TRAI chief dubs arbitrator notice illegal

“Under the TRAI Act of 1997, there is no provision which envisages the TRAI functioning as an arbitrator,” Justice Sodhi said. He also stated that the NTP 1999 was a statement of intent and the provisions in thepolicy would have to be implemented in a legal manner. He said imposing an arbitrator’s status would require amendments in the TRAI Act which could not be done through a gazette notification but rather through a parliamentary process of changing the provisions of the Act.

Also speaking to The Indian Express, B K Zutshi, vice-chairman of the TRAI, said that the government was at liberty to give additional functions to the authority, but it could not dictate the procedures that the authority would follow. Zutshi explained that resolving of disputes could be the function of the TRAI but doing so under the Arbitration and Conciliation Act was tantamount to dictating the procedure to the authority.

Even private telecom companies have not been comfortable with the TRAI’s arbitrator status. Says a senior official of a private telecom company,“Every time I as an operator have a dispute with the Communications Ministry, I am required to go to the ministry itself, which will take its time to refer thematter to the TRAI for arbitration and in the interim we would have no relief like a stay or anything”.

While the TRAI had sought the legal opinion from Fali Nariman, private operators have got another opinion from Justice Rajinder Sachar. Justice Sachar’s opinion clearly states that while “the Central government is an outside agency once the functions have been entrusted to the authority, the latter cannot be directed in its adjudicatory function in how to act in a particular manner”. Justice Sachar further states that “such a direction is perversity of justice”.

Justice Sachar’s opinion states that while the gazette notification has statutory power, it is not an enactment and is a correction so far that it entrusts functions of dispute settlement to the authority but not where it tells it how to do so.

The opinion also points out that the notification is “prejudicial” as all disputes are likely to arise between the Government as the licensor and the licensees and “it seems to be not only oddbut unfair that the privilege of reference lies with one of the contesting parties — the central Government”.