Opinion
Telecom Bill: It’s good for new services but must address dissonance too
Summary
- India’s legislative proposal aims to reset regulation in a way that will brighten the telecom sector’s future. This is welcome. But the government ought to rethink aspects that leave space for unwelcome outcomes.
The Telecommunications Bill, 2023, makes one policy choice clear. If enacted, spectrum for satellite broadband services will be awarded via administrative allocation, rather than auctions. This is pragmatic and provides clarity for an emerging field of telecom that is expected to expand connectivity. It aligns India with US norms and sets the stage for global players to enter. This proposal, though, needs to shake off an overhang of the Supreme Court’s 2G spectrum allotment ruling of 2012, which cancelled the licences of 122 entities and recommended auctions of scarce natural resources. While the government is certain it has space to determine policy, it is advisable to legal-proof the decision against future litigation. By keeping business expectations stable, it would catalyse investments in new services.
The Telecom Bill also has grey zones, however, that call for a closer look. For instance, its definitions of telecom, telecom services and what constitutes a message are so broad that it potentially leaves a door open for wide interpretation. In this context, it would help if we had clarity on whether messaging apps like Whatsapp, Signal, Telegram, et al—or for that matter platforms like Microsoft Teams and Zoom—that use telecom networks are excluded from regulation meant for telecom carriers. Much has been made of the term OTT (over-the-top) being dropped from an earlier draft of this bill, but the current formulation also seems at risk of an oversight overlap with the IT ministry’s zone of coverage, which prescribes rules for chat apps (classified as intermediaries) and has a Digital India Act on its way. Government sources say that the regulatory ambit of the 2023 Bill is solely carriage, and don’t expect a legal challenge. These definitions, they say, are drawn from the Indian Wireless Act of 1933 and updated to include interpretations from court judgements and international laws. The Bill’s scope is said to exclude internet-based services and any means of communication in use that are not linked to telecom identifiers (like our phone numbers).
The red flags being raised by stakeholders and civil society are over the Bill’s broad provisions that would allow the Centre to take over, manage or suspend any or all telecom services or networks in the interest of national security or in case of an exigency like war. To prevent misuse, we need to set a high bar. Ideally, only a declared national emergency under Article 352 of the Constitution should be allowed to trigger such action. At the very least, it must take Parliamentary approval. And then, Clause 20(2) proposes message interception and service suspension in case of a public emergency or for public safety. This part must necessarily align with our fundamental rights under the Constitution, of which privacy is a part. Another clause would let the government notify standards for encryption and data processing in telecom, and also watch compliance. This raises the question of whether it empowers the Centre to frame rules that may force popular chat apps to give up scrambling messages from one end to another. If that happens, an important bastion of privacy in people’s daily lives would come apart. In the past, the Centre made no secret of a discomfort with online secrecy. Even so, private conversations must stay privy to those who hold them. The government has an opportunity to incorporate such feedback, address points of dissonance and deliver a telecom regulatory system that will serve the country well.
