COMMUNICATIONS COMMISSION OF INDIA

Clause 6- Establishment of Commission

37. Clause 6(4) provides that " The Chairperson and not less than six Members other than the ex-officio Member, shall be whole-time Members and the remaining shall be part-time Members".

38. Some of the non-official witnesses who appeared before the Committee have expressed the view that since Communication Commission of India(CCI) will have multifarious functions as defined in Chapter IV and V of the Bill, all the ten Members should devote full time for effective results. Therefore, all the Members of Communication Commission of India should be full time Members, they averred.

39. During evidence, the Committee desired to know the concept of whole-time Members and part-time Members in the composition of the Communication Commission of India(CCI). In reply, Secretary, DoT explained that there may be people of eminence who may not like to come on a full-time basis but at the same time the expertise of such persons may be required. Further, a larger number of members can be appointed on full-time basis as the Clause provides that not less than six Members will be full time Members and, therefore, number of part-time Members can be reduced.

40. The Committee pointed out that when CCI will have advisors and consultants, it might not require part-time Members. To this Secretary, DoT submitted that they can certainly call consultants and advisors but a need has been felt to have flexibility at the Commission level and that the number of Members to be appointed as whole time Members will be decided by the Government under clause 7(1)

41. The Committee notes that the number of part-time Members can be reduced by increasing the number of whole-time members and in this regard a need has been felt by the DoT to have flexibility at the Commission level. The Committee feels that the use of the word 'shall' with the term 'part-time members' may some time create a difficulty, and therefore, recommends that for the word 'shall' occurring second time in line 17 page 5 the word "may" be substituted.

42. Clause 7(l) provides that "the Members (except the ex officio Member) shall be appointed by the Central Government, by notification, from amongst persons recommended by a Search Committee as may be prescribed.

43. On being pointed out by the Committee that the Bill does not provide for the qualifications of Members, of the proposed Search Committee, Secretary, Ministry of Information Technology submitted that the Chairman and Members of the UPSC are appointed by the Government and there is no Search Committee. Search Committee in this case has been kept as a safeguard. As regards the manner of functioning of the Search Committee and how it will select a person as Chairman of CCI and the Appellate Tribunal, the Secretary, DoT stated that the Search Committee is intended to consist of people who will be knowledgeable and capable of identifying people of eminence in this area. If the Search Committee is determined by the Statute, it is quite possible that after three or four years those Members may not be really relevant at the point of time when new technologies are developing everywhere. So the flexibility is being provided through a clause which says that the Government will prescribe the Search Committee.

44. Some of the non-official witnesses who deposed before the Committee desired that constitution of the Search Committee should be spelt out and should include Leader of Opposition in Lok Sabha and Rajya Sabha. It has been pointed out that the first draft of Communication Convergence Bill had provided that a Search Committee would be appointed by the President of India from a Panel that will include Prime Minister, leader of Opposition in Rajya Sabha and Lok Sabha, Chairman of Standing Committee on Information Technology. It has been stated that vast majority of decisions, conclusions and dispute resolutions in case of regulators, especially in matters of communication, are matters relating essentially to the economics and competition/antitrust regulation. This necessitates that the CCI must include as full time Members, such individuals who are qualified economists, preferably with public policy background and who understand competition-related issues.

45. The Committee notes that the Members of the Commission shall be appointed by the Central Government from amongst persons recommended by a Search Committee. The composition of such a Search Committee has not been prescribed anywhere in the statute. The Committee feels that it is a vital and substantive matter and the composition of the Search Committee should be provided in the Act itself rather than by the Rules. The Committee, therefore, recommends the following amendment in Clause 7(1):

48. The Committee pointed out to the DoT that as per Clause 7(2), there is no bar for appointing more than one Member from the same field. It was suggested that there should be only one Member from each of the fields mentioned in the Clause. As the Bill primarily deals with telecommunications, it may not be fair to have five persons from amongst the field of literature, performing arts, media, culture, education etc. And going by Clause 7(3) one half of the Members would be appointed from the field of Information Technology, finance, management and administration or law, ultimately leaving one or two persons from the field of telecommunications. The Secretary, Ministry of I & B stated that when 'carriage issues' are discussed, 'content Members' may not be present. But when 'content' is discussed the 'content Members' would surely be present. It has further been clarified by Secretary, DoT that Clause 16(l) says that the Commission will set up a panel for matters in relation to content in content application services and the Chairperson shall preside over the meeting. Therefore, the content related matters could be discussed by this content panel where there is no need to interact with the 'carriage Members.' However, where necessary, the Chairperson may place issues relating to such matters before the full Commission.

49. On being pointed out by the Committee that to discuss 'carriage' there is no separate panel and the 'content Members' will also give their views, the Secretary, Department of IT submitted that initially the thinking was that there could be two Bureaus, Content and the Carriage Bureaus so that they could function separately. There can be few issues which could come to the whole Commission which would be the aggregate of two. But later on, it was felt that 'Content Bureau' would deal with a specialised activity relating to content regulation where Carriage members need not be present.

50. It was further added that the most important thing was content and not carriage as far as broadcasting and media are concerned For instance it is not the printer or the printing press which is important in the newspaper organisation. It is the editor who is the important person. Similarly as far as content of a broadcasting media is concerned, there should not be preponderance of people from the carriage discipline at the cost of the content people. It must be evenly balanced.

51. In this context, some of the non-official witnesses have been of the view that the majority of the CCI Members should have sufficient technical expertise to assess trend of technological changes and its impact on the people. The representation of eminent persons from technical fields in CCI, therefore, has to be proportionately appropriate.

52. The Committee notes that Clause 7(2) says that one half of the Members shall be appointed from the field of literature, performing arts, media, culture, education, films and from amongst persons prominent in social and consumer activities; and under Clause 7(3) one half of the Members shall be appointed from the field of telecommunications, broadcasting technology, information technology, finance, management and administration or law. Therefore only one or two Members would be from the field of telecommunication which is the area of utmost importance for CCL The Committee strongly feels that the representation of eminent persons from technical fields should be proportionately adequate and suggests the following amendments:

In Clause 7(2) the words " one-half of the Members" be substituted by "Not more than three Members".

7 (3) (a) "At least three of the Members shall be appointed from persons of eminence in the field of telecommunications" and

7 (3)(b) "the rest of the Members shall be appointed from, amongst persons of eminence in the specialised fields of broadcasting technology, information technology, management and administration, finance economics, public policy and law", provided that not more than one Member shall be appointed from any one field.

53. Clause 7(6) provides that "A person, who is in the service of the Government, shall have to retire or resign before entering the office of Chairperson or whole-time Member".

54. The Committee recommends that in order to give more thrust to the provision in Clause 7(6) the following amendment should be made:

At the end, the words "and shall be ineligible to seek any employment, public or private, thereafter" be added.

55. Clause 8(3) provides that "The Chairperson shall have powers of general superintendence and direction in the conduct of the affairs of the Commission and shall, in addition to presiding over the meetings of the Commission, exercise and discharge such powers and functions of the Commission as may be assigned to the Chairperson by the Commission".

56. The Committee desired to know the nature of functions anticipated in Clause 8(3). In reply, Secretary, DoT stated that on Board of Directors can delegate certain powers to the Chairman or the Managing Director of a Company, similar powers are assigned to the Commission. So they have made an enabling provision where if the Commission so requires, some of the powers can be exercised by the Chairman because there may be certain situations where the Commission may not be able to meet immediately.

57. The Committee pointed out that though it is a regulatory or an enabling provision, it will cover every part of activity. The Chairperson can be given all the powers of the Commission and it could become a one-man Commission. To this, Secretary, QoT stated that this has been done for the sake of convenience to make the Commission effective to deal with any issue which emerges urgently and calls for immediate response.

58. The Committee inquired why one person has to be so empowered as to give him the power of general suprintendence. To this Secretary, Telcom illustrated that hypothetically if it becomes necessary to disconnect the STD in a particular all then it may take time for the Commission to meet and take that decision. In such contingencies the Commission can give powers to the Chairperson.

59. The Committee finds that Clause 8(3) provides for delegation of power to the Chairperson of general superintendence and direction in the conduct of affairs of the Commission and of exercising and discharging such powers and

functions of the Commission as may be assigned to the Chairperson by the Commission. The Committee is of the view that such a provision could lead to the Commission becoming a one man Commission. The Committee is not fully convinced with the plea of the DoT that this has been done for the sake of convenience and to make the Commission effective in dealing with emergent, short-term issues. For instance, functions of the Commission under Clause 21 are such which should not be delegated to one person whether he be the Chairman. The Committee, therefore, recommends the following amendment in Clause 8(3):

After the words "the Commission in line 4" the words "other than the powers and functions provided in Section 16, 18(2), 19, 20, 21,26 and 32 be added

Clause 9- Removal from office of Chairperson and other members

60. Clause 9 reads as "The Central Government may remove from office any Member, who:-
(a) has been adjudged an insolvent; or
(b) has been convicted of any offence, which in the opinion of the Central Government, involves moral turpitude; or
(c) has become physically or mentally incapable of acting as a Member; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as Chairperson or other member: or
(e) has so abused his position as to render his continuance in office prejudicial to the public interest:

Provided that no such Member shall be removed from his office under Clause(d) or Clause(e) unless he has been given a reasonable opportunity of being heard in the matter".

61. Some of the non-official witnesses represented to the Committee that on the lines of TRAI Act, 1997 a provision should be for removal of Chairperson and Members of CCI. It has been pointed out that in proviso to clause 9 it has been mentioned that the Member should be heard by the Government before removal. In

this context, the Committee desired to know the procedure being contemplated and as to who would be the disciplinary authority. To this, the Secretary, DoT stated that the 'existing provision' gives the overall picture. Because appointments would be made by the Central Government, the hearing authority should also be determined by the Central Government.

62. Reacting to a point made by,the Committee that the Government should formulate a charge-sheet pointing out the reasons for the -removal of the Member from the Board and as to who will finally decide as to whether a Member of the CCI is guilty or not, the Secretary, DoT stated that the final decision will be taken by the Central Government. Even in the existing TRAI Act, the Central Government gives reasonable opportunity, he said.

63. The Committee feels that the Government may be given the benefit of an inquiry report of -an independent Authority as in the case of the Appellate Authority under Clause 46 where an inquiry by Supreme Court on a reference made to it in this behalf has been provided for removal of a Member, similar provisions be made in the case of removal or dismissal of a Member of the Commission by the Government. The Committee, therefore, recommends that the following amendments be made in the Proviso to Clause 9:

In-line 21 of page 6, the words "he has been...... matter" should be replaced by the words "the Supreme Court, on a reference being made to it in this behalf by the Central Government, has , on an inquiry held by it in
accordance with such procedure as it may specify in this behalf, reported that the Member ought on such grounds to be removed'

Clause 14-Power of Commission to regulate its procedure

64. Clause 14(2) reads as "Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of section 193 and 228, and for the purposes of section 196, of the Indian Penal Code and the Commission shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973".

65. One of the non-official witnesses submitted that CCI has been entrusted with the function like making regulations, issuing Licenses, assigning Spectrum etc. so, it must be clarified that CCI possesses the powers as are vested in Civil Courts with respect to discharge of its functions under the Act which relate to the determining or adjudicating any issue/dispute and not the recommendatory or such other functions.

66. The Committee is in agreement with this suggestion and recommends that in clause 14(2) (line 22 of page 7) after the words "the Commission", the words "relating to any dispute or complaint" be added.

Clause 15-Secretary-General of the Commission.

67 Clause 15(l) provides that " the Secretary General shall be appointed by the Commission and he shall be its chief executive officer and shall exercise such powers and discharge such functions as determined by regulations.

68. Clause 15(2) provides that " For the purpose of sub-section(l), the Commission may seek from the Central Government, a panel of not less than three officers who are eligible to be, or are of the rank of, the Secretary to the Government of India for being appointed as Secretary General".

69. In regard to Clause 15, the Committee received a number of Memoranda from many individuals/organisations in which they have expressed their doubts that the word 'may' used in Clause 15(2) has the effect of 'shall' and would mean that the Commission will have to appoint a person as Secretary General only from and out of the names in the panel provided by Government of India thereby depriving the CCI of the expertise that may be available else where. The Commission, therefore, should be left free to appoint its Secretary General who may either be from the Commissions own cadre or selected by Commission from anywhere with expertise and experience relevant to the functioning of the Commission. The Memoranda were forwarded to the Department of Telecom for comments.

70. The Department of Telecom in its reply has clarified that as clearly stipulated in Clause 15(l), the power to appoint Secretary general is with the Commission itself. However, the commission may seek from the Government a panel of not less

than 3 officers which has been made amply clear by using the word 'may' in the relevant clause and thus CCI is at liberty to appoint its own nominee. It was added that there was no ambiguity in the legislation on this point.

71. The Committee is convinced with the clarification. However, in order to remove any confusion, it recommends that in clause 15(2) (line 35 of page 7) after the words "the Commission" the words "if it considers necessary" be added.

Clause 16-Setting up of panel, distribution of business etc.

72. Clause 16(l) stipulates that "The Commission shall set up a Panel from amongst Members appointed under sub-section (2) of section 7 to deal with matters in relation to the content application services, and the Chairperson shall preside over meetings of the Panel:

Provided that wherever necessary the Chairperson may place before the Commission any issue relating to the matters referred to in this section.

(2) Except for the power to make regulations, the Commission may, by general or special orders, make provisions for the distribution of its business amongst Members as may be considered appropriate and necessary."

73. Some of the non-official witnesses represented that in Clause 16 it should be clarified that the CCI is empowered to delegate its functions, except the regulation making functions and adjudicatory functions, However, all final decisions must be that of the entire CCI, especially as functions relating to licensing has crucial implications on investment, consumer interest and the ability to meet policy objectives. It was further pleaded that clear guidelines may be laid down for setting up of Bureaus and Divisional Organisations including source and eligibility for appointment of the staff.

74. Secretary, DoT during evidence stated that as per Clause 16(l), the Commission will set up a Panel to deal with matters in relation to content in content application services and the Chairperson shall preside over the meeting of the Panel. Content related matters could be discussed by the Content Panel where there is no need to interact with Members of the Commission belonging to other categories.

However, the Chairperson may place such issues before the full Commission wherever he feels necessary. The Secretary, DoT further added that if the issue is related to content regulation, the Carriage Members need not -be present. Therefore, a Content Panel has been created. But in case of content matters, there will be many regulatory issues where enforcement will be required. That enforcement can be made only through the means of Carriage. One may have to take action against- an errant cable operator. So carriage gets involved. So, the whole Commission should be involved.

75. To a specific query, 'it has been clarified that setting up of content Panel is mandatory but it is left to the Chairperson to decide whether he brings such an issue before the entire Commission or not.

76. The Committee, recommends that in view of its recommendations regarding clause 7, the words 11 the Commission shall set up a Panel from amongst Members appointed under sub-section (2) of section 711 should be substituted by "Members appointed tinder sub-section (2), of section 7 shall constitute a Panel".

77. The Committee, further, recommends the following amendment in Clause 16(2) : (line I of page 8) After the words "the Commission may", the words "subject to provisions of sub-section I" be inserted.

78. Clause 16(3) provides for setting up of bureaus or divisional organisations on the basis of workload and posting of officers and other employees to perform their functions.

79. In this regard, non-official witnesses pleaded that some guidelines may be laid down for setting up of Bureaus and Divisional Organisations including source and eligibility of their officers and -employees etc.

80. The Committee stressed that there is a need for more specific information about bureaus and divisional organisations because there is no provision in the Bill. In reply, Secretary, DoT submitted that it has been left to the discretion of the Commission to determine the size. But it has been indicated that there could be within the organisation, separate bureaus for separate functions. However, their number has not been prescribed. 'Bureaus' in Clause 16(3) might not be an appropriate word. The Secretary, DoT responded that the word 'bureaus' could be replaced by some other words like 'functional' or 'divisional' organisation.

81. To a suggestion of the Committee to include consultants and advisors also under this clause, Secretary, DoT submitted that if they are not included in the provision, the Commission has a certain degree of flexibility in appointing the consultants and advisors as per the terms and condition as it may deem appropriate. It was further added that consultants and advisors have been kept separate, as they are contractual. They would not be the employees of the Commission.

82. The Committee inquired about the details of bureaus and organisations and who will determine their number, location and appointments. In reply, the Secretary, DoT clarified that the Commission may set up bureaus or divisional organisations on the basis of its workload and the bureaus shall be provided with such officers and other employees as are necessary to perform their duties. For the discharge of its function, the Commission will determine the requirement of the employees, To mother specific query, it was clarified that Clause 16(3) has to be read with Clause 53 which says, "as the case may be". The Commission/Appellate Tribunal shall appoint such officers and other employees as the Commission or appellate tribunal, as the case may be, consider necessary for the efficient discharge of its functions.

83. The Committee pointed out that the wording "such bureaus or divisional organisations shall be provided with such officers --- as are necessary" is confusing and it may mean that the Government will provide those officers. It does not clearly state by whom. To this Secretary, DoT submitted that the powers of appointment are given under clause 53(l). So whomsoever the Commission wants to appointment comes under clause 53(l). The objects of appointment are given in clause 16(3). Clause 16(3) does not give powers of appointment.

84. The Committee is convinced with the clarification given by the Department but for the sake of clarity, it recommends that in clause 16(3) the words "on the basis of its principal workload operations" should be substituted by the words "with such powers, other than powers under section 16, 18(2), 19, 20, 21 and 38 as may be specifically assigned to them". Further, the word 'bureaus' in clause 16(3) (line 5 of page 8) should be deleted, as 'divisional organisation' is already there in the said clause.

85. Clause 16(4) reads that "The Commission may, by order in writing, authorise any District Magistrate or Sub-Divisional Magistrate in any area or any other officer of the Central Government or Union Territory Administration to implement and ensure compliance of its directions and orders; and when so directed or authorised, such Magistrate or officer shall be bound to implement and carry out such directions and orders".

86. The Committee desired to know the nature of orders which District Magistrate or Sub-Divisional Magistrate are expected to, carry out in discharging the activities under section 16 which deals with setting up of Panels, distribution of business etc. and that what sort of direction can the Commission give to DM and my other officer. To this Secretary, DoT stated that if a seizure of certain equipment is to be ordered, the Commission may not have my particular officer at that particular place to effect that seizure and it will be the Sub-Divisional Magistrate or the DM who would have the authority to do so.

87. To another query as to how and under what power will the DM seize it, Secretary, DoT replied that the Act provides specific powers of seizure which are given to the Commission under clause 32(2) and DM/SDM will implement the same. It was further clarified that Clause 16(4) has been provided as an enabling provision.

88. It was added that this Clause relates to Content Panel also because there will be a direction given by the Content Panel. There may be certain stoppages or seizures, which may be required for obscene contents. How would the Commission deliver and enforce this would be decided by the DM.

89. The Committee finds that Clause 16(4) has nothing to do with the setting up of panel, distribution of business etc. It rather relates to function of the Commission. It therefore recommends that after deletion of the words "be bound to" in line 13, page 8, Clause 16(4) should be transposed as sub-clause 18(4) under Chapter V which actually deals with the powers, duties and functions of the Commission.