Avishek Goenka v. Union of India and Anr.
F SWATANTER KUMAR, J. 1. The petitioner is a
businessman engaged in the business of distribution of pre
paid virtual and tangible calling value for mobile phone
subscribers and also sells new customer acquisition packs and
follows it up, by collection of customer application forms and
G executing tele-c:alling, to verify customer credentials. In this
Public Interest Litigation, the petitioner has attempted to
highlight the ~1rave issue of non-observance of norms/
regulations/guidelines related to proper and effective subscriber
verification by various service providers. In fact, according to
AVISHEK GOENKA v. UNION OF INDIA AND ANR. 557
[SWATANTER KUMAR, J.]
the petitioner, there is rampant flouting of norms/regulations/ A
guidelines relating to this subject matter and there is no proper
verification of the subscribers prior to selling of the pre-paid
mobile connections to them.
2. The Telecom Regulatory Authority of India (for short, 8 ''TRAI") is the regulatory body for the telecommunications sector
in India and the Union of India has responsibility to issue
guidelines and frame regulations and conditions of licence, in
consultation with the TRAI, to ensure coordination,
standardization and compliance with the regulations, as well as C
protecting the security interests of the country.
3. It is the averment of the petitioner that the telecom sector
has witnessed the most fundamental structural and institutional
reforms since 1991. This sector has grown significantly in the
last few years. As per the Annual Report for 2009-2010 of the D
Department of Telecommunication, Ministry of Communications
and IT, Government of India (for short "DoT"), as on 31st
December, 2009, the Indian telecom sector had about 5622.11
million connections. The tele-density per hundred population,
which is an important indicator of telecom penetration in the E
country, has increased from 2.32 per cent in March, 1999 to
47.88 per cent in December, 2009. The Eleventh Five Year
Plan for 2007-2012 had provided a target of 600 million
connections, but the industry has already provided around 700
million connections, thus far exceeding the target. Different F
random studies in relation to pre-paid Subscriber Identity
Module (SIM) cards show widespread violation of guidelines
for Know Your Customer (KYC) and even other common
guidelines. The SIM cards are provided without any proper
verification, which causes serious security threat as well as G
encourages malpractices in the telecom sector. It appears that
65 per cent of all pre-paid SIM cards issued in Jammu &
Kashmir and 39 per cent of all pre-paid SIM cards in Mumbai,
may have been issued without verification; which means that 1
out of every 6 pre-paid SIM cards is issued without proper H
558 SUPREME COURT REPORTS [2012) 5 S.C.R.
A verification. The averment is that such unverified SIM cards are
also used in terrorist attacks.
4. This Court, in the case of State (NCT of Delhi) Vs.
Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600] had,
8 with some caution, referred to a large number of calls which
had been made by terrorists from instruments containing
unverified SIM cards. It is further averred by the petitioner that
around 80 per cent of the pre-paid SIM cards may be purchased
in pre-activated form which is in violation of the notifications
issued by the DoT, dated 22.11.2006 and 23.3.2009
C respectively, banning the sale of pre-activated SIM cards.
Another significant fact that has been brought out in this petition
is that, pre-paid SiM cards, which are the most commonly
issued without verification, constitute 96 per cent of the total SIM
cards sold. This indicates the seriousness of the problem as
D well as the security hazard that emerges from the telecom
sector.
5. Thus, the petitioner has prayed that there should be
strict implementation of subscriber verification guidelines,
E physical verification be compulsory in future and physical re
verification of existing subscriber base be conducted in a
transparent manne!r. He also seeks the prevention of inflated
subscriber base. On all matters in relation to these prayers, he
pleads for issuance of appropriate writ, orders or directions.
F Upon notice, the DoT as well as the TRAI had put in appearance
and placed on record the guidelines issued by the DoT, as well
as the comments of TRAI, respectively.
6. The petitioner, during the pendency of the petition, filed
an Interim Application, I.A. No. 6 of 2012, wherein he referred
G to a circulation containing the draft norms prepared by the
Government of India (DoT) in relation to:
Re-verification of existing customer base.
AVISHEK GOENKA v. UNION OF INDIA AND ANR. 559
[SWATANTER KUMAR, J.]
• Verification process as followed in Assam, J&K to A
be extended across country.
• Mail of SIM card and activation details to the
address of the subscriber, both being sent
separately. This method is similar to that of delivery 8 of debit, credit cards.
• Refuse to recognize government ID cards as
sufficient proof, etc.
7. According to the petitioner, these norms have not been c
adhered to and in fact, the present instructions I guidelines
formulated by DoT are at variance to the norms, ignoring
essential precautions for verification of subscriber identity and
safe distribution of pre-paid SIM cards.
8. We have already noticed that the rapid expansion of the D
telecom sector and its impact on development, both, equally
impose responsibility on the Government of India, the regulatory
body and the various stakeholders in the telecom sector to carry
out proper verification of the pre-paid SIM cards and ensure
national safety and security. To achieve this object, it is primarily E
for the expert bodies and the Government of India to act and
discharge their respective functions.
9. In terms of Section 11 of the Telecom Regulatory
Authority of India Act, 1997 (for short, 'the Act'), it is a statutory F
obligation upon the TRAI to recommend a regulatory regime
which will serve the purpose of development, facilitate
competition and promote efficiency, while taking due
precautions in regard to safety of the people at large and the
various other aspects of subscriber verification. Similarly, the G
DoT is responsible for discharging its functions and duties as,
ultimately, it is the responsibility of the Government to provide
for the safety of its citizens. The TRAI has to regulate the
interests of telecom service providers and subscribers, so as
to permit and ensure orderly growth of telecom sector. The H
A Government of India and TRAI, both, have to attain this delicate
balance of interests by providing relevant instructions or
guidelines in a timely rnanner and ensuring their implementation
in accordance with law.
10. While referring to the guidelines issued by DoT and
8 the comments of TRAI thereupon, the petitioner has raised, inter
alia, but primarily, the following objections :
(i) Despite clear guidelines and decision to complete
re- verification of existing customer base, scheduled
to be completed between 1st November, 2009 to
31st October, 2010, which time was further
extended to 31st December, 2010, no effective
steps have been taken to complete this exercise.
(ii) Re-verification has been left in the hands of the
interested stakeholders, i.e., the service providers
themselves, who are not taking appropriate and
effective steps to complete the re- verification
exercise.
(iii) The delivery of the pre-paid SIM card to the
prospective subscribers should be effected by
registered post and home delivery process, so as
to provide basic verification of the address of the
subscr;1ber.
(iv) There should be no relaxation of requirement for
photograph of the subscriber in the Customer
Acquisition Forms (CAF).
(v) Lastly, that there should be heavy penalty for
violati1on of the guidelines and particularly, for
providing pre-paid SIM cards to subscribers whose
identiity and addresses are unverified.
11. Before this Court, the DoT filed its instructions dated
H 14th March, 2011, relating to various aspects involved in the
AVISHEK GOENKA v. UNION OF INDIA AND ANR. 561
[SWATANTER KUMAR, J.]
present case and specifically, on the manner of verification of A
new mobile subscribers (pre-paid and post-paid). These
instructions, inter alia, dealt with the verification and activation
of mobile connections, special guidelines for issue of mobile
connections to foreigners and outstation users, bulk mobile
connections, change in the name of subscriber, disconnection, B
lodging of complaints and even imposition of penalties. Clause
3(vii) of these instructions provided that pre-activated SIM cards
are not to be sold. In case of sale of pre-activated SIM cards,
a penalty of Rs. 50,000/- per such connection shall be levied
upon the service provider/licensee, in addition to immediate c
disconnection of the mobile connection.
12. Most of the grievances raised by the petitioner have
been appropriately dealt with under these instructions. But,
however, some of the issues have not been comprehensively
provided for. The TRAI filed an affidavit dated 14th March, D
2012, dealing with the instructions of the DoT, dated 14th
March, 2011. In the said affidavit, however, TRAI suggested
certain variations as provided in Annexure R-1 to their affidavit.
According to TRAI, the verification of identity is dealt with
differently in different countries, some have provided stringent E
standards of documentation of identification while others have
not issued any guidelines and left it to the discretion of the
service provider. In India, TRAI recommended that the
Customer Acquisition Form (CAF) have a "unique" number,
which may be affixed at a central warehouse, rather than prior F
to distribution. TRAI also recommended that the CAF form
should be simpler in its content as the form presently in use is
not serving its purpose adequately. TRAI has annexed to its
affidavit, as Annexure I, the sample form which should be
adopted as a regular form to be filled in by the subscriber. G
According to TRAI, in a manner similar to bulk users, even
individual users should disclose all the SIM cards and
connections in the name of such individual, with due verification
by the licensee. Also differing with the instructions of DoT on
the issue of manner of conversion from pre-paid to post-paid H
A connections and vice-versa, as well as regarding the
transferability of mobile connections, TRAI submits that the both
should be permissible, the former being treated as a change
in tariff plan (not as a fresh or a transferred connection) and
the latter as a new mobile connection, subject to consent of the
B existing owner of the mobile connection.
13. The other issue on which DoT and TRAI differed is,
whether the employees of the licensee/service provider should
be required to personally update the subscriber details in the
database. While according to DoT, this should be carried out
C by the employees of the licensee itself, however, according to
TRAI, it can be donie by their authorized representatives,
keeping in view various factors, like expense, time, efficiency
and practicability. Both TRAI and DoT are agreeable that such
a database of all the registered subscribers should be
D maintained by the licensee and the same be made accessible
to the security agencies. Giving an example of the Nigerian
Communication Commission, which maintains a similar
database of all registered subscribers, TRAI concludes that
even the general evidence demonstrates that such database
E makes verification and tracing of the identity of the subscriber
easier, particularly in absence of the Unique ID cards. Some
of the licensees and service providers intervened in the present
writ petition and have taken a stand that they are, in fact,
maintaining databas1a details of all registered subscribers. Such
F information is also made available to the Government
Department or security agencies on demand and in accordance
with law.
14. If one examines the powers and functions of TRAI, as
G postulated under Section 11 of the Act, it is clear that TRAI
would not only recommend, to the DoT, the terms and
conditions upon which a licence is granted to a service provider
but has to also ensure compliance of the same and may
recommend revocation of licence in the event of non-
H compliance with the regulations. It has to perform very
AVISHEK GOENKA v. UNION OF INDIA AND ANR. 563
[SWATANTER KUMAR, J.]
objectively one of its main functions, i.e., to facilitate competition A
and promote efficiency in the operation of the
telecommunication services, so as to facilitate growth in such
services. It is expected of this regulatory authority to monitor
the quality of service and even conduct periodical survey to
ensure proper implementation. B
15. What emerges from the above discussion is that the
stakeholders DoT, TRAI and the licencees are ad idem in
regard to most of the issues in terms of the instructions
prepared by the DoT. However, there are certain points on
which there is a difference of opinion between the DoT and the C
TRAI. This limited divergence is required to be resolved by
further clarification and issuance of more specific instructions.
These issues fall under two categories: - firstly, what has been
pointed out by the petitioner and secondly, where the DoT and
the TRAI ·hold different opinion as noticed above. Proper D
deliberation between the stakeholders possessed of technical
knowhow can resolve such issues usefully and effectively.
16. The abovementioned points of divergence between
TRAI and DoT are matters which will have serious ramifications E
not only vis-a-vis the regulatory authorities and the licensees
but also on the subscribers and the entire country. These
aspects demand serious deliberation at the hands of the
technical experts. It will not be appropriate for this Court to
examine these technical aspects, as such matters are better F
left in the domain of the statutory or expert bodies created for
that purpose. The concept of 'regulatory regime' has to be
understood and 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. The regulatory regime is G
expected to fully regulate and control activities in all spheres
to which the particular law relates.
17. We have clearly stated that it is not for this Court to
examine the merit or otherwise of such policy and regulatory
A matters which have been determined by expert bodies having
possessing requisite technical knowhow and are statutory in
nature. However, the 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
B decisions do not prevail. This Court in the case of Delhi
Science Forum & Ors. v. Union of India [AIR 1996 SC 1356
= (1996) 2 sec 405], while dealing with provision of licences
to private companies as well as establishment, maintenance
and working of such licences under the provisions of the
c Telegraph Act, 1885, applied the 'wednesbury principle' and
held that 'as such the Central Government is expected to put
such conditions while granting licences which shall safeguard
the public interest and the interest of the nation. Such conditions
should be commensurate with the obligations that flow while
0 parting with the privilege which has been exclusively vested in
the Central Government by the Act'. It is the specific case of
the petitioner and some of the affected parties in the present
proceedings that certain very important aspects, including
security, have not been appropriately dealt with in the
instructions dated 14th March, 2011.
18. Some divergence on certain specific issues of the
regulatory regime has been projected in the instructions and
comments filed by TRAI and DoT. They need to be resolved
but, in absence of any technical knowhow or expertise being
F available with this Court, it will not be appropriate to decide,
by a judicial dictum, as to which of the views expressed by
these high powered bodies would be more beneficial to the
regulatory regime and will prove more effective in advancing
the public interest. Essentially this should be left to be clarified
G and the disputes be resolved by the expert bodies themselves.
It is a settled canon of law that in a regulatory regime, the terms
and conditions imposed thereunder should be unambiguous
and certain. It is expected that the authorities concerned would
enforce the regulatory regime with exactitude. Therefore, it is
H not only desirable but also imperative that TRAI and DoT
AVISHEK GOENKA v. UNION OF INDIA AND ANR. 565
[SWATANTER KUMAR, J.]
seriously cogitate on the issues where divergence has been A
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.
19. It may be noticed here that, as interveners, some of 8 the licensees and/or service providers had criticized some of
the terms and conditions of licence proposed under the
instructions dated 14th March, 2011. These interveners not only
made some suggestions with regard to the ambit and scope
of the guidelines and instructions by TRAI or DoT but also C
intended to raise certain disputes vis-a-vis DoT in the capacity
of licensees subject to the impugned instructions. Without any
reservation, we make it clear that we are not directly or
indirectly entering upon the adjudication of any dispute or even
differences between the service provider/licensee on the one
hand and TRAI or DoT on the other. If they or any of them have D
any claim or dispute with the other, they should resolve the same
by taking recourse to independent proceedings in accordance
with law.
20. In view of our above discussion, we partially allow the E
writ petition. The instructions dated 14th March, 2011 issued
by DoT be and hereby are accepted by the Court subject to
the following conditions:
(i) We hereby direct the constitution of a Joint Expert
Committee consisting of two experts from TRAI and
two experts from DoT to be chaired by the
Secretary, Ministry of Communications and
Information Technology, Government of India.
(ii) This Committee shall discuss and resolve the G
issues on which TRAI in its affidavit has given
opinion divergent to that declared by DoT in its
instructions dated 14th March, 2011. Following are
the points of divergence that require examination
by the Joint Expert Committee : H
566
(a) Whether re-verification should be undertaken by the
service provider/licensee, the DoT itself or any other
central body?
(b) Is there any need for enhancing the penalty for
violating the instructions/guidelines including sale of
pre-activated SIM cards?
(c) Whether clelivery of SIM cards may be made by
post? Which is the best mode of delivery of SIM
cards to provide due verification of identity and
address of a subscriber?
(d) Which of the application forms, i.e., the existing one
or the onE~ now suggested by TRAI should be
adopted as universal application form for purchase
of a SIM card?
(e) In absence' of Unique ID card, whether updating of
subscriber details should be the burden of the
licensee personally or could it be permitted to be
carried out through an authorized representative of
the licensee?
(f) In the interest of national security and the public
interest, whether the database of all registered
subscribers should be maintained by DoT or by the
licensee and how soon the same may be made
accessible to the security agencies in accordance
with law?
(iii) The above notified Committee shall resolve the
above specified issues and any other ancillary
issue arising therefrom and make its
recommendations known to the DoT within three
months from today.
(iv) The DoT shall take into consideration the
H recommendations of the Joint Expert Committee.
AVISHEK GOEN KA v. UNION OF INDIA AND ANR. 567
(v)
[SWATANTER KUMAR, J.]
The instructions issued by DoT dated 14th March, A
2011 shall thereupon be amended, modified,
altered, added to or substituted accordingly. They
shall then become operative in law and binding
upon all concerned.
B Composite instructions, so formulated, shall
positively be issued by the Do T within 15 weeks
from today and report of compliance submitted to
the Registry of this Court.
21. The writ petition is disposed of with the above C
directions.
There shall be no order as to costs.
B.B.B. Writ Petition partly allowed. D