Delhi HC clips Trai's wings; says TDSAT is right

Virtually clipping the Telecom Regulatory Authority of India's (Trai) wings, the Delhi High Court today said its regulations, other than those specifically listed in Section 36 of the Trai Act, on issues like the access-deficit charge and interconnection, were mere decisions on which Telecom Dispute Settlement Appellate Tribunal (TDSAT) was empowered to adjudicate.

"The TDSAT is specifically empowered to hear and dispose of appeals against directions, decisions and orders of the Trai Act," said the high court judgement by Justice Gita Mittal on December 23, 2005.

Dismissing Trai's petition questioning TDSAT's jurisdiction to entertain the appeals against the regulator's decision, the judge said, "I have no doubt that Trai can validly make regulations in respect of only such subjects, which have been specified under Section 36 of the enactment."

"Both the TDSAT and Trai consist of experts who are required to go into the technical questions which need deliberations. The appellate authority is specifically empowered to hear and dispose of appeals against directions, decisions and orders of Trai," the court said.

Trai is entitled to make regulations on only those subjects listed in Section 36 of the Trai Act. The access-deficit charge regulations and other similar pronouncements are, therefore, not in nature of regulations as contemplated in Section 36.

They were in nature of decisions or directions on which the TDSAT has powers to adjudicate, Manjul Bajpai, a senior lawyer, said.

"Examinations of the provisions of Section 36 whereby the Trai is empowered to make regulations shows that it is specifically mentioned therein that regulations would be made by notification in respect of the subjects set out therein," the court said.

However, some of telecom industry analysts feel that this judgement will reduce Trai to a mere ornamental body dealing with day-to-day functioning, holding meetings and open houses.

There were important issues relating to access-deficit charge fixation, which had larger impact on the growth of the telecom industry and were framed after a long process of consultations by Trai, they said, adding they need not be challenged.

According to the judgement, it cannot possibly be successfully contended that an issue relating to the fixation of the access-deficit charge cannot be agitated before the TDSAT, which is specifically empowered to hear such grievances under the provisions of Section 14(6) of the Trai Act, 1997.