The Department of Telecommunications at the Ministry of Communications, on 21 September 2022, published the Draft Indian Telecommunication Bill, 2022. The Act, according to its Preamble, seeks to consolidate and amend the laws governing the telecommunication sector in India: the provision of services, management of networks, and the assignment of spectrum. Telecommunication governance in India is currently founded on three bodies of work, which are as follows: the Indian Telegraph Act, 1885, the Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950. These laws are, needless to say, grossly outdated when viewed in the expansive context of the technological advancements that have shaped Indian telecommunication over the years. Telegraphs are no longer even in use. There are new gadgets, software, and technologies such as 4G and 5G and the Internet of Things, that were once believed to be out of reach for countries like India but are now used extensively used and are providing new pathways to socio-economic progress.

There was, therefore, an urgent need for comprehensive, modern legislation that would accommodate these growing needs and take into account the needs of the sector as it currently stands, while providing space for future growth as well. The Indian Telecommunication Bill, 2022 (Draft) has been designed to repeal the outmoded laws mentioned above, and revolutionize the telecommunication sector in India. Further, the telecommunication sector is responsible for the livelihood of around 4 million people and accounts for approximately 8% of India’s GDP. Therefore, the Act is also meant to ensure that the telecommunication infrastructure is made affordable, accessible, dependable, and secure.

EXCLUSIVE PRIVILEGE OF THE CENTRAL GOVERNMENT

The Draft Bill, after examining and consulting telecommunication legislation from around the world, stuck to familiarity and prescribed that the Central Government shall have exclusive control over the telecommunication sector, which extends to the granting of licenses, assigning spectrum, allotting projects to contractors to provide telecom infrastructure, authorizing possession of wireless equipment etc. According to Section 3(1) of the Indian Telecommunication Bill, 2022 (Draft), the Department of Telecommunication granted exclusive privilege to the Central Government to (a) Provide telecommunication services (b) Establish, operate, maintain and expand telecommunication network and telecommunication infrastructure; and (c) Use, allocate and assign spectrum.

 Telecommunication services have also been expanded to include any services that are provided to users through telecommunication, including but not limited to broadcasting services, electronic mail, internet and broadband services, over-the-top (OTT) communication services etc. The overly broad definition means that licenses, for the first time, will also be required for software platforms such as WhatsApp and Messenger, a position which will make India a global outlier. Licensing software is not a common practice in the international arena. These stringent measures will have the effect of restricting, rather than facilitating growth and development of the telecommunication sector. Earlier, these platforms did not require any licenses and used the telecommunication infrastructure provided by the Telecom Service Providers (TSPs), who in turn was obligated to obtain a license.

Now, however, even OTT platforms will have to obtain a license, observe encryption regulations, allow lawful access of their users’ records to the government, and be answerable to authorities. This added cost will act to put several such platforms out of business, especially those that function on a small/medium scale, as their business framework will become unviable. Moreover, for new and emerging software startups, it will become extremely hard to procure meaningful investment, as investors and venture capitalists will be wary of investing in a platform that may or may not acquire a license, and therefore might never actually come into existence.

USER IDENTIFICATION AND PRIVACY CONCERNS

The Draft states that all licensed entities will be legally liable to identify their users. This identity will further be shared with everyone who receives a message from them. For example: Once the Bill gets passed, the name of the caller, along with their contact number, will also show up. This raises questions of wide proportions, such as issues about people’s right to privacy. Service providers might also be forced to compromise on the quality of service they strive to provide to their users, having to intercept exchanges between unknowing parties or specifying how their software functions. The privacy of correspondence has been widely accepted as an inalienable part of the right to privacy, enshrined under Article 17 of the International Covenant on Civil and Political Rights. Users will no longer have any choice about who their information gets shared with, or how it gets shared. This also compromises India’s international standing, as it violates certain principles of international law.

SPECTRUM MANAGEMENT AND TRADING

Spectrum is considered to be a good of public importance, and hence the Indian Telecommunication Bill, 2022 (Draft) states that it must be assigned, licensed, and traded keeping the public’s interests in mind, to ensure maximum benefit. Therefore, while the principle mode of assigning spectrum is to be through auction, if it is for any government purpose or any other reason provided under Schedule 1 of the Draft, including but not limited to, national security and defence, law enforcement, and crime prevention, disaster management, etc., it is to be assigned through the administrative process. It may also be assigned through any other mode that may later be prescribed. Section 6 of the Bill says that the Central Government may also allow the sharing, trading, leasing, and surrender of spectrum assigned under Section 5(2). This will facilitate healthy competition between numerous market players, while also allowing potential new players to enter the market who would not have been able to procure spectrum without such a provision.

RIGHT OF WAY FOR TELECOMMUNICATION INFRASTRUCTURE

To establish telecommunication networks and infrastructure, a service provider must acquire the right of way over the properties over which or through which such services will be set up. The provisions in the Draft Bill allow for the acquisition of the right of way in a uniform, non-discriminatory, non-exclusive manner. Section 13 states that any facility provider may apply to a public entity to acquire the right of way to lay down telecommunication infrastructure.

STANDARDS, PUBLIC SAFETY AND NATIONAL SECURITY

According to the Draft Bill, in case there is a public emergency, the Central Government may temporarily take over the possession of any telecommunication services. They may also restrict the transmission of, or intercept messages if they think fit to do so to ensure public safety. This means that the Indian Telecommunication Bill, 2022 (Draft) also explicitly provides power to the Government to cause internet suspensions, without providing any safeguards to ensure that it isn’t done so injudiciously. This may lead to the exercise of undue power if care is not taken to introduce certain checks in this regard.

INNOVATION AND TECHNOLOGY DEVELOPMENT

The Draft Bill proposed the creation of a ‘Regulatory Sandbox’ to enable innovation and technological development in telecommunication. This provision will make it easier for participating service providers to procure licenses or authorizations if they agree to conduct live testing under the supervision of government authorities. The Government shall provide a controlled environment wherein experiments to advance telecom technology may be undertaken by these providers.

PROTECTION FOR USERS

According to Section 33 of the Draft Bill, the Central Government may provide certain guidelines for the protection of users from specified messages, which include advertisements of random goods and services. This may include obtaining a subscription or the prior consent of the user before sending such advertisements their way, or the creation of “Do Not Disturb” registers.

CONCLUSION

While the Indian Telecommunication Bill, 2022 (Draft) has sufficiently consolidated the previous three works of legislation regarding telecommunication services, it has yet to truly meet its goal of accommodating the increasingly modern and rapidly growing technology in the sector. In a world like ours, where markets are already ruled by monarchs and oligarchs, and it is nearly impossible for a new player to make their mark, this Bill in some ways, makes it harder for small and medium-scale businesses to stay afloat, and for new players to enter the telecommunication sector. Expanding its definition of telecommunication services has also made it harder for generally non-traditional platforms of service providers to stick around.

Then there is also the question of privacy, and whether the Bill truly allows people the right to private correspondence. However, there are other provisions such as the one that allows the sharing and trading of the spectrum that has been assigned to a licensed party which introduces healthy competition in the market, and opens at least one pathway for the new players to enter the telecommunication sector. Further, it has also sought to facilitate the acquisition of a right of way to lay down telecommunication infrastructure and provide protection to users from unwarranted spam calls. While certain provisions raise doubts, these rules work together to balance the scale, paving the way for the Indian telecommunication sector to become more streamlined, efficient, and secure.

ENDNOTES

1. Indian Telecommunication Bill, 2022 (Draft), No 1, Act of Parliament, 2022
2. Arun Prabhu et al., The Draft Indian Telecommunication Bill, 2022: A Work in Progress, Cyril Amarchand Mangaldas (Oct. 4, 2022, 3:30 PM), https://corporate.cyrilamarchandblogs.com/2022/09/the-draft-indian[1]telecommunication-bill-2022-a-work-in-progress/#_ftn7
3. Trishee Goyal, Explained | The Draft Telecommunication Bill, 2022, The Hindu (Oct. 4, 2022, 4:07 PM), https://www.thehindu.com/business/Industry/explained-the-draft-telecommunication-bill-2022/article65952169.ece
4. Maansi Verma & Prasanna S., How the Draft Telecom Bill Institutionalizes Big Brother’s ‘Saffron Tick’, The Wire (Oct 4, 2022, 7:40 PM), https://thewire.in/government/draft-telecom-bill-institutionalises-big-brother-saffron-tick

This article is written by Aanya Sharma, currently pursuing law at Campus Law Centre, Faculty of Law, University of Delhi.