Home / Opinion / Views /  India’s Telecommunication Bill: A case for balance and elegance

On 22 September 2022, the Department of Telecommunications (DoT) published a draft Indian Telecommunication Bill, which proposes to replace laws dating back more than 140 years that have governed the country’s journey from a technological backwater to one of the World’s leading democratic digital economies.

While no one (except perhaps the odd lawyer of a certain age group) is sentimentally attached to the old “Telegraph" laws, they form the framework on which an extensive edifice of rules, regulations, tariff offers, directions and consultation papers has been created, and on which much analysis, debate, discussion and litigation has occurred.

The Telegraph Act’s replacement, therefore, much like the that of a beloved heritage building, must be constructed with due regard to aesthetics and balance, while creating a structure that is modern and functional. While the Bill is undoubtedly an important step in the right direction, we argue that it falls short of this standard in three key ways.

The first problem is one of approach. The language of the old telegraph laws was true to their origin. Created to rigidly control the use of disruptive technology in an imperial colony, they claimed for the state an “exclusive privilege" over the right to own or operate a telegraph. Since their enactment, a series of licences, registrations and exclusions has been used over the years to ‘permit’ various types of products and services in the sector.

The Bill has a very different purpose and is being created to encourage innovation and enterprise, and enable business. While a more modern (and business friendly) Bill could have narrowly defined only services which it seeks to license or regulate, the Bill regrettably clings on to some colonial roots. It reserves an even wider “exclusive privilege" over “services of any description" made available through wired or wireless means, along with all networks, infrastructure and spectrum. This means that all these things stand restricted until they are permitted by the government under a licence, registration or exclusion.

A specific concern is that the Bill proposes licensing for software which enables “over the top" calling or messaging. This approach will make India a global outlier. More importantly, licences are rigid and tend to be terrible at regulating software and platforms, which are inherently dynamic and change fast. Understandably, the provision has been met with much protest from industry, as it can prove to be crippling for small internet startups and their like. A better approach here may be to propose broad essential rules and principles for these types of services, while regulating through licences the entities that provide the underlying telecom network connectivity.

Additionally, certain types of activities, such as connectivity within private premises or “private telegraphs" have not been regulated for many years. Similar dilutions enable connectivity between customers situated within data centres. These relaxations play an important role in enabling ease of operation and reducing congestion of public networks. The broad “exclusive privilege" language also affects this long-standing position, and is a missed opportunity to provide much needed certainty to an important industry.

Similarly, the Bill requires service providers to “unequivocally" identify users through a “verifiable mode" which will be “prescribed". This identity is to be made available to recipients of messages. Service providers (and the regulator) have long struggled with know-your-customer norms and preventing unsolicited calls and messages. A more elegant alternative to ‘prescribing’ a single approach here would have been to enable the use of existing crowdsourced solutions that tackle this.

The second way to improve the Bill would be to add clarity and transparency. The need for consistent regulation (and a level playing field for all) has been long felt in the telecom sector. Concerningly, the Bill proposes that operators can make voluntary “undertakings" in relation to their breaches of licensing norms. These undertakings, which can be bilateral and opaque, raise the spectre of preferential treatment.

Similarly, like a lot of recent legislation, the Bill proposes a regulatory “sandbox" to encourage innovation and technological development in the telecom space. While this is very welcome, the Bill proposes a standalone licensing regime for these entities. In addition to making this route unwieldy for small entities, this is yet another opaque regime. A better alternative may be to prescribe specific sets of exemptions for separate classes of ‘sandboxed’ entities.

Lastly, since their inception, courts have reviewed the operation of India’s telegraph laws and used constitutional principles to read checks and balances into powers such as interception and monitoring, and the blocking of applications, services and messages.

While parts of the Bill seem to take the benefit of these learnings, other parts do not. For instance, the power to request information, as proposed, is almost entirely open-ended, and even extends to “apprehended" proceedings.

The third key focus for improvement of the Bill should be predictability. Currently, the draft proposes a period where rules made under the old laws will co-exist with the new Bill until they are replaced.

Most of these rules rely on the terminology of the old laws extensively, and this can lead to conflict and litigation. A much better approach here may be to use the time between now and the Bill’s enactment to evolve comprehensive and coherent rules under the new Bill.

The Telecom Bill is an important step towards enabling a mature and world-class telecom industry in India. It will be important, therefore, to get the details of this legislation right, and fix key aspects of the draft Bill during consultations to ensure the desired outcomes.

Arun S. Prabhu & Anirban Mohapatra are, respectively, partner & head, technology, media & telecom; and partner, Cyril Amarchand Mangaldas

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