The Parliament has passed the ‘Telecommunications Bill, 2023’ with the approval of the Rajya Sabha today with certain amendments on 21st December 2023 and now, awaits the presidential assent. The Telecommunications Bill, 2023, was passed by a voice vote after a short debate. The Bill sought to amend and consolidate the law relating to the development, expansion, and operation of telecommunication services in India and has essentially replaced the ‘Indian Telegraph Act, 1885,’ a 138-year-old law. And this happened in the absence of the crucial voice of the suspended 146 opposition Members of Parliament. In light of the current state of chaos, disarray, protest, and walkouts in the Parliament, it is quite astonishing that the Telecom Bill, 2023 was passed. A bill allowing the government to temporarily take control of telecom services in the interest of national security, and providing for the allocation of satellite spectrum without the requisite auction has been approved without the presence of a majority of opposition members might make one wary as to what it entails.
The colonial The Indian Telegraph Act, 1885, was presented as the one that provided for extreme forms of control over communication, and The Telecommunications Bill, 2023 was engineered for “regulation” rather than “control”. These colonial laws provided extreme forms of control over communications in colonial India to the British. However, under the garb of reform, it can be argued that the Telecommunication Bill 2023 is expected to provide a larger control than the colonial law to the Government of India and its institutions. The draft Indian Telecommunication Bill, 2022 was concluded after a consultation process whereby it came under heavy criticism, thereafter the Telecommunications Bill, 2023, its counterpart, has reportedly been brought forth after several inter-ministerial discussions over the year. The Department of Telecommunications (“DoT”) has released a “new and improved” version of the 1885 Act, the spirit of which it seems to retain.
The definitional ambiguity in the Telecom Bill, 2023 is apparent and raises concern regarding its implementation and effectiveness affecting crucial constitutional freedoms such as the freedom of expression and the right to receive information. The definition of “telecommunication service” under Section 2(t) has left a lot to be desired and much backlash had already been received by the DoT during the public consultation on the Telecom Bill, 2022 regarding the wide definition of ‘telecommunication services’ which was not heeded in the 2023 bill. An uncertainty has, thus, settled about the scope of applicability to internet services and whether online communication services are included as well, the all-inclusive definition may be considered as a Damocles sword.
The Telecom Bill, 2023 has the potential to threaten the user’s fundamental right to privacy. For instance, under Clause 3(7), which imposes an obligation on any authorized entity, as notified by the Union government, to identify the person to whom it provides telecommunication services, through the use of any verifiable biometric-based identification “as may be prescribed”. It is pertinent to note that the “biometric” based identification mode did not even feature in the Telecom Bill, 2022. This inclusion of “verifiable biometric-based identification” raises reasonable fears that it may provide a legislative basis for the mandatory linking of Aadhaar to mobile phones which has been ruled unconstitutional by the Supreme Court of India following a majority decision led by Hon’ble Justice A. K. Sikri while dealing with the constitutionality of the Adhaar Act, 2016.
In addition to retaining several provisions that centralized power and control with the Executive such as those listed under Clause 20, the Telecom Bill, 2023 has created new ones that do so. Clause 43 is one such provision, as it confers quasi-judicial powers to any officer authorized by the Union government to “search any building, vehicle, vessel, aircraft or place in which he has reason to believe that any unauthorised telecommunication network…. in respect of which an offence punishable under section 42 has been committed, is kept or concealed and take possession thereof.” Such power was non-existent in the Telegraph Act, 1885. Furthermore, through Clause 20(2)(b), the Telecom Bill, 2023 has cemented the internet suspension power with the Department of Telecommunication. Furthermore, it allows the Centre to effectively take possession of a telecom network in case of any public emergency or in the interest of public safety.
The ‘statement of objects and reasons’ under the Telecom Bill, 2023 acknowledges the need to create a “legal and regulatory framework that focuses on safe and secure telecommunication network that provides for digitally inclusive growth”. However, key provisions relating to surveillance and internet suspension, which have a long-lasting, profound impact on digital rights, have been replicated verbatim from the Telegraph Act of 1885. It would be unfair to say that the bill has not undergone changes in phrasing, but equating this change with reform would also be unfair. Another contested provision of the Telecom Bill, 2022, i.e. licensing, has been replaced, by a concept of “authorisation” which purports to replace “100 licenses over a single authorization”. The fundamental function of issuing authorisation is still an exclusive right of the Union government and reliance on “public safety” and “national security” continue to act as grounds to empower the Union government with powers to temporarily possess, suspend, intercept, detain any telecommunication service or telecommunication network from an authorised entity is not miles apart from the 1885 Act.
Some improvements are present in the Telecom Bill, 2023 as is evident from the attempt made to dilute Telecom Regulatory Authority of India’s (TRAI) powers with respect to the governance of this sector introduced in the Telecom Bill, 2022 has been reviewed and commendably improved on in the 2023 bill. One of the most controversial provisions in the draft of 2022 which allowed for the identity of the sender of a message using telecommunication services to be made available to the user receiving such message, in such form as may be prescribed, has been removed in the Telecom Bill, 2023. The Telecom Bill, 2023, unfortunately, cannot be accorded the respect similar to reform due to the dubious events surrounding its passage through the Houses of Parliament and the lacuna left by its apparent vagueness. The Telecom Bill, 2023, however, may be a natural step in the right direction in terms of regulation of telecommunication services depending upon its efficacy in contemporary India.
The passing of the Telecom Bill has, indubitably, a wider bearing on the fundamental right to privacy for it has been passed only a couple of days after the highly controversial Post Office Bill, 2023, which has been criticized heavily for providing excessive avenues for the violation of the fundamental right to privacy through unencumbered power of “interceptions” which may be carried out by the Union Government, State Governments, or any officer specially authorised by them. The “emergency” (one of the many grounds for interception under Section 9) for which impunity has been provided for the search and seizure has not been suitably clarified and the accountability for such actions has not been addressed as is evident from the lack of any grievance redressal system available to citizens despite relieving post officers of any liability with regard to the services offered.
The inherent vagueness of the Post Office Bill has been reflected in the Telecom Bill as well and fears are it will be similarly present within the provisions of the Broadcasting Service (Regulation) Bill, 2023 drafted by the Ministry of Information and Broadcasting (“MIB”) which was released for public comment on November 11, comments can be given until January 15 (the deadline was initially December 8 and was later extended). With the onset of such legislations in the Parliament it must be kept in mind the opinion of the Court in the Pegasus Spyware Scandal, the state does not get “a free pass every time the specter of national security is raised…National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning.”
