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2004 DIGILAW 484 (GAU)

Siddhartha Baruah v. Union of India

2004-08-24

P.P.NAOLEKAR, RANJAN GOGOI

body2004
JUDGMENT P.P. Naolekar, C.J. 1. In all these petitions the controversy centers round the order No. B42-38G/2002-VAS. (Pt) dated 23.10.2003 issued by the Director (VAS), Govt. of India, Ministry of Communication and IT, Department of Telecommunications (VAS Cell) directing the Reliance Telecom(P) Limited (hereinafter shall be referred to as "RTL"), the mobile operator in North Eastern region to convert all prepaid subscribers of the region to post paid system by January 31,2004. It is the case of the Petitioners that the prepaid service of RTL has been restricted only to two cities of the region, namely, Guwahati and Shillong by the Central Govt. of India on the pretext of security problem. The RTL provides prepaid mobile service as well as postpaid mobile service. The Govt. of India took a decision on 23.10.2004 directing the RTL to de-connect the prepaid mobile service in the region. It is the case of the Petitioners that the pre-paid service provides to the subscribers is more economical. Further, the subscribers of this new postpaid system has to pay an extra monthly rent ranging from Rs. 175/- to Rs. 349/- which is in addition to the charges of different calls made. The subscribers for the postpaid service are also required to deposit an amount of Rs. 1000/- as extra payment. The new system is going to badly affect over 200 retail prepaid dealers of Guwahati and Shillong. Most of the dealers are educated youths who have found self-employment through this business. The North Eastern States have been discriminately treated by the Union of India by taking the policy decision dated 23.10.2004. When in whole of India prepaid mobile service is available to the subscribers it has been denied to the citizens of North Eastern Region. The decision taken by the Union of India on the ground of national security is only a camouflage and with the decrease in insurgency in the North Eastern States the decision of the Union of India has no rational relevance to the object sought to be achieved, namely, the national security. 2. After service of notice the Respondents entered appearance. The RTL has filed its return and submitted, in brief, the working facets of the technology driven Cellular Mobile telephone Services (CMTS). 2. After service of notice the Respondents entered appearance. The RTL has filed its return and submitted, in brief, the working facets of the technology driven Cellular Mobile telephone Services (CMTS). Under the scheme of service the RTL provides two categories of cellular mobile telephone service, the "prepaid service" and the "postpaid service", the difference primarily resting on the billing mechanism. The prepaid service is a service in which the subscribers first pay and then use the services equal to the amount paid on account of call time allowed depending upon the prevailing tariff. In the postpaid service the subscribers use the service and then pay for it. When the subscribers make or receive a call, it is recorded in the switch at Guwahati in a specified format. At this stage prepaid and postpaid calls reach in the common place defined in the software for the purpose. Thereafter the calls of both types are transferred to billing system at Kolkata and billing is made. At Guwahati the RTL has 98640XXXXX series of mobile subscribers. The total capacity of the series is 1 lac. In the prepaid system of cellular mobile telephone service the subscribers get connection immediately on payment of applicable charges and on filling up of the Subscriber Enrolment form along with the proof of address and proof of identity. The RTL is not directly selling these prepaid SIM cards. The SIM cards are pre-activated which can be taken from any of the retail counters. There are 280 retail counters in the city of Guwahati. Immediately on getting the card, the subscribers can make calls and can continue to do so by recharging the SIM card with a recharge voucher of available and preferred denomination. In the prepaid service, one way roaming, that is only incoming calls in roaming network, is provided. The verification of documents in proof of identity and address of the subscribers is done by the retailer at the point of sale to the subscribers. In the postpaid system of cellular mobile service the subscribers fill up the Enrolment Form and furnish their proof of identity and address and pay the applicable charges for connection. Thereafter the form is scrutinized and proof of address and proof of identity documents are verified. The SIM cards (connection) are delivered by courier to the applicant subscribers in person at the address mentioned in the Subscriber enrolment Form. Thereafter the form is scrutinized and proof of address and proof of identity documents are verified. The SIM cards (connection) are delivered by courier to the applicant subscribers in person at the address mentioned in the Subscriber enrolment Form. After the SIM cards are handed over to the subscribers at the address given in the Subscriber Enrolment form filled up by the subscribers, then the connection is activated and they can use it. It is further alleged that the RTL is merely migrating the prepaid subscribers to the postpaid system in compliance of the directives of the Central Govt. issued vide letter No. B42-38G/2002-VAS.(Pt) dated 23.10.2003. As per the deponent the amount of Rs. 1000/- paid by the subscribers is not a charge of migration. The amount is refundable security deposit and it is taken as security to be adjusted against calls made by the subscribers and the bills if not paid. The deposit shall be refunded to the respective subscribers after adjusting of dues, if any, at the time of surrender of the subscription. It is not an additional security deposit. In prepaid system the call time is bought, that is to say, the subscribers pay in advance for the calls to be made by them, whereas in the post paid system of service, the subscribers first use the services and then make the payment on the basis of monthly bills generated by the service provider. Therefore, the security deposit is required to be adjusted at the time of surrender of the connection. Thus, it is the case of the RTL that the Company is acting on the directions issued by the Union of India, which is its policy decision. The Company has also clarified the difference between the workability of the prepaid system and post paid system. It is apparent that the prepaid cards are pre-activated cards which can be taken from any retail counters. Immediately after the cards are received it can be utilised and the same can be charged at the retail counter. The verification of the documents of proof in identity and address of the subscribers is done by the retailers at the point of sale to the subscribers. Immediately after the cards are received it can be utilised and the same can be charged at the retail counter. The verification of the documents of proof in identity and address of the subscribers is done by the retailers at the point of sale to the subscribers. There are about 280 retail counters in the city of Guwahati and each one of them has the facility for issuance of the prepaid cards on the basis of their verification whereas in the post paid system the proof of identify and address is subject to scrutiny of the Company and the SIM cards (connection) is delivered by the courier to the applicant subscribers in person at the address mentioned in the Subscriber Enrolment Form to assure the issuance of the card only to the persons whose identity and address has been verified. 3. The Union of India has issued the circular where under the directions have been issued by the Ministry of Communication and IT, Department of Telecommunications (VAS Cell) with reference to the Licence Agreement No. B42-VAS dated 12.12.95 for Assam Telecom Circle and Licence Agreement No. B42-VAS Dated 12.12.95 for North East Telecom Circle with M/s Reliance Telecom (P) Limited (RTL) where under it has been directed to the Company that the existing prepaid subscribers may be suitably migrated to the postpaid option. The said migration may be completed within 3 months time. There should not be any prepaid subscriber in the said service areas after 31.1.2004. Under the circular it is apparent that the directions have been issued to RTL under the licence issued for Assam Telecom Circle and North East Telecom Circle to stop the prepaid service from 31.1.2004 and the option maybe given to the subscribers of prepaid service to convert it to postpaid service. It is this circular which is the subject matter of challenge in these petitions. 4. The petitions were admitted and while the PIL Nos. 2/2004 and 7/2004 were listed before the Court on 29.1.2004 Shri A.S. Verma, Director, Value Added Services was present in the Court. The Court specifically asked him as to what document was taken into consideration by the Committee or the Authority, who has issued the notification/direction, dated 23.10.2003 before the decision is arrived at for changing over the service from prepaid to postpaid by the service provider RTL till 31.1.2004. The Court specifically asked him as to what document was taken into consideration by the Committee or the Authority, who has issued the notification/direction, dated 23.10.2003 before the decision is arrived at for changing over the service from prepaid to postpaid by the service provider RTL till 31.1.2004. He could not provide the Court the basic particulars of the documents or other materials which has been taken into consideration before the decision was made by the authority and, therefore, the Court directed the Secretary, Ministry of Communication and IT, Department of Telecommunication, New Delhi to submit the documents or other materials, which has been relied upon before the decision was taken for issuance of the notification/direction dated 23.10.2003, in a sealed cover before the Court. On 19.2.2004 the learned Central Govt. Standing Counsel filed documents in two sealed covers and the count directed the Registry to keep the documents, filed in two sealed covers, in safe custody. On 28.5.2004 the documents relating to the case have been produced before the Court. While producing the documents before the Court it was made clear by the learned Counsel for the Union of India that the Union of India has given its submissions objecting production of the documents claiming privilege under Sections 123, 124,126 and 162 of the Indian Evidence Act but the documents are being produced for the inspection of the Court so as to find out whether the documents contain the fact relating to the taking of the decision by the Union of India in the matter of public interest and national security relating to the affairs of the State and are relating to the security of the State in general. 5. It is submitted by the learned Counsel appearing for the Petitioners that if the direction issued by the Union of India has a relevance to the national security and the Court is satisfied with the reasons given by the Union of India the challenge to the conversion of the service from prepaid to post paid and stoppage of prepaid service in the region would not be relevant but if it is found otherwise by the Court then the directions discriminating the Assam Telecom Circle and North East Telecom Circle fix)m the other part of the country so far as it relates to the prepaid mobile service would be an action which would require nullification being arbitrary, unreasonable and discriminatory. 6. It is further argued by Mr. A.K. Bhattacharyya, learned senior Counsel that to justify the privileges claimed by the Government of the documents produced before the Court it should be claimed generally by the Minister In charge, the political head of the department concerned, if not, the Secretary of the Department who is the departmental head should make the claim and the claim should always be made in the form of an affidavit. When the affidavit is made by the Secretary the Court may, in a proper case, require an affidavit of the Minister himself The affidavit should show that each document in question has been carefully read and considered and the person making the affidavit is satisfied that the disclosure would lead to public injury The affidavit should reflect that each one of the documents, whose disclosure is object to, has been duly considered by the authority concerned. The affidavit should also indicate briefly within the permissible limits, the reasons why it is apprehended that the disclosure would lead to interference into public interest. In absence of proper affidavit the Court has no jurisdiction to look into the documents produced, of which the privilege has been claimed, and the Court cannot allow the privilege claimed by the government and as such the files produced before the Court should be made available for inspection to the Petitioners to make their submissions. For this proposition the learned Counsel has relied upon two decisions of the Apex Court in the matter of the State of Punjab v. Sodhi Sukhdev Singh reported in AIR 1961 SC 493 and in the matter of Amar Chand Butail v. Union of India and Ors. reported in AIR 1964 SC 1658 . We are afraid that the decisions relied upon for the submissions made by the learned Counsel cannot be given effect to in view of the later decision of the seven Judges Bench in the matter of SP Gupta and Ors. v. President of India and Ors. reported in AIR 1982 SC 149 wherein in paragraphs 74 and 75 the Court while considering the question as to how the claim for immunity against disclosure should be raised under Section 123 said that the sole and only consideration must be whether the disclosure of the document would be detrimental to public interest in the particular case before the Court. If in a given case no affidavit is filed or the affidavit file is defective, the Court may give an opportunity to the State to file a proper affidavit. The reason is that the immunity against disclosure claimed under Section 123 is not a privilege which can be waived by the state. It is an immunity which is granted in order to protect public interest and therefore even if the State has not filed an affidavit or the affidavit filed is not satisfactory, the Court cannot abdicate its duty of deciding whether the disclosure of the document in question would be injurious to public interest and the document should not therefore be allowed to be disclosed. The Court further said that if a document is entitled to immunity against disclosure, it cannot be adduced in evidence by either party and even if another of the parties claims such immunity, the Judge himself must take the objection for the rule that the public interest must not be put in jeopardy by the disclosure of a documents which would injure it, is one upon which the Court should, if necessary, insist, even though no objection has been taken by any party or by any government department. This being the correct legal position, it is immaterial whether in the present case appropriate affidavit claiming immunity was filed on behalf of the Union of India or not. 7. Thus, it is abundantly clear that it is for the Court to ascertain whether the document for which the privilege for are the documents which if disclosed would be detrimental to the public interest and national security. There cannot be any manner of doubt that the national security is of paramount importance and all other privileges will give way to the national security. The decision taken by the Government, which is necessary, according to its decision for the security of the State, the documents relating to such decision making process and the reasons assigned thereof are privileged documents and cannot be disclosed. We have gone through the file and we are satisfied that the policy decision taken by the Respondents is related to the national security. Files reveal that efforts at certain quarters, even after the decision was taken, to withdraw prepaid facility has not persuaded the authorities to change its policy decision. We have gone through the file and we are satisfied that the policy decision taken by the Respondents is related to the national security. Files reveal that efforts at certain quarters, even after the decision was taken, to withdraw prepaid facility has not persuaded the authorities to change its policy decision. In the matter of policy decision the function of the Court is to see that the lawful authority has not abused its powers but at the same time not to appropriate to itself the task entrusted to that authority. The authority invested with the power must take care not to exceed and abuse its powers, it must keep within the limits of the authority committed to it and it has to act in good faith and the action should be reasonable. But at the same time the Courts are not to interfere with the policies particularly the policy decision taken in the national interest which has relevance to the national security. The Courts are not to interfere with the security policy which is the function of the experts. It is not the function of the Courts to sit in judgment over policy matters relating to the national security and it must necessarily be left to the expert bodies. We have often noticed that in such matters even the experts can seriously and doubtlessly differ and the Courts can not be expected to decide them without the aid of experts. In the present case the experts have taken decision taking the entire stock of the situation in North Eastern States to discontinue the prepaid mobile service and convert it to postpaid mobile service keeping in view the national security and, therefore, the policy decision taken by the State cannot be interfered in the facts and circumstances of these cases. 8. For the aforesaid reasons the petitions fail and accordingly disposed of. However, in the facts and circumstances of the cases there shall be no order as to costs. The records produced before this Court (in sealed cover) are returned to the learned Sr. Central Govt. Standing Counsel.