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High Court Of Delhi
VIKRAMAJIT SEN,J. P. SINGH
STAR INDIA PVT LTD. - Appellant
Versus
TELECOM REGULATORY AUTHORITY OF INDIA - Respondents
W. P. (C) 16914 Of 2006
Decided On : 07/09/2007
The petitions are not maintainable as the Petitioners are not Indian citizens. The impugned provisions of the TRAI Act and the CTN Act are not ultra vires the Constitution. The impugned Regulations are calculated to protect the viewers' interest.
Fact of the Case:
The Petitioners, who are foreign companies, have filed writ petitions challenging the vires of certain provisions of the TRAI Act, the CTN Act, and the Interconnection Regulations. They contend that these provisions infringe their fundamental rights under Articles 14, 19, and 301-307 of the Constitution.
Finding of the Court:
The Court held that the petitions are not maintainable as the Petitioners are not Indian citizens. The Court also held that the impugned provisions of the TRAI Act and the CTN Act are not ultra vires the Constitution. The Court further held that the impugned Regulations are calculated to protect the viewers' interest.
Issues: 1. Whether the petitions are maintainable? 2. Whether the impugned provisions of the TRAI Act and the CTN Act are ultra vires the Constitution? 3. Whether the impugned Regulations are valid?
Ratio Decidendi: 1. The Court held that the petitions are not maintainable as the Petitioners are not Indian citizens. The Court relied on the following principles: (a) A company registered under the Companies Act is a legal person, separate and distinct from its individual members. (b) All shareholders may not be entitled to move a petition for infringement of the rights of the company unless by the impugned action his right had also been infringed. (c) A single shareholder may have sufficient locus standi to fight the cause of a company whose commercial interests are common to his, as had happened in the Bank Nationalization cases. 2. The Court held that the impugned provisions of the TRAI Act and the CTN Act are not ultra vires the Constitution. The Court relied on the following principles: (a) The Constitution deliberately and advisedly makes a clear distinction between Fundamental Rights available to 'any person' and those guaranteed to 'all citizens'. (b) Article 19 inter alia guarantees citizens of India (a) the freedom of speech and expression and (g) the right to carry on any occupation, trade or business. (c) Their Lordships poignantly opined that this role, which is quite distinct to simple entertainment, has always been considered so vital to nation building and social awareness that it has in almost all legal systems been accorded preeminence. Hence it has been viewed as a freedom and not a mere right. (d) Whilst there is no scope for applying a quantitative test a qualitative test is essential in such matters. As has specifically been observed in Benett Coleman the rights of a writer or editor of freedom of speech and expression must be protected. But these rights cannot be confusedly and incorrectly enforced in favour of persons not falling in this category. A single shareholder may have sufficient locus standi to fight the cause of a company whose commercial interests are common to his, as had happened in the Bank Nationalization cases. 3. The Court held that the impugned Regulations are calculated to protect the viewers' interest. The Court relied on the following principles: (a) The impugned Regulations are calculated to protect the viewers' interest. (b) The subscriber has a fundamental right of viewership which has preeminence over that of the broadcasters' fundamental rights.
Final Decision: The Court dismissed the writ petitions.
( 1 ) IN Petition No. I (CW 24105/2005) Star India Pvt. Ltd. has prayed for a certiorari quashing the proviso to Section 2 (1) (k) of the TRAI Act; a certiorari for quashing Tariff Orders dated 15. 1. 2004, 1. 10. 2004, 1. 12. 2004 and 29. 11. 2005 and the Telecommunication (Broadcasting and Cable Services) interconnection Regulation, 2004 It has further been prayed that the Court should declare that TRAI is not competent to regulate broadcasting services as also another declaration to the effect that these impugned Orders and impugned interconnect Regulations are violative of Articles 14 and 19 (1) (a) and (g) as also Articles 301 to 307 of the Constitution. In Petition No. II (CW 5332/2006) star India Private Limited has prayed for the setting aside an order of the telecom Disputes Settlement and Appellate Tribunal in Appeal No. 12 (C) of 2005 titled Grahak Hitvardhani Sarvajanik Sanstha -vs- TRAI and (b) issuance of a writ of certiorari quashing the Telecommunication (Broadcasting and Cable) services (Second) Tariff (Fourth Amendment) Order 2006 notified on 7. 3. 2006. In petition No. III (CW 14877-78/2006) Star India Private Limited has prayed that the Telecommunication (Broadcasting and Cable) Services (Third) (CAS Area) tariff Order 2006 and further that the Telecommunication (Broadcasting and Cable services) (Second Amendment) Regulation, 2006 dated 24. 8. 2006 be struck down being violative of Articles 14, 19, 301 to 307 of the Constitution. In Petition no. IV (CW 16913-14/2006) filed by Set Discovery Private Limited the following prayers have been made:
a) Issue writ, order or direction to declare that the TRAI has no jurisdiction or power under Section 11 (2) of the TRAI Act to fix tariffs for Broadcasters; b) Issue writ, order or direction to declare that the TRAI has no jurisdiction or power under Section 11 (2) of the TRAI Act to strike down S. 11 (2) of the TRAI act; c) Issue an appropriate writ, order or direction to quash the Notification dated 31. 07. 06 (F. No. 9/16/2004-BPandl [vol. IV] issued by Ministry of Information and broadcasting; d) Strike down clauses 3. 3 and 9 to 12 of the Telecommunication (Broadcasting and Cable Service) Interconnection (Third Amendment) Regulation, 2006 (10 of 2006) dated 04. 09. 2006 (No. 6-4/2006-Bandcs) as amended by the Telecom regulatory Authority of India.
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( 2 ) SO far as Petition No. 1 is concerned the prayer for quashing Tariff orders was correctly not pressed before us. So far as Petition No. 2 is concerned the Order in Appeal No. 12 (C) of 2005 was not pressed. Since the respondents have asserted that the Petitions are not maintainable, we shall immediately deal with that point.
( 3 ) MR. P. P. Malhotra, learned Additional Solicitor General and Mr. Rakesh dwivedi, learned Senior Counsel for Telecom Regulatory Authority of India (TRAI), have laid a threshold challenge to the very maintainability of the present petitions seeking the enforcement of the Fundamental Rights enshrined in Article 19 of the Constitution of India. They contend that the very least expected of the Petitioners was to plead facts establishing that they are Indian citizens. Their argument is that the Petitioners have deliberately refrained from doing so since they are in fact foreign companies transacting business in India. Indubitably the burden to clarify their status as citizens of India reposed entirely on the Petitioners and they have miserably failed to plead facts and figures establishing their eligibility. The nature of the shareholding of the petitioners has been provided to us by the Respondents in terms of the affidavits dated 21. 2. 2007 filed on behalf of. So far as Star India private Limited is concerned it appears that it is completely (98. 85899 per cent) held by a foreign company named Buzzer Investments Ltd. registered in mauritius, which in turn is owned by The News Corporation Ltd. which is registered in Australia. Star India Private Lim
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