“In exercise of the powers conferred by sub-section (3) of section 1 of the Telecommunications Act, 2023 (44 of 2023), the Central Government hereby appoints the 26th Day of June 2024, as the date on which the provisions of sections 1, 2, 10 to 30, 42 to 44, 46, 47, 50 to 58, 61 and 62 of the said Act shall come into force,” the notification reads.

The Telecommunications Act, 2023 is ostensibly designed to modernize India’s telecommunications sector, bringing it in line with contemporary technological advancements and regulatory practices. Its aim is to streamline the authorization process for telecom operators, promote innovation through expanded use of the Universal Service Obligation Fund, and ensure efficient spectrum allocation. However, this modernization effort is ironically coupled with provisions that significantly expand government control over telecommunications services and networks. The Act grants the central government extensive powers to intercept, monitor, and even take control of telecom services during emergencies, thus compromising citizens’ privacy. This juxtaposition reveals a fundamental irony: while the Act seeks to propel the telecom sector into the future, it simultaneously enacts stringent measures that undermine personal freedoms and privacy, highlighting the potential for governmental overreach in the guise of progress.

Key Changes in the Telecommunications Act, 2023

One of the most significant aspects of the Telecommunications Act 2023 is the government’s ability to take control of telecommunications services and networks during emergencies. Sections 1, 2, 10 to 30, 42 to 44, 46, 47, 50 to 58, 61, and 62, which will come into effect on June 26, 2024. Section 20, of this act is a provision that allows the central or state government, or an officer specially authorised by the government, to temporarily take possession of any telecommunication service or network. This power can be invoked during public emergencies, including disaster management, or in the interest of public safety. The government can also ensure that messages from users authorized for response and recovery during such emergencies are given priority.

While this provision is designed to ensure national security and public safety, it raises significant concerns about potential overreach and misuse of power. The broad and ambiguous definitions of “public emergency” and “public safety” can lead to arbitrary enforcement, enabling the government to suppress dissent and monitor communications without sufficient oversight. This aspect of the Act underscores the tension between ensuring security and upholding individual freedoms and privacy rights.

One of the primary changes is the shift from the existing licensing regime to a streamlined authorization process. This new mechanism consolidates the numerous licenses, registrations, and permissions currently required, simplifying the process for telecom operators. This is expected to reduce bureaucratic delays and encourage greater investment and innovation within the sector. Additionally, the Act transitions the Universal Service Obligation Fund (USOF) into the Digital Bharat Nidhi, which expands the fund’s scope beyond supporting rural telecom services to include funding for research, development, and pilot projects. This change is intended to foster technological advancements and improve telecom services across the country.

Moreover, the Act’s ambiguous language, particularly regarding key terms such as “message” and “unauthorized channels,” allows for a wide interpretation that could lead to arbitrary enforcement. This ambiguity, combined with the enhanced surveillance powers, has raised alarms among activists and legal experts about the potential for mass surveillance and misuse of authority. The Act’s provisions, therefore, represent a double-edged sword: they aim to modernize and streamline the telecommunications sector but also risk undermining democratic principles and individual rights without adequate checks and balances.

A detailed analysis of the act can be read at Sabrang.

A stronger opposition and the right to dissent

The passage of the Telecommunications Act 2023 amidst the suspension of 97 Opposition members highlights a contentious legislative process that may face a different trajectory with a stronger Opposition in the current Lok Sabha. The BJP-led NDA’s reduced majority, with the Opposition gaining ground to approximately 230 seats, suggests a more assertive parliamentary dynamic. The Congress party, now with 99 members, and other opposition factions are poised to challenge the Act’s provisions that grant extensive surveillance powers to the government. With issues ranging from alleged irregularities in exit polls to broader concerns about civil liberties and privacy, the strengthened Opposition is likely to advocate for amendments aimed at bolstering safeguards against potential governmental overreach. The upcoming parliamentary sessions are expected to be marked by heated debates and rigorous scrutiny of legislative measures, reflecting a vibrant democratic process where checks and balances play a pivotal role in shaping telecom policy and protecting fundamental rights.

The notified Telecommunications Act, 2023 can be read here:

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The Telecommunications Bill, 2023, introduced by Union Minister Ashwini Vaishnaw in the Lok Sabha on December 18, 2023, aims to overhaul antiquated legislation like the Indian Telegraph Act, 1885, and Indian Wireless Telegraphy Act, 1933. This bill intends to “modernise” regulations governing communication technologies to adapt to the evolving digital landscape. The bill was passed on December 20, 2023 with no substantive debate as the Opposition benches remained largely empty with as many as 97 MPs having been suspended from the House.

The Bill was passed in an aggressive and tumultuous session of Parliament with 97 members of parliament (MP) suspended at the time of its passage in the Lok Sabha while, at the same time, another 46 MPs had been suspended from the Upper House, the Rajya Sabha. 

Key Provisions

Scope and Ambiguity

The bill’s language is broad and ambiguous, causing apprehension among activists and legal experts. Its potential expansive interpretation raises concerns about its application to all digital applications within India, impacting fundamental rights such as privacy, freedom of expression, and access to information.

Authorisation requirement

The proposed Bill aims to overhaul the existing licensing regime for telecom networks, transitioning from the current system to an authorisation framework. Under the present arrangement, the telecom department issues over 100 types of licenses, registrations and permissions. The Bill aims to streamline this process by consolidating many of these into a “single authorisation mechanism.” 

A pivotal element of the bill mandates authorisation for all telecommunication service providers. Failure to comply could lead to the blocking or banning of channels. However, ambiguity surrounding the definition of “unauthorised channels” raises concerns about potential misuse or arbitrary enforcement by authorities. 

Prior authorisation from the union government will be required to provide telecommunication services, establish, operate, maintain, or expand telecommunications networks, or possess radio equipment. 

Existing licenses will continue to be valid for the period of their grant, or for five years, where the period is not specified.

Assignment of spectrum

Spectrum will be assigned by auction, except for specified uses, where it will be allocated on an administrative basis. These include purposes such as national security and defence, transport, satellite services such as DTH and satellite telephony, and BSNL, MTNL, and public broadcasting services. The union government may re-purpose or re-assign any frequency range. The union government may also permit sharing, trading, leasing, and surrender of spectrum.

Regulation of OTT Apps

The Bill has removed over the top (OTT) services and apps from the definition of telecommunication services, in a big relief to communication service providers such as WhatsApp and Telegram. The Ministry of Electronics and IT will handle the regulation of OTT apps under the potential Digital India Act, not included in the Telecom Bill.

Adjudication process

The union government will appoint an adjudicating officer to conduct inquiries and pass orders against civil offenses under the Bill.

Penalties and Surveillance Powers

The bill imposes stringent penalties on users accessing “unauthorised channels”, subject to authorities’ discretion. It grants the government extensive powers for temporary control and tracking of information on grounds of public safety and national security, prompting fears of unchecked surveillance and communication network control.

The Bill specifies various criminal and civil offenses. Providing telecom services without authorisation, or gaining unauthorised access to a telecom network or data, are punishable with imprisonment up to three years, a fine up to two crore rupees, or both. The breaching of terms and conditions of authorisation is punishable with a civil penalty up to five crore rupees. The possession of unauthorised equipment, or using unauthorised network or service, is punishable with a penalty of up to ten lakh rupees.

The messages between two or more persons may be intercepted, monitored, or blocked on certain grounds. Such actions must be necessary or expedient in the interest of public safety or public emergency, and must be in the interest of specified grounds which include: security of the state, prevention of incitement of offenses, or public order. Telecom services may be suspended on similar grounds. The government may take temporary possession of any telecom infrastructure, network, or services on occurrence of any public emergency or public safety. An officer authorised by the government may search premises or vehicles for possession of unauthorized telecom networks or equipment.

Critical Analysis

Democratic process and Opposition absence

The bill’s passage in the Lok Sabha occurred amid the suspension of over 143 Opposition leaders in both houses of Parliament (97 Opposition MPS were not even present in the Lok Sabha at the time of its passage). The absence of opposition voices during the debate and voting stages raises questions about democratic processes, undermining essential checks and balances required for comprehensive legislative scrutiny.

Concerns about fundamental rights

The bill’s vague language and extensive powers raise substantial concerns about potential violations of fundamental rights, particularly the right to privacy and freedom of expression. Biometric Authentication is mandatory for telecom customers to combat spam calls and messages. Its broad scope could facilitate mass surveillance without adequate safeguards.

Ambiguity and interpretation

Key terms like “message” and “unauthorised channels” lack precise definitions, providing wide leeway for interpretation. This ambiguity might allow arbitrary application and selective enforcement, potentially impeding constitutional freedoms.

Importance of Deliberation and Transparency:

The hurried passage of the Telecommunications Bill, 2023, without robust debate or input from diverse representatives, diminishes the democratic essence of legislative processes. Laws regulating communication technologies have far-reaching implications for citizens’ rights and freedoms, necessitating thorough scrutiny and robust safeguards.

Status of the Telecom Sector in India

The Telecom industry in India is the second largest in the world with a subscriber base of 1.179 Billion as of August 2023 (wireless + wireline subscribers). It is also the fourth largest sector in terms of FDI inflows, contributing 6% of total FDI inflow. India has an overall tele-density of 84.69%. Tele-density denotes the number of telephones per 100 population, and is an important indicator of telecom penetration. The average monthly data consumption per wireless data subscriber has also increased to 17.36 GB in March 2023 from 61.66 MB in March 2014.

Conclusion: A call for transparency and accountability

The passage of the Telecommunications Bill, 2023, in the Lok Sabha, amidst concerns about its impact on fundamental rights, raises critical questions about balancing security, regulation, and upholding democratic principles. Comprehensive deliberation, transparency, and a balanced regulatory approach are crucial to safeguard national security interests while preserving citizens’ constitutional freedoms.

The new bill brings about far greater powers for the government than the laws it replaces. Many activists and researchers have called the bill “draconian” because it empowers the government to temporarily control and track information on grounds of public safety and national security. 

As The Wire reports, a message under this Bill is defined as any “sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication.” A key feature of the Bill is that its scope is ambiguous enough to be broadly applicable to all digital apps within the country, which will be forced to comply with the law. 

“Definitional ambiguity in the Telecom Bill, 2023 leaves us worried and confused about its application to internet services. In any scenario, the bill will have implications for our fundamental right to privacy as well as our constitutional freedoms such as freedom of expression and right to receive information,” Internet Freedom Foundation noted. Further, any telecommunication service will have to apply for authorization under the Bill, which means that any unauthorized channels will likely be blocked or banned.

Using unauthorised channels comes with steep penalties for users, if the authorities have “reason to believe so” – another vague provision whose ambiguity raises concerns about how it might be applied. The process being undemocratic raises concerns as the Bill is one big step closer to becoming law. It is crucial to ensure that such bills undergo meticulous scrutiny, encompass robust safeguards for fundamental rights, and reflect the consensus of diverse voices in a democratic society. Transparency, accountability, and a balanced approach to regulation are essential to create an environment that protects both national security interests and citizens’ constitutional freedoms.

(The author is an intern with the organisation)

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