Dear Friends

The sudden realisation by people in Delhi that radiation emitted by Cell Phone Towers is generally higher than internationally recommended levels has a legal aspect to it.
Telecommunications and Telegraph are Central subjects under our Constitution.

Accordingly, only the Parliament may legislate on the topic of telecommunications and the Central Government and its agencies may issue suitable Orders and directions to comply with the law made by the Parliament.

States and their local bodies have practically very little scope for regulating any aspect of 'telecommunication' in view of the fact that 'telecommunication' is a federal subject in India

The act of installing a telecom tower for the purpose of transmitting a radio wave so as to facilitate 'telecommunication' is therefore a topic over which State Governments or local bodies have very limited legal authority.

'Telecommunication' is similarly, a federal subject in many other countries of the world and State Governments and local bodies in countries such as United States, Canada and Australia have often made unsuccessful attempts to regulate telecom towers on one or more 'health' or 'safety' grounds.

In India, local authorities or the States cannot impose any restriction on what should be the maximum Radiowave Frequency (RF) emission levels. Only the Parliament or the Central Government may make any regulation in this regard.

In fact, the Telecom Regulatory Authority of India, (TRAI) is the regulatory body in India in relation to telecom and TRAI should be faulted for having done nothing so far to mandate maximum RF emission levels for telecom towers.

Further, an NGO from Gujarat, Karma Jyot Seva Trust filed a Writ Petition No.471 of 2005 in the Supreme Court seeking the prescription of maximum emission levels for Telecom towers in India. Unfortunately, that petitioner did not pursue that matter and the same was dismissed on 15-Jan-2010 by the Supreme Court by observing that 'the matter is being dismissed for non-prosecution'.

Further, local authorities in many States had objected to the installation of telecom towers on safety grounds and the Supreme Court had stayed all such Orders on 13-Nov-2006 principally on the ground that local authorities do not possess the legal authority to interfere with 'telecom towers' except for limited purposes such as 'structural safety' - the same reasoning adopted by Courts in most other countries of the world where 'Telecom' is a federal subject.

As such, the most that the Municipal Corporation Delhi could do in the matter of telecom towers is to insist on standards for structural safety. If these standards are complied with, the MCD will have no further 'say' in these matters.

Further, bodies similar to MCD in countries such as the United States have sued their Telecom regulator in cases where the local authorities felt that the telecom regulator was sleeping over its duties. Similarly, the MCD could sue the TRAI before the Delhi High Court on the ground that the TRAI has contributed to a health hazard by failing to regulate on a critical aspect of 'telecom towers' by not mandating 'maximum RF emission levels'.

Regards,

K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390