SC order on telecoms empowers consumers courts, customers

New Delhi: The February judgment of the Supreme Court, upholding the right of the consumer to sue telecom companies before the consumer court, finally brings the curtain down on an issue that agitated consumers since 2009, when another order of the apex court ousted the jurisdiction of the consumer courts to hear complaints against telecom companies.

The impact of the latest judgment on telecom subscribers is however limited because it took the apex court 13 years to correct an incorrect order , by which time Parliament had already made the necessary changes in the Consumer Protection(CP) Act of 2019 and restored the rights of telecom consumers.

But the value of this excellent judgment in Vodafone Idea Cellular Vs Ajay Kumar Agarwal lies in the court’s interpretation of the definition of ‘service’ in the CP Act and the analysis of the 2009 order of the apex court in General Manager, BSNL Vs M Krishnan, to pinpoint why that order was erroneous.

At a time when two extremely important issues pertaining to the jurisdiction of the consumer courts are before the Supreme Court , this judgment raises considerable hope of the highest court in the country doing justice to consumers. While one issue pertains to whether educational services come under the ambit of the consumer courts, the other relates to the professional services rendered by lawyers. The Supreme Court orders in respect of both these services have held back consumer courts from redressing consumer complaints in these two areas.

The Supreme Court’s order of 2009 in M Krishnan was a classic case of an erroneous interpretation of the statute by the judiciary. ‘When there is a special remedy (arbitration) provided in Section 7B of the Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred’ the apex court said in its short order, thereby forcing thousands of consumers whose complaints against telecom companies were pending in consumer courts, to go for arbitration.

Pointing out that the 2009 decision of the court was incorrect on two grounds, the Supreme Court said: “First, it failed to recognise that the Act of 1986 is not a general law but a special law that has been enacted by Parliament specifically to protect the interest of consumers. Second, even if it is assumed that the act of 1986 is a general law, it is a settled position of law that if there is any inconsistency between two legislations, the later law, even if general in nature, would override an earlier special law”.

“Crucially, M Krishnan fails to notice that Section 3 of the act of 1986 clearly provides that the remedies available under the act are in addition to the remedies available in other statutes and the availability of additional remedies would not bar a consumer from filing a complaint under the act of 1986. Section 100 of the act of 2019 corresponds to Section 3 of the act of 1986”, the Supreme Court said in its judgment of February 16.

The court’s observation that the service of every description comes under the ambit of the consumer courts is extremely critical at the present juncture. “The definition of the expression ‘service’ is couched in wide terms. The width of statutory language emerges from the manner in which the definition is cast. Parliament has used the expression service of any description which is made available to potential users. The definition employs the ‘means and includes formula’. The means part of the definition incorporates service of “any” description. The inclusive part incorporates services by way of illustration……….. The inclusive part is prefaced by the clarification that the services which are specified are not exhaustive,” the court said.

Pointing out that Parliament had confined the exclusion only to ‘services rendered free of charge’ and ‘services under a contract of personal service’, the top court said. “The initial part of the definition however makes it abundantly clear that the expression ‘service’ is defined to mean service of any description. In other words, a service of every description would fall within the ambit of the statutory provision,” it added.

Hopefully, there would be such positive judgments at the earliest in respect of pending issues too.