Tag: TheIndianTelegraphAct

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 These laws are, needless to say, grossly outdated when viewed in the expansive context of the technological advancements that have shaped Indian telecommunication over the years.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.

Case number

Writ Petition (C) No. 1031 of 2019.

Equivalent citation

AIR 2020 SC 1308.

Bench

Hon’ble Chief Justice of India N. V. Ramana, Hon’ble Justice R. Subhash Reddy, Hon’ble Justice B. R. Gavai.

Date of Judgement

January 10, 2020.

Relevant Act(s)

“Constitution of India”, “The Code of Criminal Procedure (Amendment) Act, 2005”, “The Indian Telegraph Act, 1885”

Facts of the case

The issue came in 2019 when the Government of Jammu and Kashmir issued a “Security Advisory” and directed the tourists (including numerous “Amarnath yatris”) to return in order to ensure safety. Adding to this, orders were issued to shut down educational institutions. Finally, on 4th August, internet connection, phone networks, and landline connections were cut off too. On August 5th, the President decided to impose “Constitutional Order 272”. As per this order, the provisions of the Indian Constitution would be applied to Jammu and Kashmir. Simultaneously, Section 144 of the CrPC was imposed in order to maintain peace in the valley. Due to such restrictions that were imposed, movements of various journalists were hampered a lot as well. As an outcome of this, the “Kashmir Times Srinagar Edition” could not get distributed on 5th August. The petitioner is the executive editor of the “Kashmir Times” newspaper. The petitioner has also claimed that she had not been able to publish the newspaper since the next day, i.e., 6th August 2019. Under Article 32 of the Indian Constitution, the petitioner had approached the Hon’ble Supreme Court, for issuance of a writ for setting aside the orders imposed by the respondents. She claimed that the Internet is an important factor in today’s world. She also claimed for lesser restrictions in the movement of journalists.

Issues

• Whether the Government can claim exemption from producing all orders passed under CrPC Sec 144 and others under suspension rules.
• Whether “freedom of speech and expression” and “freedom to practice any profession, or to carry out any trade” over cyberspace can be considered a fragment of the fundamental rights under “Part III of the Constitution”.
• Was it valid on the Government’s part to restrict internet facilities and to impose restrictions under “Section 144 of the CrPC”?
• Was the petitioner’s “freedom of the press” violated due to the restrictions?

Arguments

Arguments made by the petitioner:
The first argument put forward was that the petitioner could not do her job and get the newspaper published due to the imposed restrictions (on press) from 5th August 2019. Since internet facilities were stopped, the print media got hampered badly. Hence, people’s livelihood got affected due to the restrictions (violation of Article 19(1)(g) of the Indian Constitution). The right to speech was violated, due to the cutting down of internet facilities. It was argued that the restrictions made were not at all reasonable or proportional in any sense. The counsel contended that all the restrictions were levied on the premise of the apprehension of some danger to the regulations and law. Also, there is a difference between “public order” and “law and order”. The restrictions imposed and the measures taken were in order to protect “law and order”. Also, these restrictions did not even seem to be temporary, because it had already been a long time since they were functioning. It was argued that the state should have undertaken a less strict alternative in the beginning. Also, the restricting movement was applied over the entire state, and not in specific regions. The petitioners contended that such a restriction all over the state was unnecessary.

Arguments made by the respondent:
The primary argument made by the respondent was that these restrictions were absolutely necessary in order to fight terrorism in the state. They also claimed that general freedom of expression and speech cannot be applied to the Internet, because there are a lot of dangers on this platform. It was argued that it is not possible to shut down specific websites, hence, a total shutdown was the only alternative. They also claimed that the situation was getting exaggerated.

Judgement

The Court held that the “freedom of speech and expression” and “freedom to practise any profession or to carry out any trade” on cyberspace are protected under Articles 19(1)(a) and 19(1)(g) respectively. It was held that any restrictions on the abovementioned rights, would have to be reasonable and in compliance with Articles 19(2) and 19(6) of the Constitution. Hence a “proportionality test” was ordered by the Apex Court. If the restriction to internet access is not found to be proportional then it would cease to exist. It was held that: “the government cannot contend any exception for providing any order before the court which is passed under Section 144 of the CrPC.” No order was issued by the court to provide remedies to those who were already affected, but a lot of principles were laid down for future suspensions. Apart from these, the court dismissed the plea where the petitioner claimed that freedom of the press was violated due to the restrictions, due to lack of evidence.

Conclusion

Internet is an important part of our daily life in today’s world. We are very much dependent on the internet for a lot of things including trade and business. It can be concluded that Internet has become so important that it is being included in Part III of the Indian Constitution. This judgement is very significant because the primary aim of the case was to judge the legality of the restriction of internet facilities. The Apex Court had also introduced a number of principles that would prevent undue misuse of the powers provided to the Government, especially in such cases.

This article is written by Aaratrika Bal student at National Law University Odisha.