The draft Indian Telecommunications Bill, 2022, which intends to consolidate laws on the provision, development, and expansion of telecommunication services, networks, infrastructure, and spectrum has passed one more stage—public scrutiny. It was put out in the public domain in the third week of September, a little over a year after the Pegasus snooping controversy broke, and interested parties had until October 20 to review and respond.
The Bill does not reflect many of the concerns pertaining to surveillance, Internet shutdowns, and licensing and seems in many ways to be the 21st century avatar of the Indian Telegraph Act (ITA), 1885. One of the main concerns is that it is tilted heavily in favour of telecom service providers, leaving Internet service providers at a disadvantage. It also fails to articulate the spirit and essence of judicial pronouncements on privacy (the K.S. Puttaswamy judgment) and data protection. Besides, its all-encompassing definition of telecommunication services brings an entire range of disparate services under its regulatory ambit.
The definition of telecommunication and telecommunication services has been broadened. While the former includes the transmission, emission, or reception of a message by wire, radio, optical, and other electromagnetic systems, the latter includes service of all descriptions—broadcasting, electronic mail, voice mail, voice, video and data communication services, fixed and mobile services, Internet and broadband services, Internet-based communication services, and over the top (OTT) services.
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One of the sections in the Bill that has drawn genuine concern is Section 24—“Provisions for public emergency or public safety”. The Central or State government or any officer authorised by them, can, in the event of any public emergency or in the interest of public safety, take temporary possession of any telecommunication service, network, or infrastructure from a licensee or a registered entity. They can also in the interest of sovereignty, integrity, security of India, friendly relations with foreign states, public order, or on the grounds of preventing incitement to violence, order, in writing, the stoppage of transmission of a message or a class of messages from a person or a group of persons relating to any subject and received by a telecommunication service or network. The message will be disclosed only to the officer mentioned in the order issued by the appropriate authority.
The order can also direct the suspension of communications or a group of communications. The section also decrees that all actions in the subsections will be maintained so long as the public emergency exists and in the interest of public safety. The section is silent on what construes a public emergency or a situation involving public safety.
Section 25 gives the Central government powers to take measures by issuing notifications in situations involving national security, friendly relations with foreign states, or in the event of a war. Among the measures are directions for the use of telecommunication equipment; services; infrastructure and network; standards applicable to manufacturers, importers, or distributors of telecommunication equipment; standards to be adopted by licensees; procurement of telecommunication equipment; suspension or the prohibition of the use of such equipment from specified countries or specified persons; taking over the control and management of the infrastructure, network or even suspending the telecommunication service.
The Bill empowers the Central government to take any action in the interest of national security. Under another section “Powers to give directions in Public interest”, licensees can be asked to transmit any announcement in public interest as the case may be.
Tanmay Singh, senior litigation counsel at Internet Freedom Foundation (IFF), told Frontline that Sections 23 and 24 in Chapter six delineate the powers of the government on e-surveillance and Internet shutdowns.
The IFF sent its comments on a July 23 consultation paper of the Department of Telecommunications on September 3 and the draft Bill was released on September 23. The paper was titled “Need for a new legal framework governing telecommunication in India”.
The draft regurgitates more or less the provisions of the 137-year-old Indian Telegraph Act, he said. Only the term “telegraph” has been updated to include Internet-based services like WhatsApp, Facebook, and Instagram. The surveillance powers of the government were expanded but without introducing procedural safeguards in the laws. This, in essence, puts no limit to the exercise of state power. Tanmay Singh said this was an opportunity to enact a new law or update the ITA by drawing on features from laws on fundamental rights, and from landmark judgments such as in the Puttaswamy case of 2017 and the People’s Union for Civil Liberties wire tapping case of 1996.
The Bill, if enacted, will repeal three legislations: the ITA, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950. The objective of the ITA, Tanmay Singh emphasised, was to consolidate power and curtail the rights of the “Indian subjects”. That should not be the objective of the government now, he argued. The powers of surveillance in democracies may be required for the citizenry to feel safe and secure, but there is no disagreement that fundamental rights also need to be respected: the right to free speech, the right to practice legitimate trade and profession, and the right to assembly.
The Bill, in its present form, lacks potential for surveillance reform as the existing rules outlined in Section 419A of the ITA rules—directions for the interception of a message or a class of messages—will continue. There are practically no safeguards in the existing rules; neither does the draft Bill provide for any. Barring process relating to the chain of command, about which officer was empowered to conduct the surveillance, a judicial review of the surveillance order was not possible.
Tanmay Singh does not dispute that surveillance might require some opacity, but once a person is surveilled and the surveillance period is over, the person has the right to know that it is over. A time frame is mandatory. There exists a time frame of 180 days in Section 419A, which can be extended on the will of the executive. Currently, there is no mechanism to let a person know that she has been surveilled. This is an infringement of a person’s privacy. The person has a right to seek judicial review of the order. The Pegasus snooping revelations underscored this aspect. The Supreme Court had appointed a committee to investigate the Pegasus case and its report is with the court.
The rules of some of the Acts that will be subsumed in the new Act are also in need of reform. There is no indication that a reform of those rules is on the agenda of the Bill. Section 24 of the draft Bill relates to Internet suspension. At present, Internet suspension is carried out under the 2017 rules, called the Temporary Suspension of Telecom Services Rules. After the abrogation of Article 370 in Jammu and Kashmir in 2020, for almost 500 days, Internet suspension was imposed. The matter was taken to the Supreme Court, which ruled that the rules were not enough. The court gave a slew of directions and guidelines, and the rules were amended.
Yet, only one direction was incorporated, that Internet suspension could not exceed 15 days. Another direction was that every Internet suspension order should be published so that the affected people could challenge it in court, but it was not published. When the IFF filed applications under the Right to Information Act (RTI) to check the compliance of the Supreme Court order, one State government responded that it did not even know of the order and that government officers were not wont to look at the text of the rules when they issued orders. They also could not be expected to know every Supreme Court judgment that has been issued. Therefore, the law has to incorporate the Supreme Court’s directions.
The power to suspend the Internet did not exist earlier. It emanated from Section 5, sub-section 2 of the ITA, where the Central government can direct that any message or class of messages shall not be transmitted. This was in the context of the telegraph services but the scope had now been extended. There is a specific provision that gives the Centre explicit powers to suspend Internet services. The concern is that the Centre’s powers had expanded with no proportionate increase in safeguards.
On Internet shutdowns, a Parliamentary Standing Committee report notes that India is number one globally, that the country has lost billions of dollars annually due to such shutdowns and that governments were misusing their powers. The IFF had also given a representation to the Parliamentary Standing Committee. None of its concerns relating to Internet shutdowns are reflected in the Bill. Tejasi Panjiar, Associate Policy Counsel of IFF, said that some of the larger policy issues, including definitions and concerns of licensing, were equally grave. First, the Bill over-centralises powers. Second, the definition of telecommunication extends to all forms of telecommunications service providers. The demand to rope in OTT service providers under a licence regime emerged from big telecom providers. Panjiar argued that OTTs did not provide identical services like telecom providers. Yet, they are significant revenue generators for the telcos apart from making huge investments of their own. There was a clause on exemption from licensing, but Panjiar felt it could lead to ad hocism and cherry-picking. Initially, the requirement for licences applied only to telecom companies. With the expansion of the definition of telecommunication, every other provision would be applicable to all those who come under that ambit. Every entity using the Internet will willy nilly come under the Bill. There is also the apprehension that the costs might be transferred to consumers.
Panjiar also voiced concerns about the future of the Telecom Regulatory Authority of India (TRAI). Earlier, the TRAI was consulted for the award of licences, and it would give recommendations. Whether the TRAI will continue to do so is not clear. Licence requirements might necessitate data localisation, and that raises its own concerns. For instance, local data storage is tied with the norms of interception of messages, and so on. The government had a consultation, and stakeholders are hopeful of a favourable outcome.
‘Tick a box’
Two years ago, the TRAI held consultations and forwarded a set of recommendations to the Department of Telecommunications regarding the enforcement of the principles of net neutrality by Internet Service Providers and telecom networks. It recommended the setting up of a multi-stakeholder body. Citing COVID-19-related budgetary considerations and other feasibility concerns, the idea did not take off.
Those familiar with the consultation process know that it involves asking the interested parties to “tick a box” and that little will come out of the feedback process. It is possible that some changes might be made to the rules regarding licensing, but as far as the governments powers on Internet shutdown and unfettered rights of surveillance are concerned, there is little to be optimistic about.
The clause in the Information Technology Rules, 2021, on traceability was challenged in the Delhi High Court and now the matter lies with the Supreme Court. The Ministry of Electronics and Information Technology has its own set of rules of surveillance under the 2009 rules.
In 1995, in a landmark judgment, the Supreme Court (Secretary, Ministry of I&B vs Cricket Association of Bengal) ruled that airwaves were public property and that their use had to be regulated by a public authority in the interest of the public and to prevent the invasion of their rights. The Bill reflects the spirit of that order only partially.
- The Telecommunication Bill was put out in the public domain in the third week of September, and interested parties had until October 20 to review and respond.
- It fails to articulate the spirit and essence of judicial pronouncements on privacy and data protection.
- The Bill, in its present form, lacks potential for surveillance reform as the existing rules outlined in Section 419A of the ITA rules.
- The Bill, if enacted, will repeal three legislations: the ITA, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950.