A division bank of Justice Un Mustaque Muhamed and Prime Minister Justice Manoj heard an appeal from the order of a single tribunal which contained a challenge to certain provisions of the Telecommunications (Broadcast and Cable) Interconnection Regulations 2017 and the Telecommunications (Broadcast and Cable) Tariff (Eighth) (addressable systems) . Order, 2017 of the Telecom Regulatory Authority of India (TRAI).

The Tribunal decided that the application for summons before the single court was maintained with regard to the challenge to the specific regulation; however, it held that the Single Judge erred in entertaining the challenge against the Tariff Order after observing that the petitioners had an effective alternative remedy to challenge the orders before the TDSAT.

He further said:

“There is a fundamental distinction between the enforcement of fundamental rights and the exercise of judicial review of those rights. In the first case, only the constitutional courts have the authority to enforce fundamental rights. However, in terms of judicial review based on the parameters of fundamental rights, any reviewing authority can determine whether a decision or order aligns with fundamental rights or applicable law.Therefore, we conclude that the challenge to the regulation must fail in light binding decision.“

Background

A writ petition was filed before the single trial court by the Indian Broadcasting And Digital Foundation, two television broadcasters (Viacom18 Media Private Limited, Star India Private Limited) along with persons responsible for various broadcasting institutions approached the High Court challenging the provisions of the Telecommunications (Broadcast and Cable) Interconnection Regulations, 2017 and the Telecommunications (Broadcast and Cable) (Eighth) (Addressable Systems) Tariff Order, 2017 made by the Telecom Regulatory Authority of India (LIVE).

The single court dismissed the writ petition, stating that the petitioners’ remedy lies in the approach of the Telecom Dispute Resolution and Appeal Tribunal (TDSAT). It was also held that the summons cannot be maintained. It was also noted that the Supreme Court had previously addressed the issues raised by the petitioners in other judgments. Following the dismissal, the petitioners filed an appeal before the division.

The appellant-petitioner contended that the remedy is to approach the High Court instead of the TDSAT on the ground of violation of fundamental rights. The Appellants contended that the Tariff Order and the TRAI Regulations are subject to judicial review.

On the other hand, the respondent authorities argued that the Apex Court upheld the validity of the Regulation in Star India Private Limited v. Department of Industrial Policy and Promotions and others (2019) that sets a binding precedent and cannot be challenged again. It was also argued that the TDSAT has the authority to review tariff orders, including violations of fundamental rights. It was argued that the legal principles of the Apex Court cannot be circumvented by the High Court merely because not all the grounds have been considered by the Apex Court. It has been stated that the challenge against the Regulations has been dismissed by the Apex Court and therefore I cannot restate the challenge on different grounds.

Finding

The High Court observed that the Supreme Court upheld the validity of the Regulations impugned by the appellants in Star India case. Thus, the Court held that the appellants cannot challenge the validity of the regulations which was upheld by the Apex Court, as this would be tantamount to reopening a judgment of the Apex Court.

“Once the Supreme Court has dismissed a challenge to the regulation, any court bound by the declaration of law under Article 141 of the Constitution cannot review a binding judgment of the Supreme Court on different grounds,” the high court pointed out.

The Court went on to explain the distinction between Res Judgecata and Precedents. He said that Res Judgecata refers to procedural rules that compel litigants to adhere to previous rulings on the same issue, while a precedent is a binding legal decision followed by all courts and authorities.

As such, the Court stated that it cannot entertain the challenge against the Regulations which has already been disposed of by the Apex Court in Star India. “Only the Supreme Court has the authority to review its own stated law; no other court can do this.” he added.

The Court later said that specialized tribunals like TDSAT dealing with specific subjects cannot be equated with Constitutional Courts.

He stated that Constitutional Courts may not be equipped to deal with specialist areas of law as it would require an expert body of members with specialist knowledge in their respective fields. The court said,

“The tribunal is an expert body made up of specialized members knowledge in their respective fields. While the constitutional courts are competent to resolve such appeals, specialized courts addressing specific subjects cannot be equated with constitutional courts. Constitutional courts must consider the economic aspect implications as well as the political dimension of TRAI decisions requiring a perspective that considers various angles of account. Specialized courts are needed because constitutional courts are not equipped to deal with specialized areas or subjects. Implementation of the law can involve multiple dimensions, including market, economic, environmental, social and political aspects. The intersection of law with specialist fields requires a nuanced approach that focuses on the impact that results from the application of such laws – something that traditional constitutional courts cannot effectively address. Traditional courts often tend to focus on a dogmatic interpretation of the law.”

Dismissing the appeal, the high court granted liberty to the appellants to approach the TDSAT. However, the court, taking cognizance of the appellants’ request, ordered that the “coercive measures” be delayed for two weeks to allow the appellants to invoke an alternative remedy.

Case Title: Indian Broadcasting And Digital Foundation V The Telecom Regulatory Authority of India

Counsel for the appellants: Senior Advocates Amit Sibal, Mukul Rohtagi and Santhosh Mathew

Advocates for Respondents: Attorney General Tushar Mehta, Senior Advocates Rakesh Dwivedi, Abraham Vakkanal, Saket Singh

Case number: WA NO. 1649 OF 2024

Reference: 2024 LiveLaw (Ker) 690

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