Telecom Regulatory Authority of India Act, 1997 - Sections 11, 12, 13 and 36 - Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 - The Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 - It is not for this court to interfere with the deadline, unless its shows that such a decision is completely perverse.
The power to regulate would therefore take in its ambit to laydown deadline and the consequenes which can also result in the disconnection of service. The deadline of 31.1.2019 has been fixed by the Telecom Regulatory Authority of India under its powers conferred under Section 36 of the TRAI Act and taking into consideration all the facts and circumstances and therefore it cannot be said that TRAI has been acting hastily or it is time to implement its directions in a hurried manner without taking into account the interests of all the participants. It is not for this court to interfere with the deadline, unless its shows that such a decision is completely perverse. The letter F.No.21-4/2018-B&CS dated 27.12.2018 issued by TRAI, would show that the entire matter has been well considered and a decision fixing the deadline of 31.1.2019 has been taken after deliberation. The same cannot be said to be arbitrary. It is not for the court to fix deadline, which is a matter of policy. [Para 15]
Petition
filed under Article 226 of the Constitution of India for a writ of declaration
declaring the notification bearing F.No.21-4/2018- B&CS dated 27/12/2018
issued by the Telecom Regulatory Authority of India and the Telecommunications
(Broadcasting and Cable) Service Standards of Quality of Service and Consumer
Protection (Addressable Systems) (Amendment) Regulations, 2018 as invalid and
ultra vires violating Articles 14 and 19(1)(a) of the Constitution of India.
IN
THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:
29.01.2019
CORAM:
THE HONOURABLE MR. JUSTICE S.MANIKUMAR AND
THE HONOURABLE MR. JUSTICE SUBRAMONIUM PRASAD
Writ
Petition No.2176 of 2019 and W.M.P.No.2420 of 2019
V.Rama
Rao ... Petitioner
v.
1.
Union of India Represented by the Secretary Ministry of Information and
Broadcasting Room No.116, A-Wing, Shastri Bhavan New Delhi - 110 001
2.
The Telecom Regulatory Authority of India Represented by the Secretary
Mahanagar Doorsanchar Bhavan (Next to Zakir Hussain College) Jawaharlal Nehru
Marg (Old Minto Road) New Delhi - 110 002
3.
Star India Pvt. Ltd. Represented by the Managing Director Star TV Building Star
House, Urmi Estate 95, Ganpat Rao Kadam Marg Lower Parel, West Mumbai
Maharashtra - 400 013
4.
Sony Pictures Networks India Private Limited Represented by the Managing
Director 4th Floor, Interface Building No.7 Off Malad Link Road, Malad West
Mumbai - 400 064
5.
Zee Entertainment Enterprises Limited Represented by the Managing Director 18th
Floor, A Wing, Marathon Futurex N.M.Joshi Marg Lower Parel, Mumbai Maharashtra
- 400 013
6.
Sun TV Network Pvt. Ltd. Represented by the Managing Director Murasoli Maran
Towers 73, MRC Nagar Main Road Raja Annamalaipuram Chennai 600 028
7.
India Cast Media Distribution Pvt. Ltd. Represented by the Managing Director
703, 7th Floor, HDIL-Kaledonia Opp. Vijayanagar Society Andheri East, Mumbai
Maharashtra - 400 013
8.
Mavis Satcom Limited Represented by the Managing Director 48, Jawaharlal Nehru
Road Ekkaduthangal Chennai 600 097
9.
Disney Broadcasting India Limited Represented by the Managing Director
Solitaire Corporate Park Building 14, 2nd Floor, Guru Hargovindji Marg Chakala,
Andheri East, Mumbai Maharashtra - 400 093
10.
Tamil Nadu Arasu Cable TV Corporation Pvt. Ltd. Dugar Towers, 34 (123) 6th Floor
Marshalls Road, Egmore Chennai - 600 008
11.
Tamizhaga Cable TV Communication Pvt. Ltd. Old No.150, New No.48 Sami Naicken
Street Chintadripet, Chennai - 600 002
12.
Crystal Transmission Pvt. Ltd. No.34, First Main Road New Colony, Chrompet
Chennai 600 044
13.
Kal Cables Pvt. Ltd. 141, Prakash towers, Ground Floor Old Mahabalipuram Road
Thiruvanmiyur, Chennai 600 041
14.
JAK Communication Private Limited J-4, 6th Avenue Anna Nagar East Chennai - 600
102
15.
V K Digital Network Pvt. Ltd. Old No.284, New No.204 Avvai Shanmugham Salai
Royapettah, Chennai - 600 014
16.
Air Media Network Private Limited No.86, Periyar EVR High Road Vepery, Chennai
600 007
17.
Cable Cast New Media Pvt. Ltd. No.51, 4th Floor, Raja Rajeswari Towers
Dr.Radhakrishnan Salai, Mylapore Chennai - 600 004
18.
Akshaya Diginet Cable Vision Pvt Ltd B-20 Industrial Estate, Mugappair East
Chennai 600 037 19.Aadhar Digital Vision Pvt. Ltd. No.13, North Wall Road
Kondithope, Chennai - 600 079 ... Respondents
For
petitioner : Mr.V.Prakash, Senior Counsel for M/s.Ramapriya Gopalakrishnan
O
R D E R
SUBRAMONIMUM
PRASAD, J.
Claiming
himself to be a Secretary of various organisations, the petitioner has filed
the instant writ public instant litigation to declare Notification bearing
F.No.21-4/2018-B&CS dated 27/12/2018 issued by the Telecom Regulatory
Authority of India and the Telecommunications (Broadcasting and Cable) Service
Standards of Quality of Service and Consumer Protection (Addressable Systems)
(Amendment) Regulations, 2018, (hereinafter called as Amendment Regulations) as
invalid and ultra vires, violating Articles 14 and 19(1)(a) of the Constitution
of India.
2. The
Amendment Regulations, which is under challenge reads as under:
F.
No.21-4/2018-B&CS.----In exercise of the powers conferred by section 36,
read with sub-clause (v) of clause (b) of sub-section (1) of section 11, of the
Telecom Regulatory Authority of India Act, 1997 (24 of 1997), read with
notification of the Central Government, in the Ministry of Communication and Information
Technology (Department of Telecommunications), No.39, —
(a)
issued, in exercise of the powers conferred upon the Central Government under
clause (d) of subsection (1) of section 11 and proviso to clause (k) of sub
section (1) of section 2 of the said Act, and
(b)
published under notification No. S.O.44 (E) and 45 (E) dated the 9th January,
2004 in the Gazette of India, Extraordinary, Part II, Section 3,......
the
Telecom Regulatory Authority of India hereby makes the following regulations to
amend the Telecommunications (Broadcasting and Cable) Services Standards of
Quality of Service and Consumer Protection (Addressable Systems) Regulations,
2017 ( 2 of 2017), namely:-
1.
(1) These regulations may be called the Telecommunications (Broadcasting and
Cable) Services Standards of Quality of Service and Consumer Protection
(Addressable Systems) (Amendment) Regulations, 2018 (11of 2018).
(2)
They shall come into force with effect from the date of their publication in
the Official Gazette.
2. In regulation 45 of the
Telecommunications (Broadcasting and Cable) Services Standards of Quality of
Service and Consumer Protection (Addressable Systems) Regulations, 2017
(hereinafter referred to as the principal regulations), for sub-regulation (3),
the following shall be substituted, namely:- “(3) Nothing contained in these
regulations shall affect any packs, plans or bouquets on offer before the
commencement of these regulations and all the distributors of television
channels shall continue to offer the said packs, plans or bouquets to all the
subscribers till 31st January, 2019.
Provided
that it shall be mandatory for all the distributors of television channels to
either discontinue or modify all their existing packs, plans or bouquets in
compliance with the provisions of these regulations after 31st January, 2019.
Provided
further that all distributors of television channels shall offer and obtain the
option for subscription of new packs, plans or bouquets from the subscribers in
compliance with the provisions of these regulations on or before 31st January,
2019 and shall ensure that services to the subscribers are provided as per the
new packs, plans or bouquets opted for subscription by the subscribers only
after 31st January, 2019.”
3.
Instructions issued by the Telecom Regulatory Authority of India to all the
Service Providers, Broadcasting and Cable TV Services, regarding implementation
of the Regulatory Framework in pursuance to the amendment regulations, reads as
under:
"F.No.21-4/2018-B&CS
Dated:-27th December 2018
To
All
the Service Providers
Broadcasting
and Cable TV Services
Subject:-
Implementation of New Regulatory Framework - Schedule of activities regarding
Sir/Madam,
TRAI
notified a New Regulatory Framework in March 2017 to ensure orderly growth of
the broadcasting and cable services sector after due consideration. The
framework comprises of the following:
i.
The Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable
Systems) Tariff Order, 2017. [The Tariff Order 2017]
ii.
The Telecommunication (Broadcasting and Cable) Services Interconnection
(Addressable Systems) Regulations, 2017. [The Interconnection Regulations 2017]
iii.
The Telecommunication (Broadcasting and Cable) Services Standards of Quality of
Service and Consumer Protection (Addressable Systems) Regulations, 2017. [The
QoS Regulations 2017]
2.
The said regulatory framework could not come into effect because of some
pending litigations. Accordingly, all the timelines prescribed in the said
framework commenced from 3rd July 2018 through a press release no.71/2018
issued by TRAI. The prescribed due date for migration to new framework is 29th
December 2018.
3. In order to have a smooth
implementation of the new regulatory framework, TRAI held a series of meetings
and consultations with all the stakeholders including Consumer Advocacy Groups
(CAG) during last 4-6 weeks. A meeting of the Authority was held on 19th
December 2018 with the CEOs of major service providers in the broadcasting and
cable services sector. The issue of smooth migration from the old to new
regulatory framework was specifically discussed and deliberated upon.
Subsequently, to assess the preparedness for migration, the Authority held
another meeting on 27th December 2018 with all broadcasters and leading DPOs
(DTH/MSO/HITS/IPTV). It emerged from the discussions that by and large, most of
the stakeholders are ready for implementation of new migration to new
regulations is slow. Industry representatives emphasised that there are about
150 million TV subscribers in the country. In order to make the subscribers
aware about the new framework and to seek fresh choice of TV channels from all
subscribers requires some more time and resources.
4. It was requested that in order to have
a smooth transition of subscribers from old to new framework, across the
country, some more time may be given Emphasis was laid that migration to new
regulatory framework need to be interruption free and smooth to minimize the
inconvenience to the subscribers. Therefore, a migration plan was deliberated
and agreed upon by all the participants.
5. Accordingly,
all service providers are required to adhere to the following schedule of
activities to ensure smooth transition of subscribes from old to new regulatory
framework:
● All
existing packs/plans/bouquets to the subscribers will continue uninterrupted
till 31st January 2019.
● No
service provider to disconnect any signal/feed to any MSO/LCO/subscriber till
31st January 2019, on the pretext of implementation of new regulatory
framework.
● Inter-service
provider commercial settlement to continue as per their inter se agreements in
force prior to 29th December 2018 till 31st January 2019.
● DPOs
to devise their own mechanism to reach out to all the subscribers and seek options
from subscribers Data pertaining to consumers' choice etc. should be maintained
in such a manner that it is easily verifiable, and should be reported to TRAI
from time to time.
● DPOs
to migrate all the subscribers, who have exercised their choices, to new
framework w.e.f. 1st February 2019.
● DPOs
to adhere to following schedule for reaching out to the consumers:
Sl.
No. Activity
1
Reach out to at least 30% of the average subscribers base by 7th January 2019
2
Reach out to at least 60% of the average subscribers base by 14th January 2019
3
Reach out to 100% of the average subscribers base by 21st January 2019
This
information should be reported to TRAI as per the format which will be
prescribed separately
6.
The service providers are also advised to strictly comply with various
regulatory provisions contained in the Interconnection Regulations 2017, the
QoS Regulations 2017 and the Tariff Order 2017 while implementing the
abovementioned schedule.
4.
The Hon'ble Supreme Court in Bharat
Sanchar Nigam Limited vs. Telecom Regulatory Authority of India and Others reported in (2014) 3 SCC 222 has brought out the history as to how the Telecom Regulatory Authority
of India Act and the Telecom Regulatory Authority which was constituted under
the Telecom Regulatory Authority of India Act came into existence.
66. With the
entry of private operators into telecom sector, proper regulation of the sector
was considered appropriate. An important step in the institutional reform of
Indian telecom sector was setting up of an independent regulatory authority,
i.e., Telecom Regulatory Authority. Initially, it was proposed to set up the
Authority as a non-statutory body and for that purpose, the Indian Telegraph
(Amendment) Bill, 1995 was introduced and was passed by Lok Sabha. However,
when the matter was taken up in Rajya Sabha, the members expressed the view
that the Authority should be set up as a statutory body. Keeping that in view
as also the 22nd Report of the Standing Committee on Communications, the
Telecom Authority of India Ordinance, 1996 was promulgated.
In
Delhi Science Forum v. Union of India (1996) 2 SCC 405, this Court took
cognizance of some of the provisions contained in the Ordinance and observed:
“31....The
existence of a Telecom Regulatory Authority with the appropriate powers is
essential for introduction of plurality in the Telecom sector. The National
Telecom Policy is a historic departure from the practice followed during the
past century. Since the private sector will have to contribute more to the
development of the telecom network than DoT/MTNL in the next few years, the
role of an independent Telecom Regulatory Authority with appropriate powers
need not be impressed, which can harness the individual appetite for private
gains, for social ends. The Central Government and the Telecom Regulatory
Authority have not to behave like sleeping trustees, but have to function as
active trustees for the public good.” (emphasis supplied)
67.
The 1996 Ordinance was replaced by the Act. The main purpose of establishing
the Authority as a statutory body was to ensure that the interest of consumers
are protected and, at the same time, to create a climate for growth of
telecommunications, broadcasting and cable services in such a manner which
could enable India to play leading role in the emerging global information
society. The goals and objectives of the Authority are as follows:
(i)
Increasing tele-density and access to telecommunication services in the country
at affordable prices.
(ii)
Making available telecommunication services which in terms of range, price and
quality are comparable to the best in the world.
(iii)
Providing a fair and transparent policy environment which promotes a level
playing field and facilitates fair competition.
(iv)
Establishing an interconnection regime that allows fair, transparent, prompt
and equitable interconnection.
(v)
Re-balancing tariffs so that the objectives of affordability and operator
viability are met in a consistent manner.
(vi)
Protecting the interest of consumers and addressing general consumer concerns
relating to availability, pricing and quality of service and other matters.
(vii)
Monitoring the quality of service provided by the various operators.
(viii)
Providing a mechanism for funding of net cost areas/ public telephones so that
Universal Service Obligations are discharged by telecom operators for spread of
telecom facilities in remote and rural areas.
(ix)
Preparing the grounds for smooth transition to an era of convergence of
services and technologies.
(x)
Promoting the growth of coverage of radio in India through commercial and
noncommercial channels.
(xi)
Increasing consumer choice in reception of TV channels and choosing the
operator who would provide television and other related services.
69. With a
view to overcome the difficulties experienced in the implementation of the Act,
the Central Government constituted a Group on Telecom and IT Convergence under
the Chairmanship of the Finance Minister. The recommendations made by the Group
led to the issuance of the Telecom Regulatory Authority of India (Amendment)
Ordinance, 2000, which was replaced by the Telecom Regulatory Authority of
India (Amendment) Act, 2000. One of the important features of the Amendment Act
was the establishment of a Tribunal known as the Telecom Disputes Settlement
and Appellate Tribunal for adjudicating disputes between a licensor and a
licencee, between two or more service providers, between a service provider and
a group of consumers, and also to hear and dispose of any appeals from the
direction, decision or order of the Authority.
5. Sections
11, 12, 13 and 36 of the Telecom Regulatory Authority of India Act, read as
under:
11. Functions of Authority
(1) Notwithstanding anything contained in
the Indian Telegraph Act, 1885(13 of 1885), the functions of the Authority
shall be to-
(a) recommend the need and timing for
introduction of new service provider;
(b) recommend the terms and conditions of
licence to a service
provider;(c) ensure technical compatibility and effective interconnection
between different service providers;
(d) regulate arrangement amongst service
providers of sharing their revenue deriving from providing telecommunication
services;
(e) ensure compliance of terms and
conditions of licence;
(f) recommend revocation of licence for
non-compliance of terms and conditions of
licence;
(g) lay down and ensure the time for
providing local and long distance circuits of telecommunication between
different service providers;
(h) facilitate competition and promote
efficiency in the operation of telecommunication services so as to facilitate
growth in such services;
(i) protect the interest of the consumers
of telecommunication service;
(j) monitor the quality of service and
conduct the periodical survey of such provided by the service providers;
(k) inspect the equipment used in the
network and recommend the type of equipment to be used by the service providers;
(l) maintain register of interconnect
agreements and of all such other matters as may be provided in the regulations:
(m) keep register maintained under clause (l) open for inspection to any member
of public on payment of such fee and compliance of such other requirements as
may be provided in the regulations;
(n) settle disputes between service
providers;
(o) render advice to the Central
Government in the matters relating to the development of telecommunication
technology and any other matter relatable to telecommunication industry in
general;
(p) levy fees and other charges at such
rates in respect of such services as may be determined by regulations;
(q) ensure effective compliance of
universal service obligations;
(r) perform such other functions including
such administrative and financial functions as may be entrusted to it by the
Central Government or as may be necessary to carry out the provisions of this
Act.
(2) Notwithstanding anything contained in
the Indian Telegraph Act, 1885(13 of 1885), the Authority may, from time to
time, by order, notify in the Official Gazette the rates at which the
telecommunication services within India and outside India shall be provided
under this Act including the rates at which messages shall be transmitted to
any country outside India; Provided that the Authority may notify different
rates for different persons or class of persons for similar telecommunication
services and where different rates are fixed as aforesaid the Authority shall
record the reasons therefor.
(3) While discharging its functions under
sub-section (l), the Authority shall not act
against the interest of the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States, public order, decency or
morality.
(4) The Authority shall ensure
transparency while exercising its powers and discharging its functions.
12. Powers of Authority to call for
information, conduct investigations, etc
(1) Where the Authority considers it
expedient so to do, it may, by order in writing,-
(a) cell upon any service provider at any
time to furnish in writing such information or explanation relating to its
affairs as the Authority may require; or
(b) appoint one or more person to make an
inquiry in relation to the affairs of any service and
(c) direct of his officers or employees to
inspect the books of account or other documents of any service provider.
(2) Where any inquiry in relation to the
affairs of a service provider has been undertaken under sub-section
(1),-
(a) every officer of the Government
Department, if such service provider is a department of the Government;
(b) every director, manager, secretary or
other officer, if such service provider is a company; or
(c) every partner, manager, secretary or
other officer, if such service provider is a firm; or
(d) every other person or body of persons
who has had dealings in the course of business with any of the persons
mentioned in clauses (b) and (c), shall be bound to produce before the
Authority making the inquiry, all such books of account or other documents in
his custody or power relating to, or having a bearing on the subject-matter
of such inquiry and also to furnish to the Authority with any such statement or
information relating thereto, as the case may be, required of him, within such
time as may be specified.
(3) Every service provider shall maintain
such books of account or other documents as may be prescribed.
(4) The Authority shall have the power to
issue such directions to service providers as it may consider necessary to
proper functioning by service providers.
13. Power of Authority to issue
directions
The Authority may, for the discharge of
its functions under subsection (1) of section 11, issue such directions from
time to time to the service providers, as it may consider necessary.
36. Power to make regulations
(1) The Authority may, by notification,
make regulations consistent with this Act and the rules made thereunder to
carry out the purposes of this Act.
(2) In particular, and without prejudice
to the generality of the foregoing powers, such regulations may provide for all
or any of the following matters, namely:-
(a) the times and places of meetings of
the Authority and the procedure to be followed at such meetings under
subsection (1) of section 8, including quorum necessary for the transaction of
business;
(b) the transaction of business at the
meetings of the Authority under sub-section
(4) of section 8;
(c) the salaries and allowances payable to
and the other conditions of service of officers and other employees of the
Authority under sub-section
(2) of section 10;
(d) matters in respect of which register
is to be maintained by the Authority under clause (l) of sub-section
(1) of section 11;
(e) levy of fee and lay down such other
requirements on fulfilment of which a copy of register may be obtained under
clause (m) of sub-section
(1) of section 11;
(f) levy of fees and other charges under
clause (p) of sub-section
(1) of section 11.
6. In
exercise of powers under Section 36 of Telecom Regulatory Authority of India
Act, Telecommunication (Broadcasting and Cable) Services Interconnection
(Addressable Systems) Regulations, 2017 and The Telecommunication (Broadcasting
and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017, (both
dated 3.3.2017) were framed. Certain clauses of the said regulations were
challenged in this court by filing writ petition WP.No.13302 of 2012. This
court upheld the validity of the Regulations. The same was taken up in appeal
and the Hon'ble Supreme Court by judgment dated 30.10.2018 reported in 2018 (14) Scale 651 [Star India
Private Limited vs. Department of Industrial Policy and Promotion and Ors.] upheld the judgment of this Court. Thereafter,
Sub Regulation (3) of Regulation 45 of the Telecommunications (Broadcasting and
Cable) Services Standards of Quality of Service and Consumer Protection
(Addressable Systems) Regulations, 2017, was substituted to read as under:
"(3)
Nothing contained in these regulations shall affect any packs, plans or
bouquets on offer before the commencement of these regulations and all the
distributors of television channels shall continue to offer the said packs,
plans or bouquets to all the subscribers till 31st January, 2019."
7.
The Telecom Regulatory Authority of India, also started taking steps for
implementing Regulations, 2017. As per the decision, all the service providers
are required to adhere a schedule of activity to initiate smooth transmission
of subscribers from old to the new regulatory framework. It was decided that
all the existing packs, plans or bouquets to the subscribers will continue
uninterrupted till 31.1.2019 and the signals will not be disconnected till that
date. The subscribers have to make their choice regarding the channels and
bouquets, etc. before that date and the new framework would be in operation
from 1.2.2019. According to the petitioner, the decision to implement the
Regulations, 2017 is completely unworkable.
8.
The petitioner contends that in Tamil Nadu, analog system of transmitting
signals was in vogue from 1990. In 2003, Conditional Access System (CAS) was
introduced, which necessitated installation of Set Top Boxes for viewing pay
channels. In 2011, the Digital Addressable System (DAS) was introduced which
made installation of Set Top Boxes mandatory for viewing all TV Channels
including free to air channels. According to the petitioner, though it was directed
by the Ministry of Information and Broadcasting that the complete digitization
was to be completed in the entire country by December 2016, the same was not
done in Tamil Nadu because of writ petitions filed in the High Court in which
interim directions were passed. This Hon'ble Court has been giving time to
shift from the erstwhile analog system, which was vogue in 1990 to the Digital
Addressable System (DAS), which makes it mandatory to have Set Top Boxes for
viewing all channels. According to the petitioner, the process of digitization
has not been completed in the State of Tamil Nadu. According to the petitioner,
if the impugned Regulation is implemented, then the Digital Platform Operators
would leave out substantial amount of consumers. According to the petitioner,
only 46,00,000 households in the State of Tamil Nadu have Set Top Boxes,
whereas 1.11 Crore TV viewers in the State and therefore, if the new Regulation
and the plan to implement the new Regulation is not stopped, majority of the
households in the State of Tamil Nadu would not be able to watch television.
9.
The petitioner also contends that majority of the consumers in Tamil Nadu has
not exercised their choice in respect of TV channels which they wish to view at
the enhanced rate from 1.2.2019, because of lack of awareness about the new
regulatory framework and lack of clarity about the framework and the failure of
the service providers to sufficiently explain the new Regulatory Framework.
According to the petitioner, it is not possible for all the subscribers to make
an informed choice about the television channels they wish to view within the
prescribed timeline of 31st January 2019. The petitioner, therefore, challenges
the Notification bearing F.No.21-4/2018-B&CS dated 27/12/2018 issued by the
Telecom Regulatory Authority of India and the Telecommunications (Broadcasting
and Cable) Service Standards of Quality of Service and Consumer Protection
(Addressable Systems) (Amendment) Regulations, 2018.
10. Heard
Mr.V.Prakash, learned senior counsel for the petitioner and perused the
materials available on record.
11. Mr.V.Prakash,
learned senior counsel, at the outset, very fairly submitted that after 2017
Regulations have been upheld, it may not now open to challenge the cost to be
passed for viewing various channels. But according to him, the cut-off date of
31.1.2019 is not reasonable. Mr.Prakash would lay emphasis on newspaper
cuttings and more particularly, the article which was published in Times of
India on January 14, 2019, which says that only 35% of 165 million pay
TV subscribershave expressed their choice to migrate out of the old system. He
would further submit that the subscribers have not been consulted and their
views have not been taken. He would therefore state that the Telecom Regulatory
Authority of India is trying to implement the regime in a hurried manner. He
would further state that there is no power under the Telecom Regulatory
Authority of India Act, to disconnect the services if a choice is not made by
the viewer. According to him, as per Section 12(4) of the Act the authority has
power to issue directions to service providers as it may consider necessary for
proper functioning by service providers, but the directions can only be issued
for matters specified in clause (b) of sub section (1) of Section 11, and this
does not grant power to disconnect.
12. The
Hon'ble Supreme Court in Bharat
Sanchar Nigam Limited vs. Telecom Regulatory Authority of India and Others reported in (2014) 3 SCC 222, has held that TRAI exercises a broad jurisdiction. Its jurisdiction is
not only fixed to regulate operations, but also extends to laying terms and
conditions for providing services. They can fix norms and the mode and the
manner in which consumers would get services.
13. A
perusal of the letter F.No.21-4/2018-B&CS dated 27th December 2018 issued
to all service providers would show that in order to have smooth transmission
of the subscribers from old to new framework,across the country,
sufficient time was given. Emphasis was laid that migration to new regulatory
framework need to be interruption free and smooth to minimise the inconvenience
to the subscribers. The instructions reveal that migration plan was deliberated
and agreed upon by all the participants. The interest of every stakeholder has
been kept in mind before the dates were fixed.
14. The
word 'regulation' which is one of the functions of the TRAI has been
interpreted by the Hon'ble Supreme Court and has been explained in the context
of Telecom Regulatory Authority of India in Bharat Sanchar Nigam Limited vs.
Telecom Regulatory Authority of India and Others reported in (2014) 3 SCC 222,
wherein the Hon'ble Supreme Court has observed as under:
81.
The terms ‘regulate’ and ‘regulation’ have been interpreted in large number of
judgments. We may notice few of them. In V.S. Rice & Oil Mills v. State of
A.P. AIR 1964 SC 1781, agreements for a period of ten years had been executed
for supply of electricity and the same did not contain any provision
authorising the Government to increase the rates during their operation.
However, in exercise of power under Section 3(1) of the Madras Essential
Articles Control and Requisitioning (Temporary Powers) Act, 1949, the State
Government issued order enhancing the agreed rates. The same was challenged on
the ground that any increase in agreed tariff was out of the purview of Section
3(1). Chief Justice Gajendragadkar, speaking for the Constitution Bench,
observed as under:
“The
word regulate is wide enough to confer power on the State to regulate either by
increasing the rate, or decreasing the rate, the test being what is it that is
necessary or expedient to be done to maintain, increase, or secure supply of
the essential articles in question and to arrange for its equitable distribution
and its availability at fair prices. The concept of fair prices to which
Section 3(1) expressly refers does not mean that the price once fixed must
either remain stationary, or must be reduced in order to attract the power to
regulate. The power to regulate can be exercised for ensuring the payment of a
fair price, and the fixation of a fair price would inevitably depend upon a
consideration of all relevant and economic factors which contribute to the
determination of such a fair price. If the fair price indicated on a
dispassionate consideration of all relevant factors turns out to be higher than
the price fixed and prevailing, then the power to regulate the price must
necessarily include the power to increase so as to make it fair. Hence the
challenge to the validity of orders increasing the agreed tariff rate on the
ground that they are outside the purview of Section 3(1) cannot be sustained.”
82.
In State of Tamil Nadu v. Hind Stone (1981) 2 SCC 205, this Court held that the
word ‘regulate’ must be interpreted to include ‘prohibition’ within its fold.
Some of the observations made in that judgment (paragraph 10) are extracted
below:
“We
do not think that ‘regulation’ has that rigidity of meaning as never to take in
‘prohibition’. Much depends on the context in which the expression is used in
the statute and the object sought to be achieved by the contemplated
regulation. It was observed by Mathew, J. in G.K. Krishnan v. State of T.N.
(1975) 1 SCC 375:
‘The
word “regulation” has no fixed connotation. Its meaning differs according to
the nature of the thing to which it is applied.’ In modern statutes concerned
as they are with economic and social activities, ‘regulation’ must, of
necessity, receive so wide an interpretation that in certain situations, it must
exclude competition to the public sector from the private sector. More so in a
welfare State. It was pointed out by the Privy Council in Commonwealth of
Australia v. Bank of New South Wales (1949) 2 All ER — and we agree with what
was stated therein — that the problem whether an enactment was regulatory or
something more or whether a restriction was direct or only remote or only
incidental involved, not so much legal as political, social or economic
consideration and that it could not be laid down that in no circumstances could
the exclusion of competition so as to create a monopoly, either in a State or
Commonwealth agency, be justified. Each case, it was said, must be judged on
its own facts and in its own setting of time and circumstances and it might be
that in regard to some economic activities and at some stage of social
development, prohibition with a view to State monopoly was the only practical
and reasonable manner of regulation. The statute with which we are concerned,
the Mines and Minerals (Regulation and Development) Act, is aimed, as we have
already said more than once, at the conservation and the prudent and
discriminating exploitation of minerals. Surely, in the case of a scarce
mineral, to permit exploitation by the State or its agency and to prohibit
exploitation by private agencies is the most effective method of conservation
and prudent exploitation. If you want to conserve for the future, you must
prohibit in the present. We have no doubt that the prohibiting of leases in
certain cases is part of the regulation contemplated by Section 15 of the Act.”
83.
In K. Ramanathan v. State of Tamil Nadu (1985) 2 SCC 116, this Court
interpreted the word ‘regulation’ appearing in Section 3(2)(d) of the Essential
Commodities Act, 1955 and observed:
“The
word “regulation” cannot have any rigid or inflexible meaning as to exclude
“prohibition”. The word “regulate” is difficult to define as having any precise
meaning. It is a word of broad import, having a broad meaning, and is very
comprehensive in scope. There is a diversity of opinion as to its meaning and
its application to a particular state of facts, some courts giving to the term
a somewhat restricted, and others giving to it a liberal, construction. The
different shades of meaning are brought out in Corpus Juris Secundum, Vol. 76
at p. 611:
“‘Regulate’
is variously defined as meaning to adjust; to adjust, order, or govern by rule,
method, or established mode; to adjust or control by rule, method, or
established mode, or governing principles or laws; to govern; to govern by
rule; to govern by, or subject to, certain rules or restrictions; to govern or
direct according to rule; to control, govern, or direct by rule or regulations.
‘Regulate’
is also defined as meaning to direct; to direct by rule or restriction; to
direct or manage according to certain standards, laws, or rules; to rule; to
conduct; to fix or establish; to restrain; to restrict.”
See
also: Webster’s Third New International Dictionary, Vol. II, p. 1913 and
Shorter Oxford Dictionary, Vol. II, 3rd Edn., p. 1784.
It
has often been said that the power to regulate does not necessarily include the
power to prohibit, and ordinarily the word “regulate” is not synonymous with
the word “prohibit”. This is true in a general sense and in the sense that mere
regulation is not the same as absolute prohibition. At the same time, the power
to regulate carries with it full power over the thing subject to regulation and
in absence of restrictive words, the power must be regarded as plenary over the
entire subject. It implies the power to rule, direct and control, and involves
the adoption of a rule or guiding principle to be followed, or the making of a
rule with respect to the subject to be regulated. The power to regulate implies
the power to check and may imply the power to prohibit under certain
circumstances, as where the best or only efficacious regulation consists of
suppression. It would therefore appear that the word “regulation” cannot have
any inflexible meaning as to exclude “prohibition”. It has different shades of
meaning and must take its colour from the context in which it is used having
regard to the purpose and object of the legislation, and the Court must
necessarily keep in view the mischief which the legislature seeks to remedy.
The
question essentially is one of degree and it is impossible to fix any definite
point at which “regulation” ends and “prohibition” begins. We may illustrate
how different minds have differently reacted as to the meaning of the word
“regulate” depending on the context in which it is used and the purpose and
object of the legislation. In Slattery v. Nalyor LR (1888) 13 AC 446 the
question arose before the Judicial Committee of the Privy Council whether a
Bye-law by reason of its prohibiting internment altogether in a particular
cemetery, was ultra vires because the Municipal Council had only power of
regulating internments whereas the Bye-law totally prohibited them in the
cemetery in question, and it was said by Lord Hobhouse, delivering the judgment
of the Privy Council:
“A
rule or Bye-law cannot be Held as ultra vires merely because it prohibits where
empowered to regulate, as regulation often involved prohibition.”
84.
In Jiyajeerao Cotton Mills Ltd. v. M.P. Electricity Board 1989 Supp (2) SCC 52,
the validity of the orders providing for higher charges/tariff for electricity
consumed beyond legally fixed limit was upheld in view of Section 22(b) of the
Electricity Act, which permits the State Government to issue an appropriate
order for regulating the supply, distribution and consumption of electricity.
It was held that the Court while interpreting the expression “regulate” must
necessarily keep in view the object to be achieved and the mischief sought to
be remedied. The necessity for issuing the orders arose out of the scarcity of
electricity available to the Board for supplying to its customers and,
therefore, in this background the demand for higher charges/tariff was held to
be a part of a regulatory measure.
85. In Deepak Theatre v. State of Punjab
1992 Supp (1) SCC 684, this Court upheld classification of seats and fixation
of rates of admission according to the paying capacity of a cinegoer by
observing that the same is an integral part of the power to make regulation and
fixation of rates of admission became a legitimate ancillary or incidental
power in furtherance of the regulation under the Act.
86. The term ‘regulation’ was also
interpreted in Quarry Owners’ Association v. State of Bihar (2000) 8 SCC 655 in
the context of the provisions contained in the Mines and Minerals (Regulation
Development) Act, 1957 and it was held:
“Returning
to the present case we find that the words “regulation of mines and mineral
development” are incorporated both in the Preamble and the Statement of Objects
and Reasons of this Act. Before that we find that the Preamble of our
Constitution in unequivocal words expresses to secure for our citizens social,
economic and political justice. It is in this background and in the context of
the provisions of the Act, we have to give the meaning of the word
“regulation”. The word “regulation” may have a different meaning in a different
context but considering it in relation to the economic and social activities
including the development and excavation of mines, ecological and environmental
factors including States’ contribution in developing, manning and controlling
such activities, including parting with its wealth, viz., the minerals, the
fixation of the rate of royalties would also be included within its meaning.”
87.
Reference in this connection can also be made to the judgment in U.P. Coop.
Cane Unions Federation v. West U.P. Sugar Mills Association (2004) 5 SCC 430.
In that case, the Court interpreted the word ‘regulation’ appearing in U.P. Sugarcane
(Regulation of Supply and Purchase) Act, 1953 and observed:
“Regulate”
means to control or to adjust by rule or to subject to governing principles. It
is a word of broad impact having wide meaning comprehending all facets not only
specifically enumerated in the Act, but also embraces within its fold the
powers incidental to the regulation envisaged in good faith and its meaning has
to be ascertained in the context in which it has been used and the purpose of
the statute.”
88.
It is thus evident that the term ‘regulate’ is elastic enough to include the
power to issue directions or to make regulations and the mere fact that the
expression “as may be provided in the regulations” appearing in clauses (vii)
and (viii) of Section 11(1)(b) has not been used in other clauses of that
sub-section does not mean that the regulations cannot be framed under Section
36(1) on the subjects specified in clauses (i) to (vi) of Section 11(1)(b). In
fact, by framing regulations under Section 36, the Authority can facilitate the
exercise of functions under various clauses of Section 11(1)(b) including
clauses (i) to (vi).
89. We may now advert to Section 36. Under
sub- Section (1) thereof the Authority can make regulations to carry out the
purposes of the Act specified in various provisions of the Act including
Sections 11, 12 and 13. The exercise of power under Section 36(1) is hedged
with the condition that the regulations must be consistent with the Act and the
Rules made thereunder. There is no other restriction on the power of the
Authority to make regulations. In terms of Section 37, the regulations are
required to be laid before Parliament which can either approve, modify or annul
the same. Section 36(2), which begins with the words “without prejudice to the
generality of the power under sub-section (1)” specifies various topics on
which regulations can be made by the Authority. Three of these topics relate to
meetings of the Authority, the procedure to be followed at such meetings, the
transaction of business at the meetings and the register to be maintained by
the Authority. The remaining two topics specified in Clauses (e) and (f) of
Section 36(2) are directly referable to Section 11(1)(b)(viii) and 11(1)(c).
These are substantive functions of the Authority. However, there is nothing in
the language of Section 36(2) from which it can be inferred that the provisions
contained therein control the exercise of power by the Authority under Section
36(1) or that Section 36(2) restricts the scope of Section 36(1).
15. The
power to regulate would therefore take in its ambit to laydown deadline and the
consequenes which can also result in the disconnection of service. The deadline
of 31.1.2019 has been fixed by the Telecom Regulatory Authority of India under
its powers conferred under Section 36 of the TRAI Act and taking into
consideration all the facts and circumstances and therefore it cannot be said
that TRAI has been acting hastily or it is time to implement its directions in
a hurried manner without taking into account the interests of all the
participants. It is not for this court to interfere with the deadline, unless
its shows that such a decision is completely perverse. The letter
F.No.21-4/2018-B&CS dated 27.12.2018 issued by TRAI, would show that the
entire matter has been well considered and a decision fixing the deadline of
31.1.2019 has been taken after deliberation. The same cannot be said to be
arbitrary. It is not for the court to fix deadline, which is a matter of
policy.
16. The
Hon'ble Supreme Court in Centre
for Public Interest Litigation Versus Union of India & Others reported in 2016 (6) SCC 408 has held that a policy decision, when not found to be arbitrary or
based on irrelevant consideration or malafide or against any statutory
provision, does not call for any interference by court in exercise of power of
judicial review. The Hon'ble Supreme in the said judgment at paragraph Nos.20,
21 and 27, has held as under:
20.
From the aforesaid, it follows that a policy decision was taken by the
Government not only with regard to introduction of Unified Licensing regime but
it also including allowing migration to UL from UASL as well as ISP to UL
regime. This meant that those having UAS license which permitted data services
only were allowed to migrate to Unified License enabling them to provide both
data service as well as voice telephony. This was a pure policy decision after
due deliberations by the experts in the fields and even TRAI had recommended
allowing such migration.
21. Such a policy decision, when not found
to be arbitrary or based on irrelevant considerations or mala fide or against
any statutory provisions, does not call for any interference by the Courts in
exercise of power of judicial review. This principle of law is ingrained in
stone which is stated and restated time and again by this Court on numerous
occasions. In Jal
Mahal Resorts (P) Ltd. v. K.P. Sharma, (2014) 8 SCC 804, the Court underlined the principle in the following manner:
116.
From this, it is clear that although the courts are expected very often to
enter into the technical and administrative aspects of the matter, it has its
own limitations and in consonance with the theory and principle of separation
of powers, reliance at least to some extent to the decisions of the State
authorities, specially if it is based on the opinion of the experts reflected
from the project report prepared by the technocrats, accepted by the entire
hierarchy of the State administration, acknowledged, accepted and approved by
one Government after the other, will have to be given due credence and
weightage. In spite of this if the court chooses to overrule the correctness of
such administrative decision and merits of the view of the entire body
including the administrative, technical and financial experts by taking note of
hair splitting submissions at the instance of a PIL petitioner without any
evidence in support thereof, the PIL petitioners shall have to be put to strict
proof and cannot be allowed to function as an extraordinary and extra-judicial
ombudsmen questioning the entire exercise undertaken by an extensive body which
include administrators, technocrats and financial experts. In our considered
view, this might lead to a friction if not collision among the three organs of
the State and would affect the principle of governance ingrained in the theory
of separation of powers. In fact, this Court in M.P. Oil Extraction v. State of M.P.,
(1997) 7 SCC 592 at p. 611 has
unequivocally observed that:
"41.
The power of judicial review of the executive and legislative action must be
kept within the bounds of constitutional scheme so that there may not be any
occasion to entertain misgivings about the role of judiciary in outstepping its
limit by unwarranted judicial activism being very often talked of in these
days. The democratic set-up to which the polity is so deeply committed cannot
function properly unless each of the three organs appreciate the need for
mutual respect and supremacy in their respective fields."
117.
However, we hasten to add and do not wish to be misunderstood so as to infer
that howsoever gross or abusive may be an administrative action or a decision
which is writ large on a particular activity at the instance of the State or
any other authority connected with it, the Court should remain a passive,
inactive and a silent spectator. What is sought to be emphasised is that there
has to be a boundary line or the proverbial "laxman rekha" while
examining the correctness of an administrative decision taken by the State or a
central authority after due deliberation and diligence which do not reflect
arbitrariness or illegality in its decision and execution. If such equilibrium
in the matter of governance gets disturbed, development is bound to be slowed
down and disturbed specially in an age of economic liberalisation wherein global
players are also involved as per policy decision."
27.
The raison d'etre of discretionary power is that it promotes decision maker to
respond appropriately to the demands of particular situation. When the decision
making is policy based judicial approach to interfere with such decision making
becomes narrower. In such cases, in the first instance, it is to be examined as
to whether policy in question is contrary to any statutory provisions or is
discriminatory/arbitrary or based on irrelevant considerations. If the
particular policy satisfies these parameters and is held to be valid, then the
only question to be examined is as to whether the decision in question is in
conformity with the said policy.
In
the light of the above discussions and decisions, the writ petition fails.
Accordingly dismissed. However, there shall be no order as to cost.
Consequently, the connected writ miscellaneous petition is closed.