The telecom bill is like a curate’s egg: It is good in parts

The Telecommunications Bill of 2023 is like the proverbial curate’s egg—it is good, in parts. The telecom industry has good reasons to cheer this bill as an improvement over the creaky and outdated mechanisms of the Indian Telegraph Act passed in 1885. However, the Bill, recently passed by Parliament, suffers from lacunae that are likely to impact its viability and leave it open to legal and constitutional challenges. Good legislation requires a thorough identification of relevant principles, careful drafting for clarity, and vigorous discussions to iron out kinks. It is worth pondering if the Bill meets these requirements. In terms of principles and drafting, there are at least four significant issues.

First is the issue of over-broad and vague definitions. The rule of law requires certainty and clarity. Vague drafting can have serious practical implications for industry because it is left unsure of compliance requirements and for citizens whose rights depend on the interpretation of a law rather than on the black letter of the law itself. While the overt deletion of over-the-top (OTT) services from the Bill’s definitions of “telecommunications” and “telecom services” is welcome, these are defined broadly enough to potentially cover such services by the standard method of statutory interpretation. There is no conceptual distinction drawn between “content” and “carriage” services that can be used to ensure that messaging services are kept out of its ambit. Therefore, the regulation of OTT services under this Act, should the government decide to do so, may well be possible. This is problematic for OTT services, which remain unsure whether they need “authorisation” to operate or not. It is also problematic for citizens for various reasons, including, for example, the requirement of biometric identification, as may be prescribed of persons to whom services are being provided. While the contours of online privacy may be contested in cases of crime, mandatory identification for the provision of internet services would effectively end all anonymity online and have a chilling effect on internet speech.

This provides a natural segue into the next broad issue. The Bill does not give the impression that it has grappled at all with the fundamental right to privacy. In the Aadhaar judgement, the use of Aadhaar IDs for purchasing sim cards was struck down as being disproportionate. The Telegraph Act specifically allowed for alternatives to Aadhaar, as did the 2022 iteration of the Telecommunications Bill. Yet, in an adverse change, the current Bill insists on biometric identification without alternatives or safeguards.

Under Chapter IV of the Bill, the government can notify standards for encryption and interception or detention of any message or class of messages to and from a person in the interest of the sovereignty and integrity of India, defence and security of the state, friendly relations with foreign states, public order, or for preventing incitement of the commission of any offence. Considering the broad definitions used, this may be construed as a significant weakening of encryption. Further, the Bill contains no guidelines, principles or safeguards that guide the government to notify such standards. Since the power to formulate legislative policy cannot be delegated in law, it will be interesting to see how such delegation is justified constitutionally. The number of areas left to the rule- making powers of the government without identification of clear principles could potentially lead to legal challenges.

Third, the broad power for internet access denial contained in the Bill, in the teeth of judgements of the Supreme Court in Anuradha Bhasin and Foundation for Media Professionals, means that India has no legislative proscription of internet shutdowns, which are more prevalent in India than in any other democracy.

The fourth issue is the broad powers of search and seizure that appear to lack safeguards, such as those contained in laws like the Income Tax Act.

In terms of process, much greater transparency was required for the formulation of the Bill. There is no clarity on how the feedback obtained during the 2022 consultation was incorporated. The Bill was introduced in the Lok Sabha on 18 December and passed on 20 December with minimal debate. This was a case where referral to a parliamentary committee could have been beneficial. In addition, somewhat inexplicably, this Bill was introduced as a Finance Bill, which limits the Rajya Sabha’s inputs on the draft under Article 117 of the Constitution. As a result, we have legislation that has not gone through the legislative grinder in a way that ensures if not a flawless bill, but one which is acceptable in most parts to the persons and industry it purports to regulate.

It would be churlish not to acknowledge the solid benefits of the Bill: the procedure relaxation on spectrum allocation for satellite broadband services, including the removal of a costly and lengthy auctions, the clarity offered on Right of Way rules, and the reduction in penalties. These are some of the Bill’s provisions that will enable both large and small telecom entities to play appropriate roles in offering telecommunication services in the country. However, the drawbacks of the Bill are significant.

In order to give effect to swaraj, laws in Independent India must ideally empower citizens, recognize and respect their rights, and temper state power. This Bill needs to go some distance before it can be said to meet these requirements.

Rahul Narayan & Shreya Gupta are, respectively, a partner and a managing associate at law firm Chandhiok and Mahajan.