In a huge relief to mobile users, the Delhi High Court has quashed the cap of 200 SMSs per day imposed by the telecom regulator.

The cap was brought in by TRAI to curb the menace of unwanted calls and SMSs sent by telemarketers. While this rule had brought down the number of unwanted telemarketing SMSs, it had also restricted heavy texters like the youth segment from sending out messages.

The High Court has asked the TRAI to amend the current norms. The SMS restrictions on telemarketers will, however, continue.

The moot question raised in the case was whether by imposing such a blanket cap on all calls and SMSs, the TRAI was trampling on the rights of those not indulging in voice calls/SMSs for commercial purposes but only with the objective of disseminating information.

The court held that the existing norm “infringes the freedom of speech of the citizens” as mentioned in the Constitution. It also said the conditions imposed upon the freedom of speech by such a provision cannot be termed as reasonable as per the Constitution.

The court noted that TRAI had painted all categories of calls and SMSs with the same brush and put an embargo on the maximum voice calls/SMSs for commercial and non-commercial purposes.

It found that the norms in the present from offended the fundamental rights of the users enshrined under Article 19(1)(a) of the Constitution.

However, the order of the Acting Chief Justice of the Delhi High Court Mr Justice Rajiv Sahai Endlaw, clarified that even non-telemarketing SMS may impinge upon the rights of privacy of others.

“Therefore, it would always be open to TRAI to regulate such freedom of speech as well in so far to protect the rights of the receivers,” the 30-page order said.

The public interest litigation filed by an NGO Telecom Watchdog, represented by advocates Mr Prashant Bhushan and Mr Pranav Sachdeva, had said that SMS cap has been imposed in a non-transparent without any consultation with the stakeholders.

While telecom companies welcomed the High Court intervention, they were not clear as to how differentiation will be made between texts from common users and unregistered telemarketers. While registered marketers send messages only to those subscribers who are not the do-not-disturb registry, the larger problem has arisen due to illegal telemarketing companies.

Such companies route their SMS traffic through normal mobile numbers or via servers kept in international locations.

arun.s@thehindu.co.in

(This article was published on July 13, 2012)
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