Avishek Goenka Vs. Union
of India & ANR.
[Writ Petition
(Civil) No. 285 of 2010]
J U D G M E N T
Swatanter Kumar, J.
1.
The
petitioner is a businessman engaged in the business of distribution of pre-paid
virtual and tangible calling value for mobile phone subscribers and also sells
new customer acquisition packs and follows it up, by collection of customer application
forms and executing tele-calling, to verify customer credentials. In this Public
Interest Litigation, the petitioner has attempted to highlight the grave issue of
non-observance of norms/regulations/guidelines related to proper and effective subscriber
verification by various service providers. In fact, according to the petitioner,
there is rampant flouting of norms/regulations/guidelines relating to this subject
matter and there is no proper verification of the subscribers prior to selling
of the pre-paid mobile connections to them.
2.
The
Telecom Regulatory Authority of India (for short, “TRAI”) is the regulatory
body for the telecommunications sector in India and the Union of India has responsibility
to issue guidelines and frame regulations and conditions of licence, in
consultation with the TRAI, to ensure coordination, standardization and compliance
with the regulations, as well as protecting the security interests of the country.
3.
It
is the averment of the petitioner that the telecom sector has witnessed the
most fundamental structural and institutional reforms since 1991. This sector
has grown significantly in the last few years. As per the Annual Report for
2009-2010 of the Department of Telecommunication, Ministry of Communications
and IT, Government of India (for short “DoT”), as on 31st December, 2009, the
Indian telecom sector had about 5622.11 million connections. The tele-density per
hundred population, which is an important indicator of telecom penetration in
the country, has increased from 2.32 per cent in March, 1999 to 47.88 per cent
in December, 2009. The Eleventh Five Year Plan for 2007-2012 had provided a
target of 600 million connections, but the industry has already provided around
700 million connections, thus far exceeding the target. Different random
studies in relation to pre-paid Subscriber Identity Module (SIM) cards show widespread
violation of guidelines for Know Your Customer (KYC) and even other common
guidelines. The SIM cards are provided without any proper verification, which causes
serious security threat as well as encourages malpractices in the telecom
sector. It appears that 65 per cent of all pre-paid SIM cards issued in Jammu
& Kashmir and 39 per cent of all pre-paid SIM cards in Mumbai, may have
been issued without verification; which means that 1 out of every 6 pre-paid
SIM cards is issued without proper verification. The averment is that such unverified
SIM cards are also used in terrorist attacks.
4.
This
Court, in the case of State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru
[(2005) 11 SCC 600] had, with some caution, referred to a large number of calls
which had been made by terrorists from instruments containing unverified SIM cards.
It is further averred by the petitioner that around 80 per cent of the pre-paid
SIM cards may be purchased in pre-activated form which is in violation of the
notifications issued by the DoT, dated 22.11.2006 and 23.3.2009 respectively,
banning the sale of pre-activated SIM cards. Another significant fact that has
been brought out in this petition is that, pre-paid SIM cards, which are the most
commonly issued without verification, constitute 96 per cent of the total SIM cards
sold. This indicates the seriousness of the problem as well as the security hazard
that emerges from the telecom sector.
5.
Thus,
the petitioner has prayed that there should be strict implementation of subscriber
verification guidelines, physical verification be compulsory in future and
physical re-verification of existing subscriber base be conducted in a
transparent manner. He also seeks the prevention of inflated subscriber base.
On all matters in relation to these prayers, he pleads for issuance of
appropriate writ, orders or directions. Upon notice, the DoT as well as the TRAI
had put in appearance and placed on record the guidelines issued by the DoT, as
well as the comments of TRAI, respectively.
6.
The
petitioner, during the pendency of the petition, filed an Interim Application,
I.A. No. 6 of 2012, wherein he referred to a circulation containing the draft
norms prepared by the Government of India (DoT) in relation to :
a. Re-verification of
existing customer base.
b. Verification process
as followed in Assam, J&K to be extended across country.
c. Mail of SIM card and
activation details to the address of the subscriber, both being sent separately.
This method is similar to that of delivery of debit, credit cards.
d. Refuse to recognize
government ID cards as sufficient proof, etc.
7.
According
to the petitioner, these norms have not been adhered to and in fact, the
present instructions / guidelines formulated by DoT are at variance to the
norms, ignoring essential precautions for verification of subscriber identity
and safe distribution of pre-paid SIM cards.
8.
We
have already noticed that the rapid expansion of the telecom sector and its impact
on development, both, equally impose responsibility on the Government of India,
the regulatory body and the various stakeholders in the telecom sector to carry
out proper verification of the pre-paid SIM cards and ensure national safety and
security. To achieve this object, it is primarily for the expert bodies and the
Government of India to act and discharge their respective functions.
9.
In
terms of Section 11 of the Telecom Regulatory Authority of India Act, 1997 (for
short, ‘the Act’), it is a statutory obligation upon the TRAI to recommend a
regulatory regime which will serve the purpose of development, facilitate
competition and promote efficiency, while taking due precautions in regard to safety
of the people at large and the various other aspects of subscriber verification.
Similarly, the DoT is responsible for discharging its functions and duties as,
ultimately, it is the responsibility of the Government to provide for the
safety of its citizens. The TRAI has to regulate the interests of telecom
service providers and subscribers, so as to permit and ensure orderly growth of
telecom sector. The Government of India and TRAI, both, have to attain this delicate
balance of interests by providing relevant instructions or guidelines in a
timely manner and ensuring their implementation in accordance with law.
10.
While
referring to the guidelines issued by DoT and the comments of TRAI thereupon, the
petitioner has raised, inter alia, but primarily, the following objections : i)
Despite clear guidelines and decision to complete re- verification of existing customer
base, scheduled to be completed between 1st November, 2009 to 31st October, 2010,
which time was further extended to 31st December, 2010, no effective steps have
been taken to complete this exercise. ii) Re-verification has been left in the hands
of the interested stakeholders, i.e., the service providers themselves, who are
not taking appropriate and effective steps to complete the re- verification
exercise. iii) The delivery of the pre-paid SIM card to the prospective subscribers
should be effected by registered post and home delivery process, so as to
provide basic verification of the address of the subscriber. iv) There should
be no relaxation of requirement for photograph of the subscriber in the
Customer Acquisition Forms (CAF). v) Lastly, that there should be heavy penalty
for violation of the guidelines and particularly, for providing pre-paid SIM
cards to subscribers whose identity and addresses are unverified.
11.
Before
this Court, the DoT filed its instructions dated 14th March, 2011, relating to
various aspects involved in the present case and specifically, on the manner of
verification of new mobile subscribers (pre-paid and post-paid). These instructions,
inter alia, dealt with the verification and activation of mobile connections,
special guidelines for issue of mobile connections to foreigners and outstation
users, bulk mobile connections, change in the name of subscriber,
disconnection, lodging of complaints and even imposition of penalties. Clause 3(vii)
of these instructions provided that pre-activated SIM cards are not to be sold.
In case of sale of pre-activated SIM cards, a penalty of Rs. 50,000/- per such connection
shall be levied upon the service provider/licensee, in addition to immediate
disconnection of the mobile connection.
12.
Most
of the grievances raised by the petitioner have been appropriately dealt with
under these instructions. But, however, some of the issues have not been
comprehensively provided for. The TRAI filed an affidavit dated 14th March, 2012,
dealing with the instructions of the DoT, dated 14th March, 2011. In the said affidavit,
however, TRAI suggested certain variations as provided in Annexure R-I to their
affidavit. According to TRAI, the verification of identity is dealt with
differently in different countries, some have provided stringent standards of documentation
of identification while others have not issued any guidelines and left it to the
discretion of the service provider. In India, TRAI recommended that the
Customer Acquisition Form (CAF) have a “unique” number, which may be affixed at
a central warehouse, rather than prior to distribution. TRAI also recommended
that the CAF form should be simpler in its content as the form presently in use
is not serving its purpose adequately. TRAI has annexed to its affidavit, as Annexure
I, the sample form which should be adopted as a regular form to be filled in by
the subscriber. According to TRAI, in a manner similar to bulk users, even
individual users should disclose all the SIM cards and connections in the name
of such individual, with due verification by the licensee. Also differing with
the instructions of DoT on the issue of manner of conversion from pre-paid to post-paid
connections and vice-versa, as well as regarding the transferability of mobile connections,
TRAI submits that the both should be permissible, the former being treated as a
change in tariff plan (not as a fresh or a transferred connection) and the
latter as a new mobile connection, subject to consent of the existing owner of
the mobile connection.
13.
The
other issue on which DoT and TRAI differed is, whether the employees of the licensee/service
provider should be required to personally update the subscriber details in the database.
While according to DoT, this should be carried out by the employees of the licensee
itself, however, according to TRAI, it can be done by their authorized
representatives, keeping in view various factors, like expense, time,
efficiency and practicability. Both TRAI and DoT are agreeable that such a database
of all the registered subscribers should be maintained by the licensee and the
same be made accessible to the security agencies. Giving an example of the Nigerian
Communication Commission, which maintains a similar database of all registered
subscribers, TRAI concludes that even the general evidence demonstrates that
such database makes verification and tracing of the identity of the subscriber
easier, particularly in absence of the Unique ID cards. Some of the licensees and
service providers intervened in the present writ petition and have taken a stand
that they are, in fact, maintaining database details of all registered subscribers.
Such information is also made available to the Government Department or
security agencies on demand and in accordance with law.
14.
If
one examines the powers and functions of TRAI, as postulated under Section 11
of the Act, it is clear that TRAI would not only recommend, to the DoT, the
terms and conditions upon which a licence is granted to a service provider but
has to also ensure compliance of the same and may recommend revocation of
licence in the event of non- compliance with the regulations. It has to perform
very objectively one of its main functions, i.e., to facilitate competition and
promote efficiency in the operation of the telecommunication services, so as to
facilitate growth in such services. It is expected of this regulatory authority
to monitor the quality of service and even conduct periodical survey to ensure
proper implementation.
15.
What
emerges from the above discussion is that the stakeholders DoT, TRAI and the
licencees are ad idem in regard to most of the issues in terms of the
instructions prepared by the DoT. However, there are certain points on which
there is a difference of opinion between the DoT and the TRAI. This limited
divergence is required to be resolved by further clarification and issuance of more
specific instructions. These issues fall under two categories: - firstly, what has
been pointed out by the petitioner and secondly, where the DoT and the TRAI
hold different opinion as noticed above. Proper deliberation between the
stakeholders possessed of technical knowhow can resolve such issues usefully
and effectively.
16.
The
abovementioned points of divergence between TRAI and DoT are matters which will
have serious ramifications not only vis-à-vis the regulatory authorities and
the licensees but also on the subscribers and the entire country. These aspects
demand serious deliberation at the hands of the technical experts. It will not be
appropriate for this Court to examine these technical aspects, as such matters are
better left in the domain of the statutory or expert bodies created for that
purpose. The concept of ‘regulatory regime’ has to be understood and applied by
the courts, within the framework of law, but not by substituting their own
views, for the views of the expert bodies like an appellate court. The
regulatory regime is expected to fully regulate and control activities in all spheres
to which the particular law relates.
17.
We
have clearly stated that it is not for this Court to examine the merit or
otherwise of such policy and regulatory matters which have been determined by expert
bodies having possessing requisite technical knowhow and are statutory in nature.
However, the Court would step in and direct the technical bodies to consider the
matter in accordance with law, while ensuring that public interest is safeguarded
and arbitrary decisions do not prevail. This Court in the case of Delhi Science
Forum & Ors. v. Union of India [AIR 1996 SC 1356 = (1996) 2 SCC 405], while
dealing with provision of licences to private companies as well as
establishment, maintenance and working of such licences under the provisions of
the Telegraph Act, 1885, applied the ‘wednesbury principle’ and held that ‘as such
the Central Government is expected to put such conditions while granting licences
which shall safeguard the public interest and the interest of the nation. Such
conditions should be commensurate with the obligations that flow while parting
with the privilege which has been exclusively vested in the Central Government
by the Act’. It is the specific case of the petitioner and some of the affected
parties in the present proceedings that certain very important aspects, including
security, have not been appropriately dealt with in the instructions dated 14th
March, 2011.
18.
Some
divergence on certain specific issues of the regulatory regime has been
projected in the instructions and comments filed by TRAI and DoT. They need to be
resolved but, in absence of any technical knowhow or expertise being available with
this Court, it will not be appropriate to decide, by a judicial dictum, as to which
of the views expressed by these high powered bodies would be more beneficial to
the regulatory regime and will prove more effective in advancing the public
interest. Essentially this should be left to be clarified and the disputes be resolved
by the expert bodies themselves. It is a settled canon of law that in a
regulatory regime, the terms and conditions imposed thereunder should be
unambiguous and certain. It is expected that the authorities concerned would enforce
the regulatory regime with exactitude. Therefore, it is not only desirable but
also imperative that TRAI and DoT seriously cogitate on the issues where
divergence has been expressed between them and bring unanimity in the terms and
conditions of licences which would form an integral part of the instructions
dated 14th March, 2011.
19.
It
may be noticed here that, as interveners, some of the licensees and/or service providers
had criticized some of the terms and conditions of licence proposed under the
instructions dated 14th March, 2011. These interveners not only made some suggestions
with regard to the ambit and scope of the guidelines and instructions by TRAI
or DoT but also intended to raise certain disputes vis-à-vis DoT in the
capacity of licensees subject to the impugned instructions. Without any
reservation, we make it clear that we are not directly or indirectly entering
upon the adjudication of any dispute or even differences between the service
provider/licensee on the one hand and TRAI or DoT on the other. If they or any
of them have any claim or dispute with the other, they should resolve the same by
taking recourse to independent proceedings in accordance with law.
20.
In
view of our above discussion, we partially allow the writ petition. The
instructions dated 14th March, 2011 issued by DoT be and hereby are accepted by
the Court subject to the following conditions:
i.
We
hereby direct the constitution of a Joint Expert Committee consisting of two
experts from TRAI and two experts from DoT to be chaired by the Secretary, Ministry
of Communications and Information Technology, Government of India.
ii.
This
Committee shall discuss and resolve the issues on which TRAI in its affidavit has
given opinion divergent to that declared by DoT in its instructions dated 14th March,
2011. Following are the points of divergence that require examination by the
Joint Expert Committee :
a. Whether re-verification
should be undertaken by the service provider/licensee, the DoT itself or any other
central body? (b) Is there any need for enhancing the penalty for violating the
instructions/guidelines including sale of pre-activated SIM cards?
b. Whether delivery of
SIM cards may be made by post? Which is the best mode of delivery of SIM cards to
provide due verification of identity and address of a subscriber?
c. Which of the
application forms, i.e., the existing one or the one now suggested by TRAI should
be adopted as universal application form for purchase of a SIM card?
d. In absence of Unique ID
card, whether updating of subscriber details should be the burden of the licensee
personally or could it be permitted to be carried out through an authorized
representative of the licensee?
e. In the interest of national
security and the public interest, whether the database of all registered subscribers
should be maintained by DoT or by the licensee and how soon the same may be made
accessible to the security agencies in accordance with law?
i.
ii.
iii.
The
above notified Committee shall resolve the above specified issues and any other
ancillary issue arising there from and make its recommendations known to the
DoT within three months from today.
iv.
The
DoT shall take into consideration the recommendations of the Joint Expert
Committee. The instructions issued by DoT dated 14th March, 2011 shall
thereupon be amended, modified, altered, added to or substituted accordingly. They
shall then become operative in law and binding upon all concerned.
v.
Composite
instructions, so formulated, shall positively be issued by the DoT within 15 weeks
from today and report of compliance submitted to the Registry of this Court.
21.
The
writ petition is disposed of with the above directions. There shall be no order
as to costs.
….…………......................CJI.
(S.H. Kapadia)
…….…………......................J.
(A.K. Patnaik)
...….…………......................J.
(Swatanter Kumar)
New
Delhi
April
27, 2012
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