IN THE HIGH COURT OF DELHI AT NEW DELHI CORAM:
HON'BLE THE ACTING CHIEF JUSTICE A.K.SIKRI HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 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. Head Note:- Telecom Regulatory Authority Act, 1997 - Section 36 - Telecom Commercial Communications Customer Preference (Sixth Amendment) Regulations, 2011 - Section 11(1)(b)(v) and 11(1)(1)(c) - No Access Provider shall permit sending of more than one hundred SMS per day per SIM - the provision infringes the freedom of speech of the citizens and the conditions imposed upon the freedom of speech is not reasonable which would be protected under Article 19 (2) of the Act. 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:-
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 unconstitutional. 4. In order to appreciate this submission of the petitioner, it would be necessary to trace out the history leading to the incorporation of this provision. 5. Prior to September 27, 2011 there was no such cap on the SMS which a person can send. However, TRAI found that unrestricted UCC calls and SMSs were interfering with the personal lives of the individuals as often telemarketers would call them up for selling their products. Telemarketing had emerged as one of the simplest and cost efficient tool for marketing of products. A large number of these „telemarketing‟ calls and SMSs were unsolicited i.e. the receiving party does not want to receive such calls or messages. Such messages disturb the recipients, intrude into their privacy, and impose a cost in terms of the time and effort. The respondent no.2 had been making several attempts since 2007 to control UCC. For the first time, on June 5, 2007, the respondent issued “the Telecom Unsolicited Commercial Communications Regulations, 2007”. However, these regulations were very weak and could not act as deterrent to such UCC calls and SMSs. The penalty for default was meager amount of `500, which was increased to maximum of `5000 for the 1st violation and `20,000 for the 2nd subsequent violations. 6. The respondent no.2 then had attempted to make the regulations more stringent for the defaulters. It invited suggestions on its consultation paper issued on May 11,2010 which was titled as “Consultation Paper on Review of Telecom Unsolicited Commercial Communications Regulations”. It proposed various suggestions to curb the menace of UCC. This included even proposal of putting cap on the number of calls as well as SMS. The relevant part of the consultation a paper is reproduced below:-
7. About 53 persons/ entities responded to this consultation process. Out of them only four had responded in favour of cap, while the others rejected the idea of putting the cap. Those who rejected the cap had stated that the telemarketers can buy more SIMs to restrict their communication within any specified limit, and as such it would not be advisable to take this step of cap. In response to the above question, the two government owned telecom operators –MTNL and BSNL- had also said that such cap will not help in controlling UCC menace. 8. After the above consultation process, the respondent came out with its Regulations called “The Telecom Commercial Communications Customer Preference Regulations, 2010, dated December 1,2010. This regulation did not specify any cap on SMS and calls. The Regulation took every possible step that could help in curbing UCC menace. It has imposed severe penalties on violations by telemarketers as shown in the following table:-
9. In this Regulation, the respondent no.2 has also made the process of making complaints simple. Within three days of having received the UCC calls/SMS, a user can lodge complaint with the operator. Apart from making complaints by calling toll-free number 1909, a user can also send SMS on 1909 to lodge his complaint by the following method:-
10. The respondent no.2 has also ensured that on receiving complaint, the operators take prompt action within 72 hours of having received the complaints. The regulation has also specified the detail process of handling complaints without leaving any chance for any ambiguity. The relevant part of the Regulation as reproduced below:-
11. According to the petitioner all though the aforesaid measures were adequate only to put effective control over the UCC. However, these Original Regulations which were to be implemented from January, 2011, their implementation was postponed several times through amendments. Eventually, they became effective from 27.9.2011. From this very day, the TRAI also implemented its 6th Amendment Regulation dated September 5,2011 incorporating the aforesaid provision of maximum 100 SMS per day and thereafter increasing this 200 per day vide 8th Amendment. According to the petitioner, if the purpose was to control UCC, that would not mean that those who want to make use of these SMS with bona fide purpose are also deprived from using this. SMS is an effective means of communication and putting a cap thereupon restricts the freedom of speech. 12. Mr. Prashant Bhushan, learned counsel appearing for the petitioner submits that there is no rationale behind such a provision nor there is any purpose going to be served. He further referred to the judgment of Supreme Court in Bennett Coleman & Co. and Ors. Vs. Union of India (UOI) and Ors. 1972 (2) SCC 788 where the Court explained the doctrine of freedom in the following manner:-
13. He also submitted that air waves restriction does not apply in the instant case as there is no limitation of air space and, therefore, it was unreasonable restriction on the freedom of speech. He referred to the judgment of Supreme Court cited as Secretary, Ministry of Information and Broadcasting, Govt. of India and others v. Cricket Association of Bengal and others 1995 (2) SCC 161. He even questioned the bona fides of this provision, arguing that the motive was to frustrate good causes. 14. Mr. Meet Malhotra, learned Senior Counsel appearing for the TRAI countered the aforesaid submissions by arguing that it was a laudable object which was sought to be achieved by such a provision. He argued that even the petitioner accepted the fact that this mechanism was introduced to control UCC which was causing much public nuisance. In the first instance, he submitted that the petitioner‟s argument predicated on Cricket Association of Bengal judgment (supra) itself is flawed and the provision was in the nature of reasonable restriction which could legitimately be imposed under Article 19 (2) of the Act. He argued that the petitioner has no inherent right to free speech using public property (i.e. airwaves) which can be controlled and regulated by a public authority (i.e. TRAI) for larger societal interests and also interests of other users (i.e. listener or receivers of SMS) of the same medium of airwaves, as per the ratio of the aforesaid judgment of Cricket Association of Bengal judgment (supra) contained in paras 201 (1) (b):-
On the aforesaid premise, it was submitted that the aforesaid ratio has been arrived at by an elaborate discussion of the nature of broadcasting medium (i.e. spectrum) used, inter alia for sending/receiving SMS. So it is not just the freedom of speech of the sender, it is equally or more so the same right of the receiver of SMS. Over the years, evolving jurisprudence in this field has overwhelmingly veered around to the rights of the receivers/listeners of airwaves rather than merely the sender/broadcaster is of primary importance. 15. Mr. Malhotra additionally argued that even if it was to presume that the petitioner had a constitutionally guaranteed right to send unlimited SMSs as expression of free speech, the same is undisputedly, restrictable under Article 19(2) by law/or regulations having force of law. His submission was that admittedly, misuse of the frequencies created widespread nuisance and affected public order. The TRAI, in discharge of its statutory functions to protect the interests of consumers [Section 11 (1) (b) (v) ] framed Regulations to address the public order issue. Even on that touchstone, TRAI‟s action is informed by and within bounds of law. Whether Regulations are delegated legislation etc. and so therefore law etc. is really not a question raised or addressed by the petitioner. Indisputably the power exercised under Section 11(1)(b)(v) has force of law. If it is exercised in interest of public order, then even if the petitioner has Article 19(1)(a) right to send unlimited SMS‟s the same can be and has been properly and legally curbed. He further argued that it is an unexceptional proposition that when rights of free speech are intertwined with right to carry on trade or business (i.e. a Article 19(1) (g) issue) the right to free speech undergoes a sea change and can be regulated on grounds other than mentioned in Article 19(2). In Suresh Vs. State of Tamil Nadu, AIR 1997 SC 1889, the Apex Court held as under:-
16. Ld. Senior Counsel further argued that even otherwise, no one has a right to assert an Article 19(1)(a) right when it violates another‟s persons right under Article 21 as held in Noise Pollution, AIR 2005 SC 3136:-
17. Based on that his plea was that the right of a party receiving SMS was equally important and had to be kept in mind which was done by the TRAI in the instant case and thus interest of both the parties was balanced and it was most equitable provision which was framed by the TRAI having adequate authority, after following the details consultation process. 18. We have considered the respective submissions of counsel on either side. 19. At the outset, it would be important to emphasis the objective behind the impugned Regulations. Even as per the respondents, the amendment in The Telecom Commercial Communications Customer Preference Regulations, 2011 (6th & 8th Amendment) with the objective to control the UCC messages. We have already referred to the Consultation Paper on review of telecom unsolicited Commercial Communication Regulation, dated 11.5.2010 circulated by TRAI. Previous to this, the Consultation Paper itself emphasizes that the Telecom Communication revolution has changed the social behaviour in many ways. Telephone has become a ubiquitous communication medium and people have started using telephone for marketing commonly known as telemarketing, apart from personal voice communication. At the same time, it pointed out that a majority of telemarketing calls are unsolicited. Most of the telecom consumers find telemarketing calls/SMSs inconvenient and disturbing. This termed as UCC and treated as one of the major issue for concern of telephone consumer resulting in large number of complaints. It is also pointed out that in order to curb UCCs, the TRAI had notified the Telecom Unsolicited Commercial Communication Regulation, 2007 and “National Do Not Call (DDNC)” Registry was established. However, it could not check the menace of the UCCs. The TRAI was receiving more than 18,000 consumer complaints with their service provider regarding receiving of UCC from telemarketers and the actual number of these complaints was much higher. It was for this purpose, in order to check these UCCs effectively, the TRAI came out with the Consultation Paper and invited suggestions. Chapter-1 of the Consultation Paper incorporates International Practices to Curb Unsolicited Commercial Communications and points out the position prevailing in European Union, USA, Australia, U.K, Canada, Germany, among other countries. Chapter-2 highlights the status which was prevalent at the time of circulation of this Consultation Paper and issues and measures to curb Unsolicited Commercial Communications. Issues for consultation are specified in Chapter-4 and on that suggestions were invited. After receiving the suggestions and going through the same, the impugned Amendments to the Regulations came to be incorporated. 20. Thus, the primary object and entire focus for bringing the amendment in Regulation is/was to curb UCCs. It thus relates to the commercial communication i.e. mode of telemarketing by means of voice communication or SMSs which are largely unsolicited. Two questions arise for discussion, in this context;
To put it otherwise, in its attempt to curb UCCs, the impugned Regulations have over stepped its purpose and has violated the Fundamental Rights of the citizens of this Country enshrined under Article 19(1) (a) of the Constitution? 21. We will start out discussion by addressing the legal position in the first instance. 22. Right to freedom of speech and expression is guaranteed as Fundamental Right under Article 19(1)(a) of the Constitution. In a recent judgment delivered in Ramlila Maidan Incident Vs. Home Secretary, Union of India & Ors. 2012 (2) SCALE 682 the Supreme Court recapitulated and restated the importance of this right by observing that the freedom of speech is the bulwark of democratic Government. This freedom is essential for proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a "basic human right", "a natural right" and the like. With the development of law in India, the right to freedom of speech and expression has taken within its ambit the right to receive information as well as the right of press. The framers of our Constitution, in unambiguous terms, granted the right to freedom of speech and expression and the right to assemble peaceably and without arms. This gave to the citizens of this country a very valuable right, which is the essence of any democratic system. There could be no expression without these rights. Liberty of thought enables liberty of expression. Belief occupies a place higher than thought and expression. Belief of people rests on liberty of thought and expression. Placed as the three angles of a triangle, thought and expression would occupy the two corner angles on the baseline while belief would have to be placed at the upper angle. Attainment of the preambled liberties is eternally connected to the liberty of expression. (Ref. Preamble, The Spirit and Backbone of the Constitution of India, by Justice R.C. Lahoti). 23. We would also like to point out that even commercial speech is protected under Article 19(1)(a) of the Constitution, though, purely commercial advertisement meant for furtherance of trade or commerce would be outside the concept of freedom and expression. However, a commercial speech with the objective of propagation of ideas, social, political or economic or in furtherance of literature or human thought would be covered by Article 19 (1)(a) of the Constitution. In support, we refer to the case of Hamdard Dawakhana (WAKF) Lal Kuan, Delhi Vs. Union of India, 1960 Crl. LJ 671, wherein the Constitution Bench of the Supreme Court laid down the principle in the following term:-
24. Examined in the light of the aforesaid legal position, it appears us to think that UCCs are normally commercial advertisement meant for furtherance of trade and commerce and not sent with the objective of propagation of ideals, social, political or economic or in furtherance of literature or human thought. Therefore, prima facie such UCCs would not even amount to freedom of speech under Article 19(1)(a) of the Constitution and therefore, provision can be made placing restrictions on such UCCs. 25. Even if we proceed on the basis that UCCs would amount to freedom of speech, such freedom of speech is subject to reasonable restriction contemplated under Article 19 (2) of the Constitution and imposing a cap on the maximum number of UCCs may pass the test of reasonable restrictions. Our reasons for coming to this conclusion are stated in the following paragraphs:
This was also noted in the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544 where the Supreme Court took the following view:-
In Ramlila Maidan (supra), the Supreme Court mentioned the parameters which are to be gone into while adjudging the reasonableness of the restrictions in the following manner:-
The questions before the Court, thus, are whether the restriction imposed was reasonable and whether the purported purpose of the same squarely fell within the relevant clauses discussed above. The legislative determination of what restriction to impose on a freedom is final and conclusive, as it is not open to judicial review. The judgments of this Court have been consistent in taking the view that it is difficult to define or explain the word "reasonable" with any precision. It will always be dependent on the facts of a given case with reference to the law which has been enacted to create a restriction on the right. It is neither possible nor advisable to state any abstract standard or general pattern of reasonableness as applicable uniformly to all cases. This Court in the case of State of Madras v. V.G. Row ,AIR 1952 SC 196 held:
26. While adjudging upon the reasonableness of restrictions, another factor which is to be kept in mind is the balancing of right to freedom of expression of the persons exercising such right on the one hand and the rights of other persons which would include right to privacy as well as right to live nuisance free life. What is emphasized is that no person by exercising his right to freedom of speech can encroach upon the aforesaid rights of other persons against whom this right is exercised. Undoubtedly, the State has a compelling interest in regulating the right to speech when it comes in conflict with the aforesaid rights of other citizens. It is for this reason, the accepted position is that the right that spring from Article 19(1)(a) is not absolute and unchecked and is subject to regulatory measures. At the same time, there is also limitation on the power of the legislature to restrict these freedoms which are to be exercised within the ambit of Article 19(2) of the Constitution. How the two opposite interest are to be balanced was explained by the Apex Court in S. Rangarajan Vs. Jagjivan Ram (1989) 2 SCC 574 in the following words:-
27. Reason to justify the imposition of reasonable restriction is that right, restrictions and duties co-exist. While on the one hand, it is necessary to maintain and preserve the freedom of speech and expression in a democracy, on the other hand it is also necessary to place reins on this freedom in the maintenance of “social order”, the term which include “law and order”, “public order” as well as “security of the State”. 28. We may also usefully extract the passage from the judgment of Dr. D.C. Saxena Vs. Hon’ble the Chief Justice of India, (1996) 5 SCC 216. The „balancing of interest‟ theory was explained by the Supreme Court in the said judgment in the following manner:-
29. Read in this context, the respondents have provided complete justification for imposing maximum limit of 200 SMSs per day in order to curb the menace of UCC. We have already pointed out that the TRAI has found that Unrestricted Unsolicited Commercial Communications (UCC) calls and SMSs were interfering with the personal lives of the individuals as often telemarketers would call them up for selling their products. All such calls sere unsolicited, i.e., i.e. the receiving party does not want to receive such calls or messages. These UCC messages disturb the recipients, intrude into their privacy, and impose a cost in terms of the time and efforts. In fact, they infringe the equally importance rights of the unwilling recipients. 30. So far so good the question is as to whether, in the process of doing so, restrictions can also be imposed against others who want to use the means of voice calls or SMSs to propagate their ideas exercising freedom of speech. As held in Re: Noise Pollution (supra) that while one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. This may be relevant insofar as curbing UCC is concerned. We can also appreciate the anxiety of the TRAI which has, in true spirit accepted and realize the unbalancing and obnoxious levels of UCCs. However, while, the aforesaid provisions have been made, keeping in mind this objective and examining the issue from this angle, the moot question is as to whether while doing so, the TRAI could trample upon the rights of others, not indulging in voice calls/SMSs for commercial purposes in mind but only with the objective of dissemination of information. Even as per TRAI, the sole objective of the entire exercise was to check the malpractices of UCC. The consultation paper which was prepared and circulated itself related to UCCs, i.e., Unrestricted Unsolicited Commercial Communications. Regulations were intended to be framed keeping this objective in mind. Various suggestions which were given in the consultation paper were aimed at curbing the menace of UCC in order to effective control on such calls. However, when the final product came, viz., impugned provision, it not only puts embargo on the maximum voice calls/SMSs that can be seen for commercial purposes, but all categories of SMSs. To our mind, the TRAI has painted the second category also with the same brush and imposition of such a condition qua others is not related to the purpose mentioned in Article 19(2). This restriction, in the present from without any provision of proper regulation in our view, offends the fundamental rights of the users enshrined under Article 19(1)(a) of the Constitution. 31. We would like to clarify that even non-UCCs voice calls/SMSs may impinge upon the rights of privacy of others. Therefore, it would always be open to TRAI to regulate such freedom of speech as well in so far to protect the rights of the receivers. However, the provision in the present form is not made keeping in view that objective. It would also be open to the TRAI to address this issue independently and come out with necessary Regulation or amendment in the present Regulations. 32. We are, therefore, of the opinion that the impugned provision insofar as it covers non-UCCs SMS in the present form as it exists, infringes the freedom of speech of the citizens and the conditions imposed upon the freedom of speech is not reasonable which would be protected under Article 19 (2) of the Act. Thus, while upholding this provision qua UCC i.e. commercial calls, the same is set aside insofar as it covers non-UCCs SMS also. At the same time, liberty is granted to TRAI to come out with more appropriate Regulations for regulating unsolicited non-UCCs SMSs that could meet the test of reasonableness under Article 19(2) of the Constitution. 33. Writ Petition stands disposed of in the aforesaid manner with no order as to costs. ACTING CHIEF JUSTICE (RAJIV SAHAI ENDLAW) JUDGE JULY 13, 2012 skb |