for any major violation not to the government but to superior courts. The high court is far more powerful (and intrusive) when it is exercising its writ jurisdiction than when it is simply adjudicating a commercial litigation. It is time we had such a check on the biggest and richest sports association in the country. One does not have to look too far back for examples that show the need for introducing a measure of accountability in the functioning of BCCI. The manner in which the outgoing president of BCCI, Jagmohan Dalmiya, was anointed last Sunday as its patron-in-chief is a case in point.It is not for nothing that BCCI reacted with alacrity every time there was any attempt to make it amenable to writ jurisdiction. The first such attempt was made way back in 1989 when that redoubtable batsman, Mohinder Amarnath, filed a writ petition in the course of one of his many run-ins with cricket administrators. BCCI protested the very idea of being brought under writ jurisdiction. In the event, the Delhi high court declined to entertain Amarnath’s writ petition as it held that BCCI “does not qualify to be called an instrumentality of the State.” Since the relationship between the board and players was “regulated by a private contract”, the Delhi high court said disputes related to it could be resolved “only on evidence adduced by the parties” on the performance of the contract.When Amarnath appealed against that order before the Supreme Court, BCCI was in trouble as the judges there did not seem inclined to dismiss the petition on the question of maintainability. In an astute move to pre-empt any adverse order, BCCI revoked disciplinary action against Amarnath and other test players. As a result, Amarnath withdrew his petition and the Supreme Court complimented both sides. “The word cricket is a synonym for gentlemanliness which means discipline, fair play, modesty and high standard of morality. We are happy to record that all parties concerned in the episode have played the game of cricket in its true spirit.”Whether it did so in the true spirit of the game or not, BCCI succeeded in preventing the Supreme Court in ’89 from expressly bringing it under the purview of writ jurisdiction. But the Amarnath case was all the same cited as a precedent against BCCI when the Delhi high court revisited this constitutional question 12 years later. The context was a five-year ban imposed on Ajay Jadeja by BCCI in the wake of the match-fixing controversy. Dismissing BCCI’s objection to the maintainability of Jadeja’s writ petition, the Delhi high court recalled that in the Amarnath case, the Supreme Court had “entertained a writ petition against BCCI.” In the first and so far the only reasoned order on the subject, Justice Mukul Mudgal clarified that the exercise of writ jurisdiction over BCCI did not mean that it could be used to “resolve all mundane and internecine controversies” arising in that body. Though Jadeja was subsequently allowed by an arbitrator to return to the game, Justice Mudgal’s ruling in the case is a precedent worthy of consideration in the present controversy.
