Adjudication in India [7.4.1]

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Separating adjudication from the regulatory agency: The case of India[1]

An interesting and apparently unique case of allocating dispute resolution powers is that of India . In 2000, legislative amendments were introduced to institutionally separate the function of regulating the telecommunications market and the function of resolving disputes within the sector. Hence, adjudicative authority that previously resided in the Telecommunications Regulatory Authority of India (TRAI) was divested and assigned to the newly created Telecommunications Dispute Settlement and Appellate Tribunal (TDSAT).[2] Commentators have been put forward several reasons to explain this legislative decision, among them: (i) concerns about the principle of separation of powers;[3] and (ii) concerns of conflicts of interest with the licensing functions of the TRAI.[4]

The TDSAT is empowered to adjudicate disputes between parties and to hear appeals of TRAI decisions. Thus, disputes between the regulator and licensed telecommunications service providers; among service providers themselves; or between service providers and groups of consumer, all fall within TDSAT jurisdiction.[5] Despite the broad nature of this mandate, TDSAT may not intervene in matters relating to individual consumer complaints handled by various consumer commissions ( e.g., the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission); or in competition law disputes handled by the Monopolies and Restrictive Trade Practices Commission.[6]

It is relevant to mention that TDSAT jurisdiction for judicial review of TRAI decisions is exclusive, as no civil court may entertain any suit or proceeding or grant any injunction where TSDAT has jurisdiction.[7]

In addition, to ensure that TSDAT has sufficient powers to examine evidence and to establish facts, it has been granted the same powers vested in civil courts in India . These include, among others: (i) summoning and enforcing the attendance of any person and examining him on oath; (ii) requiring the discovery and production of documents; (iii) receiving evidence on affidavits; (iv) issuing commissions for the examination of witnesses or documents; reviewing its decisions; (v) dismissing an application for default or deciding it ex parte ; and (vi) setting aside any order of dismissal of any application for default or any order passed by it ex parte.[8]

With respect to enforceability, every order issued by TSDAT is deemed to be a decree of the civil court and shall be executable in the same manner as a decree of that court.[9] Willful non-compliance with such orders is punishable by fines.[10] TSDAT decisions are of course subject to appeal before the Supreme Court on the same grounds usually applicable to appeal appellate decrees, i.e., on a substantial question of law.[11]

ENDNOTES

[1] In general, see Robert Bruce and Rory Macmillan , India Mini-Case Study 2003. Dealing with Interconnection and Access Deficit Contributions in a Multi-Carrier Environment. ITU, available at www.itu.int/ITU-D/treg/Case_Studies/Disp-Resolution/India.pdf ; Rory Macmillan, Reflections on Regulation and Dispute Resolution in Indian Telecommunications Sector , Journal of the Indian Law Institute, Vol. 47:1 (2005), at p.29.

[2] Telecommunications Regulatory Authority of India (Amendment) Act of 2000 amended the Telecommunications Regulatory Authority of India Act of 1997. It should be noted, that the imminent enactment of the Indian Communications Convergence Bill does not affect of alter this institutional structure.

[3] Rory Macmillan, Reflections on Regulation and Dispute Resolution in Indian Telecommunications Secto r, at p. 31.

[4] Ann Buckingham, Camilla Bustani, David Satola, and Tim Schwarz, Telecommunications Reform in Developing Countries, Telecommunications Law and Regulation (Ed. Ian Walden and John Angel), Oxford , 2005, at p. 618.

[5] TRAI Act, Section 14 (1), as amended.

[6] TRAI Act, Section 14 (2), as amended.

[7] TRAI Act, Section 15, as amended.

[8] TRAI Act, Section 16 (2), as amended.

[9] TRAI Act, Section 19, as amended.

[10] TRAI Act, Section 20, as amended.

[11] For further discussion, see Rory Macmillan, Reflections on Regulation and Dispute Resolution in Indian Telecommunications Sector, at p. 43.

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