Bringing the promise of relief to millions of suffering telecom subscribers, the Department of Telecom today clarified that private companies do not enjoy any immunity from prosecution at district consumer forums as has been argued by them so far.
The Department of Telecom today said that private companies do not qualify under the definition of the Telegraph Authority of India given in the Telegraph Act.
Private telecom companies have so far successfully argued, based on a Supreme Court judgment, that they cannot be prosecuted in consumer forums as they represent the Telegraph Authority of India.
Their argument is based on a 2009 judgment by the Supreme Court which upheld Bharat Sanchar Nigam Ltd’s right to defend itself against consumer disputes using Section 7B of the Telegraph Act. Read Full SC judgment here
The Act says that any disputes between the telegraph authority and any consumer has to be resolved through arbitration and not through courts.
Section 7-B of the Telegraph Act reads as under S. 7B
Arbitration of Disputes :-
(1) Except as otherwise expressly provided in 3
this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person or whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the Central Government either specifically for the determination of that dispute or generally for the determination of disputes under this Section.”
Based on this, a Supreme Court bench had ruled that any consumer dispute against BSNL has to be resolved through arbitration. Arbitration refers to the appointment of a mutually agreed legal expert or a committee of experts who hear both sides of a case and pronounce a judgment.
Many district forums have spoken out against the Supreme Court judgment.
For example, in an order in 2009, the district forum of Ferozepur said even the Supreme Court does not have the power to interpret laws contrary to their spirit.
“From the bare perusal of the above said Regulations framed by the Telecom Regulatory Authority of India exercising the powers conferred upon it under Section 36 and Section 11 of the Telecom Regulatory Authority of India Act, 1997, it is abundantly clear that the provisions of the Consumer Protection Act, 1986 prevail over the Telecom Regulatory Authority of India Act, 1997 and the jurisdiction and powers of the Consumer Disputes Redressal Forums are over and above the jurisdiction and powers of the Tribunals established for the purpose of adjudication of disputes relating to telecommunication services,” it said.
“It is settled law that the law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The provisions of the enactments have to prevail over the judicial decisions. The question of interpretation comes only when the provisions of legislative enactments are either not clear, ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments are plain, clear and unambiguous, then these cannot be negtivated through judicial interpretation. Reliance can be placed upon various authorities of the Hon’ble Supreme Court of India on this point. The Hon’ble Supreme Court in “State of U.P. & Others Versus Jeet S. Bisht & Anr., 2007 (3) CLT 10”, wherein the Hon’ble Supreme Court has specifically held that court cannot add or substitute word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Hon’ble Supreme Court in the said authority that mere a direction of the Hon’ble Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law,” the district forum had said.
However, the Ferozepur forum was an isolated voice in a system where the Supreme Court judgment was held sacrosanct. The national consumer disputes redressal body, to which all appeals must ultimately go, too sided with the opinion that the Supreme Court’s judgment was to be upheld.
However, today, the DoT clarified that the power of Section 7B cannot be used by private companies as they do not have the power or functions of the telegraph authority. Their actions are entirely covered within the scope of the District Consumer Dispute Redressal Forum.
“The district consumer forums are competent to deal with the disputes between individual telecom consumers and telecom service providers,” the DoT said. Full order here