Constitutional Courts Not Equipped To Handle Specific Subjects For Which Specialised Tribunals Are Needed: Kerala High Court

While hearing a challenge to a telecommunication tariff order, the Kerala High Court said that while only the Constitutional Courts possess the power to enforce fundamental rights, an expert body like the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), can exercise judicial review over those fundamental rights.In doing so the high court emphasized on the difference between enforcing of fundamental rights and exercising judicial review concerning those rights. It further said that specialized tribunals addressing specific subjects cannot be equated with constitutional courts, which are not equipped to handle the same. A division bench of Justice A Muhamed Mustaque and Justice P M Manoj was considering an appeal against a single judge bench's order containing a challenge to certain provisions of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 and the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 of the Telecom Regulatory Authority of India (TRAI).The bench while ruling that the writ petition before the single judge bench was maintainable with respect to challenge to the specific regulation; however it held that the Single Judge had erred in going into the merit of the challenge against the Tariff Order after observing that the writ petitioners had an efficacious alternate remedy challenging the provisions before the TDSAT. It further said:“There is a fundamental distinction between enforcing fundamental rights and exercising judicial review concerning those rights. In the former case, only constitutional courts have the authority to enforce fundamental rights. However, regarding judicial review based on fundamental rights parameters, any authority with review power can determine whether a decision or order aligns with fundamental rights or applicable law.Therefore, we conclude that the challenge to the regulation must fail in light of the binding judgment.”BackgroundA writ petition was moved before the single judge bench of the court, by the Indian Broadcasting And Digital Foundation, two television broadcasters (Viacom18 Media Private Limited, Star India Private Limited) along with individuals responsible for various broadcasting establishments have approached the High Court challenging clauses in Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 and Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017 formulated by the Telecom Regulatory Authority of India (TRAI). The single judge bench dismissed the Writ petition, stating that the remedy of the petitioners' lied in approaching the Telecom Disputes Settlement and Appellate Tribunal (TDSAT). It was also held that the writ petition was not maintainable. It was also noted that the Supreme Court has previously addressed the issues raised by the petitioners in other rulings. Following the dismissal, the petitioners' moved in an appeal before the division bench. The appellants-petitioner argued that the remedy is to approach the High Court instead of TDSAT due to the violation of fundamental rights. The appellants argued that the Tariff Order and Regulations of TRAI can be subjected to judicial review. On the other hand, respondent authorities contended that the Apex Court has upheld the validity of the Regulations in Star India Private Limited v Department of Industrial Policy and Promotions and Others (2019) laying down a binding precedent and it cannot be challenged again. It was also argued that TDSAT has the authority to review Tariff Orders including fundamental rights violations. It was submitted that the legal principles of the Apex Court cannot be circumvented by the High Court merely because not all grounds were dealt by the Apex Court. It was stated that the challenge against the Regulations was dismissed by the Apex Court and thus they cannot reassert the challenge on different grounds. FindingsThe High Court observed that the Supreme Court has upheld the validity of the Regulation challenged by the appellants in Star India case. The Court thus held that the appellants cannot challenge the validity of the Regulations which was upheld by the Apex Court since that would amount to reopening of an Apex Court judgement. “Once the Supreme Court has dismissed a challenge to the regulation, any court bound by the declaration of law under Article 141 of the Constitution cannot revisit a binding judgment of the Supreme Court on different grounds," the high court underscored. The Court went on to explain the distinction between Res Judicata and Precedents. It said that Res Judicata pertains to procedural rules that bind litigating parties to adhere to previous judgments on the same issue, while a precedent is a binding legal decision followed by all courts and authorities. As such the Court stated that it cannot consider...

Constitutional Courts Not Equipped To Handle Specific Subjects For Which Specialised Tribunals Are Needed: Kerala High Court

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