Consumer Rights under The Telecom Regulatory Authority of India Act, 1997

and Redressal of Consumer Grievances

T.P. Kelu Nambiar, Sr. Advocate

The topic of discussion, namely, ‘Consumer Rights under the Telecom Regulatory Authority of India Act and Redressal of Consumer Grievances’, is of momentous importance. The topic should inspire both the scholar and the laity alike.

Though an elder statesman of the legal profession and an ‘Adhivakta’ (Senior Advocate), I am not a E-lawyer; but only a lawyer. I am not a lawyer at ease with the teletext. Therefore, I feel diffident to be the man in the middle in this Seminar. This occasion would require an all-in-one lawyer.

There was a time when it was thought that telephone is the most basic of communication tools. But this was this day that age. These are days of white-board. The blackboard and the chalk are being replaced by the ‘interactive whiteboard’ a touch screen.

The march of man born with ignorance, in recent times, is beyond our comprehension. In those days, one used to look at the sky either for light or for water. In these days, you look at the Space for every important thing in day-to-day life. It is said that the United States has 413 Satellites in the space; the number is more than the 382 the rest of the world has spinning above the earth. We learn lessons from the sky. More things happen above, than on the 501,300,000 (fifty crores thirteen lakhs) square kilometres of earth. We learn the truth of the statement that men are from Mars, and women are from Venus.

Star-war age has yielded place to ‘big ticket’ channel war and dot war. Sustained efforts have produced great achievements. Wherever you go, be it the Heavens, Earth, or Hades, you find the effects of telecommunication revolution, which is the result of tireless energy, great vision, mission and aim, and unquenchable enthusiasm, casting away Hamletian dilemma, and foregoing the time for one’s forty winks. Even the angry red planet is controlled. Everywhere you see energy in action. We are in a glorious present, expecting an exciting future. It looks as though the creator is being eclipsed by his creation. Everybody yearns to set up shop at the summit. What a wonderful journey and existence of one who entered this world with clenched fists and leaves it with open palms, empty handed.

I should not take time to elaborate the obvious, namely the statutory provisions of the TRAI Act, 1997, the TRAI (Amendment) Act 2000 and the rules and regulations made thereunder, or of the Cable Television Networks (Regulation) Act, 1995. TRAI Act is an Act to provide for the establishment of the Telecom Regulatory Authority of India and the Telecom Disputes Settlement and Appellate Tribunal to regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interests of service providers and consumers of the telecom sector, to provide and ensure orderly growth of the telecom sector and for matters connected therewith or incidental thereto.

What I gather from the establishment of the Telecom Disputes Settlement and Appellate Tribunal, (TDSAT), is that licensors, licensees, service providers, consumers, telecommunication service, are all safe in the hands of the Tribunal. It is a unique authority, exercising original and appellate powers, with very wide powers, limited only by the very limited appellate power of the Supreme Court, to interfere only on a substantial question of law.

The decision of the Supreme Court, in Cellular Operators Association of India ( (2003) 3 SCC 186), is the great charter of powers of TDSAT. The very wide and extensive power conceded to the Tribunal, makes me believe that this Tribunal is the most powerful Tribunal in the whole of the country. Certain very strong, conceding, observations are noteworthy:

“......it must be held that the power of the Appellate Tribunal is quite wide, as has been indicated in the statute itself and the decisions of the Supreme Court dealing with the power of a court, exercising appellate power or original power, will have no application for limiting the jurisdiction of the Appellate Tribunal under the Act. Since the Tribunal is the original authority to adjudicate any dispute between a licensor and a licensee or between two or more service providers or between a service provider and a group of consumers and since the Tribunal has to hear and dispose of appeals against the directions, decisions or order of TRAI, it is difficult to import the self-contained restrictions and limitations of a court under the judge-made law....... The Tribunal has much wider jurisdiction than the jurisdiction of the Supreme Court under S. 18, as the Supreme Court would be entitled to interfere only on a substantial question of law....., not otherwise.....TDSAT’s jurisdiction is not akin to a court issuing a writ of certiorari. The Tribunal although is not a court, it has all the trappings of a court. Its functions are judicial....... Succinctly stated, the jurisdiction of the Tribunal is not circumscribed in any manner whatsoever”. What a wide, rich bestowal. One does not need to be a rocket scientist to figure out the importance of the power conferred. But, power, to its last particle, is duty, said John Watson Foster. Benjamin Disraeli would consider all power a trust. Power flows to the man who knows how. Let me conclude with Pascal: “Justice without power is inefficient”.

More things, I shall wait to hear and learn from your panel discussion, as, as a lawyer, I am not proficient in internet penetration, online world or e-commerce, or podecasting.

 I remain thankful to the organisers of this Seminar, especially to Sri. Justice N.Santosh Hegde, who is entitled to honourable mention, for this rare opportunity of addressing this quality E-gathering.

Gracias (Thank you).

Section 26 of Kerala Buildings (L & R.C.) Act -- Good or Bad?

(By T.M. Rajasekharan, Advocate, Calicut)

The learned author Shri Muhammad, Advocate, has strongly canvassed for a review of decision regarding interpretation of exemption of Wakf property under Section 26 of Kerala Buildings (Lease and Rent Control) Act (2006 (3) KLT Journal 1). I would not like to touch upon the controversy. 

However in his lengthy Article Shri Muhammed has made the following observations to strengthen his contentions : "As per G.O. (M.S.) 14/92 dated 7.3.1992 (S.R.O. No. 435/92) the Government of Kerala exempted in public interest buildings of all churches/mosques of all minority religious from the provisions of Ss. 4, 5, 7, 8, 11 and 13 of Kerala Buildings (Lease and Rent Control) Act, 1965. The Government of Kerala also exempted in public interest buildings owned by temples, devaswoms etc. by separate notifications. The object and purpose of these Notifications are clear enough. The exemption Notifications aims to give freedom to Wakf and other religious institutions to evict tenants who are not prepared to pay the market rent. In the absence of such a provision, these institutions will suffer loss and the tenants will harvest undue benefit by giving nominal rent under the umbrella of Rent Control legislation."

If the purpose of providing exemption u/S.26 is to have freedom to collect rent at "market rate" and to prevent tenants from harvesting undue benefits "by giving (paying?) nominal rent", the legislative intention is meaningless as well as discriminatory. Are not the private owners of property entitled to rent at "market rate" or should they suffer by getting what Shri Mohammed calls "nominal rent"? The State is not supposed to create such disparity between private owners on one hand and the religious institutions on the other. One should not forget that there are scores of buildings owned by public and charitable institutions unconnected with religions. A dispassionate view would be to have a good legislation wherein proper rent is fixed for all buildings regardless to the nature of ownership and provide reasonable and adequate protection to all tenants.

It would not to be too much to suggest that exemptions given to Wakfs, Mosques, Churches, Temples, Mutts etc. are only aimed at appeasing religious fanaticism. A secular State should be above religion and it has no business to divide public on the basis of religion and caste. If the purpose of Act 2 of 1965 is to be achieved in its entirety, such exemptions could be seen as retardation.

The exemptions u/S.26 also add fuel to market inbalances. One who takes a building from Temple, Wakf or Church, sets up a business and starts making a reasonable earning by hard work, is asked to quit, at the whims and fancies of the owners, under the cover of the exemption. This is a cruel joke on the entrepreneurship and blow to market stability, which are essential for the growth of the nation. Pity it is that the Act does not define "market rate of rent" or even "fair rent". I would suggest that "fair rent" should be defined as "the contract rent or the rent assessed by local authorities which ever is higher". In all proceedings under the Act 2 of 1965, the authorities (Rent Controller or Accommodation Controller) shall fix the fair rent before proceeding any further. Such Legislative changes would be a boom to all building owners and exemption u/S.26 can be given away with. The grievance Shri Mohammed airs regarding "market rate of rent" can also be remedied.

‘MR. JUSTICE’  WILL DO JUSTICE TO JUDGES

M.R. Hariharan Nair, Judge

If Press Reports are to be believed, the Bar Council of India is presently ascertaining the views of the learned members of the Bar throughout India as to the mode in which Judges and other Presiding Officers of Courts (and Tribunals) are to be addressed. ‘MY LORD’ AND 'YOUR  LORDSHIP’  TO  BE  HISTORY” says Indian Express of 11th March. The laudable objective, it is stated, is to replace the archaical style of addressing them as ‘My Lord’ in the higher Courts and as 'Your honour’ in the case of subordinate Courts.

Is this effort worth the time and labour it consumes? According to me, not. It is actually a futile exercise. Why so? For the answer, let us go to the 3 decade old Circular 9/1973 of the High Court of Kerala (No: Al-14465/73 dt. 20th July 1973) which reveals the following history.

On 19th April 1973 Justice J.M. Shelat, the then Ag. CJI wrote to all Chief Justices of the High Courts of the country as follows.

“After receiving replies on the above subject from almost all the Chief Justices of the High Courts, a meeting of the Full Court of the Judges of this Court was held on March 12 1973. The meeting decided that the Judges and the Chief Justice of the Supreme Court may be addressed by the members of the Bar as ‘Mr. Justice’ and ‘Mr. Chief Justice’ respectively and when addressing the Court, the form of address would be “this Honourable Court”. It was also agreed that where in the course of arguments it becomes difficult to address a Judge as ‘Mr. Justice’, he may be addressed as “Sir”. In consultation with the Bar Association here, it has been decided to introduce the new mode of address on and from May 1, 1973. I suggest that a uniform mode of address in the Supreme Court and in the High Courts would be proper.”

It was following this letter of the Chief Justice of India that the Kerala High Court issued the said Circular 9/1973 quoting the above letter in full and stating further, as follows:

‘....The High Court has decided to introduce, with immediate effect, similar modes of address in the subordinate courts of the State. The Presiding officer of a court including Munsiffs and Magistrates may be addressed by the members of the bar as ‘Mr. Judge’. If, in the course of arguments it becomes difficult to address the officer as ‘Mr. Judge’ he may be addressed as ‘Sir’. The court may be addressed as’ This Hon’ble Court.......’.

All the subordinate officers of Courts and Tribunals were also requested to introduce the new mode of address with immediate effect (20-7-1973).

When the above state of affairs rule the field, why the present controversy and why the resolution of the Bar Council of India ‘to replace the century old addressing mode’ and why the Circular to State Bar Councils seeking suggestions, one wonders.

The News item also refers to the fact that on 6th Feb: 2006 the Supreme Court turned down a PIL filed by the ‘Progressive and Vigilant Lawyers Forum’ seeking a change in the mode of address from ‘My Lord’ and ‘Your Lordship’ maintaining that any move in this direction would have to be taken by the Bar Councils.

What is evident is that everyone had forgotten about the prudent act of Justice Shelat done 3 decades back. Of course the out moded system of address has to stop. But all that is required to achieve it, is for the Bar to stop the old practice and start using the mode of address prescribed by the Supreme Court decades back. Could it be that the Bar has been reluctant to be progressive and wanted to stick on to the old style right from 1973? If the answer is yes, that is another matter. Then one may be reminded of the orders of the Travancore Devaswom Board allowing men to wear shirts within the inner circle of the temple as well and the later withdrawal of the same as devotees were found not only not using the liberty, but also were protesting against it and found clinging on to old traditions? Let us atop unnecessary controversies. The address ‘Mr. Justice’ will do justice to Judges. Nay, to the Bar and the litigant as well. Better late than never. Let us make up for the 3 decades lost.

The Right to Information Act - A Camouflage

 K.P. Radhakrishna Menon, Judge, HC

Preface:

The right to information has been recognized as a fundamental human right of the People who are committed to parliamentary democracy i.e. The Government of The People, by The People and for The People. Since the people of India have chosen to have Parliamentary democracy, they are entitled to the Right To Information. This right however, remained unrecognized till the Parliament enacted the Right To Information Act.

The Act:

The objective sought to be achieved is to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities in order to promote transparency and accountability in their working. This objective is laudable, because transparency and accountability are the sine qua non for a corrupt free democratic Government. They ensure probity in administration.

Does the enactment help the citizens to get probity in public administration afflicted by the evils of corruption, nepotism and favouritism, established? To get an answer to the question we shall have a probe into some of important provisions in the Act. Section 8, I shall deal with first. The marginal note “Exemption from disclosure of information” is telling. The exempted category of information is encompassed by Clauses (a) to (j) of sub-section 1 of Section 8. For paucity of time I shall refer only to those clauses, which effectively scuttle the laudable objective sought to be achieved. For instance Clause (a): It declares that the authority has no obligation to give any citizen information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relation with foreign state or lead to incitement of an offence. An exotic clause! Which is the information, which cannot be brought under this clause. Any information, the Government want to hide can be notified as an information which would prejudicially affect the sovereignty, security and integrity of India, lead to incitement of an offence: For example information relating to Bofors, The Volka deal, The Nuclear deal etc. Similarly information regarding foreign investments by multinationals, which even a lay man can understand are capable of our state economy being controlled by foreign investors, can be refused on the ground that it would prejudicially affect economic interests of the state. Clause (d) is fantastic. It says that information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information, can be refused. For want of space and time I am not cataloging the other clauses, which are more or less similar to those, which have already been dealt with. Section 22 and the 2nd schedule thereto: This Section empowers the Government to amend the schedule by including other intelligence or security organizations, the Government may establish. This section is also emphatic that the Act will not apply to intelligence and security organizations specified in the 2nd Schedule. This section in my view, therefore gives a decent burial to the laudable object. The cumulative effect of these provisions cuts at the very root of the object sought to be achieved.

Can a law-abiding citizen who loves his motherland expect that an administration, which is afflicted by the evils of favouritism, nepotism and corruption and consequently bereft of probity, will enforce the Act effectively? I leave the question open for the consideration of the public. The Act in fact leads the citizen up the garden path.

Viewed from the side of the Poor:

Be that as it may. Assuming that this Act recognizes the right to information embedded in the Fundamental Right guaranteed under Art.19 of The Constitution, even then the bonafides or credentials of the elected representatives who gracefully blessed the people with this enactment, warrant a look. This shall be had from the point of view of the people who belong to the weaker section. One other question that warrants consideration is: Does this Act in any way alleviate the problems socio, economic and ethnic?

Let us try to understand the benefit the weaker section gets: Before we deal with this aspect let us have a study of The Constitution. The democracy envisaged by the Constitution is a democracy of the people, for the people and by the people. That means it is the bounden duty of the Government functioning under the Constitution to provide a decent standard of life to the weaker section of the people and especially provide security from cradle to grave and bring them up in society and join the mainstream. In other words the Government should have done whatever possible to help the weaker section get a place among the well to do.

But like the British administrators, the Rulers of The Republic continued to neglect the education and socio economic uplift-of, what Swami Vivekananda reverently called, our daridra narayanans, the forgotten and neglected weaker section of the people who mostly live in slums and rural areas. The politicians, who believed in service to the people before independence, became self centered, selfish, the moment they tasted power and authority. These politicians were striving hard to come to power. Many candidates aspiring to get elected to the Parliament contesting the 1st general election in 1952, made allegations of corruption, nepotism, immorality and black marketing against their rivals. The congress party committee constituted to screen applications for tickets, had its slogan ‘Let us give Nehru the 500 men he wants and five years and leave the rest to him’ though Gandhiji wished that deserving men from various spheres of activity be inducted into public life so that they can contest elections. This attitude of the congress party gave birth to a new phase in India’s political life. In his book “India from Curson to Nehru and After” Durga Das who was part and parcel of freedom struggle, referring to the political history of free India has stated thus: The Congress won the general election, and that gave birth to a new phase in India’s political life, namely the emergence on top, of courtiers, sycophants and hangers on. When I asked Azad to comment on this development, he said, “We are still feudal, but what has distressed me is that many good persons have been denied tickets because the trusted courtiers had labeled them as anti - Nehru” Page 307-308. Thus for the first time personality cult was introduced in our democracy.

This cult opened the floodgates of favoritism, nepotism and corruption. Dynastic Rule, which had been given a decent burial simultaneous with the transfer of governance by the British, was resurrected by the sycophants. Whenever and wherever possible dynasty rule was established. Political interference in administration to help the courtiers, sycophants and hangers on to avoid criminal charges resulted in criminalisation of politics and politicisation of criminals. The poor people thus ceased to have any rote in the administration. Policy of appeasement aimed at giving concessions to the minorities with the vote bank in view is the reason for the division of the People into two rival groups, The Majority and The Minority. While adopting such polices the administration never bestowed its attention on the weaker section of the People. The administration, it shall be said, refused to protect the weaker section. Such unconstitutional actions are galore. ‘This divide and rule policy’ of the politicians turned administrators virtually tore apart the fabric of democracy, of The People, for The People and by The People envisaged under our Constitution. They have instead introduced a new democracy, which can be defined as democracy of The Politician, for The Politician and his kith and kins and by The Politician. The Politicians thus managed to come to power ignoring the lot of the weaker section of The People.

Grieved by the sufferings of the weaker section of the people, like Adivasis, the Scheduled Castes and Scheduled Tribes, under the administration lead by politicians believing only in power politics, Swami Ranganadhananda lamented:

“But today after achieving independence, the magnitude of self-centeredness that has come to many among our upper classes, the dead life that has come to them, is amazing. The result is the problem ridden India which we live in today. Everything is chaotic. After 37 years of freedom, we have transformed India into a hell. The call of freedom was given by great leaders and they inspired the people”. While making this remark, Swamji points his finger to these facts:- ...............”300 million people of our country have plenty to eat and drink, have opportunities for education, and live in fine houses, but the remaining 400 million people are very backward unless our conscience is turned in this direction, our nation cannot develop inner strength and a real democratic body politic”.

After the introduction of coalition Governments the situation has worsened. Political parties immersed in the game of permutation combination to continue in power or come to power have little time to attend on the Daridra - Narayanas. The weak were thought of only at the time of election. At that time many promises will be made, without the intention of fulfilling the same. The combination of political parties based on permutations, has proved that these political parties following different and opposing ideologies join together just to share power meant only for their aggrandisement or for the aggrandisement of their co-travelers and their kith and kin.

Is there any political party which has discarded the corrupt, which is working for the upliftment of the weak; which is not involved in vote gathering gimmicks, which has ever worked for providing a democratic government meant to provide a decent standard of life to the weak and especially provide security from cradle to grave.

From the discussion above it is clear that today in India in the place of democracy, of the people for the people and by the people, we have a democracy as defined by Benito Mussolini:

“Democracy is a kingless regime infested by many kings who are sometimes more exclusive, tyrannical and destructive than one, he be a tyrant”.

On substitution of the word ‘politicians’ in the place of ‘kings’ the definition reads i.e., Democracy is a kingless regime infested by politicians who are sometimes more exclusive, tyrannical and destructive than one, if he be a tyrant.

After 59-60 years of freedom we today have a problem - ridden India. The rich has become richer and the poor poorer. Can we say that by widening the gap between the rich and the poor, an egalitarian society be created. That it is not possible to create an egalitarian society in the present state of the economy of the nation controlled by the multinationals is a hidden truth. Not only that foreign investments on the soil of this nation may even result in the conquest of the Indian Market by trade almost similar to the trade established by The East India Company resulting in the loss of our freedom. Another crucial aspect: Are we to understand that the establishment of Techno Parks and Smart Cities will help the creation of an egalitarian society? Are we to understand that the multinationals are very eager to create a welfare state? Are we to understand that the Nuclear Deal helps us to become the world leader? The answer to these questions from a layman’s point of view is an emphatic ‘No’. He may even go to the extent of saying that the national economy will come to a grinding halt if the multinationals and the foreign investors press their remote.

The poor destined to live in free India if asked to take any of the two packets shown to him, one containing a loaf of bread and the other containing a copy of Part III of The Constitution (fundamental rights) and a copy of The Right to Information Act, I can say without fear of contradiction that he will take only the loaf of bread which for days together he could not get. To a person who is destined to live in penury, fundamental right is of no consequence. He abhores it just like the one in a condemned cell awaiting the black warrant.

Viewed from the side of the Rich:

The rich is unconcerned with fundamental rights, because he can purchase anything he wants. He can get his fundamental rights enforced whenever he wants, such is the power of money these days.

I therefore am of the view that The Right to Information Act is a camouflage to hide the undemocratic activities of the Governments.