TRAI's Appeal Against TDSAT Quashing Daily Cap Of 200 SMS : Supreme Court Seeks Filing Of Relevant Regulations

Recently, the Supreme Court (on November 22), directed the filing of relevant regulations in an appeal against telecom appellate tribunal’s 2012 decision quashing the cap of 200 text messages per day.

A bench comprising Justices PS Narasimha and Sandeep Mehta was hearing an appeal filed by the Telecom Regulatory Authority of India (TRAI) in 2012.

The restriction was imposed by the Telecom Regulatory Authority of India as part of its stringent Telecom Commercial Communications Customer Preference Regulations. The object was to prevent unsolicited commercial communications.

The petition was filed by Yuva Sena president Aditya Thackeray. Before TDSAT, Thackeray contended that sending of SMSs, being a mode of communication, any cap would be contrary to the fundamental freedom of speech and expression as envisioned in Article 19(1)(a) of Constitution of India.

Per contra, the TRAI argued that the ‘right of Privacy’ of other citizens, as envisaged under Article 21, will instead prevail over the right of freedom of speech and expression as contended by Thackeray.

The TDSAT, in its 2012 decision, observed that to prevent illegal telemarketing, restrictions on genuine users of SMs services cannot be imposed. Apart from this, the Tribunal observed that the telemarketers are required to be registered.

“If some of them are not and have been taking recourse to illegality, steps can be taken to curb the same effectively. If a law is violated, the violator can be punished. Likely violation of law by unauthorized telemarketer cannot be a ground to restrict the fundamental right of a citizen of India, the consumer in this case.,” the Tribunal added.

It further held that a citizens’ right to propagate his views, communicate the same and the fellow citizens’ right to receive is absolute and only subject to reasonable restrictions as envisaged under Article 19(2) of the Constitution of India. Moreover, the Court did accede that regulating the service providers vis-à-vis the telemarketer is valid however, it opined that the regulator cannot impose a restriction on the citizen’s right under Article 19 (1) (a) indirectly which it cannot do directly. Elucidating the same, the Court stated, “It cannot bring under the same grinder ‘telemarketer’ and citizen in the guise of curbing telemarketing.”

The Tribunal also delved into the aspect of Right to privacy and categorically held that the number of messages cannot be restricted in the name of privacy.

“In absence of any control over the contents of message and the time during which they can be sent the Regulations could not restrict the number of SMSs in the name of privacy. There is nothing on record to show that any citizen had raised any objection with regard to number of SMSs sent by other citizen and thereby his right of privacy has been infringed.”

Against this decision of TDSAT, the regulatory authority moved the Top Court which in turn issued notice to the instant appeal while also staying the challenged order.

Additionally, it may also be noted that in the same year, the Delhi High Court, in its decision taken in Telecom Watchdog v. Union of India & Anr., W.P.(C) No. 8529 of 201, had held that the impugned regulations are unconstitutional. The High Court had held:

“We are, therefore, of the opinion that the impugned provision insofar as it covers non-UCCs (Unrestricted Unsolicited Commercial Communications) 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.”

Case Title: TELECOM REGULATORY AUTHORITY OF INDIA vs. ADITYA THACKERAY, Diary No.- 34554 - 2012

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