Posted in Criminal Law, Law Basics

High Court’s inherent power

This article is written by Amardeep Kumar. Amardeep is a student of Law, pursuing his BA.LLB (Hons) course from School of Law, KIIT University, Bhubaneswar.

 

 

“The CrPC has obviously tried to make itself exhaustive and complete in every respect; and it has generally succeeded in every attempt. However, if the court finds that the Code has not made specific provision to meet the exigencies of any situation, the court has inherent power to mould the procedure to enable it to pass such orders as the ends of justice require.”[1]

 

The power to quash FIR is among the inherent powers of the High Courts of India. Courts possessed this power even before the CrPC was enacted. Added as Section 482 by an amendment in 1923, it is a reproduction of section 561(A) of the 1898 code. Since High Courts could not render justice even in cases in which the illegal was apparent, the section was created as a reminder to prevent injustice done by a subordinate court. Section 482 deals with inherent powers of the Court. It is under the 37th Chapter of the Code titled miscellaneous. It comes into action when the courts act judicially and pass an order. If the order is passed by Executive Officer of State in administrative capacity it has no application. Therefore persons aggrieved by such order cannot approach High Court to exercise its inherent power under this section. As the inherent powers are vested in High Court by law within the meaning of Article. 21 of Constitution consequently any order of High Court in violation of any right under Article 21 is not ultra vires. Cancelling of bail bond by High Court thereby depriving a person’s personal liberty is one of such instance.

Section 482 of CrPC is being read as follows:-

Nothing in this code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

The bare reading of the section itself makes it clear that the provisions of the code are not intended to limit or affect the inherent powers of the High Courts. The inherent power can be exercised only for either of the three purposes mentioned in the section i.e.

  1. To give effect to an order under the code.
  2. To prevent abuse of the process of the Court.
  3. To otherwise secure the ends of justice.

This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the code. The question then crops up is that when this section will be used?

The section can be used only if   the matter in question is not covered by any specific provision of the code that section 482 can come into operation, subject further to the requirement that the exercise of such power must serve either of the abovementioned three purposes mentioned in the said section. In prescribing the rules of procedure, legislature has undoubtedly attempted to provide for all cases that are likely to arise; but it is not possible that any legislative enactment dealing with the procedure, however carefully it may be drafted, would succeed in providing for all cases that may possibly arise in future. Lacunae are sometimes discovered in procedural law and it is to cover such lacunae and to deal with cases where such lacunae are discovered that procedural law invariably recognises the existence of inherent power in courts. It would be noticed that it is only where the High Court’s inherent power has been recognised by section 482, and even in regard to the high court’s inherent power definite salutary safeguards have been laid down as to its exercise. It is only where the High Court is satisfied either that an order passed under the code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured that the High Court can and must exercise its inherent power under section 482 of the Code.[2] It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. It has been held that Section 482 cannot be invoked in non-criminal proceedings such as those under the customs act.[3] Inherent jurisdiction is a term which is incapable of definition or enumeration, and capable at the most of the test, according to well established principles of criminal jurisprudence. The framers of the Code could not have provided which all cases should be covered as abuse of the process of Court. It is for the court to take a decision in particular cases.[4] The inherent power contemplated by section 482 has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself.[5]

The following cases (summarised) have been stated by the Supreme Court, by way of illustration wherein the extraordinary power under Article 226 or inherent power under Section 482 can be exercised by the High Court to prevent abuse of process of any court or to secure justice.[6]

  1. Where the allegations in the FIR/ Complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused.
  2. Where the allegations in the FIR or other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except an order of a Magistrate within the purview of Section 155(2).
  3. Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence.
  4. Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of a Magistrate under Section 155(2).
  5. Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is a sufficient ground for proceeding against the accused.
  6. Where there is an express legal bar engrafted in any of the provisions of the Code or the Statute concerned (under which the proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party.
  7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused with a view to spite him due to private and personal vengeance.

The Hon’ble Supreme Court in Madhu Limaye v. Maharshtra[7] has held that the following principles would govern the exercise of inherent jurisdiction of the High Court:-

  1. That the power is not to be resorted to it, if there is a specific provision in the Code itself for the redress of the grievance of the aggrieved party;
  2. That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice.
  3. That it should to be exercised as against the express bar of law engrafted in any other provision of the Code.

In Pepsi Foods Ltd. v. Judicial Magistrate[8] it was held that

“The power conferred on the High Court under Articles 226 and of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.”

In most of the cases decided during several decades the inherent power of the High Court has been invoked for the quashing of a criminal proceeding on one ground or another.

Therefore, while applying Section. 482 of the CrPC the Court has to keep in mind that it should not ordinary embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained because it is a function of  a Trial Court and if it is not used wisely then it will become an instrument in the hands of accused persons and it will lead to differential treatment which will in furtherance of it give a chance to the accused to use it as an instrument and as a matter of time it will short circuit a prosecution and bring about its sudden death.

[1] R.V. Kelkar’s Criminal Procedure, Sixth Edition

[2] Dhirendra Kumar Banerjee v. State of Bihar, 2005 Cri LJ 4791 (Jhar)

[3] P.O Thomas v. Union of India, 1990 Cri Lj 1028 (Ker)

[4] State of Orissa v. Saroj Kumar Sahoo, 2005 13 SCC 540: (2006) 2 SCC (Cri) 272

[5] Talab Haji Hussain v. Madhukar Purshottam Mondkar, 1958 Cri LJ 701, 706-07 : AIR 1958 SC 376

[6] State of Haryana v. Bhajan Lal, 1992 Supp (I) SCC 335: 1992 SCC Cri) 426: 1992 Cri LJ 527

[7] (1977) 4 SCC 551: 1978 SCC (cri) 10, 14; 1978 Cri LJ 165

[8] (1998) 5 SCC 749, 758: 1998 SCC (Cri) 1400

Posted in Public Interest Litigations (PILs)

Ills of PILs (Public Interest Litigation)

This article is written by Pratyusha Kar. Pratyusha is currently a student of West Bengal National University of Juridical Sciences (WBNUJS), Kolkata.

 

 

“Injustice anywhere is a threat to justice everywhere.” – Martin Luther King,Jr.

If hundreds of poor people lose their livelihood, their shelter and even their constitutional guarantee in the name of Public Interest Litigation (PIL), is it desirable? Definitely, the answer is ‘no’. But this is happening in many cases of PIL.

In order to uplift the image of the judiciary that was tarnished during Emergency period and to gain the confidence of the public, Supreme Court of India has opened the floodgates to PIL. But this development of PIL has also uncovered its dangers and drawbacks.

The earlier PIL cases (1981 to 1985) concentrated mainly on providing protection of the underprivileged of the society. But gradually Supreme Court is looking beyond and other interests are being addressed more. In several PIL judgments the downtrodden, economically weaker sections of the society are being suffered and the very essence of the PIL is being neglected.

The following examples will definitely authenticate my claim.

  1. Bhopal Gas Disaster

In December 1984 the Bhopal Gas disaster resulted in the death of thousands of people and injury to lakhs of people.

Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, was passed by the Parliament.

In December 1987 the District Court of Bhopal ordered Union Carbide (owner of the chemical plant) to pay an interim compensation of 350 Crore.

The High Court reduced the compensation to 250 Crore on union Carbide’s appeal.

Both the Government of India and the Union Carbide (UC) appealed to the Supreme Court (SC) against the verdict of the High Court.

SC surprisingly setting aside the issue of compensation in question assisted settlement and directed the overall settlement for $470 million and termination of all civil and criminal proceedings.

Incidentally, no notice was served to the victims or their organisations.

In spite of hue and cry from different spheres and several review and writ petitions submitted, the SC did not change the compensation amount.

The Criminal liability (fixed by the lower courts) of the UC was reduced from culpable homicide not amounting to murder to rash and negligent act.

This post-decisional hearing thus denied natural justice to the victims.

If SC emphasised on the pre-decisional hearing and could hear the victims’ organisations, the results could have been quite different.

Here there was a departure from the rule of audi alteram partem and the SC had not maintained nemo judex in re sua.

  1. In 1996, in the World Saviors v. Union of India & Others case the SC closed down 26 industries but no directions were given for payment of compensation to the workers.
  2. In 1996, in HariramPatidar v. M.P. Pollution Control Board & Others case, M/s. Staller Drugs Ltd. Doshigaon, Ratlam was closed down till valid consent from the Pollution Control Board was received but the plight of the workers were not addressed.
  3. Again in 1996, in D.P. Bhattacharya & Others v. West Bengal Pollution Control Board case, the SC directed closure of five hazardous industries in Kolkata.
  4. In 1997, in Tarala V. Patel & Others v. Union Territory of Pondicherry case, the Pondicherry Distillery was ordered to be relocated.

The workers were the worst victims of the judgments made by the SC due to closure and/or relocation of the industrial units. They were about to lose their livelihood but they were neither heard nor noticed. These are complete violation of audi alteram partem and natural justice has been denied in all these cases.

Right to life under Article 21 of the Constitution is the most important fundamental right and ‘life’ included ‘livelihood’. Life without livelihood is the deprivation of the right to life as no one can live without the means of livelihood.

PIL is filed under Article 32 (in SC) and under Article 226 (in High Courts) of the Constitution where State is the necessary party and other parties are not given notice where the cases are treated as Class Action Suits. Class Action Suit means that some people are having common rights which are at a stake and one representative can file a suit taking permission from the Court.

But if people other than petitioners are affected the PIL should be treated as regular writ. Courts should be careful during inclusion of the parties as it is not the responsibility of the PIL petitioner to include other people as a party. Courts should be extra cautious to defend the interests of all concerned.

Posted in Critical Analysis, Debatable topics

Diorama of SURROGATES: Surrogacy Draft Bill is a Legislative Disservice

This article is written by Yuvina Goyal. Yuvina is a third-year student from NUJS, Kolkata.

 

In the midst of buckets of multifarious and multidimensional challenges against the Draft Surrogacy (Regulation) Bill, 2016, the effect of the same on one of the most crucial stakeholder in the whole surrogacy setup, that is the surrogate mother herself, have not been voiced much. No doubt such strict legislation has been drafted majorly in order to check the menace of renting of wombs by the women from vulnerable and poor sections of the society and their augmenting exploitation at the hand of the middlemen, commissioning parents and even the former’s family, the complete ban, in the Bill, on the commercial surrogacy comes as a threat to the livelihood of many poor women, who have been able to educate their children, establish their business and financially support their families through surrogacy. Thence, the road leading to ideal “Parivar”, through only altruistic surrogacy as a legal option, though constructed in good intention and pious tar, leads all those women, who have hoped for a better livelihood by renting their wombs, to hell and nowhere else.

Notwithstanding the fact that, such potential surrogates are approached for their service to meet pressing want of a child or satiate whims and desires, The compensation which poor young mothers are getting through surrogacy will stop due to the new law. This in itself is problematic as it could violate the woman’s fundamental right to livelihood – in this case through surrogacy – as guaranteed under Article 21 of the constitution. Prohibiting commercial surrogacy in favour of surrogates from within the family may thereby turn surrogacy into a black market business, or lead to the victimisation and coercion of subjugated and oppressed women in marital homes to bear a child for their relative.

I completely fail to understand what is wrong in having a quid pro quo for the service rendered by the surrogate mother as it’s a win-win situation for both the parties to the surrogacy contract. Isn’t lending a womb for nine months anyway a better and convenient situation than washing dishes or working in the red-light area or as bonded labourer to earn a livelihood?

The proposed legislation may do more harm than good by leading to the exploitation of surrogates through coercion and undue influence or by trafficking them to permissible jurisdictions.

The need of the hour is to regulate the unregulated ‘surrogacy market’ and surely reassess and emend the proposed law on surrogacy to safeguard the constitutional rights of the stakeholders considering the social, legal and ethical dynamics of this sensitive subject. A straight forward ban is not the solution to the problems of the economically thin-skinned women, who in order to survive and sustain are bulldozed to serve in the baby-factory, even otherwise, it is entirely a matter of their individual choice.

The claim of the government is that they are not restricting the rights of any stakeholder and abashing the practice of surrogacy but only restricting it and still the doors of altruistic surrogacy have been kept open. Accepting this, I am totally in the favour of protecting the stakeholders involved and bringing in a law to that effect. But believe me, ‘Regulation’ in commercial surrogacy, as the title of the Bill suggests, is the need in the crunch of present times and a blanket no-no to the practice is not acceptable at all.  Respecting this voluntary service rather than curbing the incentive for rendering the same their rights to it should be secured by legally regularising both the formation and enforcement of the surrogacy agreements and by providing schemes aiding the maintenance of mental and physical health of both the mother and the child and by introducing several such noble policies.

Now, what should be done to a tree bearing sweet and nutritious fruits otherwise, but there have been incidents of smuggling of the same or the fertility of the soil in which it’s being grown is being decreased? Obviously, the trading of such fruits will be regularised and checked or fertilisers to the soil would be added in the latter case. But, one wouldn’t simply chop away the tree or WOULD YOU?

Posted in Fundamental Rights, Marriage and family

Why Your Husband should not be in Jail: Family Rights of Prisoners

This article is written by Rashmi Pandey. Rashmi is a third-year student and has been the Chief Student Editor of AIL Reporter, Member of Student Research Society, presently pursuing BA LLB at Army Institute of Law, Mohali.

 

 “Family is affected and involved in the prison sentence. It affects everybody close.”

-Anonymous Prisoner[1]

India is a wonderful place. Indeed we keep blaming the system for endless reasons, here’s one more to add. Let’s imagine a family happily living or otherwise, and circumstances change so that the prime bread winner or probably the husband ends up in jail. Let’s have an empathetic journey of the legal rights and tangents which the family or the wife of such prisoner’s face. As per Sec. 56(1) of the Police and Criminal Evidence Act of 1984, a person who has been arrested has the right to inform someone who is likely to take interest in his welfare.

Articles 21 and 22(1) of the Indian Constitution enshrine more such rights wherein it is the duty of the Magistrate to ensure that the arresting policing officer has complied with these rights.[2]  But again since we live in India “and there are perks which will definitely follow” it is only rarely that all these rights which have been guaranteed are properly implemented. A report by the People’s Union for Democratic Rights discusses the actual implementation of rights of inmates in Tihar jail at New Delhi, to receive visitors, among other prison conditions.[3]

The inmates of Tihar Central Jail, Delhi according to the Prison Manual, are allowed to have two interviews (mulaqat) per week in a designated area called the mulaqat jangla, with three visitors permitted in an interview. However, the process of arranging a mulaqat is extremely tedious and cumbersome. Advanced bookings for the same have to be made either by telephone (011-28520202). Moreover, even though the Manual provides for three visitors, in reality, only 1 is allowed for under-trials and 3 for convicts since March 1, 2011, which is often a problem for out-station families.

Furthermore, since March 2011, several restrictions have been imposed on visitation rights. Only the 8-10 names submitted by the prisoner can be a mulaqatee. Visitors have to undergo a strict and long entry-procedure with multiple checkpoints. The jail administration is extremely arbitrary and unresponsive in nature. Inmates are often mistreated and the prison conditions are degrading for any human being.[4]

The State has employed imprisonment of offenders not just as a method of deterrence but also as a tool for retribution. These retributive restrictions are in fact principles of justice as per which what a criminal deserves on account of his personal character and individual conduct poses the limitation on the morality of states for his treatment.

And when you are a wife of one such state villain; of course you have to adjust to the physical absence of your husband and take all responsibilities, there’s a lot more which life will show you. Some wives feel that they themselves have been imprisoned and “put their lives on hold” while waiting for the return of their husbands.[5] Not only are they subjected to stigmatisation,[6] but can also suffer from social isolation, deterioration of other relationships, loss of income and extra burdens of childcare.[7]

Imprisonment of a partner can also cause, among other problems, relationship issues leading to divorce, shifting of homes and medical and health problems due to the constant pressure in the minds of families.

Families and partners are not a homogenous group with respect to issues faced due to imprisonment of family member/spouse. While the extent of effects of imprisonment on the members of a family depends on various factors such as the closeness of the relationship, familial social and support system etc.,[8] the partners almost always experience far greatstigmatisationion from the society and often feel a “transfer of punishment”.[9]

It’s already difficult for a poor, middle class or a lower middle class women to adjust with the economy, society, and ambitions. Problem of husband being imprisoned shatters them within. The legal system which we have created also at the execution stage looks down upon them and hardly realizes their pain.

 

[1] Alison Liebling & Shadd Maruna, The Effects of Imprisonment, 442 (2005).

[2] AIR 1981 SC 746.

[3] Beyond the Prison Gates: A Report on Living Conditions in Tihar Jail, People’s Union for Democratic Rights, New Delhi (September 2011).

[4] Ibid.

[5] Timothy J. Flanagan, Long-Term Imprisonment, Policy, Science and Correctional Practice, 1995.

[6] Ibid at 150.

[7] Supra Note 1at 444.

[8] Supra Note 1 at 445.

[9]B.N. Chattoraj, A Study on Children of Women Prisoners in Indian Jails, National Institute of Criminology and Forensic Sciences, (2000).

.

Posted in Fundamental Rights

Rights of Child out of Rape

This article is written by Neeti Rana. Neeti is a student of Law College Dehradun, Uttaranchal University.

 

Rape causes difficulties during and after pregnancy, with potential negative consequences for both mother and child. In rape cases, there are two victims one the girl who was raped and second the child born from rape. The newly born child is a victim in the sense that he or she is forced to live a life of shame and stigma without his or her fault.

They are brought in this world destined to suffer because while the father refuses to lend his name to the child, the mother abandons the child for social reasons. Injury to reputation is a violation of the right to live with dignity. The child is termed as a second victim as he or she is the victim of circumstances.

Victim means a person who himself has suffered a loss or injury as a result of crime and requires rehabilitation, and includes his dependent family members. The child becomes the ‘second victim’ in it, as the mother refused to bring the child up in future. And the father refused to have the child. The child definitely suffers the injury of being left in this world to fend for him without any support.

Pregnancy from rape, children who escape death or abandonment are at risk of abuse and neglect. Because the identifies of their fathers are unknown or undocumented, they are referred to as “devils on horseback,” “children of bad memories”, and “the dust of life,” they may be denied the right of citizenship , cultural beliefs and customs surrounding rape may affects child health. Women who are victims of rape and forced pregnancy may not seek prenatal attention due to shame or fear of abandonment which may contribute to

Women who are victims of rape and forced pregnancy may not seek prenatal attention due to shame or fear of abandonment which may contribute to poor health status of the newborn. Children who are born with or develop physical characteristics of the rapists may be associated with the enemy and be particularly vulnerable to mistreatment.

The child born out of rape has the Right to Life with human dignity as he is the victim of the crime which he has not committed. The Right to Life has been explained in Francis Coralie V. Union Territory of India[1] that any act which damages or injuries or interferes with the use of any limb or faculty of a person either permanently or even temporarily, would be within the inhibition of Article 21.  In the same case, Hon’ble P.N. Bhagwati, J. Held as under: “we think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

Allahabad High Court has in a Landmark Judgement ‘A’ through her Father ‘F’
V. State of U.P. Thru Prin. Secy., Med. & Health Ser. and others
[2]  stated that a child born out of rape will have inheritance rights over the property of the biological father. The Court also discussed the need for rehabilitation of victims of rape and their children while adjudicating a matter where a minor child of 13 years was raped and could not abort her child due to medical reasons. The court said that child will be treated as an illegitimate child of rape accused and will have inheritance rights to his property unless legally adopted by someone.

Rape is a crime beyond the control of a victim. This tragedy can strike any family. It is not something for which the victim has to be blamed. The whole society will have to learn to manage their response towards a victim without forgetting that tragedy can befall on one’s own head. The whole society should come forward in defence and help the victim of rape. The manner of birth of a person is irrelevant, the rights of inheritance of a person are governed by a Personal Law to which the person is subjected is irrespective of the manner of birth of the person. It is irrelevant as to whether the newly-born child of a rape victim is born out of consensual sex or otherwise.

The victim of rape and the child should be accepted, and not haunted by the society. The society should show their positive response to both the victims.

 

 

[1] (1981) 1 SCC 608

[2] 8210 (M/B) of 2015 A.F.R.

 

Posted in Telecom Regulations

Fate of Call Drop Regulation in India

This article is written by Plash Mittal. Plash is a student of University Institute of Legal Studies, Panjab University, Chandigarh.

 

In light of the increase in complaints by consumers, Telecom Regulatory Authority of India (TRAI) notified a compensatory mechanism for consumers facing call drops. On the part of the Telecom Service Providers (TSPs), call drops are known as ‘deficiency in service’. A call drop occurs when slips occur in media, the phone goes out of range, electric and mechanic tilts occur, signal interference occurs, signal strength reduces to a minimum acceptable signal to make a call, interference due to bad environmental conditions or because of improper hard handoff. The amendment in Telecom Consumers Protection Regulations instituted on October 16, 2015; which made it a mandate for the mobile service providers to compensate their subscribers for call dropped or automatically disconnected due to technical glitches in their network. The rules mandated telecom operators to provide Re 1 compensation for each call dropped, with a compensation cap of Rs 3 per day. Cellular Operators Association of India, AUSPI and several telecom operators like Bharti Airtel, Vodafone and Reliance believed that the laws of physics make it impossible to provide 100 percent call drop-free network and that they would have to pay a penalty of Rs 1,000-1,500 crores. According to TRAI, if networks are not improved, the maximum outgo would be around Rs 800 crores per annum. The core basis for the opposition to prohibit such tariff packages was that flexibility in setting tariff should be allowed. The TRAI looking into the past position on issues like on-net and off-net calls and lifetime validity scheme allowed both the tariffs and thus such pricing was not discriminatory. Moreover, prohibiting differential data tariff is akin to having a standard voice call rate; in that case, local call rates would have been higher than 50-60 paise a minute. However, the perceived aim of such differential data packages is to widen the internet user base in the country by providing free or discounted access to certain internet services.

Section 3 of the Prohibition Of Discriminatory Tariffs For Data Services Regulations, 2016 prohibits every service provider to offer or charge discriminatory tariffs for data services on the basis of content and to enter into any arrangement, agreement of contract, by whatever name called, with any person, natural or legal or artificial, that has the effect of discriminatory tariffs for data services being offered or charged to the consumer on the basis of content, provided that the regulation would not apply to tariffs for data services over closed electronic communication networks, unless such tariffs are offered or charged by the service provider for the purpose of evading the prohibition in this regulation.

The tariff for data services could not vary on the basis of the website/application/ platform/ or other type of content being accessed. A consumer could not be charged differently based on whether he was browsing social media site A or B, or on whether s/he was watching videos or shopping on the Internet. Differential pricing is proved to be an effective marketing tool and is believed to have helped in bringing the online marketing practices to the next one billion people. The decision for the introduction of such a provision came at a time when the government was pushing adoption of Internet. It had a negative impact on the growth of the telecom industry and the consumers who could have needed such plans to afford data connections. To bring more users on the Internet, this prohibition would not apply to other forms of differentiation in tariffs that were entirely independent of content by giving limited free data enabling the user to access the entire internet. However, the legislation had a positive indication for future regulations on over the top applications such as WhatsApp and Skype. The regulation was believed to be very progressive.

International Perspective

The differential data tariff is allowed in several other countries like Singapore, Bangladesh, Malaysia, Hong Kong, and Thailand. Also SingTel, Singapore’s largest mobile operator offers a data package for Facebook disallowing voice and video calling. In Hong Kong, operators provide a dual WhatsApp tariff i.e. $18 for voice over internet protocol calls and $8 for messaging.

Current Status

The Supreme Court in May 2016 struck down the regulations framed by the TRAI which prescribed a penalty for call drops on telecom operators. A bench of Justices Kurian Joseph and Rohinton Fali Nariman held that the regulations were arbitrary in nature and violative of Article 14 and thus scrapped the law.