India: Supreme Court Drops The Hammer On TRAI's Call Drop Regulations

Last Updated: 17 May 2016
Article by Seema Jhingan and Manasi Chatpalliwar

A. Supreme Court quashes TRAI Regulations on call drops

The Hon'ble Supreme Court of India has quashed the Telecom Consumers Protection (Ninth Amendment) Regulations dated October 16, 2015 ("Regulations") issued by the Telecom Regulatory Authority of India ("TRAI"). The Regulations, which prescribed a financial disincentive (Rs. 1 for each call drop limited to a maximum of three calls per day) to be paid by the Telecom Service Providers ("TSPs") to their customers w.e.f. January 1, 2016 had been challenged by the TSPs before the Hon'ble High Court of Delhi on the grounds of being arbitrary, unreasonable and without basis. The High Court however, upheld the validity of the Regulations on February 29, 2016 and further stated that since the same had not been stayed by the court during the proceedings, TRAI was at liberty to take appropriate steps towards its compliance.

B. The TSPs' arguments before the Supreme Court

Unfazed by the setback before the High Court, the TSPs appealed to the Supreme Court challenging the lower court's judgment. The Supreme Court categorized the TSPs' arguments into the following categories:

  1. That the Regulations were ultra vires Section 36 read with Section 11 of the TRAI Act, 1997 ("Act");
  2. That the Regulations, being in the nature of subordinate legislations were manifestly arbitrary and unreasonable, thereby affecting the fundamental rights of the TSPs under Articles 14 and 19(1)(g) of the Constitution;
  3. That TRAI had no power to interfere with the licence conditions which were contract conditions between the licensor and licensee and thus the penalty not provided by the licence needed to be struck down; and
  4. That Section 11(4) of the Act required TRAI to be transparent in its dealings with various stakeholders – which it had failed to do.

C. Defence of HC Order by TRAI and Consumer Groups

TRAI submitted, inter alia, before the apex court that the Regulations were an experimental measure and were liable to be revisited in 6 months, and therefore the TSPs had been hasty in their appeal without allowing the Regulations to work. TRAI submitted that it was possible to arrive at the cause of a call drop and further possible to isolate the service provider responsible for the same. It was further submitted that the fault of consumers and the fault of the TSPs were the only two main reasons for call drops. To further support the arguments put forth on behalf of TRAI, counsel for various consumer groups submitted that the appeal by TSPs should be dismissed as the focus of TRAI and the Regulations was for the impoverished consumers in India (such as those relying on Rs. 10 top up recharges). It was urged that the doctrine of public trust should apply to the Regulations as they were a part of the overall social responsibility of TRAI towards consumers.

D. The Supreme Court's Decision

The Supreme Court struck down the Regulations as being arbitrary and ultra vires the Act and, inter alia, observed that the Regulations sought to protect the interest of the consumer at the expense of the TSP and that the balance sought to be achieved for the orderly growth of the telecom sector by the Act had been violated. It was clarified that the Regulations being a subordinate legislation need to pass the test for arbitrariness and constitutional muster. The court noted that the Regulations seemed to be based on the fact that the service provider is 100% at fault which was contradictory to the statistic (that 36.9% of call drops are due to the fault of consumers) provided by TRAI itself. The court determined that in view of the aforesaid, the TSPs were being made to pay for call drops which were not attributable to their own fault and the consumer in some cases was receiving compensation for a call drop that was due to the fault of the consumer itself. The court therefore concluded that the Regulations had been framed without intelligent care and deliberation. It further dismissed the argument (put forth by TRAI) that the Regulations would be worked in such a manner so that the TSP would be liable to pay only when it is found at fault as the Regulations itself were invalid. The court clarified that a legislation or statute which is otherwise invalid cannot be saved by its being administered in a reasonable manner.

E. Conclusion

One of the most significant aspects of the dispute so far seems to be the failure on the part of TRAI and the TSPs to find a feasible solution for suffering consumers. Although the Regulations have been quashed by the Supreme Court, neither TRAI nor the TSPs have shared a "Plan B" to solve the problem of call drops, which continues unabatedly against the interest of consumers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Seema Jhingan
Manasi Chatpalliwar
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions