The Delhi High Court today set aside the cap of 200 SMSs per day sent through a mobile phone SIM for personal communications but upheld the curb on unwanted commercial SMSs saying they infringed the “equally” important right to privacy of “unwilling recipients”.
“We are,therefore,of the opinion that the impugned provision (of Telecom Regulatory Authority of India (TRAI) insofar as it covers non-UCCs (Unrestricted Unsolicited Commercial Communications) SMS in the present form as it exists,infringes the freedom of speech of the citizens.
“And the conditions imposed upon the freedom of speech is not reasonable which would be protected under Article 19 (2) (which deals with reasonable restrictions of freedom of speech) of the Constitution,” a bench of Acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw said.
The bench,however,made a distinction for unsolicited commercial calls and said that the restriction imposed by the TRAI on them was valid.
“We have already pointed out that the TRAI has found that UCC calls and SMSs were interfering with the personal lives of the individuals as often telemarketers would call them up for selling their products. All such calls sere unsolicited,i.e.,the receiving party does not want to receive such calls or messages.
“These UCC messages disturb the recipients,intrude into their privacy,and impose a cost in terms of the time and efforts. In fact,they infringe the equally importance rights of the unwilling recipients,” it said.
Partly allowing the petition of Anil Kumar,secretary of NGO Telecom Watchdog,the court,however,granted liberty to TRAI “to come out with more appropriate regulations for regulating unsolicited non-UCCs SMSs that could meet the test of reasonableness under the Constitution.”
The Telecom Watchdog’s petition had sought quashing of a TRAI regulation,which provides that only up to 200 short messages could be sent through a single SIM in a day.
The court,in its 30-page judgement,rejected the plea that unsolicited commercial communications enjoyed the immunity under the constitutional right to freedom of speech and expression.
“Examined in the light of the aforesaid legal position,it appears to us that UCCs are normally commercial advertisement meant for furtherance of trade and commerce and not sent with the objective of propagation of ideals,social,political or economic or in furtherance of literature or human thought.
“Therefore,prima facie such UCCs would not even amount to freedom of speech under Article 19(1)(a) of the Constitution and,therefore,provision can be made by placing restrictions on such UCCs,” it said.
The court said even if it is assumed that commercial SMSs fell under the right to freedom of speech and expression,it can be subjected to “reasonable restrictions” as enshrined in the Constitution and “imposing a cap on the maximum number of UCCs may pass the test of reasonable restrictions.”
“While adjudging the reasonableness of restrictions,another factor which is to be kept in mind is the balancing of the right to freedom of expression of the persons exercising such right on the one hand and the rights of other persons which would include right to privacy as well as right to live nuisance free life,” it said.
The high court said the state has a “compelling interest” in regulating the right to speech when it comes in conflict with the right to privacy of other citizens.
Referring to an apex court judgement,the bench said while one has a right to speech,the others too have the right to listen or decline to listen.
“We can also appreciate the anxiety of the TRAI which has,in true spirit,accepted and realise the unbalancing and obnoxious levels of UCCs. However,while,the aforesaid provisions have been made,keeping in mind this objective and examining the issue from this angle,the moot question is as to whether while doing so,the TRAI could trample upon the rights of others,not indulging in voice calls/ SMSs for commercial purposes in mind but only with the objective of dissemination of information,” it said.
The court,however,rapped the telecom regulator saying while putting a curb on UCCs,”the TRAI has painted the second category (personal and private communications) also with the same brush and imposition of such a condition qua others is not related to the purpose mentioned in Article 19(2).
“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.”
Earlier,Prashant Bhushan,appearing for Telecom Watchdog,had said the restriction was “arbitrary,wholly unnecessary” and violated the fundamental freedom of citizens and was against democratic norms.