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Restore our rights

The government must seek review of a court order that says subscribers cannot sue telecom companies in consumer courts, writes Pushpa Girimaji.

india Updated: Dec 23, 2012 22:17 IST

Today is National Consumer Rights Day. But for the third consecutive year, the celebrations are clouded by the Supreme Court’s (SC) verdict in the General Manager, Telecom vs M Krishnan case. The ruling has taken away the rights of over 900 million telecommunication consumers to sue telecom companies in consumer courts. The best one can do on a day like this is to bring to the notice of the apex court the urgent need for a suo motu review of this order that is erroneous and has caused turmoil in the consumer justice system.

Three years have gone by since the SC ruled that “when there is a special remedy (arbitration) provided in Section 7B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred”. Since then thousands of consumers whose complaints were pending in consumer courts have been forced to go for arbitration.

But a scrutiny of Section 7B shows that let alone bar the jurisdiction of consumer courts, it does not even provide for arbitration of disputes between consumers and telecom service providers like Bharat Sanchar Nigam Limited (BSNL) or private operators.

Section 7B provides for arbitration of disputes between the “telegraph authority” and the consumer. But neither BSNL, which challenged before the SC the authority of consumer courts to hear telecom complaints, nor private telecom companies, which are now using the SC order to question the maintainability of a consumer claim under the Consumer Protection (CP) Act, come under the definition of ‘telegraph authority’.

So long as the department of telecommunications (DoT) was the service provider, Section 7B was relevant and valid for disputes between DoT (as the telegraph authority) and consumers. When in 1986, Mahanagar Telephone Nigam Limited (MTNL) was set up, it was also conferred the status of ‘telegraph authority’. But in 2000, when BSNL came into existence, the government decided not to grant BSNL that status, as by then private players had entered the sector and the government wanted to ensure a level playing field.

Given this background, it is condemnable that the public sector telecom giant challenged the authority of consumer courts on the basis of a provision (7B) that did not apply to it at all. And it’s truly a travesty of justice that consumers are now being forced to seek arbitration without authorisation of that law or against the express provisions of that law.

The origin of this imbroglio was the disconnection of the telephone of a subscriber — M Krishnan — on September 13, 2001, for outstanding dues on the telephone of his landlord TK Reghunath and the Kozhikode District Consumer Forum’s direction to BSNL to restore the connection and pay compensation. In response, BSNL filed a writ petition before the High Court of Kerala, challenging the jurisdiction of the consumer court in view of Section 7B. When the single bench as well as the full bench of the high court dismissed it, BSNL filed an appeal by special leave before the SC.

Justices Markandey Katju and Asok Kumar Ganguly, who heard the appeal, however agreed with BSNL. “It is well settled that the special law (Indian Telegraph Act) overrides the general law (Consumer Protection Act). Hence in our opinion the high court was not correct in its approach,” their verdict said, setting aside the judgment and order of the high court as well as the order of the consumer court.

The order, coming as it did after two decades of the existence of consumer courts, shook the foundation of the consumer justice system and created confusion. Some consumer courts held that the order did not set a precedent, some others were of the view that the verdict went against the intent of the Parliament, but most (90%, according to DoT) preferred to dismiss the complaints.

Faced with a deluge of requests for arbitration, DoT, which appoints its officers as arbitrators, has now begun to classify the complaints into different categories and has delegated the responsibility of appointing arbitrators for billing disputes to its Controller of Communication Accounts. According to DoT’s estimates, the number of complaints before consumer courts against BSNL is around 1,28,000.

Given the implications of BSNL’s action and the SC’s ruling, the government should have filed a review petition immediately, within 30 days as required. It took two years to do so and the petition is yet to be admitted. It has also taken the government three years to decide on the next course of action — to amend Section 7B — to restore the rights of telecom consumers and to do so through an ordinance. However, it’s anybody’s guess as to when that will happen.

So till relief comes in the form of a judicial pronouncement or an amendment to the law, the celebration commemorating the birth of the consumer protection law will have no meaning.

Pushpa Girimaji is a senior journalist and commentator on consumer rights issues
The views expressed by the author are personal