Telecome Watchdog v. Union of India & Another

order as to costs.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW)

JUDGE JULY 13, 2012 skb

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C)8529/2011 & CM APPL. 19296 OF 2011 Judgment reserved on:15.5.2012 Judgment pronounced on: 13.7.2012 TELECOM WATCHDOG ..... PETITIONER Through: Mr. Prashant Bhushan & Mr.Pranav Sachdeva, Advocates. Versus UNION OF INDIA &ANOTHER ..... RESPONDENTS Through: Mr. Sumeet Pushkarna, Advocate for UOI. Mr. Meet Malhotra, Sr. Advocate with Mr. Saket Singh & Mr. Kumar Rajan Mishra, Advocates for TRAI. CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K.SIKRI, ACTING CHIEF JUSTICE: 1. Section 36 of the Telecom Regulatory Authority Act, 1997 (hereinafter referred to as "the Act") gives power to the Telecom Regulatory Authority of India (TRAI) to frame Regulations of the nature specified in the said Section. Exercising powers under that provision read with sub-clause (v) of clause (b) of sub-section (1) of section 11 and clause (c) of sub section (1) of Section 11 of the Act, the TRAI has framed Regulations, known as "The Telecom Commercial Communications Customer Preference (Sixth Amendment) Regulations, 2011 (hereinafter referred to as the Regulations). Some amendments are made to the earlier Regulations framed in 2010. We are here concerned with amendment at Sl. No. 8 (c) of the said Regulations which reads as under:- "8. In sub-regulation (2) of regulation 20 of the principal regulations,… (a) xxxx (b) xxxx (c) after clause(k), the following clauses shall be inserted, namely:- "(ka) no Access Provider shall permit sending of more than one hundred SMS per day per SIM: Provided that in case of post paid telephone number the Access Provider shall not permit more than three thousand SMS per SIM per month. Provided further that in case of post paid telephone number the Access Provider shall not permit sending of more than one hundred SMS per day per SIM from a date to be notified by the Authority; (kb) the Authority may by direction, from time to time, specify the category of SMS which shall be excluded from the limit of one hundred SMS per day per SIM: Provided that before permitting a customer to send specified category of SMS beyond the limit of one hundred SMS per day per SIM, the Access Provider shall obtain an undertaking from such customer that he shall not use such telephone number for sending any commercial communications: Provided further that the Access Provider shall enter, in the list maintained in the National Telemarketer Register, the telephone number, name and address of the customer, category of exempted SMS and date of permitting sending of SMS beyond limit of one hundred SMS per day per SIM and the said list shall be updated every Monday." 2. As is clear from the reading of the aforesaid amended provision, no Access Provider is permitted to send more than 100 SMS per day, per SIM, which is increased to 200 SMS per day vide Amendment @ 8th Amendment. 3. The petitioner by way of present petition, filed in Public Interest, has challenged the validity of the aforesaid provision insofar as it puts limit on the number of SMSs can be sent by a person in a day. According to the petitioner, this restriction is arbitrary, wholly unnecessary, violates fundamental freedom of citizens and is against democratic norms. The petitioner accepts that the reason for making this provision was that nuisance of large number of telecom marketing calls which were unsolicited i.e. receiving party does not want to receive such calls or messages. Unrestricted Unsolicited Commercial Communications (UCC) by telemarketers were interfering with the personal lives of the individuals as often they would call them up for selling their products. The petitioner, however, states that under the garb of controlling UCC, the TRAI has barred common users from sending more than 200 Short Message Service (SMS) per day thereby impinging upon the freedom of speech and expression of the citizens. On this ground prayer is made to quash the provision imposing this condition as unconstituti