Court sets aside 200 SMSes cap on personal communications

New Delhi - The Delhi High Court Friday set aside an order of the telecom sector regulator capping SMSes at 200 per day per person for personal communications.

The court however, upheld the curb for unsolicited commercial communication (UCC) SMSes, saying: "The UCC massages disturb the recipients, intrude into their privacy and impose a cost in terms of time and efforts".

A division bench of Acting Chief Justice A.K. Sikri and Justice Rajiv Sahai Endlaw said: "We are, therefore, of the opinion that the impugned provision (of Telecom Regulatory Authority of India (TRAI) insofar as it covers non-UCCs (unrestricted unsolicited commercial communications) SMS in the present form as it exists, infringes the freedom of speech of the citizens."

"And the conditions imposed upon the freedom of speech is not reasonable which would be protected under Article 19 (2) (which deals with reasonable restrictions of freedom of speech) of the Constitution," the bench further said.

The court's direction came on a plea filed by NGO Telecom Watchdog against the TRAI, challenging its imposition of a cap of 200 SMSes per day per person.

The bench, making a distinction for unsolicited commercial calls, said that the restriction imposed by the TRAI was valid.

"We have already pointed out that the TRAI has found that UCC calls and SMSs were interfering with the personal lives of the individuals as often telemarketers would call them up for selling their products. All such calls sere unsolicited, i.e., the receiving party does not want to receive such calls or messages."

It further added: "These UCC messages disturb the recipients, intrude into their privacy, and impose a cost in terms of the time and efforts. In fact, they infringe the equally importance rights of the unwilling recipients."

The court, in its judgement, partly allowed the NGOs plea and granted liberty to TRAI "to come out with more appropriate regulations for regulating unsolicited non-UCCs SMSs that could meet the test of reasonableness under the Constitution".

The bench however refused to accept the contentions of NGO that unsolicited commercial communications enjoyed the immunity under the constitutional right to freedom of speech and expression.

"It appears us to think that UCCs are normally commercial advertisement meant for furtherance of trade and commerce and not sent with the objective of propagation of ideals, social, political or economic or in furtherance of literature or human thought," the bench observed.

"Therefore, prima facie such UCCs would not even amount to freedom of speech under Article 19(1)(a) of the Constitution and therefore, provision can be made placing restrictions on such UCCs," it added.

The court also rapped the telecom regulator, saying while putting a curb on UCCs, "the TRAI has painted the second category (personal and private communications) also with the same brush and

imposition of such a condition qua others is not related to the purpose mentioned in Article 19(2).

The NGO filling the petition through advocate Prashant Bhushan sought quashing of TRAI's order restricting the number of SMSes per day.

"The checks and measures already put in place under the Telecom Commercial Communications Customer Preference Regulations, 2010, were adequate to curb the menace of unsolicited commercial

communications," said the petition.

In an effort to curb pesky calls and SMSes, the TRAI had Sep 5 last year ordered telecom firms to limit the number of SMSes per day per SIM to 100. However, acting on a number of representations, the

TRAI later enhanced the cap to 200.