Telecom Consumers Protection (9th Amendment) Regulations, 2015 declared ‘ultra vires’ the TRAI Act and ‘violative’ of the fundamental rights
Civil Appeal No. 5017 of 2016
Bench: Justice Kurian Joseph; Justice Rohinton Fali Nariman
Case Brief: In the present matter, a group of appeals were brought up before this bench by the various telecom operators and these appeals arising out of the decision of the High Court of Delhi in various writ petitions, in which the validity of the Telecom Consumers Protection (Ninth Amendment) Regulations, 2015, which were brought into effect from first day of January, 2016, by the Telecom Regulatory Authority of India. The said amendments were made under the provisions of section 36 read with section 11 of the Telecom Regulatory Authority of India Act, 1997. In the view of the said amendment, every originating service provider in this connection is made liable to credit only the calling consumer (and not the receiving consumer) with Rs. 1 for each call drop, which takes place within its network, upto a maximum of 3 call drops a day. Further, the service provider is also to provide details of the amount credited to the calling consumer within four hours of the occurrence of a call drop either through SMS/USSD message. When the writ petitions were preferred before the High Court, that court repelled the challenge of the appellants and the validity of the Regulation was upheld.
This bench observed that there was a countervailing advantage to service providers by way of the allowance of 2 per cents average call drops per month, which has been granted under the 2009 Quality of Service Regulations, could not have been ignored by the Impugned Regulation so as to affect the fundamental rights of the appellants, and having been so ignored, would render the Impugned Regulation manifestly arbitrary and unreasonable. As such, the bench found that the judgement of the High Court is flawed for several reasons. When the High Court said that it is indisputable that Regulation has been made for ensuring quality of service extended to consumers by service providers. This bench observed that said Regulation was to penalize service providers even though they conform to the 2% standard laid down by the Quality of Service Regulations, 2009. As such, the bench found that the High Court judgment has entirely incorrect, as this bench found that the penalty was imposed without any reasons either as to the number of call drops made being three, and only to the calling consumer, far from balancing the interest of consumers and service providers. As such, the bench decided to set aside the decision of the High Court and thus, the appeals were allowed with the declaration that the Impugned Regulation is ultra vires the TRAI Act and violative of the fundamental rights of the appellants under Articles 14 and 19(1)(g) of the Constitution of India.