LexAVISHEK GOENKA versus UNION OF INDIA AND ANR.
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[2012] 5 S.C.R. 547 AVISHEK GOENKA v. UNION OF INDIA AND ANR. (Writ Petition (C) No. 285 of 2010) APRIL 27, 2012 [S.H. KAPADIA, CJI, A.K. PATNAIK AND SWATANTER KUMAR, JJ.] A B Telecommunications - Mobile phone service - Verification of subscriber identity - Safe distribution of pre- c paid Subscriber Identity Module (SIM) cards - DoT filed its instructions dated 14th March, 2011, specifically, on the manner of verification of new mobile subscribers (pre-paid and post-paid) - DoT, Telecom Regulatory Authority of India (TRAI) and the licencees ad idem in regard to most of the o issues in terms of the instructions prepared by the Do T - However, difference of opinion between the Do T and the TRAI on certain points - Held: The points of divergence between TRAI and DoT are matters which will have serious ramifications not only vis-a-vis the regulatory authorities and E the licensees but also on the subscribers and the entire country - These aspects demand serious deliberation at the hands of the technical experts - It is not only desirable but also imperative that TRAI and Do T 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 - Instructions dated 14th March, 2011 issued by DoT accepted by the Court subject to conditions - Direction given for constitution of a Joint Expert Committee consisting of two experts from TRAI and two experts from Do T to be G chaired by the Secretary, Ministry of Communications and Information Technology, Government of India - Said Committee to discuss and resolve the issues on which TRAI F 547 H 548 SUPREME COURT REPORTS [2012] 5 S.C.R. A gave opinion divergent to that declared by Do T in its instructions dated 14th March, 2011 - DoT to take into consideration the recommendations of the Joint Expert Committee - Instructions issued by DoT dated 14th March, 2011 be thereupon amended, modified, altered, added to or 8 substituted accordingly - Composite instructions, so formulated, to be positi~ 1e/y issued by the DoT within definite time frame and report of compliance submitted to Supreme Court Registry. Telecom Regulatory Authority of India Act, 1997 - s.11 - C Telecom Regulatory Authority of India (TRAI) - Powers and functions of - Held: TRAI is the regulatory body for the telecommunications sector in India - It is a statutory obligation upon the TRAI to recommend a regulatory regime which will serve the purpose of development, facilitate competition and D promote efficiency, while taking due precautions in regard to safety of the people at large and various other aspects of subscriber verification - The TRAI has to regulate the interests of telecom service providers and subscribers, so as to permit and ensure orderly growth of telecom sector -TRAI would not E only recommend, to the Do T, the terms and conditions upon which a licence is grantE~d to a service provider but has to a/so ensure compliance of the same and may recommend revocation of licence in the event of non compliance with the regulations - It is exp19cted of this regulatory authority to F monitor the quality of service and even conduct periodical survey to ensure propE1r implementation. Administrative Law - Regulatory body - Issues of regulatory regime - Scope for judicial intervention - Held: The concept of 'regulatory regime' has to be understood and G 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 .. 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 possessing requisite H AVISHEK GOENKA v. UNION OF INDIA AND ANR. 549 technical knowhow and are statutory in nature - However, the A 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. In the instant writ petition, the petitioner sought to 8 highlight rampant flouting of norms/regulations/ guidelines related to proper and effective mobile phone subscriber verification by various service providers. The petitioner averred that there is no proper verification of the subscribers prior to selling of the pre-
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