The Delhi high court on Friday set aside the decision of the Telecom Regulatory Authority of India (Trai) to impose a maximum limit of 200 SMSs per day allowed to be sent by a pre-paid mobile number.
The provision of the Trai to regulate unsolicited commercial calls (UCC) by telemarketers infringes on the freedom of speech of the citizens, observed a bench of acting Chief Justice A.K. Sikri and Justice Rajiv S. Endlaw, while directing the government’s telecom regulator to come out with more appropriate regulations to deal with the “nuisance” of such unsolicited SMSs.
“The impugned provision insofar as it covers non-UCCs SMS in the present form as it exists, infringes the freedom of speech of the citizens and is not reasonable. Thus, the same is set aside insofar as it covers non-UCCs SMS also. At the same time, liberty is granted to Trai to come out with more appropriate Regulations for regulating unsolicited non-UCCs SMSs that could meet the test of reasonableness under Article 19(2) of the Constitution,” the bench ruled. The court was hearing a plea by NGO Telecom Watchdog which had contended that the restriction on the number of SMSs that could be sent by a single mobile number per day was “arbitrary, wholly unnecessary, violates fundamental freedom of citizens and is against democratic norms”. Senior advocate Prashant Bhushan, appearing for the NGO, had argued before the court that by barring common users from sending more than 200 Short Message Service (SMS) per day, the Trai had impinged upon the freedom of speech and expression of the citizens. On this ground, he had prayed that the provision imposing this condition be declared unconstitutional and quashed.
The Trai had, however, held that the reason for making this provision was the nuisance of large number of telecom marketing calls and SMSs which were unsolicited, i.e., the receiving party did not want to receive them as they infringed upon their privacy and caused disturbance. The Trai held that apart from the right to freedom of speech and expression, the rights of those receiving such unsolicited calls and SMSs were also important and needed protection.
The high court, however, held that “Undoubtedly, the State has a compelling interest in regulating the right to speech when it comes in conflict with the aforesaid rights of other citizens… This restriction, in the present from without any provision of proper regulation in our view, offends the fundamental rights of the users enshrined under Article 19(1)(a) of the Constitution”.
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