New India Telecom Regulations Are A Relic Of The 19th Century

Telecommunication infrastructure and networks, which are arguably one of the oldest large-scale, truly national systems in India, have evolved to keep pace with technological innovation. But the evolution of the laws governing the sector has been more challenging. The Indian Telegraph Act of 1885, an archaic and outdated law that centralized rulemaking powers with the Union government, continues to govern the sector. Since its enactment, India has gained independence, a lot has changed. The telecom sector has evolved into a vast market with multiple players serving more than a billion customers. And there have been changes in the legal environment, such as when the apex court reaffirmed the fundamental right to privacy.

Recognizing the need for updated legislation for the modern telecommunication ecosystem, this week the Department of Telecommunications (DoT) introduced The Telecommunications Bill, 2023 in the Lower House of the Parliament. Introduced amid protests, walk-outs, and suspensions of Members of Parliament (MPs), the Bill was hurriedly passed on December 20 in the Lower House, and on December 21 in the Upper House. It is almost certain to become law.

At this pivotal moment, it is worth noting that the failure of India's approach to telecom law stems not from the difficulty of regulating emerging technologies, but rather from preserving the colonial approach to regulating traditional technologies. This dynamic has played out again in the passage of a bill that makes things worse rather than better.

After multiple attempts, India still didn’t get reform right

The path to this moment was not smooth. In 2022, the DoT released a white paper outlining the need for a new framework for governing telecommunications in India and sought public comments on it. Three weeks after the deadline for the consultation response, the Department published the draft Indian Telecommunication Bill, 2022 for public consultation. The bill received abundant backlash for replicating the colonial provisions even in the 21st century.

The 2023 bill, which was placed in the Parliament almost a year after receiving comments on the 2022 bill, failed to reflect reformative change. Whether it is the exact replication of language pertaining to surveillance and internet shutdown provisions, the changing of ‘licensing’ or Union government’s ‘exclusive privilege’ concepts only in name but not in spirit, or the preservation of authoritarian powers such as the possession and potential detention of telecommunication networks or services by the Union government, the Telecommunications Bill, 2023 appears to be a case of old wine in a new bottle. But even where there are changes – such as provisions expanding the Union government’s power to search and seize telecommunications networks or equipment, or to revoke the authorization of services in case of breach of any of its terms and conditions – they are reflective of a regressive, rather than a reformative approach.

The journey from overbroad to vague definitions

The Telecommunication Bill, 2022 inserted a drastically new and rather controversial definition of ‘telecommunication services’ that brought online communication services (Signal, Telegram, Skype, Gmail) under the regulatory framework applicable to traditional broadcasting services. This meant that the Union government would become empowered to exercise stringent licensing, overbroad surveillance and suspension, and user privacy infringing provisions on the internet services as well.

Despite receiving notice of widespread concerns on this particular clause, the DoT left the definition of “telecommunication services” vague enough for it to include online communication services such as social media platforms under its ambit in the future. Reportedly, lawyers at Meta are also of the opinion that there is scope for reinterpretation due to the ambiguity in the phrasing. Although the Communications Union Minister and some unnamed ‘senior officials’ have claimed that internet services remain outside its scope, the bill was passed in both Houses of Parliament without an amendment explicitly clarifying the same. Such a shortened and ambiguous definition will hinder the ability to anticipate the impact on user rights.

Obligations, duties, and penalties of users

The Telecommunication Bill, 2023 struggles to balance the state’s authoritarian, panoptic interests and individual’s fundamental right to privacy. Authorized entities, designated by the Executive, are required to identify individuals using telecommunication services, by using ‘verifiable biometric based-identification’ that will be prescribed in the future.

Among the several obvious concerns in this provision, what stands out most prominently is the focus on biometric means and the decision to delegate what can be considered a crucial clarification, to future executive rulemaking. In a country still grappling with the sobering reality of the digital divide and mass digital illiteracy, the sole reliance on technology, especially against the backdrop of a weak data protection law, is a matter of grave apprehension.

Another provision that fulfills the State’s aim to push for identity verification for all, both offline and online, imposes a duty on the user to not furnish any false information while establishing their identity for availing ‘telecommunication services.’ If the bill becomes applicable to online communication services, the ability to stay anonymous online, pivotal for vulnerable communities such as journalists and whistleblowers, will come under direct attack. The provision listing penalties have been applied to each provision of this Act, upcoming Rules, and terms and conditions of authorization. Thus, if users fail to comply with the above-mentioned provision, they will be charged a hefty penalty which starts from INR 25,000 and goes up to INR 1,00,000 for some provisions.

Archaic architecture for surveillance and internet shutdown

The Telecommunications Bill, 2023 has retained the exact language from the Telegraph Act, 1885 on surveillance provisions that allow the Union government to disallow transmission, allow interception, detention, or disclosure in ‘intelligible format’ of messages. ‘Messages’ defined as “any sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication” strengthens concerns about the bill applying to internet communication services and raises fears about its consequences on privacy measures like End-to-End encryption (E2EE). The centralization of surveillance power with the Union government, in the absence of robust safeguards, contradicts landmark domestic jurisprudence.

The bill also solidifies the power of the DoT to suspend the internet without incorporating procedural safeguards recommended by the apex court as well as the Parliamentary Standing Committee on Information Technology, and fails to rectify deficiencies in the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. The Telecommunications Bill, 2023 falls short on several measures, primarily on upholding individual privacy and promoting State accountability as well as transparency.

138 years later, individual rights are still under attack

Without any justification, the responses received by the DoT during the consultation on the Telecommunication Bill, 2022 were not publicly released. After an hour-long discussion in both Houses, the Telecommunications Bill, 2023 was passed in the Parliament despite 140+ MPs being suspended. Such a lack of transparency and commitment to parliamentary ethics is detrimental to the democratic process of framing and passing legislation.

The passage of this Bill, which after receiving the President’s assent will become an act of Parliament, does not bring about improvement in individual rights from its 138-year-old predecessor. The government must detach itself from colonial interest and re-introduce a bill that is centered on user rights before it is too late.