Based on the IndianTelegraph Act of 1885, the WirelessTelegraphy Act of 1933, and the TelegraphWires (Unlawful Possession) Act of 1950, the Indian Parliament introduced the Telecommunications Act of 2023 to update the nation's century-old telecom legislation. Almost a year after the consultation process for its 2022 counterpart, the draft Indian Telecommunication Bill, 2022 (or "Telecom Bill, 2022"), the Telecommunications Bill, 2023 (or "Telecom Bill, 2023") was introduced in the Lok Sabha on December 18, 2023, which has received presidential assent and has been passed as The Telecommunications Act, 2023 (“Act”). The 1885 colonial statute has been repackaged by the Department of Telecommunications ("DoT") with the intention of overhauling it, but it still retains the Union government's draconian surveillance and internet suspension powers.
The Act aims to implement several fundamental changes to the industry's current regulatory protocols, including the implementation of strict requirements for user authentication, clarification of spectrum allocation, and streamlining of the licensing process. But it also squanders the opportunity to restructure the telecom industry and adopt regulations that support user rights instead of infringing upon them.
Unfortunately, the Act increases the government's unbridled power to order internet shutdowns, imperils encryption which is a crucial barrier to privacy and freedom of speech and strengthens monitoring without external review. Therefore, the act has to be repealed and revised to address these shortcomings since it now poses a serious threat to democracy, individual liberty, and the integrity of the Internet as a whole.
A Step Towards Unfettered Authority?
The Indian government's new legislation gives them the authority to intercept messages and reveal them in a "intelligible format" without giving the encrypted messaging services any leeway. The inalienable feature of end-to-end encrypted platforms—that is, the assurance that messages in any format be only seen by the sender and intended recipient(s), including the service provider—is seriously threatened by this. The requirements of the Act may cause secure services to decide not to operate in India, which would undermine people's freedom of speech and privacy—especially in light of the growing prevalence of cyberattacks and surveillance. Any alterations made to the design of encrypted platforms in order to provide access may result in security holes that might be used by a variety of entities to carry out indiscriminate spying. Thus, internet safety may be compromised. This, in turn, could weaken online safety and cyber resilience for individuals, businesses, and governments.
India has now witnessed the highest number of internet shutdowns for five years in a row. Rather than modifying the structure to avert disconnection and the consequent impairment of rights and liberties, the Act solidifies existing authority to halt telecommunication services devoid of oversight. Through Clause 20(2)(b), the Telecom Act,2023 the government cements the internet suspension power with the Department of Technology majorly missing the procedural safeguards as directed by the Supreme Court in Anuradha Bhasin vs Union of India and the Standing Committee on Information Technology in its report. However, internet shutdowns are inherently disproportionate and should not be perpetuated. As a former UN High Commissioner for Human Rights aptly stated that when a state shuts down the internet, both people and economies suffer.
Telecommunication Act A Threat To Our Fundamental Rights?
Historically, the country's telecom laws have been abused to spy on our gadgets and block our internet access. These laws are developing along with the times, extending their scope of application to include new and emerging services. An attempt was made to integrate online communication services (such as Signal, Zoom, Skype, and Gmail) under the licensing scheme that was previously in place for broadcasting services in the Telecom Bill, 2022. The democratisation of Internet communication services and the extension of monitoring and suspension powers from traditional broadcasting services would destroy user rights and democratic liberties beyond repair. We are concerned and perplexed about the Telecom Act of 2023's applicability to internet services because of its definitional uncertainty.
In K.S.Puttaswamy (Privacy-9J.) v. Union of India, the Supreme Court affirmed that the right to privacy is an inherent part of the right to life and personal liberty under Article 21 of the Constitution of India. the implementation of Section 20of the Act, if not done proportionately, will amount to an infringement of the 'right to privacy' of the individuals as guaranteed under the Constitution of India.
The citizens' fundamental rights are seriously threatened by these arbitrary powers granted to the state and the federal government. With the passage of the Broadcasting Services Bill, Digital Personal Data Protection Act, Post Offices Bill, Criminal Procedure Identification Act, IT Rules 2021, and Telecommunication Act in 2023, the state is putting more and more pressure on the digital aspects of our life.
Legal Standing On Privacy And Civil Liberties In India
India's Telecommunications Act 2023 has sparked heated debate over its potential impact on privacy, civil liberties and democratic values. This legal analysis aims to analyse key aspects of the Act, review its compliance with constitutional provisions and global human rights standards, and assess its likely impact on individuals, businesses and government agencies.
The act will be examined in the context of India's constitutional framework, taking into account the fundamental rights guaranteed by the constitution. Articles 21, 19 and 14, respectively, guarantee the right to privacy, freedom of speech and expression and protection against arbitrary conduct. Additionally, the Act gives the government the power to enforce encryption standards and data processing without explicit restrictions. Such regulations create ambiguity and may cause confusion among service providers.
Lastly, it is important to pay great attention to whether the Act complies with international human rights standards, particularly the International Covenant on Civil and Political Rights (ICCPR). As a party to the International Covenant on Civil and Political Rights, India is committed to upholding rights to privacy, freedom of expression and access to information.
Potential Problems That The Act Is Going To Face
The Act's guarantee of "verifiable biometric based identification" has raised concerns since it might be used as a rationale for the mandatory Aadhaar-to-mobile phone linking, which the Indian Supreme Court ruled to be illegal. For that reason, this clause is devoid of protection in many aspects, but it is particularly inadequate when it comes to developing technology solutions for a country that is still fundamentally digitally naive.
The Act has determined that there are severe penalties for breaching the regulations. In case of non-compliance with these regulations, the related penalty might be as high as INR 25,000 for the first offence and as high as INR 50,000 for each consecutive offence, depending on how long the violation persists. In light of the low level of digital literacy in the nation, it is imperative that such clauses not be imposed with such heavy fines. Additionally, authorities ought not to misuse the associated penalty by forcing consumers to use Aadhaar without their consent.
The Act will involve a contentious spectrum allocation between the requirement for auctions and administrative allocation for certain scenarios. The Supreme Court's decision regarding spectrum distribution would be examined. It is noteworthy that the sole use of administrative approvals for spectrum allocation may result in illicit allocations and fraudulent schemes that lack due process.
The country's telecom regulations have historically been used to limit our internet access and conduct gadget surveillance. These rules get more comprehensive as they evolve to reflect new and emerging technologies. The democratisation of internet communication platforms, coupled with the widening of surveillance and censorship capabilities from conventional broadcasting services, threatens to irreparably dismantle user rights and democratic freedoms.
The updated draft neglects to address the shortcomings highlighted in the previous version while introducing additional provisions that further fuels the existing issues. It is imperative at this juncture to prioritise inclusivity and engage in prolonged consultations regarding the Act. This process should involve incorporating amendments that uphold fundamental rights, specifically safeguarding encryption, privacy, and security, as well as ensuring unobstructed access to a free and secure internet. Without substantial revisions, India risks squandering the chance to demonstrate leadership among democratic nations in the digital era, which the revamping of the telecommunications framework offers.
The authors are students at National Law University, Lucknow.. Views are personal.