Back
146 (2008) DELHI LAW TIMES 455 (DB)
DELHI HIGH COURT
Vikramajit Sen & J.P. Singh,JJ.
STAR INDIA P. LTD. – Petitioner
versus
TELECOM REGULATORY AUTHORITY OF INDIA & ORS. –Respondents
W.P.(C) 24105/2005 with W.P.(C) 5332/2006, W.P.(C) 14877-78/2006, W.P.(C) 16913/2006 and W.P.(C) 16914 of 2006
Decided on : 9.7.2007
The High Court of Delhi in a batch of writ petitions filed by various broadcasters and cable operators, examined the constitutional validity of certain provisions of the Telecom Regulatory Authority of India (TRAI) Act, 1997, the Cable Television Networks (Regulation) Act, 1995, and the regulations framed thereunder. The Court considered the following key legal issues: 1. Maintainability of the petitions in light of the Petitioners' lack of Indian citizenship. 2. Interpretation of the definition of "telecommunication service" under the TRAI Act and the Telegraph Act, and the implications of the Proviso to Section 2(1)(k) of the TRAI Act. 3. The scope of TRAI's power to fix tariffs for telecommunication services, including broadcasting, under Section 11(2) of the TRAI Act. 4. The vires of Rules 9 and 10 of the Cable Television Networks (Regulation) Rules, 1994, in relation to the regulation of broadcasters. 5. The validity of Regulation 4 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004, which imposes restrictions on the disconnection of TV channel signals. The Court held that: 1. The petitions were not maintainable as the Petitioners failed to establish that they were Indian citizens, a necessary requirement for enforcing fundamental rights under Article 19 of the Constitution. 2. Broadcasting activities fall within the definition of "telecommunication service" under the TRAI Act and the Telegraph Act. The Proviso to Section 2(1)(k) of the TRAI Act, which excludes broadcasting services from the definition, is intended to be a temporary measure until a separate Broadcasting Act is enacted. TRAI has the authority to regulate broadcasting services under the existing provisions of the TRAI Act. 3. TRAI has the power to fix tariffs for telecommunication services, including broadcasting, under Section 11(2) of the TRAI Act. This power is not excessive or arbitrary as it is subject to judicial review and the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has jurisdiction to hear appeals against TRAI's decisions. 4. Rules 9 and 10 of the Cable Television Networks (Regulation) Rules, 1994, are not ultra vires the Cable Television Networks (Regulation) Act, 1995. These rules fall within the scope of the Act's objectives and do not exceed the powers delegated to the Central Government. 5. Regulation 4 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004, which imposes restrictions on the disconnection of TV channel signals, is valid. The requirement for a three-week notice prior to disconnection is reasonable and protects the interests of subscribers. The Court dismissed all the writ petitions, holding that the impugned provisions were constitutionally valid and did not suffer from any legal infirmities.
Fact of the Case:
Various broadcasters and cable operators filed writ petitions in the High Court of Delhi challenging the constitutional validity of certain provisions of the Telecom Regulatory Authority of India (TRAI) Act, 1997, the Cable Television Networks (Regulation) Act, 1995, and the regulations framed thereunder.
Finding of the Court:
The Court held that: 1. The petitions were not maintainable as the Petitioners failed to establish that they were Indian citizens, a necessary requirement for enforcing fundamental rights under Article 19 of the Constitution. 2. Broadcasting activities fall within the definition of "telecommunication service" under the TRAI Act and the Telegraph Act. The Proviso to Section 2(1)(k) of the TRAI Act, which excludes broadcasting services from the definition, is intended to be a temporary measure until a separate Broadcasting Act is enacted. TRAI has the authority to regulate broadcasting services under the existing provisions of the TRAI Act. 3. TRAI has the power to fix tariffs for telecommunication services, including broadcasting, under Section 11(2) of the TRAI Act. This power is not excessive or arbitrary as it is subject to judicial review and the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has jurisdiction to hear appeals against TRAI's decisions. 4. Rules 9 and 10 of the Cable Television Networks (Regulation) Rules, 1994, are not ultra vires the Cable Television Networks (Regulation) Act, 1995. These rules fall within the scope of the Act's objectives and do not exceed the powers delegated to the Central Government. 5. Regulation 4 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004, which imposes restrictions on the disconnection of TV channel signals, is valid. The requirement for a three-week notice prior to disconnection is reasonable and protects the interests of subscribers.
Issues: 1. Maintainability of the petitions in light of the Petitioners' lack of Indian citizenship. 2. Interpretation of the definition of "telecommunication service" under the TRAI Act and the Telegraph Act, and the implications of the Proviso to Section 2(1)(k) of the TRAI Act. 3. The scope of TRAI's power to fix tariffs for telecommunication services, including broadcasting, under Section 11(2) of the TRAI Act. 4. The vires of Rules 9 and 10 of the Cable Television Networks (Regulation) Rules, 1994, in relation to the regulation of broadcasters. 5. The validity of Regulation 4 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004, which imposes restrictions on the disconnection of TV channel signals.
Ratio Decidendi: 1. The Court held that the petitions were not maintainable as the Petitioners failed to establish that they were Indian citizens, a necessary requirement for enforcing fundamental rights under Article 19 of the Constitution. 2. The Court interpreted the definition of "telecommunication service" under the TRAI Act and the Telegraph Act, and held that broadcasting activities fall within this definition. The Court also held that the Proviso to Section 2(1)(k) of the TRAI Act, which excludes broadcasting services from the definition, is intended to be a temporary measure until a separate Broadcasting Act is enacted. TRAI has the authority to regulate broadcasting services under the existing provisions of the TRAI Act. 3. The Court held that TRAI has the power to fix tariffs for telecommunication services, including broadcasting, under Section 11(2) of the TRAI Act. This power is not excessive or arbitrary as it is subject to judicial review and the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has jurisdiction to hear appeals against TRAI's decisions. 4. The Court held that Rules 9 and 10 of the Cable Television Networks (Regulation) Rules, 1994, are not ultra vires the Cable Television Networks (Regulation) Act, 1995. These rules fall within the scope of the Act's objectives and do not exceed the powers delegated to the Central Government. 5. The Court held that Regulation 4 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004, which imposes restrictions on the disconnection of TV channel signals, is valid. The requirement for a three-week notice prior to disconnection is reasonable and protects the interests of subscribers.
Final Decision: The Court dismissed all the writ petitions, holding that the impugned provisions were constitutionally valid and did not suffer from any legal infirmities.
Vikramajit Sen, J.
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 Regulations, 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 19(1)(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 v. 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 Section 11(2) of the TRAI Act;
(c) Issue an appropriate writ, order or direction to quash the Notification dated 31.7.2006 (F.No. 9/16/2004-BP&L [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 4.9.2006 (No. 6-4/2006-B&CS) as amended by the Telecom Regulatory Authority of India.
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.
MAINTAINABILITY OF PETITION SEEKING ENFOP.CEMENT OF FUNDAMENTAL RIGHTS BY A COMPANY
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 TRAI. 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
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
