VOICE CONSUMER CARE COUNCIL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE writ petition has been filed by the petitioner for declaration that the detailed guidelines for auction and allotment of spectrum for Broadband Wireless Access (hereinafter referred to as 'bwa') dated 1st Aug. , 2008, and consequential amendment dated 11th Sept. , 2008 and memorandum relating to auction of BWA spectrum dated 12th Dec. , 2008, insofar as it relates to pure Internet service are opposed to Broadband Policy, 2004 of the Government of India and the fundamental right to access to information guaranteed under Article 19 (1) (a) of the Constitution of India.

(2.) THE petitioner claims to be a voluntary organisation taking up genuine public causes for public service. It has challenged the guideline in relation to auctioning the spectrum for BWA on the ground that it goes against the policy of the Government of India in relation to pure internet service. The access to internet service, particularly for IT potential of India is in millions and, therefore, according to the petitioner, the present cause is a public cause of greater importance, which has a direct bearing on the growth of GDP and enhancing quality of life, including tele-education, tele-medical, e-governance, entertainment, employment generation by way of high speed access to information and web based communication. Further case of the petitioner is that the internet services as provided by the guidelines of Government of India is an exclusive policy under Broadband Policy 2004, and is binding on the Government. Internet services is a matter of public policy to provide cheap and cost effective internet service to general public. At present internet services are pre-dominantly by wire line service alone. Now, due to development in information technology, wireless broadband access is also sought to be implemented. The policy relating to wireless internet service was considered to be not within the purview of licensing in order to enable cost-effective access to the consumer. For the said reason, Government of India, in Para 4. 4 of its Broadband policy has specifically come out with a plan, wherein the department is conscious of the fact that broadband services can reach the urban and rural consumers only if services are offered at affordable and easy terms. Department of Telecommunications will work out a package in consultation with Ministry of Finance and related departments as well as concerned service providers to achieve this'. The above object of the Government of India is also established in the subsequent guideline issued exclusively for the purpose of internet connections on 24th Aug. , 2007, wherein at para 10 of the said notification, which relates to Annual Fee License, it has been specifically excluded for pure internet service providers in deciding the Adjusted Gross Revenue (AGR) index. That means, the license fee at present charged for pure internet providers are negligible, which is a nominal Rs. 1/= license fee alone. This was in consonance with the Broadband Policy 2004 allowing cheap access to consumers of pure internet service. In the Common Information Memorandum issued for auction of 3g and BWA Spectrum, in para 3. 1 relating to Broadband Policy states that the Government acknowledges the coverage of broadband services in the country has been limited so far due to infrastructure and other constraints and is committed to improve that. Promotion of wireless broadband service, a step in the direction and the Government believes that it will be able to achieve the broadband policy target of 20 million subscribers by 2010". Learned counsel for the petitioner referred to para 6. 1 relating to Government's vision, wherein the objectives are spelt out, as below :-

(3.) LEARNED senior counsel for the petitioner submitted that the policy relating to accessibility of service in para 6. 1 and auction norms in para 6. 2 are ironically contradicting each other. To put it otherwise, the Government is not trying to keep its goal in its administration and taking double standard in its policy relating to internet service and in its bid process relating to auction. Even the recommendation of the 2nd respondent, Telecom Regulatory Authority of India, in para 1. 12 (i) of the recommendation dated 27th Sept. , 2006, has stated that the objective of maximisation of consumer interest. This will involve supporting and encouraging the diffusion of new and advanced technologies, setting the framework that ensures affordability and universal access to the new communication techniques. Therefore, according to the petitioner, the internet service is considered as a class separate with the idea of providing cost effective internet service in tune with the fundamental right of freedom of expression, which includes access to information. Due to under classification of internet service as a separate class, the policy relating to internet service is not considered as a commercial venture by the Government. Both the policy and the subsequent guidelines relating to internet service are not burdened with heavy license fee or put to auction in respect of BWA. The policy of the Government of India by bringing in auction coupling with internet service along with 3g service had proposed to auction internet service as pure and separate with no license fee and, therefore, reserve price, which is 50% of the 3g reserve price is disproportionate and has no nexus with the object sought to be achieved.