This article is written by Anant Bajpai, student at Centre for Legal studies, GIBS, Affiliated to GGSIPU, Delhi. In this article, the author has described about the institution and evolution of the TDSAT or Telecom Disputes Settlement and Appellate Tribunal.
Table of Contents
Introduction
After 1991, the accelerated growth of telecommunications led to many changes in market structure in the sector and saw diverse categories of players enter the market. As discussed previously, these market changes led to the need, and subsequent creation of, a regulatory authority, i.e., the TRAI. The TRAI was vested with broad and varied powers, including but not limited to regulation. Crucially, besides being a regulatory body, TRAI was also entrusted with the responsibility of adjudicating disputes in the telecom sector (with the exception of certain categories of disputes which were explicitly excluded by the Act), as well as (originally) to arbitrate these disputes.
Initially, therefore, the TRAI was the dispute settlement body responsible for the cases that involved telecom service providers.[1] Officials of the Department of Telecom (DoT) were members of TRAI as well. While TRAI as an institution retained a regulatory and dispute resolution function, policy making and operations continued to remain with DoT. This situation inevitably led to a conflict of interest between the authority and the ministry, as well as concerns about TRAI‘s ability to be an independent and impartial adjudicating body.[2] In this background, the need for a separate body to adjudicate disputes in the telecommunications sector was felt. Instead of strengthening the independence of TRAI, the Government amended the TRAI Act in 2000 to establish the Telecom Disputes Settlement and Appellate Tribunal (TDSAT)[3] which was vested with the TRAI‘s powers to adjudicate disputes between licensors, licensees, service providers and consumers and to promote and ensure orderly growth of the telecom sector.
In January 2004, the Government of India included the broadcasting and cable services in the purview of TRAI Act. In 2017 the relevant provisions of the Finance Act 2017 was enforced, the jurisdiction of TDSAT was extended to matters that lay before the Cyber Appellate Tribunal and also the Airport Economic Regulatory Authority Appellate Tribunal.[4] The TDSAT was set up under Section 14 of the TRAI (Amendment) Act, 2000, as an independent adjudicatory body,[5] to adjudicate disputes and expeditiously dispose of appeals with a view to protect the interests of service providers and consumers of the telecom sector and to promote and ensure growth of the telecom sector.[6] This was the innovative step that was taken up by the Indian government in the telecom sector, reasons including the technical nature of these disputes (and therefore, a specialized body was setup to adjudicate disputes relating to them), the changes in the telecommunications market in India, as well as an unsatisfactory private investment environment in the sector.
The TDSAT is a unique institution, specific to the telecom sector for providing settlement of disputes between licensor and licensee, between two or more service providers and a service provider and a group of consumers. The existence of such an institution not only affords an opportunity to service providers to seek a final settlement of issues involved, but also sanctifies various decisions taken by the regulator which sets the pace and tone for corporate governance and contributes to stability in the market.
Mandate of TDSAT
The object of setting up the TDSAT was to adjudicate ―any dispute between a,
- Licensor and licensee,
- Two or more service providers,
- Between a service provider and a group of consumers.
Composition
The Tribunal consists of a Chairperson and two Members appointed by the Central Government. The Chairperson should be or should have been a Judge of the Supreme Court or the Chief Justice of a High Court. A Member should have held the post of Secretary to the Government of India or any equivalent post in the Central Government or the State Government for a period of not less than two years or a person who is well versed in the field of technology, telecommunication, industry, commerce or administration.
The Chairperson of the TDSAT has various powers relating to the functioning and procedure of the TDSAT under the sections incorporated post-amendment of the TRAI Act in 2000. Under Section 14B (3)(b), the Chairperson has the authority to constitute a bench as he/she thinks fit.[7]
Further, under Section 14I, the Chairperson is responsible for the distribution of business between the different benches.[8] Under Section 14J, the Chairperson has the power to transfer pending cases.[9]
Jurisdiction of TDSAT
The provision that establishes the TDSAT, i.e., Section 14 of the TRAI Act[10], entrusts the tribunal with two types of functions. The first is to adjudicate disputes by way of original jurisdiction, and the second is by way of an appellate jurisdiction. Indeed, the appellate powers of the TDSAT are evident from the name of the body itself, which was envisioned as a telecom dispute settlement and appellate tribunal.
This dual function has been acknowledged by the Supreme Court as well, In case of Hotel & Restaurant Assn. v. Star India (P) Ltd.[11] Which observed that “the exercise of original jurisdiction by the TDSAT, is an original adjudicatory function whereas its appellate function is to hear appeal(s) against an order of TRAI which may or may not essentially be an adjudicatory one.”
Case-Based Interpretation
The Supreme Court has, in various judgments, examined and ruled on the jurisdiction of the TDSAT. As will be seen from the discussion below, the Supreme Court has, over time to time basis, gradually curtailed the jurisdiction of the TDSAT by placing restrictions on its functioning.
In Cellular Operators Assn. of India v. Union of India[12]
In this judgment, the Supreme Court held that the jurisdiction of the TDSAT was wider than that of the Supreme Court, and observed:
“As has been stated earlier, the jurisdiction of the Tribunal under Section 14 cannot be held to be a supervisory jurisdiction, in view of the language of the statute as well as the fact that it is the only forum for redressing the grievance of an aggrieved party inasmuch as the appellate jurisdiction to this Court is only on a substantial question of law and the jurisdiction of a civil court for filing a suit is also ousted.”[13]
In 2011, the Supreme Court, in the judgment of UOI vs. Association of Unified Telecom Service Providers of India[14], imposed a limitation on the jurisdiction of the TDSAT in holding that the TDSAT did not have the jurisdiction to decide on the validity of the definition of “adjusted gross revenue” in the terms provided for in the license agreement between the parties. The Supreme Court, in doing so, also reiterated its consistent view that once a licensee has accepted the terms and conditions of a license, he cannot question the validity of the terms and conditions of the license before the Court.
In BSNL v. Telecom Regulatory Authority of[15], The Supreme Court limited the jurisdiction of the TDSAT, holding that it had no authority to rule on the validity of the regulations made by the TRAI.
Jurisdiction of the TDSAT vis-a-vis Consumer Forums
As the TDSAT is empowered to examine disputes between telecom service providers and consumers, the issue of jurisdiction of these consumer forums over the same matters also assumes significance. In a ruling on February 25, 2014, the Meghalaya State Consumer Disputes Redressal Commission (hereinafter referred to as ― State Commission‖) held that telecom disputes could be adjudicated by consumer forum. In this matter, the State Commission was approached by aggrieved parties against BSNL, a telecom service provider. The jurisdiction of the District Consumer fora was challenged, when it exercised jurisdiction over the complaints filed before them by consumers of those telecom services (in this case, nine appeals were filed by consumers in the district forum). The Commission in this case held that the consumers, if not allowed to approach the consumer fora; would be left with no method for redressal of their grievances. The State Commission therefore held that the district forum was right in exercising jurisdiction over the complaints filed by consumers of telecom.[16]
Subsequently, there was a reference from the Department of Telecommunications to the Ministry of Consumer Affairs stating that the District Consumer Forums have authority to adjudicate matters between consumer and telecom service providers. This Notification also stated that under the National Telecom Policy of 2012, there was a proposal to amend the Indian Telegraph Act so as to bring disputes between telecom consumers and service providers within the jurisdiction of District Consumer Disputes Redressal Forums (established under the Consumer Protection Act, 1986). The Legal Advisor with the Department of Telecommunications however, stated that these forums already had jurisdiction over these disputes and there was no need for promulgation of an ordinance. It is relevant to reiterate, in this context, that the powers of TDSAT extend to adjudicating disputes between a service provider and a ―group of consumers‖, but not individual consumers. Where a complaint of an individual consumer is maintainable before a Consumer Disputes Redressal Forum or Commission, established under the Consumer Protection Act, 1986, those complaints will be heard by such authority (under proviso (B) to Section 14(a) of the TRAI Act).
Procedures
The Tribunal is not bound by the procedure laid down by the Code of Civil Procedure, 1908. It has the power to regulate its own procedure. It is to be guided by the principles of natural justice;
Tribunal has the same powers as are vested in a civil court under the CPC in respect of:
- Summoning and enforcing the attendance of any person and examining him on oath;
- Requiring the discovery and production of documents;
- Receiving evidence on affidavits;
- Subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or a copy of such record or document, from any office;
- Issuing commissions for the examination of witnesses or documents;
- Reviewing its decisions; Dismissing an application for default or deciding it ex parte; Setting aside any order of dismissal or any application for default or any order passed by it ex parte; and
- Any other matter which may be prescribed.
In addition, the Tribunal can call for the records relevant to disposing of a Petition or appeal, for the purpose of examining the legality or propriety or correctness of any decision or of any order etc of TRAI.
Nature of Proceedings
- The Tribunal is the Court of first instance except cyber matters.
- Every proceeding before the Tribunal is deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860);
- The Tribunal is deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) iv. Tribunal’s Orders are executable as a decree of civil court.
Appeals
In respect of Telecom, Broadcasting and Airport tariff matters, the Tribunal’s orders can be appealed to the Supreme Court but only on substantial questions of law. However, no appeal lies against an interlocutory order or against any decision or order made by the Tribunal with the consent of the parties. In regard to Cyber matters, the Tribunal’s order can be appealed before High Court.
Conclusion
From the above analysis of evolution and working of TDSAT, it can be inferred that the mandate of the TDSAT has undergone changes since its inception. In recent context it has been seen an acute rise in the number of original broadcasting petitions coming before the TDSAT.
Two issues seem to arise from this change in the TDSAT‘s mandate- first, with regard to the recovery of matters coming before the Tribunal; which do not requires technical expertise, and secondly, with regard to broadcasting matters, as opposed to telecom disputes (which was what the TDSAT was originally meant to adjudicate upon). In this scenario, specialized members in the field of broadcasting can be given the power to hear these broadcasting disputes. Further, as set forth in the recommendations, a separate bench may be formed (with due administrative support) which deals with the smaller recovery matters in the Tribunal or the matters may be diverted to consumer forum.
The TDSAT has commonly been regarded as one of the most efficient tribunals in the country. In order for this distinction to be maintained, the TDSAT, along with the government, must ensure that it continues to function in an efficient and healthy fashion offering adequate remedies to disputing parties, in a speedy and effective manner. This study of the functioning of the TDSAT has revealed many ways in which this can be done.
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