Abhishek Malhotra, Managing Partner, TMT Law Practice
The Telecommunications Act, 2023 (Telecom Act) has overhauled the regulatory framework for telecommunication services by replacing three archaic legislations, namely, the Indian Telegraph Act, 1885; the Indian Wireless Telegraphy Act, 1933; and the Telegraph Wires Act, 1950. The Telecom Act is expected to establish a framework that facilitates proper governance whilst reinforcing the existing rights recognised within the prevailing legal framework. However, concerns have been raised relating to the violation of privacy and excessive oversight by the state, among other issues such as the hasty manner in which the Telecom Act was passed, without sufficient consultation with industry stakeholders.
A forensic comparison with its previous iteration from 2022 reveals that, while the Telecom Act now excludes over-the-top (OTT) platforms from the definition of “telecommunication service”, the broad definitions of “telecommunication” and “message” create a certain level of ambiguity regarding the legislator’s intent, as it could inadvertently be inferred to bring OTT platforms under the Telecom Act’s purview, and consequently extend the act’s reach across a wide range of services. This underscores the need for additional clarification to ensure that the Telecom Act adheres to its intended scope, in light of the fact that the recently introduced Broadcasting Services (Regulation) Bill, 2023 already provides a framework for all types of broadcasting services, including OTT platforms.
Furthermore, Section 20(2) of the Telecom Act enables interception of telecommunications and even grants the power to intercept telecommunication services to the central government, state governments and any authorised officer. This may result in excessive oversight by the state, especially considering the Digital Personal Data Protection Act, 2023 (DPDPA), which supplements the Telecom Act by exempting the central government from abiding by the very principles of privacy that require “free” and “informed” consent to be sought prior to processing and personal data by way of Section 16(2) of the DPDPA. Such expansive and unbridled power, allowing the state to collect data, could lead to extensive acquisition of telecommunication data and potential intrusions into the private communications of individuals. The verbiage “disclose in an intelligible format to the authorised officer, upon directions” under Section 20(2)(a) of the Telecom Act signifies an intention to break end-to-end encryption, implying that telecommunication services, including platforms such as WhatsApp and Signal, known for their robust privacy practices, will now be obligated to transmit, intercept, detain or disclose messages as specified in surveillance requests/orders by the state.
While the state must ensure the security and safety of its citizens, this certainly raises significant concerns about the potential for misuse and infringement of an individual’s privacy. This is a departure from the earlier prescriptions under the Indian Telegraph Rules, 1951, where a statutory procedure was laid out whereby only highly ranked, authorised personnel such as the secretary to the Government of India and the Ministry of Home Affairs could pass such interception orders. This statutory framework for surveillance can be compared to the USA Patriot Act, 2001, wherein such surveillance is contingent upon a warrant from the secret Foreign Intelligence Surveillance Court (colloquially known as FISA court), as opposed to the Telecom Act, which clearly removes judicial oversight.
Moreover, Section 20(2)(b) of the Telecom Act allows the state to suspend telecommunication services in the interest of public safety or sovereignty “in such manner as it may be prescribed”. The lack of an explicit threshold for allowing such suspension raises concerns about the potential for arbitrariness or misuse, particularly through the reactive suspension of telecommunication services, as India is already leading in the list of countries that have imposed internet shutdowns. Such expansive oversight is in direct contravention of the Supreme Court’s stance in the Anuradha Bhasin vs Union of India (2020) case, which affirmed that internet use for expressing opinions and conducting business is protected under Articles 19(1)(a) and 19(1)(g) of the Constitution respectively. It may be prudent to revisit the principles of legal scrutiny set forth in Justice K.S Puttaswamy (Retd) & Anr. vs Union of India & Ors. case, namely, legality, necessity, proportionality and procedural guarantees.
While it is concerning that these procedural safeguards are expected to be introduced through subordinate legislation as opposed to incorporating it within the text of the statute itself, the Telecom Act does introduce some judicious additions, such as affording a regulatory sandbox to accommodate emerging technologies, and provisions regarding the protection of users from unsolicited advertisements. Moreover, Digital Bharat Nidhi has been established to replace the Universal Service Obligation Fund, underscoring the state’s efforts to provide telecom accessibility in underserved locations, thus catering to the country’s growth.
