A division bench of the Delhi High Court in Telecom Watchdog v Union of India & Anr., recently held that the limit of 200 SMSes per day imposed by the Telecom Regulatory Authority of India (TRAI) on all cellphone subscribers would fail the constitutional guarantee of freedom of speech under Article 19(1)(a) and 19(2) of the Constitution of India.
Before going into the specific arguments and the decision of the Court, we must look at the history of regulation of unsolicited commercial communications (UCC) by the TRAI. Between December 2010 and July 2011, the TRAI made several attempts to regulate and restrict telemarketing and other forms of UCC. One such attempt was to limit the number of SMSes that a subscriber could send from one SIM. Initially, the limit was set at 100 SMSes per day which was later raised to 200 per day. However, this soon proved to be controversial as many argued that it restricted free speech (for e.g. Centre for Internet and Society). Several disability rights organizations also raised objections to the limits as SMSes were the only mode of communication for persons with hearing disabilities.
Soon a writ petition was filed in the Delhi High Court by an NGO called the Telecom Watchdog, challenging the reasonableness of the SMS restrictions on all kinds of communication by SMS, especially those that were non-UCC. In addressing the questions raised in the petition, the Delhi HC examined one critical issue of constitutional importance:
In its attempt to curb UCCs, did the TRAI Regulations overstep their purpose and violate the fundamental rights of Indian citizens enshrined under Article 19(1) (a) of the Constitution?
Answering in the affirmative, the court held that the SMS limit was unreasonable insofar as it restricted the freedom of speech of other citizens who were not using them as UCC. The court also said that TRAI was free to make further regulations to control non-UCC SMSes, but keeping in mind the constitutional protections under Article 19(1)(a) and 19(2). Therefore, the daily limit on the number of SMSes that could be sent from a SIM by a subscriber was struck down as falling foul of the constitutional guarantee of free speech.
This decision of the Delhi HC is significant for two reasons:
- This is the first time a court in India has been faced with a substantive question of freedom of speech in telecommunications, especially mobile services. To that extent, it is novel in extending the constitutional protections to other media of communication.
- The court also examined the question of commercial free speech of the telemarketers and other UCC providers. It in fact held that the limit on daily SMSes was a reasonable restriction on the commercial free speech of the telemarketers. However, the limit was unconstitutional to the extent that it also restricted the free speech of other citizens.
