ABSTRACT
The amendment of the Telecom Regulatory Authority of India (TRAI) Act in 2000 is presented as emerging out of the adverse judgment in the calling party pays (CPP) cases as well as from the deliberative process by which a government-constituted committee went into telecom and information technology (IT) policy. The fallout of the amendment ordinance is briefly discussed. The key feature of the 2000 amendment to the TRAI Act is the creation of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), marking another milestone in the ‘tribunalization’ of regulatory governance. This process of privileging the juridical, rather than the legislative or administrative, view in state ordering of contractual and private rights is discussed. The chapter also summarizes the early history of litigation before the TDSAT and goes on to discuss in detail the limited mobility litigation whereby the Supreme Court came to take an expansive view of the ambit of TDSAT’s jurisdiction, marking the culmination of the process of creating a triadic dispute resolver for the sector. A revenue sharing dispensation was key to the migration package offered to telecom service providers in 1999. This chapter discusses the litigation surrounding the definition of adjusted gross revenue (AGR) that forms the basis for calculating license fee as a revenue share. The first round of litigation in the AGR cases demonstrates that the Supreme Court needed to step in once again to ensure that TDSAT, while clothed with extensive dispute resolution jurisdiction, did not overstep its judicial function and assume it could substitute for the techno-economic expertise of TRAI. The chapter provides a summary of the key moments in the judicialization of the telecom sector regulation in India. While TRAI was seeded in the idea that expert regulation was needed to mimic the marketplace, the judiciary played an important role in the exact way in which regulatory governance was institutionalized, and the imprint of the judicial branch on the statute, on the amendment of the statute, in the creation of TRAI and TDSAT, and, finally, in the categorization of their respective roles has been substantial.
