LSPR Fortnightly Newsletter (Vol. 3) – Law School Policy Review & Kautilya Society

On 26^th July 2022, the Government of India – through the Department of Telecommunications (DoT) – started the 5G spectrum auction in the various Low (600 MHz, 700 MHz, 800 MHz, 900 MHz, 1800 MHz, 2100 MHz, 2300 MHz), Mid (3300 MHz) and High (26 GHz) frequency bands, as approved by the Cabinet last month. A complete auction of the spectrum is projected to rake in about Rs. 4,30,000 crore (approximately $54.3 billion) over the course of the 20 year license period.

The 5G spectrum auction has loomed large over the Indian telecom market for quite some time. With several nations around the world conducting 5G trials over the past couple of years, and most of them rolling-out commercial 5G networks in some capacity or another, India is a late entrant in the space. Pandemic-induced delays, competitive upheavals in the telecom space [as covered by the Competition Commission of India’s recent market study], and a general downturn in the revenues (not only domestically, but globally) – have all contributed to the glacial rate of development on the matter in the recent past. However, with the Telecom Regulatory Authority of India (TRAI) slashing reserve prices by an average of 40% (easing cash-flow concerns for telecos), the Government scrapping spectrum usage charges (SUC) for spectrum acquired after 15 September 2021, and the DoT formulating a plan of action for the accommodation of captive non-public networks (CNPN/ “private networks”/ “enterprise networks”) – the 5G market saw significant regulatory disruption (both welcome and unwelcome by the TSPs) in the run-up to the spectrum auctions.

While reserve prices and SUC affect the working capital and liquidity of TSPs, CNPNs have emerged has a more fundamental threat to their traditional operations. A captive non-public network (or a private/enterprise network) – as the name implies – is a network established for the exclusive use of a private organization. Essentially, rather than relying on a TSP to provide network services to it, a private network may procure spectrum directly in its own name and operate it autonomously through its own network infrastructure. In the telecom market, where retail data and voice telephony needs are already being adequately met by 4G, the low latency and high security solutions provided by 5G predominantly has new-age industrial application in the space of robotics, Internet of Things (IoT), surveillance, sensors, and edge-computing. Effectively, if large private organizations such as manufacturers (automobiles, aeronautics, petro-chem, etc.), infrastructure developers, logistics conglomerates, etc. acquire spectrum in their own name – any revenue that TSPs could have generated by providing them network services would be subsumed by the private networks they would themselves be able to maintain at the enterprise or organization level.

It is for this reason that the relaxed norms for CNPN prescribed by the DoT were strongly protested by the Cellular Operators Association of India (COAI) – a collective of incumbent TSPs consisting of Jio, Bharati Airtel, and Vodafone-Idea – in a letter addressed to the DoT Secretary, Mr. K Rajaraman. The COAI observed how the allocation of 5G spectrum to enterprise networks undermines the spectrum auction

process by allowing network service providers to act as backdoor-TSPs without participating in auctions.

To this effect, the COAI recommended that established CNPNs on the allotted spectrum should remain disconnected from other CNPNs and the public switched telephone networks (PSTN), and remain limited to a machine-to-machine use-case (M2M). Further, TSPs seek a level playing field with these enterprises by demanding that they too should own and operate (not lease or rent) all network components and equipment, as stipulated by the DoT’s Unified License.

The concerns flagged here are eerily reminiscent of the net-neutrality debate and TSPs’ objection to free, over-the-top (OTT) telecom services utilizing the Voice over Internet Protocol (VoIP). Even now, telecos are seeking to preserve their oligopolistic markets by complaining about a non-level playing field themselves and the thitherto un-/under-regulated disruptive technology. By exaggerating [OTT VoIP, CNPN] regulatory lacunae, adverse market impact, and risks to consumers, telecos are able to stall the market evolution of emergent technology; but only for so long as it takes for them to either kill the innovation or integrate it into their extant service offering

[telecos transformed into “digital service providers” after integrating with OTT digital media platforms that threatened their broadcasting ventures; at present, telecos want to monopolize spectrum auctions and then sub-lease spectrum to CNPN ventures through the

Virtual Network Operator (VNO) route].

Currently, fearing mass use-cases of CNPNs, telecos are claiming that the earmarking of “limited” spectrum for CNPNs would hamper retail connectivity and make further network infrastructure investments unviable – even as they continue to shell out upwards of Rs. 1,50,000 crores at the spectrum auction.^[1] Warning against a future where rural and semi-urban use-cases for CNPNs are limited by their dependence on traditional TSP network coverage, the Broadband India Foundation (BIF) countered the COAI’s objections. It brought to the TRAI’s notice its disappointment over the “objections, misrepresentations and misinformation [sic]” over the COAI’s bid to limit network innovation in the form of CNPNs which may also become available to micro, small, and medium enterprises (MSMEs) if allocated administratively by the Government.

One of the major arguments in favour of the COAI’s bid for the regulation of spectrum allocation and operation by CNPNs comes in the form of the ruling in the Centre for Public Interest Litigation v Union of India [(2012) 3 SCC 1] (“2G Spectrum Case”). In the scandalous matter involving high level ministerial and bureaucratic corruption, the Supreme Court characterized radio-spectrum as a public resource, the allotment of which should only happen in the larger public interest by maximizing government revenue as opposed to favouring specific applicants;

it held any alternative mode of spectrum allocation to be arbitrary. On this basis, the COAI does have some ground to stand on to claim that the administrative allocation of spectrum to applicants for CNPNs is unsound. However, the public-oriented and MSME use-cases of CNPN [especially in light of global precedents for such utility], and the cost of sub-leasing spectrum from TSPs [especially after they are acquiring spectrum at the exorbitant rates reported above] militate against the revenue-maximization rationale for open auction of spectrum, for CNPN-use.

Ironically, in Bharati Airtel v Union of India [(2015) 12 SCC 1] telecos (inter alia Bharati Airtel, Vodafone, Idea, Reliance) themselves contended that the high price of spectrum procurement trickles down to the ultimate consumers of telecom services – and continuity of service, market innovation, and lower entry barriers should also be  considered by the Government while allocating spectrum.

While reappraising the judgment in the 2G Spectrum Case at this instance, the Supreme Court remarked upon how these were valid considerations – but the mode of allotment of spectrum remains staunchly within the realm of economic policy, guided only by the principles of non-arbitrariness contained in Article 14 of the Constitution. Insofar as the government takes these factors into account to arrive at an administrative model for the allotment of 5G spectrum for CNPN, telecos lack a

principled stand against the same.

5G private networks will reportedly witness a compound annual growth rate of over 40% over the coming decade, on account of the low latency and high security demands of Industry 4.0. While their utility in the retail consumer sector is limited, they are likely to revolutionize manufacturing, logistics and healthcare by fuelling edge-computing solutions and enabling seamless data interoperability. In this evolving tech-environment, the TSPs attempt to restrict the free growth of the domestic CNPN market does not seem to be motivated by any regulatory concern or consumer interest. In the face of a market-place that is outgrowing TSP oligopoly, telecos are only out to protect their turf which is slowly slipping with new competition popping right in their wheelhouse. Such emergent competitive pressures should be met with revolutionary innovation and not protectionist resistance.

India’s abortion laws have come under scrutiny once again, this time due to a case where a 25-year-old woman was denied her request for an abortion due to her marital status as an unmarried woman.

Abortions in India are permitted under the Medical Termination of Pregnancy Act on the grounds of a threat to the physical or mental health of the mother or the possibility of the birth of a child with severe physical or mental abnormalities. Indian law does not recognise the right of a person to obtain an abortion on demand, which is granted in more than 70 countries. The law acts as an exception to the criminal offence of causing a miscarriage, enshrined under S.312 of the Indian Penal Code.

In this case, a two-judge bench of the Delhi High Court made an overly restrictive interpretation of the Act and Rules, denying the Petitioner’s request to obtain an abortion due to her separation from her partner and consequent inability to give birth to and raise a child as a single parent.

The Court denied this request on the ground that an unmarried woman was not covered under the Medical Termination of Pregnancy Rules, 2003, which is a necessary prerequisite for the application of S.3(2)(B) of the Act, which provides for abortions sought between the twenty and twenty-four week period under certain circumstances.

Rule 3-B of the MTPR, 2003 lists the categories of women eligible for the termination of pregnancy up to twenty-four weeks, including women whose marital status changed during the pregnancy on account of either widowhood or divorce. The Court held that since the woman was unmarried, the separation from her partner did not qualify as a change in marital status in accordance with the Rules and thus denied her request.

Although the Supreme Court later modified the order, observing that a woman could not be denied the right to benefit from the Act merely due to her status as an unmarried woman, they held that the abortion could be granted only if a medical board certified that the pregnancy could be terminated without risk to the woman’s life.

The progression of this case highlights the glaring lack of autonomy exercisable by women seeking abortions, who are placed at the mercy of doctors and courts to obtain a healthcare service that ought to be available on demand. 

The Act provides that an abortion sought within the first twenty weeks of the pregnancy can be performed with the permission of one doctor and two doctors if sought in the period between twenty to twenty-four weeks. In circumstances where an abortion is sought past the twenty-four-week stage, a medical board consisting of a

gynecologist, pediatrician, a radiologist or sonologist, and any other doctor as prescribed must be constituted to allow the abortion.

Similarly, the Act permits abortions on the ground of failure of contraceptive measures as a cause for mental anguish, only up to the twenty-week gestational period. The mental anguish that persons would suffer on account of a forced pregnancy due to the failure of contraceptive methods does not cease once the twenty-week stage is passed, and yet, the restriction remains. 

In this case, the Petitioner had to exhibit how being forced to give birth outside wedlock would cause psychological agony and subject her to social stigma, and explain that she was not mentally prepared to be a mother.

The Medical Termination of Pregnancy Act and Rules display India’s paternalistic approach to reproductive health. The Act makes arbitrary distinctions among classes of women permitted to seek abortions at different stages of pregnancy, provides excessive power to doctors to grant abortions and does not recognise the needs of transgender persons as well as persons from socio-economically vulnerable communities.

The differentiation of categories of women that can avail of an abortion for a period of up to twenty-four

weeks is highly discriminatory. In admitting that abortions can be provided safely for certain classes of women up to the twenty-four-week period, the subsequent denial of an abortion to a person failing to fulfill those restrictive conditions  is a violation of the right to equality under Article 14. If an abortion is deemed safe to be granted for specific classes of women, it must be made available to all persons.

There is no rational nexus between the distinction and the object sought to be achieved by the Act, which ought to be the provision of safe abortions. These restrictions are born out of a patriarchal mindset that not only seeks to limit the autonomy of women but also deems certain foetuses (foetuses of rape survivors, disabled women, foetuses displaying the risk of abnormalities, etc.) “less desirable” compared to foetuses conceived under no untoward circumstances and facing no risk of abnormalities, which is a harmful distinction. A paradigm that claims to ensure the welfare of women and children must treat all foetuses with equally liberal abortion standards, rather than increase the gestational limit for abortions only in cases of “socially unacceptable” foetuses.

Setting aside the problems arising out of the narrow scope of the Act, concerns exist regarding the implementation of the law in its current state. Reports have emerged of doctors and Courts denying abortion requests due to their personal inhibitions or forcing women to involve their partner or parents in the

procedure. In the present case, the High Court remarked: “Why are you killing the child? There are big queues for adoptions…We are not forcing her (Petitioner) to raise the child. We will ensure that she goes to a good hospital. Her whereabouts will not be known. You give birth and come back.” These statements show an evident lack of empathy and understanding regarding the needs of pregnant persons.

The right to make reproductive choices for oneself is an extension of the right to life and personal liberty as enshrined under Article 21, as observed by the Supreme Court in Suchita Srivastava v. Chandigarh Admin [(2009) 9 SCC 1]. Furthermore, the Supreme Court’s observations in Puttaswamy [(2017) 10 SCC 1] indicate that the right to privacy includes decisional privacy, and protects reproductive and sexual autonomy, including the decision to abort.

Any law restricting Article 21 must be just, reasonable and fair. The Act, by limiting reproductive autonomy, fails this test and thus, infringes upon privacy as it does not allow a woman to make decisions for her pregnancy. It vests such power in the hands of doctors, medical boards, and eventually Courts, and altogether denies women their agency if they do not fit into the narrow criteria.

India’s abortion laws thus not only deny reproductive autonomy and justice to women but also promote an approach to childbirth and reproductive health rooted in eugenics

and ableism. 

A law that makes conditions of suffering a prerequisite to access an abortion is a draconian legislation that prioritises foetal interests over the autonomy, life, liberty and privacy of an adult.

The law ought to be reformed to provide access to abortions on request to all persons, irrespective of gender identity, marital status, age, health, and ability.

An unsavoury ruckus over tipping at hotels and restaurants has been brewing in India for a few years, with customers complaining they are not being apprised of this additional charge. The Central Consumer Protection Authority(“CCPA”) took cognizance of the matter concerning service charge imposition by hotels and restaurants without informing customers. The government held a meeting with the National Restaurant Association of India(“NRAI”) on the matter on the ground, it had received a lot of complaints from consumers about the imposition of service charges “fixed at arbitrary high rates” and that  they “are harassed if they request to remove them from the bill.”

In the aftermath of the meeting, the government assured that it would soon come up with a “robust framework” to ensure strict adherence to its 2017 guidelines, which prohibit the levy of service charges. On June 4, the Ministry of Consumer Affairs(“MoCA”) issued a notification in the form of guidelines, exercising its power under section 18(2) of the Consumer Protection Act, 2019(“CPA”), to discontinue the practice of involuntary levying of service charges by hotels and restaurants.  However, the Delhi High Court has recently stayed the guidelines to consider the matter. The piece addresses whether the guidelines, in their present form, would be able to succeed in serving their purpose.

The article aims to discuss the effectiveness of these guidelines in light of the judgments by the various courts and previous such guidelines.

Whether there are any previous such guidelines? If so, are they effective in serving the similar purpose?

Similar guidelines were issued in the year 2017 and on April 21, 2022 when CCPA didn’t exist, and the guidelines were issued by the MoCA under the signature of the Deputy Secretary to the Government of India(“GOI”).

In the earlier guidelines, the ministry made observations as follows:

• However, our department has learned that certain hotels and restaurants charge patrons gratuities or tips under the guise of service fees without receiving their express permission.
• While some customers have been giving waiters tips in addition to service charges under the belief that the service charge is a tax has come to the attention of this department.
• Whereas, it has come to this department’s attention that hotels and restaurants occasionally prevent patrons from entering the property if they have not already agreed to pay a required service charge.

Subsequent to the above-mentioned observations, the MoCA had issued the following guidelines:

• In view of the above, the bill presented to the customer may clearly display that the service charge is voluntary, and the service

• charge column of the bill may be left blank for the customer to fill up before making payment.
• A customer is entitled to exercise his/her rights as a customer to be heard and redressed under provisions of the Act in case of unfair/restrictive trade practices and can approach the Consumer Dispute Redressal  Commission/Forum of appropriate jurisdiction.

The above guidelines were concluded as white elephants by many consumer luminaries for the reason service charges were made optional. The language used is ambiguous since one can not conclude whether it is voluntary to include the charge in the bill or voluntary to be paid by the consumer. But hotels or restaurants were guided to keep the service charges column blank, meaning the column can be very much there.

Would one predict new guidelines to be effective in the light of the effectiveness of the earlier guidelines?

While the new guidelines fill some of the gaps in the earlier guidelines, the observations made by the ministry before coming up with the new guidelines are similar. Such as,  hotels or restaurants are levying service charges on the bill by default without apprising the consumer that paying such a charge is voluntary at the option of the consumer. A similar observation about the tip system has been made by the ministry. Such observations reflect the ineffectiveness

of the earlier guidelines. New guidelines, the CCPA issued the guidelines hereunder:

• No hotel or restaurant may automatically or by default include a service charge in the meal bill, nor may customers collect a service charge under any similar heading.

• No hotel or restaurant has the right to demand payment of the service charge from a customer. It is their responsibility to clearly inform the consumer that the service price is optional and voluntary.

• No access or service supply limitation may be made on the grounds that the customer would be charged a service charge.

• It is not possible to collect the service charge by adding it to the meal bill and adding GST to the overall bill total.

The new guidelines seem to be a mere clarification of the earlier guidelines. Further, both mentioned that entry could not be restricted on the basis of the consumer’s willingness to pay service charges. It is unfathomable how the hotelier can know that this particular person entering won’t pay service charges when the time comes to pay the bill. In both the guidelines, it is commonly mentioned that there is no restriction on increasing the cost of the food item, which gives the option to such a service provider to increase the price of the food item to offset the loss incurred by not imposing service charge.

Can obligations under the new guidelines be enforced?

In order to get redressal under the new guidelines, the consumer can approach redressal agencies. There can not be any redressal from the court of law if at all the consumer prefers so. As per the general principle of law, guidelines has the less legal force. The Supreme Court of India(“SC”) in the case of Federation of Hotel and Restaurant Association of India & Ors v. Union of India (2018) 2 SCC 97, the definition of “sale” contained both in Standards of Weights and Measures Act, 1976 and Legal Metrology Act, 2009 would go to show that composite indivisible agreements  for supply of services and food and drinks would not come within the purview of either of the Act. Therefore, neither of the Acts would apply so as to interdict the sale of goods in hotels and restaurants at prices above the Maximum Retail Price. The most important part of the judgment is that the billing by hotelier/restaurant for service and goods is one and indivisible.

Similarly, the SC, in the case of State of Punjab v. Associated Hotels of India Ltd. (1972) 1 SCC 472, stated that when the “sale” of food and drinks takes place in hotels and restaurants, there is really only one indivisible contract of service coupled incidentally with the sale of food and drinks. Since it is not possible to divide the “service element”, which is the dominant element, from the “sale element”, it is clear that such composite contracts can not be the subject matter of sales tax legislation.

In light of the above rulings of the SC, the service providers are not restricted under any law to charge above the MRP. Therefore, there can be no challenge to optional service charges charged by them can be placed before the court. Hence, the new guidelines to supplant the old are difficult to implement or enforce.

Recently, the United Kingdom’s Queen’s Bench Division delivered the judgement in Green v. Metropolitan Police Commissioner (hereinafter referred to as “Green”), holding that a pension regulation disqualifying a surviving civil partner from pensionary benefits on remarriage is compatible with the nondiscrimination and privacy guarantees of the European Convention on Human Rights. The judgement, while recognizing the traumatic experiences of survivors in being structurally discouraged from remarrying, holds that the prior availability of another pension scheme that provided the choice of pensionary benefits for life obviates the necessity of doing away with the cessation rules.

In arguing the indirectly discriminatory nature of this scheme, we first evaluate the nature of the scheme, its Indian counterpart, and its disparate implications on women (Section I), followed by a discussion on the undignified coercive choice between love and livelihood (Section II). Finally, we conclude the indirectly discriminatory nature of the cessation rules using the Fraser test and argue that they are devoid of a justification grounded in principles of proportionality (Section III).

I. The Police Pension Scheme and its Indian Counterpart

Regulation C9 of the United Kingdom’s Police Pensions Regulations mandate that the pensionary benefits available to a widow or widower after the death of their partner shall cease at their remarriage. This provision, the Court agrees (¶8), is based on a stereotypical notion of presumed dependence of the wife on her husband. It considers that the woman must necessarily have been economically dependent on her husband, and therefore the state’s financial assistance towards her must cease at the moment that she becomes dependent on her new partner. Indian pensionary rules contain provisions that are pari materia Regulation C9, such as Rule 50(8)(a) of the Central Civil Services (Pension) Rules, 2021 and a plethora of state rules.

The gendered implications of this rule are closely connected to its gendered presumptions. Since it operates with the presumption of the woman’s dependence instead of marital interdependence, it instrumentalizes her in labelling her either the husband’s obligation or the state’s. This conception arises from a gendered notion of the subservient, dependent

role of the woman within the marriage, one which Anuj Garg implores us to subject to heightened scrutiny (¶47). If the law operates instead under the presumption of marital interdependence that entails a mutual commitment towards the generation of livelihood, there exists no reason for pensionary benefits to cease at one’s remarriage. Puttaswamy recognizes the principle of autonomy to entail both positive and negative aspects, with the former imposing an obligation on the state to create conditions conducive to the exercise of one’s agency (¶326). The presumption of dependency in pensionary rules speaks to an abdication of the state’s responsibility in creating conditions conducive to the exercise of autonomy, with the state actively generating spaces of marital inequality and dependency.

Once we concur that pensionary benefits must be allocated under the presumption of marital interdependence, the state is able to fulfill its role in creating these conducive conditions by generating equality in the marital institution. The cessation of pensionary benefits, therefore, must instead occur on other composite criteria that take into consideration spousal wealth.

I. On the Choice Between Love and Livelihood

The state asks women to either remarry and become the husband’s responsibility, or continue being the state’s responsibility when unmarried. The utter insensitivity of this ask is documented in Green, with the lead petitioner making the following moving submission before the Court (¶33):

“Regulation C9 prevents me from progressing on with my life. The fact that I cannot now share my life with anyone is restrictive, controlling, demeaning, archaic and very depressing…I may want to live with someone, but I’m just not prepared or able to do that now, because if I was to move in with or marry someone, I would have to become financially dependent on them. That is completely wrong. I am not some sort of chattel or property. I am an independent woman who was married and through no fault of her own lost her husband.”

The state’s demand that one may choose to either love or to secure their livelihood militates against precepts of human dignity. Dignity is fundamentally connected to the act of making choices: choices that concern one’s relationships, bodily integrity and destiny (Puttaswamy, ¶119). The creation of this dilemma between love and livelihood tells the survivor that love comes with a cost attached, that she may marry only if she is willing to forego her independence.

We must also recall that the marriage has explicitly been considered a component of privacy by the line of cases following Gobind (¶24) (see, for example, Suchita Shrivastava, Inspector Ravina, Navtej Singh Johar and Joseph Shine). Further, the Court held in Shakti Vahini that a consensual choice of two adults to marry is a critical component of their Article 21 rights (¶43).  

I. Disqualification Rules and Indirect Discrimination

While rudimentary discourse on indirect discrimination is found in cases concerning “lack of classification creating inequality”, Nitisha lays the foundations to assess indirect discrimination structurally (¶88). The primary conceptual distinction between direct and indirect discrimination lies in the intention of the discriminator and the means employed thereto. The former entails an express use of prohibited grounds to discriminate with a law that serves this purpose, while the latter entails consequential discrimination with neither a mala fide intent on part of the discriminator nor a law that uses prohibited grounds. Unlike direct discrimination where the perpetrator is easily identifiable, it is difficult to pinpoint a single perpetrator when the discrimination is indirect due to its structural nature. This piece published recently in the Law School Policy Review serves as a good guide to indirect discrimination. Nitisha incorporated the Fraser standards

to assess indirect discrimination, which asks whether a law disproportionately affects a particular group and if so, whether it has the effect of perpetuating their disadvantage (¶82). While the cessation rules are gender neutral and do not make an explicit use of prohibited grounds, its adverse implications are faced disproportionately by women. Employment in police services is skewed towards men, and the possibility of destitution therefore heavily skewed towards women.

The effect of the cessation rules is such that the disadvantages faced by women are multiplied manifold when the state enjoys an effective veto on who gets to remarry. It has the effects of perpetuating the dependency stereotype and widening marital inequality. The cessation rules militate against human dignity and have the effect of depriving women of the right to marry due to the state’s undignified dilemma. We must recall Sharon Green’s submission before the Court, asserting that she is not “some sort of chattel or property” (¶33). She is an independent woman who lost a loved one, and is being forbidden from ever loving again.