M J Antony: Disconnect with consumers

The Supreme Court must review its decision on telcos' accountability

Though several telecom companies are before the Supreme Court with a spectrum of complaints against licensing policies and roving investigations against them, they have all the while claimed immunity from consumer law. The court has been on their side on this issue. It has ruled that complaints about deficiency in service cannot be moved before the consumer forums. Though consumer forums largely follow this fiat, there appears to be some dissidence below against this decision.

The Supreme Court had held in the case, General Manager vs M Krishnan (2009), that those who have grievances against telecom service providers cannot invoke consumer law. Giving a strict construction to Section 7B of the Indian Telegraph Act, 1885, it said any complaint against the service provider shall be determined by an arbitrator appointed by the Central government and the award shall be conclusive, and it shall not be questioned in any court.

The judgment was delivered in an appeal against the Kerala High Court decision, which had stated that complaints could be moved in consumer forums against telecom service providers. While hearing the appeal in the Supreme Court, the complainants did not appear, though they had been served notice. It was natural because the thousands of aggrieved consumers could not travel to Delhi to assert their claims against the telecom giants who were represented well by corporate lawyers.

The Ministry of Communication and Information Technology and the government, which should have protected the consumers, stood as mute spectators. Bharat Sanchar Nigam Limited (BSNL) swore by the antique law. As a consequence, district forums all over the country are giving contrary views when complaints are filed before them.

Last week, the Tamil Nadu consumer commission delivered a judgment giving a different twist to the issue. It stated that the Supreme Court did not consider certain important aspects of the law while deciding in favour of the telecom companies. Therefore, it trawled the whole law in its judgment, J Subramaniam vs Bharti Airtel Ltd. It can trigger a review of the Supreme Court judgment.

First, the Supreme Court did not take into consideration the modern laws that had been enacted, since the invention of the telegraph. Some of the legislation that have come into effect, since the telecom revolution are: the Telecom Regulatory Authority of India (Trai) Act, 1997; the Information Technology Act 2000; the Indian Telegraph (Amendment) Act 2003; the Telecom Consumers Protection and Redressal of Grievances Regulations, 2007; and, lastly, the Consumer Protection Act 1986. These laws preceded the Supreme Court judgment; still the court did not take serious note of them.

Second, there is a serious problem with appointment of arbitrators for each complaint — which are in thousands. “For a country like India, having population of more than one billion, how many arbitrators can be appointed by the Central government?” wonders the state commission.

Moreover, the Trai Act asserts in its “objects and reasons” that the legislation and the regulations under it are aimed at “achieving the universal service, bringing the quality of telecom service to world standards, provisions of wide range of services to meet the customers’ demand at reasonable price... as also making arrangements for protection and promotion of consumer interest and ensuring fair competition”. Therefore, the law has consumer interest in focus.

Then, there is the question about which law will apply. Since the new laws assert that the companies are providing service, it should come within the umbrella of the Consumer Protection Act. Those who avail of the service are consumers and, therefore, a consumer complaint should clearly lie. The Act further emphasises that it is in addition to and not in derogation of existing laws. Therefore, there should be no manner of doubt that the consumer law should apply to telecom services.

Since the Tamil Nadu ruling has affected BSNL and a number of private telecom providers, the issue is bound to be taken to the Supreme Court. The main argument is likely to be that the state commission had defied the ruling of the Supreme Court. All authorities are bound to follow the law laid down by the apex court. If such an appeal comes before the Supreme Court, it will have an opportunity to change the law in favour of phone users.

This will also put the telecom companies in the unenviable position of defending an obsolete law devised by the British some 130 years ago. The invention had just been imported to the then colony and it contributed to the suppression of the 1857 revolt.

Technology and law have changed a lot since then. It is odd to see the telecom companies and the government swear by a law that is held together by rust, faith and the inertia of parliamentarians. When it comes to marketing their wares, the companies claim their goods and services are state of the art; but when it comes to accountability, they are artful dodgers.