This article has been written by T. Tahira Mehreen from Bishop Cotton Women’s Christian Law College, Bangalore

Introduction:

Telecommunication Bill was presented in the Lok Sabha on December 18, 2023, the Telecommunication Bill seeks to overhaul the regulatory framework governing telecommunication services and networks. Once enacted, it will supersede the Indian Telegraph Act of 1885, the Indian Wireless Telegraphy Act of 1933, and the Telegraph Wires (Unlawful Possession) Act of 1950. Concurrently, amendments will be made to the Telecom Regulatory Authority of India (TRAI) Act of 1997.

This new legislation signifies a notable shift from the previous regulations. It not only integrates and simplifies various telecommunication aspects into a single statute but also expands its reach. The Bill now covers the transmission, emission, and reception of signals, messages, and related equipment. This broadening of scope means that services like video conferencing, voice calls, and messaging platforms such as WhatsApp, Telegram, and Gmail will come under the Act’s jurisdiction. Furthermore, the Bill extends its coverage to satellite and submarine networks, in addition to terrestrial networks.

This piece aims to delve into the impact of this legislation on the telecommunication regulatory environment.

Government’s Regulatory Powers:

The Act confers upon the government the authority to prescribe standards for telecommunication equipment, networks, and services.^[1] Additionally, it empowers the government to intercept, monitor, or block communications between individuals and to suspend any related services, should it deem such actions necessary for reasons pertaining to: (i) the security of the state, (ii) the prevention of incitement to commit offences, or (iii) the maintenance of public order.^[2] The Act further provides for the suspension of telecommunication services on the aforementioned grounds.^[3] In situations of public emergency or for reasons of public safety, the government is granted the power to temporarily take control of any associated infrastructure, network, or services.^[4] Moreover, in the public interest, the Central Government may direct any authorized entity to provide its services in the manner prescribed.^[5]

In circumstances deemed essential for national security, fostering friendly relations with foreign states, or during times of war, the Central Government may assume complete control and management of the services.^[6]

An official authorized by the government is empowered to conduct searches of premises or vehicles suspected of housing unauthorized telecom networks or equipment.^[7] It is crucial to highlight that the Act lacks provisions detailing the procedural safeguards against such searches, nor does it stipulate the introduction of such safeguards in the future.

To encourage innovation and technological advancement, the Central Government offers a live testing environment with specific exemptions for a limited duration and user base.^[8]

User Protection Regulations:

The Central Government is empowered to enforce protective measures for users, including: (i) obtaining prior consent for receiving specific messages like promotional content, (ii) establishing Do Not Disturb registries, and (iii) facilitating a reporting mechanism for users to flag malware or unwanted messages.^[9] Additionally, the Act mandates telecom service providers to institute an online system for grievance registration.^[10]

The Act imposes an obligation on users to provide accurate information and to not withhold essential data when accessing services.^[11]

While these entities are obligated to set up grievance redressal mechanisms, they may also seek the right of way by submitting an application for public property or by requesting for permission from the owner of the private property.^[12] The Act requires the public entity shall also grant a permission in an expeditious manner and any rejection shall be based on reasonable grounds only. ^[13] If the private owner refuses to grant the permission, the centre may still determine the right of way in the public’s interest.^[14]

Biometric Identification: A Necessity for User Verification

The Act provides that telecom service providers must authenticate the identity of their users using a verifiable biometric-based identification as prescribed.^[15] This provision raises serious privacy concerns in the light of the Aadhar data leak. Justice DY Chandrachud in his dissenting opinion in case of linking Aadhaar (which is a biometric-based ID) with mobile numbers, held that “the measure is disproportionate and an unreasonable state compulsion”. He noted that “Once a biometric system is compromised, it is compromised forever”.^[16] The collection of this data may translate to disproportionate intrusion into the realm of individual privacy, if sufficient safeguards are not taken.

Government’s Powers to Assign the Spectrum:

Spectrum allocation will be primarily done through auctions, except for certain cases below where it will be assigned on an administrative basis: (i) national security and defence, (ii) disaster management, (iii) weather forecasting, (iv) transport, (v) satellite services such as DTH and satellite telephony, (vi) BSNL, MTNL, and public broadcasting services, among others.^[17] The central government has the power to authorise sharing, trading, leasing, and surrender of spectrum.^[18] They may also terminate such assignment if it remains unutilised for inadequate reasons.^[19]

Upon breaching the terms and condition of the assignment, the assignees’ license may be curtailed, suspended or revoked by the Centre.^[20] Although this provision bears resemblance to the one found in the Telegraph Act, it introduces the concept of suspension of the license. In case, the assignment stands revoked, curtailed or varied, no person will be entitled to a refund.^[21]

Under the Act, the Central Government possesses the authority to allocate spectrum and establish the terms and conditions governing such allocations. These conditions encompass aspects like frequency range, pricing, and the duration for which the service provider retains rights.^[22] This marks a shift from a regime where licenses were granted to auction participants to one where substantial government oversight determines spectrum rights holders.

Moreover, to maximize spectrum utilization, the Central Government may allocate distinct portions of the same spectrum to multiple assignees.^[23]

Digital Bharat Nidhi: Fund for Research and Development

The Universal Service Obligation Fund has been established under the Indian Telegraph Act, 1885 to provide for telecom services in areas with limited access to these services.  The Act preserves this provision and renames the fund as Digital Bharat Nidhi. However, it permits its usage solely for research and development, to promote access and delivery in areas with limited access, support pilot projects and introduction of new technologies in telecom.^[24] This exclusivity prevents the misuse of the fund and promotes development in the telecommunication sector.

Offences and Penalties:

The Act enumerated certain civil offences and penalties in the Third Schedule to the Act.^[25] It further specifies that penalty in the Schedule would not exceed Rs 10 crore.^[26] The criminal offences are listed in Chapter IX of the Act, and these offences are both cognizable and non-bailable.^[27] If anyone operates without authorisation, they may face imprisonment of up to three years or a fine up to Rs 2 crore.^[28] Most importantly, if any person uses these services knowingly or having reason to believe that they are unauthorised, can be penalised up to Rs 10 lakh, which is a tremendous increase from Rs 50 in the Telegraph Act. ^[29]

Scrutiny of the Bill:

While the Act provides the Centre with considerable control, it also paves the way for advancements in satellite-based services, space research, and the allocation of satellite spectrum through administrative means. Additionally, it mandates service providers to establish and uphold user protection mechanisms.

Nevertheless, there are apprehensions regarding the extensive interception powers granted to the government over communications within the country. Particularly, the Act’s language suggests a potential inclusion of OTT platforms within its regulatory scope. The Union Minister’s statements excluding OTT from the Act should be formalized to ensure clarity and enforceability.

The Act’s efficacy will largely depend on the accompanying regulations’ capacity to address these issues.^[30] The effectiveness of the Act will be contingent upon the ability of the accompanying rules to address these concerns.

Conclusion:

In conclusion, the Telecommunication Act 2023 stands as a significant milestone in India’s regulatory landscape, embodying the nation’s effort to adapt to the rapid technological advancements in the telecommunication sector. The Act introduces progressive elements, including the establishment of user protection mechanisms and the foundation for satellite-based services and spectrum assignment through administrative processes. However, the Act also grants expansive powers to the government, particularly concerning interception of communication and potentially broad interpretations of its scope.

The Act’s effectiveness will be closely tied to the forthcoming rules and regulations. Careful consideration and crafting of these rules are vital to strike a balance between fostering innovation and safeguarding individual rights. It’s imperative to ensure that the Act not only keeps pace with technological advancements but also establishes a fair and transparent regulatory environment.

In this light, the forthcoming rules will play a cardinal role in determining the impact of this transformative legislation. They must address concerns over government interception powers, provide clarity on the regulation of OTT platforms, and ensure that the Act’s progressive elements are effectively implemented. Only then can the Telecommunication Act 2023 truly succeed in creating a balanced and effective regulatory framework for India’s evolving telecommunication sector.

Reference

1. Section 19 of the Telecommunication Act 2023. ↑
2. Section 20 of the Telecommunication Act 2023. ↑
3. https://prsindia.org/Acttrack/prs-products/prs-legislative-brief-1703068206, last visited on 18/04/2024 ↑
4. Section 20 of the Telecommunication Act 2023. ↑
5. Section 23 of the Telecommunication Act 2023. ↑
6. Section 21 of the Telecommunication Act 2023. ↑
7. Section 43 of the Telecommunication Act 2023. ↑
8. Section 27 of the Telecommunication Act 2023. ↑
9. Section 28 of the Telecommunication Act 2023. ↑
10. https://prsindia.org/files/Acts_acts/Acts_parliament/2023/Act_Summary-Telecommunications_Act_2023.pdf , last visited on 18/04/2024 ↑
11. Section 29 of the Telecommunication Act 2023. ↑
12. Section 11 of the Telecommunication Act 2023. ↑
13. Section 11(3) of the Telecommunication Act 2023. ↑
14. Section 12 of the Telecommunication Act 2023. ↑
15. Section 3 of the Telecommunication Act 2023. ↑
16. Justice KS Puttaswamy v. Union of India 2017 SCC 10 1. ↑
17. First Schedule of the Telecommunication Act 2023. ↑
18. Section 8(2) of the Telecommunication Act 2023. ↑
19. Section 7(2) of the Telecommunication Act 2023. ↑
20. Section 32(2) of the Telecommunication Act 2023. ↑
21. Section 9 of the Telecommunication Act 2023. ↑
22. Section 4(3) of the Telecommunication Act 2023. ↑
23. Section 7 of the Telecommunication Act 2023. ↑
24. Section 25 of the Telecommunication Act 2023. ↑
25. Third Schedule of the Telecommunication Act 2023. ↑
26. Section 57 of the Telecommunication Act 2023. ↑
27. Section 42 of the Telecommunication Act 2023. ↑
28. Section 42 of the Telecommunication Act 2023. ↑
29. Third Schedule of the Telecommunication Act 2023. ↑
30. https://economictimes.indiatimes.com/industry/telecom/telecom-news/ott-not-under-ambit-of-telecom-Act-ashwini-vaishnaw/articleshow/106224226.cms ↑