"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": Delhi High Court Bench

The Delhi High Court on Friday removed the 200-SMS ceiling put by the Telecom Regulatory Authority of India (TRAI) on sending SMSes per SIM per day vis-à-vis commercial messages, saying that “it infringes on 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) of the Constitution”.

However, the Court clarified that the ceiling will continue on commercial SMSes.

Quashing the provision, a Division Bench of the Court comprising Justice A.K. Sikri and Justice Rajiv Sahai Endlaw said: “We are, therefore, of the opinion that the impugned provision insofar as it covers non-UCCs (unsolicited non-commercial communications) SMSes 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) of the Constitution.

“Thus, while upholding this provision qua UCC i.e. commercial calls, the same is set aside insofar as it covers non-UCCs SMSes also. At the same time, liberty is granted to TRAI to come out with more appropriate regulations for regulating unsolicited non-UCCs SMSes that could meet the test of reasonableness under Article 19(2) of the Constitution.

Rights of privacy

“We would like to clarify that even non-UCCs voice calls/SMSes 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. However, the provision in the present form is not made keeping in view that objective,” the Bench said.

The Bench quashed the ceiling on non-commercial SMSes on a public interest litigation by non-government organisation Telecom Watchdog.

The petitioner through its counsel Prashant Bhushan submitted that the order issued by the TRAI was a violation of the fundamental right to freedom of speech and expression and against the democratic norms.

The petitioner further alleged that TRAI had done this at the behest of the Government to check communications in general under the garb of checking unsolicited commercial communications.

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