In a recent case, the Supreme Court directed the appropriate government to enact a law by June 2011.  The case, Gainda Ram & Ors. V. MCD and Ors.[1], concerned the legal framework for regulating hawking in Delhi.  The judgement lays out the background to this case by stating that the regulation of hawking in Delhi had been proceeding under directions issued by the Supreme Court in previous cases, and was being implemented by municipal authorities such as the New Delhi Municipal Corporation (NDMC). The NDMC and the MCD have also framed schemes to regulate hawkers as per a policy of the government framed in 2004.  However, since these schemes were not laid before Parliament, the Court held that these schemes cannot be called ‘law’ or drafted under the authority of any law.  The Court also stated that there is an urgent need to enact a legislation to regulate hawking, and the rights of street vendors. It referred to a Bill which had been framed by the government, and stated that since the government has already taken the first step in the legislative process by drafting a Bill, the legislative process should be completed.  On the basis of this, and other reasons, it directed the government to enact a law by June 2011.  This judgement raises three issues:

  1. The government is not the law making body in India.  Enacting a law is the function of Parliament and state legislatures.
  2. Even if the Court were to address the correct authority, Courts in India have no authority to direct the legislature to frame a law, let alone specify a time-period.  This may be said to violate the basic principle of “separation of powers” which states that the executive, legislature and judiciary should function independently of each other.  Under the Indian Constitution, the Supreme Court and the High Courts have the power to protect fundamental rights and to interpret law.  The Constitution does not give power to Courts to direct the framing of a law.
  3. Persons can be held in contempt of court for not following its directions.  In this case, it is not clear who would be held in contempt for not enacting a law by June 2011.  The Supreme Court can either hold the Speaker of the Parliament in contempt for not enacting a law by the specified date (it is uncertain whether the Court has this power since no such past instance has arisen). Or it can hold the concerned government official in contempt for not enacting the law within the time period specified (the government in this case, having no power to enact a law).

[1] Decided on October 8, 2010

The National Telecom Policy was adopted by the cabinet on May 31, 2012.  It was released in public domain later in June.  Among other things, the policy aims to provide a single licence framework, un-bundle spectrum from licences, and liberalise spectrum. Previously, the central government had decided to unbundle spectrum and licenses for all future licences on January 29, 2011.  TRAI too in its recommendation dated May 11, 2010 and April 23, 2012 sought to de-link spectrum from licences.  The Supreme Court in the 2G judgment had held that spectrum should not be allocated on a first-cum-first-serve basis and should instead be auctioned.  In the April 23 recommendations, TRAI has detailed the mechanism for auctioning spectrum. TRAI has also recommended moving to a unified licence framework under which a single licence would be required to provide any telecom service.  It has also recommended that spectrum should be liberalised so that any technology could be used to exploit it. The new policy is in line with the government decisions and TRAI recommendations discussed above.  The policy also aims to achieve higher connectivity and quality of telecommunication services.  Its key features are detailed below.

  • Licensing:  Presently, as per the 2003 Amendment to the 1999 Telecom Policy, there are two forms of licences – Unified Service Licence (to provide any telegraph service in various geographical areas) and Unified Access Service Licence (to provide basic and cellular services in defined service areas).  The new policy targets simplification of licensing framework by establishing a unified license for all telecom services and conversion to a single-license system for the entire country.  It also seeks to remove roaming charges.
  • Spectrum:  As of now spectrum bands are reserved on the basis of technology that may be used to exploit them.  For instance, the 900 and 1800 bands are reserved for GSM technology and 800 for use of CDMA technology.  The new policy seeks to liberalise spectrum.  Further, spectrum would be de-linked from all future licenses.  Spectrum would be refarmed so that it is available to be used for new technology.  The policy aims to move to a system where spectrum can be pooled, shared and traded.  Periodic audits of spectrum usage would be conducted to ensure efficient utilization of spectrum.  The policy aims at making 300 MHz of additional spectrum available for mobile telecom services by the year 2017 and another 200 MHz by 2020.
  • Connectivity: The policy aims to increase rural tele-density from the current level of approximately 39% to 70% by 2017, and 100% by 2020.  It seeks to provide 175 million broadband connections by the year 2017 and 600 million by 2020 at a minimum 2 Mbps download speed.  Higher download speeds of 100 Mbps would be made available on demand.  Broadband access to all village panchayats would be made available by 2014 and to all villages by 2020.  The policy aims to recognise telecom, including broadband connectivity, as a basic necessity like education and health, and work towards the ‘Right to Broadband’.
  • Promotion of domestic industry: The policy seeks to incentivise and give preference to domestic telecom products in procurements that (i) have security implications for India; or (ii) are for the government’s own use.  It also seeks to establish a Telecom Finance Corporation to mobilise and channelise finances for telecom projects.
  • Legislations: The policy seeks to review the TRAI Act to remove impediments to effective functioning of TRAI.  It also seeks to review the Indian Telegraph Act, 1885.  The need to review the Indian Telegraph Act, 1885 was also recognised in the 1999 Telecom Policy.

The policy as adopted can be accessed here.