According to Mr Mukherjee, the Telegraph Act is obsolete, TRAI act is not specific on certain issues and the TDSAT can be approached only by a group of consumers and not by individual consumers
Moneylife (ML): Alternate dispute redressal mechanism helps in solving disputes in a much faster way. How effective is this in the telecom sector?
Achintya Mukherjee (AM): ADR mechanism in the telecom sector is extremely weak. Initially the cases were taken to the Civil Courts or the High Courts through Writ Petitions. Later when the Consumer Protection Act, 1986 was enacted, the Civil Courts and the High courts passed them onto the Consumer Forums. So post the Consumer Protection Act 1986 and Consumer Forums under it), this was the remedy for aggrieved people.
ML: Apart from Consumer Fora, isn’t there any other alternate way to redress one’s grievance like mediation, conciliation or arbitration?
AM: Yes, there is an arbitration route. Section 7B of the Indian Telegraph Act, provides for Arbitration. It is to be noted that at that time telecom industry was under the government control. According to us, under this Section, that remedy is not available because that is for disputes with the “Telegraph Authority” and the service providers today are not the “Authority” but only licensees as such.
Under Section 7B, the Union government appoints somebody from the system as an Arbitrator. The selection is often criticised for the fact that the Arbitrator, most of the times is a junior officer in the structure, like a divisional engineer or at the best a deputy general manager from the PSU. This Arbitration therefore is invariably loaded against the consumer.
ML: With the enactment of the TRAI Act, 1997 what alterations were made to the Dispute settlement mechanism?
AM: The regulator was appointed through the TRAI Act however, this structure of the regulator did not survive for more than 3 years. Reason being, Justice Sodhi who was the first Chairman of the TRAI Act wielded a lot of power under the Act and the Telecom Ministry was not in favour of it. So, when the Arbitration Authority and the appellate body were one body, after the amendment in 2000 the appellate body was separated and only the recommendations for policy making and tariff or connectivity issues remain the job of the regulators. The consumer today has a big problem because if he wants to take up a dispute under the Act, and pursue any resolution for it, he has to go all the way to the only office of the appellate body - the Telecom Disputes Settlement and Appellate (TDSAT) – which is at Delhi.
ML: As a consumer activist on telecom matters, did you raise any concern on this issue of going all the way to Delhi for resolving dispute?
AM: Yes, I had a major case before the TDSAT. In this case, my first prayer was that as a consumer body, the filing fees must be waived. Secondly, I should be heard at Mumbai because the Act has provided that the Union government can appoint additional benches in metros if required. Justice Santosh Hegde, who at that time was the chairperson of TDSAT, dismissed both these prayers.
ML: What do the statistics say on the matters going to TDSAT?
AM: Maximum numbers of the cases going to TDSAT are from the metropolitan region of the Capital and some larger surrounding areas whose access to Delhi is easier and less expensive. Andhra Pradesh, for some reason has reasonably more cases and remaining cases are from Lucknow, Chandigarh and other nearby cities. There are very few cases filed from any other cities or States.
And those who even come from distant places to file cases at the TDSAT, are not the consumers but most of the times are service providers. Indeed, they can afford the expenses (of reaching and filing case at TDSAT), but what about an ordinary consumer?
ML: So it is only the Consumer Courts that take up telecom related issues in the country. What has been your experience in these forums?
AM: Here also, the story has been derailed. In September 2009, Justice Markendey Katju passed a judgment in case of Krishnan & Others versus BSNL. Earlier, BSNL had lost its case in all three Consumer Forums- District, State and National Commission. In the aforesaid judgement however the learned Judge said that: This matter came under the purview of Section 7B of the Indian Telegraph Act and that the Consumer Forums had no jurisdiction in the matter.
So the new problem that arose after this judgment is that all Consumer Courts across the country started dismissing telecom consumer matters merely on grounds of jurisdiction. We are in a very peculiar stage today. Consumer Courts, who up till now, were hearing telecom disputes started dismissing them so much so, even some benches of the National Commission have taken such a stand.
ML: Has anyone initiated a legal battle against this?
AM: Yes, we fought the case here in Mumbai. The District Forums in Mumbai supported our arguments. Accordingly Forums from Mumbai, Chandigarh and one from Vijayawada have relied on our judgment and so at these places things are positive. However, but Tamil Naidu, Jammu Kashmir, Delhi and many other states are still interpreting the Supreme Court’s judgment differently.
ML: Does this mean that no other forums other than TDSAT can accept telecom matters in the country? Even at this forum, what are the conditions that need to be met?
AM: Yes, TDSAT accepts telecom matters but with pre-conditions. One of the pre-condition is that it will accept matters only for a “Group(s) of Consumers”. This means a minimum of two aggrieved consumers who have similar grievances can approach TDSAT.
But how does one locate and then coordinate with other subscriber who has a similar grievance? Additionally, TDSAT is located at Delhi, which becomes an expensive option for consumers from other parts of the country. One can also approach the High Courts but only through Writ petitions. This again is an expensive and a time consuming option.
It has been suggested that consumer organizations should take up similar consumer grievances because similar cases can find their way to organizations like ours. That is exactly what we tried to do in the Cable TV disputes in 2005, in the case filed by the Bombay Telephone Users’ Association together with the Consumer Guidance Society of India. Even though we are “groups of consumers” and fighting for a class action, it was interpreted that we had no “lis” in the matter and the third petitioner, a housing society would stand to benefit by the judgment for which transactional benefit, no waiver of fees of Rs.10,000/- could be considered. The housing society had joined as a petitioner only because their evidence and records were well organized. But they were clear that they would not be able to afford the heavy expenses for fighting a case all the way at Delhi.
ML: Then how do consumers resolve their disputes? Where should he go?
AM: The only option for an aggrieved person today is to take recourse of the machinery that has been placed within the system. That can only be an independent impartial body. Today it is a three tier system- a) Customer Care b) Nodal Officer and c) Appellate Authority.
The Nodal Officer can be reached through the phone or E-mails. And if it is through phone, one gets tied up in their sophisticated interactive voice response (IVR) system and after sometime suddenly the phone gets disconnected. They (the nodal officers) very rarely attend the phone either by design or because they are so overburdened.
The Appellate Authority too has its own drawbacks. Matters like connectivity problem or even mobile number portability may get resolved here, albeit with great difficulty. However, monetary issues like overpriced bills and refunds are rarely resolved and there is always a problem while trying to solve these disputes at the Appellate Authority level.
ML: What are your recommendations to improve the redressal mechanism for subscribers in the telecom industry?
AM: I strongly feel that there is an urgent need for an Ombudsman’s Office in the system. However the Ombudsman’s Office should not be like that in other sectors. Her in telecom sector, it should be Ombudsman–in–Council overseeing the functions of Ombudsman office, and comprising people from the consumer representatives bodies, telecom industry and from the government so that a balance of fairness and impartiality not only exists but is seen to exist in the process leading to resolutions.
In addition, the avenues to file telecom disputes before statutory bodies should continue to be operative. The Government of India should take steps to clarify, by ordinance if necessary that the Consumer Forums will continue to have jurisdiction in telecom related cases. The delay in deciding the jurisdiction of consumer forums as has been taken up by our Association in the Krishnan and Others v/s BSNL and going all the way up to the Supreme Court will not only take up a lot of time but may frustrate thousands of consumers waiting for justice in telecom matters.
(Achintya Mukherjee is a well known consumer activist and honorary joint secretary of the Bombay Telephone Users' Association)
IRDA wants LIC to expedite claims settlement
LIC has been reprimanded for delay in settlement...
During 2011, the Right to Information exposed mega scams, at the same time there were fatal attacks on RTI activists and attempted dilution on RTI Act by politicians. While the movement received several jolts, there were few moments of glory too thanks to individual efforts to doggedly seek information against odds
RTI GRIEF OF THE YEAR – activists brutally killed
16th August -Shehla Masood: Bhopal based firebrand RTI activist Shehla Masood was shot dead in front of her house on 16th August while on her way to support Anna Hazare’s fast in her city. Shehla had asked uncomfortable questions under RTI regarding illegal diamond mining by UK-based multi-national company, Rio Tinto in the sensitive Panna Tiger Reserve. Initially, the police tried to put forth the theory of suicide to defend the crooks but later with media heat, the case was transferred to CBI. No headway as yet!
5th November - Nadeem Sayyed: Ahmedabad-based RTI activist Nadeem Sayyed was brutally killed on 5th November in broad daylight. A crucial witness to the Naroda Patiya case wherein 95 persons were killed during the Godhra riots, Nadeem had filed several RTI applications pertaining to Godhra cases and developmental works in Gujarat. A fortnight later, seven people were arrested, one of who is a history-sheeter. The police are still investigating the case.
9th December – Ram Vilas Singh: Bihar-based activist Ram Vilas Singh, a resident of Bhabhangama village in Lakhisarai district, was shot dead. He relentlessly pursued seeking information on matters related to hoarding, black marketeering and government schemes in his village. Initially, the police tried to make it into a case of political rivalry but thanks to uproar by RTI activists across the country and the media, it is now investigating into the ulterior motive of silencing the whistle blower.
RTI EXPLOSION OF THE YEAR: Unearthing of mega scams
The Adarsh Housing scam of Mumbai, the 2G Scam and the Common Wealth Games (CWG) Scam exploded into colossal scandals that took the nation by storm, thanks to revelations under the RTI. Out of turn allotments of flats to politicians, bureaucrats and armed forces personnel in the Adarsh Housing Society in Mumbai, otherwise reserved for widows of the Kargil War and gross building law violations finally led to the resignation of the then Chief Minister Ashok Chavan. In the CWG scam case where Rs70,000 crore odd have been siphoned off, much of the details were procured through RTI. This led to the CWG boss in India and Congress MP Suresh Kalmadi being put behind bars. The prolific use of RTI in the case of the Rs1.70 lakh crore 2G scam brought out the chain-link of corruption in the UPA government between top ministers and bureaucrats, not sparing even home minister P Chidambaram. Former telecom minister A Raja was sent to Tihar Jail and until recently DMK MP Kanimozi too served a jail sentence.
RTI VILLIANS OF THE YEAR: Politicians try to belittle RTI Act, get snubbed
When P Chidambaram, the Union Home Minster, came under the scanner in the 2G Scam thanks to documents procured under RTI, politicians especially from Congress party were quick to blame the RTI Act for the mess and expressed the desire to dilute it, if not in direct words.
Corporate affairs Minister Veerappa Moily said that the RTI Act “transgressed into the independent functioning of the government.’’ Law Minister Salman Khurshid said that misuse of RTI had hit “institutional efficacy and efficiency.’’
Then, there were attempts to dilute the Act as reflected in Prime Minister Manmohan Singh’s speech at the annual CIC convention in New Delhi in October. While he politely mentioned that the government wanted to make the Act even more effective instrument for ensuring transparency and accountability in administration, in the same breath he said, “Another concern that has been raised is that the Right to Information could end up discouraging honest, well-meaning public servants from giving full expression to their views... The Right to Information should not adversely affect the deliberative processes in the government.” RTI activists across the country, the media and the opposition parties were vociferous in their views against Dr Singh’s indirect attempt at diluting the RTI Act.
The largest piece of cake in running down RTI was taken by Maharashtra’s Chief Minister Pritiviraj Chavan who confessed that his go-slow in taking decisions is because of the RTI Act. He stated to newspersons that, “Now with the RTI in force, all files could be accessed by anyone and that's why one has to be very cautious…there are many decisions which involved error of judgment and no one imagined that the RTI would bring these decisions to public view. Some of our colleagues were punished severely as a result of such information coming out in the open.’’
Thankfully though, they were restricted just to making loud remarks and not conspiring to make amendments to the RTI Act. For now, at least.
RTI JOKE OF THE YEAR: Same Governor comes under RTI in Maharashtra but not in Goa
In January 2011, Goa-based RTI activist, Aries Rodrigues, demanded information under the Act regarding President Pratibha Patil’s controversial four-day visit to the state, which was declared as a ‘private visit’ through a press release issued by the Governor’s office in Goa. K Sankarnarayanan, the Governor of Maharashtra also holds additional charge as Governor of Goa. Mr Rodrigues was denied information stating that the Goa Governor’s office does not come under the purview of the RTI Act. Mr Rodrigues then demanded the same information from the Governor of Maharashtra where Mr Sankaranarayanan was, and still is, the Governor. He got the information, which confirmed that the President was indeed on an official visit to Goa and not on a private one as claimed by the Goa Governor’s office, for which the Goa government spent Rs14.81 lakh from taxpayers’ money.
Thankfully, a petition in the Bombay High Court filed by the Goa Governor’s office was scuttled when the Court said that the Governor is public authority under the RTI Act and must provide relevant information. The Governor’s office then moved to the Supreme Court. Early this month the Supreme Court upheld the High Court’s order and directed the Governor’s office to make public the information under the RTI.
RTI RESOLUTION OF THE YEAR: Pune becomes the leading example
The prestigious Central Information Commission (CIC) annual convention in New Delhi in October witnessed Pune becoming a role model for some of its resolutions. Pune is the first city in the country to make a library for RTI. This is located in the Pune Municipal Corporation building and was the brainchild of leading RTI activist Vijay Kumbhar. Open Days in government offices is also a unique feature of Pune. Again thanks to Mr Kumbhar and other activists, the Pune Municipal Corporation keeps all its departments open for inspection of files under Section 4 of the RTI Act every Monday, between 3pm and 5 pm. The Pune Collector’s office is also open for such inspection every Friday. Also, State Information Commissioner Vijay Kuvalekar’s special initiative wherein he brings together the applicant, PIO as well as the first appellate authority for quicker disposal of appeals was well appreciated. The CIC Convention decided to adopt all these three unique practices in other parts of the country.
RTI HEROES OF THE YEAR: Bhadresh Wamja, Sharad Phadke
Bhadresh Wamja: Ignoring intimidation and family pressure, 17 year old Bhadresh Wamja of Saldi village, about 120 kms from Gandhinagar, used the RTI to restore food-grain and fuel rations that were being denied to villagers under the Public Distribution Scheme (PDS) and spurred a policy decision by the state government. His story was rated as the best success story under RTI, in a convention held at YASHADA in Pune which trains government functionaries from all over the country on RTI.
Sharad Phadke: He suffered a loss of Rs1,000 when he put in his ATM card to withdraw money. He did not get the cash, but the amount was debited from his account. He used the RTI to demand information regarding action taken against the bank officer who did not credit Rs1,000 to his bank account within the mandatory 12 days period as per the Reserve Bank of India rules. Mr Phadke also asked for information about the penalty which the bank had to pay him at the rate of Rs100 per day, for delay in not resolving the issue within 12 days. Bank of India, where Mr Phadke had account, subsequently was compelled to pay the penalty of Rs6,500 for a delay of 65 days. Mr Phadke did not stop at that. Stating that thousands of customers would be going through such harassment of banks, he has been filing RTI against several banks seeking information on the amount of penalty paid by them in such cases. The RBI has now reduced the number of days to 6 for crediting the wrongly debited amount beyond which the concerned bank has to pay the penalty of Rs100 per day to the customer. A couple of banks have installed software wherein the customer’s money gets automatically credited instantly in case of such faulty debit transaction from the customer’s bank account. All this was possible thanks to Mr Phadke’s tenacious campaign.
RTI SHAME OF THE YEAR: Ramanand Tiwari, State Chief Information Commissioner ousted
State Chief Information Commissioner of Maharashtra was ousted by the Cabinet for his involvement in the Adarsh Housing scam. He gave extra FSI permission to Adarsh builders when he was the principal secretary in Urban Development Department. For this favour, his son was allotted a flat in Adarsh. This stern action was taken under Section 17 of the RTI Act which states: “The Governor may by order/remove from office the state information commissioner if a state information commissioner has acquired such financial or other interests as is likely to affect prejudicially his function as the state commissioner.”