Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT     PETITION     (CIVIL)     NO.     285     OF     2010   

Avishek Goenka    … Petitioner

Versus Union of India & Anr.       … Respondents

J     U     D     G     M     E     N     T   

Swatanter     Kumar,     J  .

1. The petitioner is a businessman engaged in the business  

of distribution of pre-paid virtual and tangible calling value for  

mobile phone subscribers and also sells new customer  

acquisition packs and follows it up, by collection of customer  

application forms and executing tele-calling, to verify customer  

credentials.   In this Public Interest Litigation, the petitioner  

has attempted to highlight the grave issue of non-observance  

of norms/regulations/guidelines related to proper and effective  

subscriber verification by various service providers.  In fact,  

according to the petitioner, there is rampant flouting of  

norms/regulations/guidelines relating to this subject matter  

and there is no proper verification of the subscribers prior to

Page 2

2

selling of the pre-paid mobile connections to them.    

2. The Telecom Regulatory Authority of India (for short,  

“TRAI”) is the regulatory body for the telecommunications  

sector in India and the Union of India has responsibility to  

issue guidelines and frame regulations and conditions of  

licence, in consultation with the TRAI, to ensure coordination,  

standardization and compliance with the regulations, as well  

as protecting the security interests of the country.

3. It is the averment of the petitioner that the telecom sector  

has witnessed the most fundamental structural and  

institutional reforms since 1991.   This sector has grown  

significantly in the last few years.   As per the Annual Report  

for 2009-2010 of the Department of Telecommunication,  

Ministry of Communications and IT, Government of India (for  

short “DoT”), as on 31st December, 2009, the Indian telecom  

sector had about 5622.11 million connections.  The tele-

density per hundred population, which is an important  

indicator of telecom penetration in the country, has increased  

from 2.32 per cent in March, 1999 to 47.88 per cent in  

December, 2009.   The Eleventh Five Year Plan for 2007-2012  

had provided a target of 600 million connections, but the  

industry has already provided around 700 million connections,  

thus far exceeding the target. Different random studies in

Page 3

3

relation to pre-paid Subscriber Identity Module (SIM) cards  

show widespread violation of guidelines for Know Your  

Customer (KYC) and even other common guidelines.   The SIM  

cards are provided without any proper verification, which  

causes serious security threat as well as encourages  

malpractices in the telecom sector.  It appears that 65 per cent  

of all pre-paid SIM cards issued in Jammu & Kashmir and 39  

per cent of all pre-paid SIM cards in Mumbai, may have been  

issued without verification; which means that 1 out of every 6  

pre-paid SIM cards is issued without proper verification.   The  

averment is that such unverified SIM cards are also used in  

terrorist attacks.  

4. This Court, in the case of State (NCT of Delhi) Vs. Navjot  

Sandhu alias Afsan Guru [(2005) 11 SCC 600] had, with some  

caution, referred to a large number of calls which had been  

made by terrorists from instruments containing unverified SIM  

cards.  It is further averred by the petitioner that around 80  

per cent of the pre-paid SIM cards may be purchased in pre-

activated form which is in violation of the notifications issued  

by the DoT, dated 22.11.2006 and 23.3.2009 respectively,  

banning the sale of pre-activated SIM cards.   Another  

significant fact that has been brought out in this petition is  

that, pre-paid SIM cards, which are the most commonly issued

Page 4

4

without verification, constitute 96 per cent of the total SIM  

cards sold.   This indicates the seriousness of the problem as  

well as the security hazard that emerges from the telecom  

sector.    

5. Thus, the petitioner has prayed that there should be  

strict implementation of subscriber verification guidelines,  

physical verification be compulsory in future and physical re-

verification of existing subscriber base be conducted in a  

transparent manner. He also seeks the prevention of inflated  

subscriber base. On all matters in relation to these prayers, he  

pleads for issuance of appropriate writ, orders or directions.  

Upon notice, the DoT as well as the TRAI had put in  

appearance and placed on record the guidelines issued by the  

DoT, as well as the comments of TRAI, respectively.

6. The petitioner, during the pendency of the petition, filed  

an Interim Application, I.A. No. 6 of 2012, wherein he referred  

to a circulation containing the draft norms prepared by the  

Government of India (DoT) in relation to :

• Re-verification of existing customer base.

• Verification process as followed in Assam, J&K to  

be extended across country.

• Mail of SIM card and activation details to the  

address of the subscriber, both being sent

Page 5

5

separately.   This method is similar to that of  

delivery of debit, credit cards.

• Refuse to recognize government ID cards as  

sufficient proof, etc.

7. According to the petitioner, these norms have not been  

adhered to and in fact, the present instructions / guidelines  

formulated by DoT are at variance to the norms, ignoring  

essential precautions for verification of subscriber identity and  

safe distribution of pre-paid SIM cards.

8. We have already noticed that the rapid expansion of the  

telecom sector and its impact on development, both, equally  

impose responsibility on the Government of India, the  

regulatory body and the various stakeholders in the telecom  

sector to carry out proper verification of the pre-paid SIM  

cards and ensure national safety and security.   To achieve  

this object, it is primarily for the expert bodies and the  

Government of India to act and discharge their respective  

functions.

9. In terms of Section 11 of the Telecom Regulatory  

Authority of India Act, 1997 (for short, ‘the Act’), it is a  

statutory obligation upon the TRAI to recommend a regulatory  

regime which will serve the purpose of development, facilitate  

competition and promote efficiency, while taking due

Page 6

6

precautions in regard to safety of the people at large and the  

various other aspects of subscriber verification.  Similarly, the  

DoT is responsible for discharging its functions and duties as,  

ultimately, it is the responsibility of the Government to provide  

for the safety of its citizens.  The TRAI has to regulate the  

interests of telecom service providers and subscribers, so as to  

permit and ensure orderly growth of telecom sector.  The  

Government of India and TRAI, both, have to attain this  

delicate balance of interests by providing relevant instructions  

or guidelines in a timely manner and ensuring their  

implementation in accordance with law.

10. While referring to the guidelines issued by DoT and the  

comments of TRAI thereupon, the petitioner has raised, inter  

alia, but primarily, the following objections :  

(i) Despite clear guidelines and decision to complete re-

verification of existing customer base, scheduled to be  

completed between 1st November, 2009 to 31st October,  

2010, which time was further extended to 31st December,  

2010, no effective steps have been taken to complete this  

exercise.

(ii) Re-verification has been left in the hands of the  

interested stakeholders, i.e., the service providers  

themselves, who are not taking appropriate and effective

Page 7

7

steps to complete the re-verification exercise.

(iii) The delivery of the pre-paid SIM card to the prospective  

subscribers should be effected by registered post and  

home delivery process, so as to provide basic verification  

of the address of the subscriber.

(iv) There should be no relaxation of requirement for  

photograph of the subscriber in the Customer Acquisition  

Forms (CAF).

(v) Lastly, that there should be heavy penalty for violation of  

the guidelines and particularly, for providing pre-paid  

SIM cards to subscribers whose identity and addresses  

are unverified.

11. Before this Court, the DoT filed its instructions dated 14th  

March, 2011, relating to various aspects involved in the  

present case and specifically, on the manner of verification of  

new mobile subscribers (pre-paid and post-paid).   These  

instructions, inter alia, dealt with the verification and  

activation of mobile connections, special guidelines for issue of  

mobile connections to foreigners and outstation users, bulk  

mobile connections, change in the name of subscriber,  

disconnection, lodging of complaints and even imposition of  

penalties.   Clause 3(vii) of these instructions provided that  

pre-activated SIM cards are not to be sold.   In case of sale of

Page 8

8

pre-activated SIM cards, a penalty of Rs. 50,000/- per such  

connection shall be levied upon the service provider/licensee,  

in addition to immediate disconnection of the mobile  

connection.

12. Most of the grievances raised by the petitioner have been  

appropriately dealt with under these instructions.   But,  

however, some of the issues have not been comprehensively  

provided for.   The TRAI filed an affidavit dated 14th March,  

2012, dealing with the instructions of the DoT, dated 14th  

March, 2011. In the said affidavit, however, TRAI suggested  

certain variations as provided in Annexure R-I to their  

affidavit.  According to TRAI, the verification of identity is dealt  

with differently in different countries, some have provided  

stringent standards of documentation of identification while  

others have not issued any guidelines and left it to the  

discretion of the service provider.   In India, TRAI  

recommended that the Customer Acquisition Form (CAF) have  

a “unique”  number, which may be affixed at a central  

warehouse, rather than prior to distribution.   TRAI also  

recommended that the CAF form should be simpler in its  

content as the form presently in use is not serving its purpose  

adequately.  TRAI has annexed to its affidavit, as Annexure I,  

the sample form which should be adopted as a regular form to

Page 9

9

be filled in by the subscriber.   According to TRAI, in a manner  

similar to bulk users, even individual users should disclose all  

the SIM cards and connections in the name of such individual,  

with due verification by the licensee. Also differing with the  

instructions of DoT on the issue of manner of conversion from  

pre-paid to post-paid connections and vice-versa, as well as  

regarding the transferability of mobile connections, TRAI  

submits that the both should be permissible, the former being  

treated as a change in tariff plan (not as a fresh or a  

transferred connection) and the latter as a new mobile  

connection, subject to consent of the existing owner of the  

mobile connection.    

13. The other issue on which DoT and TRAI differed is,  

whether the employees of the licensee/service provider should  

be required to personally update the subscriber details in the  

database. While according to DoT, this should be carried out  

by the employees of the licensee itself, however, according to  

TRAI, it can be done by their authorized representatives,  

keeping in view various factors, like expense, time, efficiency  

and practicability.  Both TRAI and DoT are agreeable that such  

a database of all the registered subscribers should be  

maintained by the licensee and the same be made accessible  

to the security agencies.  Giving an example of the Nigerian

Page 10

10

Communication Commission, which maintains a similar  

database of all registered subscribers, TRAI concludes that  

even the general evidence demonstrates that such database  

makes verification and tracing of the identity of the subscriber  

easier, particularly in absence of the Unique ID cards.  Some  

of the licensees and service providers intervened in the present  

writ petition and have taken a stand that they are, in fact,  

maintaining database details of all registered subscribers.  

Such information is also made available to the Government  

Department or security agencies on demand and in  

accordance with law.   

14. If one examines the powers and functions of TRAI, as  

postulated under Section 11 of the Act, it is clear that TRAI  

would not only recommend, to the DoT, the terms and  

conditions upon which a licence is granted to a service  

provider but has to also ensure compliance of the same and  

may recommend revocation of licence in the event of non-

compliance with the regulations.   It has to perform very  

objectively one of its main functions, i.e., to facilitate  

competition and promote efficiency in the operation of the  

telecommunication services, so as to facilitate growth in such  

services.  It is expected of this regulatory authority to monitor  

the quality of service and even conduct periodical survey to

Page 11

11

ensure proper implementation.   

15. What emerges from the above discussion is that the  

stakeholders DoT, TRAI and the licencees are ad idem in  

regard to most of the issues in terms of the instructions  

prepared by the DoT.  However, there are certain points on  

which there is a difference of opinion between the DoT and the  

TRAI.  This limited divergence is required to be resolved by  

further clarification and issuance of more specific instructions.  

These issues fall under two categories: - firstly, what has been  

pointed out by the petitioner and secondly, where the DoT and  

the TRAI hold different opinion as noticed above.  Proper  

deliberation between the stakeholders possessed of technical  

knowhow can resolve such issues usefully and effectively.

16. The abovementioned points of divergence between TRAI  

and DoT are matters which will have serious ramifications not  

only vis-à-vis the regulatory authorities and the licensees but  

also on the subscribers and the entire country.  These aspects  

demand serious deliberation at the hands of the technical  

experts.  It will not be appropriate for this Court to examine  

these technical aspects, as such matters are better left in the  

domain of the statutory or expert bodies created for that  

purpose.  The concept of ‘regulatory regime’  has to be  

understood and applied by the courts, within the framework of

Page 12

12

law, but not by substituting their own views, for the views of  

the expert bodies like an appellate court.  The regulatory  

regime is expected to fully regulate and control activities in all  

spheres to which the particular law relates.   

17. We have clearly stated that it is not for this Court to  

examine the merit or otherwise of such policy and regulatory  

matters which have been determined by expert bodies having  

possessing requisite technical knowhow and are statutory in  

nature.  However, the Court would step in and direct the  

technical bodies to consider the matter in accordance with  

law, while ensuring that public interest is safeguarded and  

arbitrary decisions do not prevail.  This Court in the case of  

Delhi Science Forum & Ors. v. Union of India [AIR 1996 SC  

1356 = (1996) 2 SCC 405], while dealing with provision of  

licences to private companies as well as establishment,  

maintenance and working of such licences under the  

provisions of the Telegraph Act, 1885, applied the ‘wednesbury  

principle’  and held that ‘as such the Central Government is  

expected to put such conditions while granting licences which  

shall safeguard the public interest and the interest of the  

nation.  Such conditions should be commensurate with the  

obligations that flow while parting with the privilege which has  

been exclusively vested in the Central Government by the Act’.

Page 13

13

It is the specific case of the petitioner and some of the affected  

parties in the present proceedings that certain very important  

aspects, including security, have not been appropriately dealt  

with in the instructions dated 14th March, 2011.   

18. Some divergence on certain specific issues of the  

regulatory regime has been projected in the instructions and  

comments filed by TRAI and DoT.  They need to be resolved  

but, in absence of any technical knowhow or expertise being  

available with this Court, it will not be appropriate to decide,  

by a judicial dictum, as to which of the views expressed by  

these high powered bodies would be more beneficial to the  

regulatory regime and will prove more effective in advancing  

the public interest.  Essentially this should be left to be  

clarified and the disputes be resolved by the expert bodies  

themselves.  It is a settled canon of law that in a regulatory  

regime, the terms and conditions imposed thereunder should  

be unambiguous and certain.  It is expected that the  

authorities concerned would enforce the regulatory regime  

with exactitude.  Therefore, it is not only desirable but also  

imperative that TRAI and DoT seriously cogitate on the issues  

where divergence has been expressed between them and bring  

unanimity in the terms and conditions of licences which would  

form an integral part of the instructions dated 14th March,

Page 14

14

2011.   

19. It may be noticed here that, as interveners, some of the  

licensees and/or service providers had criticized some of the  

terms and conditions of licence proposed under the  

instructions dated 14th March, 2011.  These interveners not  

only made some suggestions with regard to the ambit and  

scope of the guidelines and instructions by TRAI or DoT but  

also intended to raise certain disputes vis-à-vis DoT in the  

capacity of licensees subject to the impugned instructions.  

Without any reservation, we make it clear that we are not  

directly or indirectly entering upon the adjudication of any  

dispute or even differences between the service  

provider/licensee on the one hand and TRAI or DoT on the  

other.  If they or any of them have any claim or dispute with  

the other, they should resolve the same by taking recourse to  

independent proceedings in accordance with law.   

20. In view of our above discussion, we partially allow the  

writ petition. The instructions dated 14th March, 2011 issued  

by DoT be and hereby are accepted by the Court subject to the  

following conditions:

(i) We hereby direct the constitution of a Joint Expert  

Committee consisting of two experts from TRAI and two  

experts from DoT to be chaired by the Secretary, Ministry

Page 15

15

of Communications and Information Technology,  

Government of India.

(ii) This Committee shall discuss and resolve the issues on  

which TRAI in its affidavit has given opinion divergent to  

that declared by DoT in its instructions dated 14th March,  

2011.  Following are the points of divergence that require  

examination by the Joint Expert Committee :

(a) Whether re-verification should be undertaken by the  

service provider/licensee, the DoT itself or any other  

central body?

(b) Is there any need for enhancing the penalty for  

violating the instructions/guidelines including sale  

of pre-activated SIM cards?

(c) Whether delivery of SIM cards may be made by  

post?  Which is the best mode of delivery of SIM  

cards to provide due verification of identity and  

address of a subscriber?

(d) Which of the application forms, i.e., the existing one  

or the one now suggested by TRAI should be  

adopted as universal application form for purchase  

of a SIM card?

(e) In absence of Unique ID card, whether updating of  

subscriber details should be the burden of the

Page 16

16

licensee personally or could it be permitted to be  

carried out through an authorized representative of  

the licensee?

(f) In the interest of national security and the public  

interest, whether the database of all registered  

subscribers should be maintained by DoT or by the  

licensee and how soon the same may be made  

accessible to the security agencies in accordance  

with law?

(iii) The above notified Committee shall resolve the above  

specified issues and any other ancillary issue arising  

therefrom and make its recommendations known to the  

DoT within three months from today.  

(iv) The DoT shall take into consideration the  

recommendations of the Joint Expert Committee.  The  

instructions issued by DoT dated 14th March, 2011 shall  

thereupon be amended, modified, altered, added to or  

substituted accordingly.  They shall then become  

operative in law and binding upon all concerned.

(v) Composite instructions, so formulated, shall positively be  

issued by the DoT within 15 weeks from today and report  

of compliance submitted to the Registry of this Court.

21. The writ petition is disposed of with the above directions.

Page 17

17

There shall be no order as to costs.

….…………......................CJI.                                 (S.H. Kapadia)

…….…………......................J.                                                     (A.K. Patnaik)

...….…………......................J.                                             (Swatanter Kumar)

New Delhi April 27, 2012