S.J.MUKHOPADHAYA, J.
The writ petition has been filed by the petitioner for declaration that the detailed guidelines for auction and allotment of spectrum for Broadband Wireless Access (hereinafter referred to as 'BWA') dated 1st Aug., 2008, and consequential amendment dated 11th Sept., 2008 and memorandum relating to auction of BWA spectrum dated 12th Dec., 2008, insofar as it relates to pure Internet service are opposed to Broadband Policy, 2004 of the Government of India and the fundamental right to access to information guaranteed under
Article 19 (1) (a) of the Constitution of India.
2. The petitioner claims to be a voluntary organisation taking up genuine public causes for public service. It has challenged the guideline in relation to auctioning the spectrum for BWA on the ground that it goes against the policy of the Government of India in relation to pure internet service. The access to internet service, particularly for IT potential of India is in millions and, therefore, according to the petitioner, the present cause is a public cause of greater importance, which has a direct bearing on the growth of GDP and enhancing quality of life, including tele-education, tele-medical, e-governance, entertainment, employment generation by way of high speed access to information and web based communication.
Further case of the petitioner is that the internet services as provided by the guidelines of Government of India is an exclusive policy under Broadband Policy 2004, and is binding on the Government. Internet services is a matter of public policy to provide cheap and cost effective internet service to general public. At present internet services are pre-dominantly by wire line service alone. Now, due to development in information technology, wireless broadband access is also sought to be implemented. The policy relating to wireless internet service was considered to be not within the purview of licensing in order to enable cost-effective access to the consumer. For the said reason, Government of India, in Para 4.4 of its Broadband policy has specifically come out with a plan, wherein the department is conscious of the fact that broadband services can reach the urban and rural consumers only if services are offered at affordable and easy terms. Department of Telecommunications will work out a package in consultation with Ministry of Finance and related departments as well as concerned service providers to achieve this. The above object of the Government of India is also established in the subsequent guideline issued exclusively for the purpose of internet connections on 24th Aug., 2007, wherein at para 10 of the said notification, which relates to Annual Fee License, it has been specifically excluded for pure internet service providers in deciding the Adjusted Gross Revenue (AGR) index. That means, the license fee at present charged for pure internet providers are negligible, which is a nominal Rs.1/= license fee alone. This was in consonance with the Broadband Policy 2004 allowing cheap access to consumers of pure internet service.
In the Common Information Memorandum issued for auction of 3G and BWA Spectrum, in para 3.1 relating to Broadband Policy states that the Government acknowledges the coverage of broadband services in the country has been limited so far due to infrastructure and other constraints and is committed to improve that. Promotion of wireless broadband service, a step in the direction and the Government believes that it will be able to achieve the broadband policy target of 20 million subscribers by 2010.
Learned counsel for the petitioner referred to para 6.1 relating to Government's vision, wherein the objectives are spelt out, as below :-
i) Access to telecommunication is of utmost importance for achievement of the country's social and economic goals. Availability of affordable and effective communications for the citizens is at the core of vision and the goal of the telecom policy.
ii) Strive to provide balance between the provision of universal service to all uncovered areas and rural areas.
iii) Encourage development of telecommunication facilities in remote, hilly and tribal areas of the country.
However, in para 6.2 relating to objectives of the auction, it is stipulated that maximising the revenue proceeds from auction.
3. Learned senior counsel for the petitioner submitted that the policy relating to accessibility of service in para 6.1 and auction norms in para 6.2 are ironically contradicting each other. To put it otherwise, the Government is not trying to keep its goal in its administration and taking double standard in its policy relating to internet service and in its bid process relating to auction. Even the recommendation of the 2nd respondent, Telecom Regulatory Authority of India, in para 1.12 (i) of the recommendation dated 27th Sept., 2006, has stated that the objective of maximisation of consumer interest. This will involve supporting and encouraging the diffusion of new and advanced technologies, setting the framework that ensures affordability and universal access to the new communication techniques. Therefore, according to the petitioner, the internet service is considered as a class separate with the idea of providing cost effective internet service in tune with the fundamental right of freedom of expression, which includes access to information. Due to under classification of internet service as a separate class, the policy relating to internet service is not considered as a commercial venture by the Government. Both the policy and the subsequent guidelines relating to internet service are not burdened with heavy license fee or put to auction in respect of BWA. The policy of the Government of India by bringing in auction coupling with internet service along with 3G service had proposed to auction internet service as pure and separate with no license fee and, therefore, reserve price, which is 50% of the 3G reserve price is disproportionate and has no nexus with the object sought to be achieved.
4. So far as the current auction is concerned, it is submitted that the amendment made on 11th Sept., 2008, notified a minimum reserve price for the internet service under Group A, B and C categories @ Rs.80 Crores, Rs.40 Crores and Rs.15 Crores respectively, if auctioned, may even go double the amount fixed as reserve price. It would obviously be impossible to increase the penetration of BWA given the failure of the Government to achieve broadband penetration targets despite charging only nominal license fee for pure internet service. Compared to the present cost of pure internet service, which is affordable and relatively accessible to the consumers, if internet service under BWA is auctioned, that will increase the cost of consumers in getting such service. In this hour, instead of making arrangement to reduce the price of broadband connections, it is alleged that the 1st respondent is trying to auction the broadband spectrum along with 3G spectrum, whereby the price of broadband connection will rise by manifolds as far as consumers are concerned. In this right to information age, the guidelines have the ability of keeping the common man away from information.
5. Learned counsel for the petitioner highlighted the Pre New Telecom Policy, 1999 period when the Government had analysed and found that when the initial cost were more in mobile technology spectrum, the penetration was lesser due to more cost either by way of fee or by way of auction. The Government had to ratify its policy in order to achieve an affordable, accessible and further penetration of spectrum and had to come down on its cost of allotting spectrum. Therefore, according to the petitioner, the conduct of the Government in the past would substantiate that even in the case of BWA auction, on the present cost will not achieve the accessibility and penetration as contemplated by the Government. Learned counsel for the petitioner further submitted that the approximate logistics worked out by the petitioner from the available resources, total auction of BWA spectrum would come to Rs.2200 Crores against the reserve price of Rs.1100 Crores. Taking into account 15 years time within which service have to be provided on an average use, for a subscriber that would not be less than Rs.200 to Rs.250 per month in accessing the internet service in the BWA scheme. The cost of accessing BWA will become 50 to 60% more than the present internet service due to auctioning the pure internet service by the impugned guidelines, which will have to necessarily include the cost of around Rs.2200 Crores, as the basic cost of licence by the internet providers in addition to their charges. Therefore, having declared ever since 1999 upto 2004 in respect of broadband internet service, the object being to provide efficient, cost effective and consumer friendly service as the basis and having made the licence fee as almost nil (Rs.1 only) to auction BWA for pure internet service would go against the very object and purpose of internet service, which is a right to access information guaranteed under the Constitution of India.
6. Learned counsel for the petitioner referred to Supreme Court decision in Union of India Vs Cynamide India Ltd. 1987 (2) SCC 720 wherein the Supreme Court held that the interest of consumers has to be paramount. It was further submitted that the Supreme Court in numerous decisions has held that the freedom of expression includes access to information.
7. Learned counsel for the respondents Union of India, opposed the writ petition broadly on the following grounds :-
a) The writ petition cannot be held to be a petition in public interest;
b) If the prayer is allowed, it will help the private commercial providers to charge any amount;
c) If there is more competition amongst private commercial providers, the price will come down, which is in public interest; and
d) Broadband Policy, 2004 having not yet been notified, the petitioner cannot claim the proposed auction violative of such policy.
8. We have heard the learned counsel for the parties and perused the record.
9. From the proposed Broadband Policy, 2004, which has not yet been given effect, it will be evident that the Government recognised the potential of ubiquitous broadband service in the growth of GDP and enhancement in quality of life through societal application, including tele-education, tele-medicine, e-governance, entertainment as well as employment generation by way of high speed access to information and web based communication. Therefore, it is evident that the Broadband Policy is in public interest. From the said proposed Broadband Policy, 2004, it will be further evident that the demand for broadband policy is primarily conditioned and driven by Internet and PC penetration. It is recognised that the current level of internet and broadband access in the country is low as compared to many Asian countries. The penetration of broadband, internet and personal computers in the country was 0.02%, 0.4% and 0.8% respectively at the end of December, 2003. Currently, high speed internet access is available at various speeds from 64 kilobits per second (kbps) onwards and presently an 'always-on high speed Internet access' at 128 kbps is considered as 'Broadband'. Thus, it is evident that there is no uniform standards of broadband connectivity and various countries follow various standards. It is admitted that the proposed Broadband Policy, 2004, has not yet been given effect.
10. In the existing Telecom Policy of 1999, objectives have been shown as follows :-
New Telecom Policy, 1999 The following are the objectives of the New Telecom Policy, adopted in 1999 :-
Access to telecommunications is of utmost importance for achievement of the country's social and economic goals. Availability of affordable and effective communications for the citizens is at the core of the vision and goal of the telecom policy;
Strive to provide a balance between the provision of universal service to all uncovered areas, including the rural areas, and the provision of high-level services capable of meeting the needs of the country's economy;
Encourage development of telecommunications facilities in remote, hilly and tribal areas of the country;
Create a modern and efficient telecommunications infrastructure taking into account the convergence of IT, media, telecom and consumer electronics and thereby propel India into becoming an IT superpower;
Convert Public Calls Offices wherever justified, into Public Teleinfo centres having multimedia capability like ISDN services, remote database access, Government and community information systems, etc.;
Transform in a time bound manner, the telecommunications sector to a greater competitive environment in both urban and rural areas providing equal opportunities and level playing field for all players;
Strengthen research and development efforts in the country and provide an impetus to build world-class manufacturing capabilities;
Achieve efficiency and transparency in spectrum management;
Protect the defence and security interests of the country;
Enable Indian telecom companies to become truly global players.
11. From DoT's annual report for the year ended March, 2008, it appears that the Dot identified certain priorities with definite objective, such as --
(i) To achieve rural tele-density of 25% (around 200 million rural connections) by end of the 11th Plan period (March, 2002) as 70% of the population lives in villages and telecom development in rural areas assumes special significance.
ii) The Government is working steadily towards addressing the issue of realising additional spectrum from Government use for use of commercial telecom operators so that the growth of the dynamic sector is not constrained by the shortage of spectrum. The Govenrment also recognise the need to take a forward looking approach based on appreciation of the changing technologies and to accelerate structural changes in this sector in line with trends in other countries to ensure that telecommunications services are not only made available on the scale needed to sustain rapid growth in the economy as a whole, but also the quality and cost of these services come upto the requirements of a modernizing economy.
iii) Recognizing the potential of Broadband services in the growth process, as proposed in the 11th Plan targets to provide Broadband for all secondary and higher secondary schools, all Public Health Care centres and Gram Panchayats. It is also visualised to link Block Headquarters and nearest exchange through State Wide Area Network (SWAN) connectivity. It is also envisaged to increase the that internet and Boradband subscribers to 40 million and 20 million respectively by 2010.
12. In the auction of 3G and BWA spectrum, the objective of auction has been clearly mentioned as quoted hereunder :-
6.2 Objectives of the Auctions The Government has set itself the following objectives from the Auctions :
Maximise revenue proceeds from the Auctions;
Ensure efficient use of spectrum and avoid hoarding;
Stimulate competition in the sector, promote rollout of 3G and Broadband services and help resolve 3G congestion issues;
Conduct the Auctions in a timely and transparent manner.
The Government reserves the right to cancel or postpone the Auctions, in part or in full in order to safeguard the above objectives. The Government has the sole discretion to determine the relative priority of the objectives and whether the objectives are adequately safeguarded by the Auctions. The said auction of 3G and BWA spectrum has also taken care of mobile number potability, mobile virtual network operator, merger and acquisitions, infrastructure sharing, public safety standards, etc.
13. The question of what should be the effective cost for providing one or other service can be decided by a body of experts and not by a Court of law, which has no such expertise. It will be evident that the price increment quality for a service area was found to be capped at Rs.2.5 crore times the number of eligibility points for one lot in the service area. Taking into consideration the maximum absolute price increments for each category, the matter was summarised as follows :-
Service Area Type Maximum price increment per round (Rs. Crores) Delhi, Mumbai & Category A 40 Kolkata & Category B 20 Category C 7.5 The aforesaid price was amended on 11th Sept., 2008.
14. The respondents have taken specific plea that the Government's National Telecom Policy, 1999 has not been given a go-by. Therefore, the persons who are deriving advantage of the same will not be deprived if auction of 3G and BWA spectrum is held by the respondents. The Court finds no contradiction between the guidelines of the Government of India in respect of auctioning of the spectrum for Broadband Wireless Access (BWA) and policy of the Government of India, 1999 in relation to pure internet service.
Apart from the fact that the auction has already taken place, the Court also tried to find out as to how it will affect the common man, who are already getting all information through internet as per the 1999 policy. The proposed Broadband Policy, 2004, cannot be relied upon to claim any right till it is given effect by the 1st respondent. The 1st respondent has taken specific plea that the Government is of the view that the market will decide the cost of BWA of the consumer, if spectrum auction of BWA of four operators are made that will create competition amongst them in order to provide BWA service at cheaper and competitive rates. Such submission cannot be ignored as in view of past experience that whenever a competition is created with regard to internet service or any other service relating to information technology, due to creation of such competition, the cost of service has always come down. Telecom Policy, particularly with regard to mobile service is a glaring example, wherein initially the service providers used to charge high cost, but in view of subsequent creation of competition amongst them, the cost has substantially come down and is at such cheaper and competitive rate that even the common man can afford the same.
15. Apart from the aforesaid finding on merit, as we find that in this case the Government Policy is not under challenge, but an auction notice issued by the respondents, we are of the view that this case cannot be termed to be a writ petition in public interest. In absence of any merit, the writ petition fails and it is accordingly dismissed. Consequently, connected miscellaneous petition is also dismissed. But there shall be no order as to costs.