If the bill is passed in its current state, it would not only fail to achieve its objectives, but also prove an impediment to human liberties and the goal of digitisation claimed by the world’s largest democracy.
The objective of the Bill, according to the proposed draft, is to consolidate and amend the laws pertaining to the “governing provision, development, expansion and operation” of telecommunication networks and infrastructure, which are important parts of public infrastructure, in addition to dealing with the assignment of spectrum to ensure the efficient management of the same.
The note also elucidates the consultative process that was undertaken through an extensive public consultation for the integration of the themes emerging from the comments of relevant stakeholders and industry associations to develop this “modern and future-ready” legislation. However, considering the debates and issues that have come up since the Bill was opened to public domain, evidently, it is far from being devoid of controversial provisions.
One of the major aims of the Bill is to clear out ambiguities surrounding the telecommunication sector and regulate OTT (over-the-top) providers. Lt. Gen. S.P. Kochhar, Director General of the Cellular Operators Association of India, has said that “in keeping the recent trend of reformative policy making by the government, the draft is a milestone in the development of a modern and future ready framework in the telecommunication sector”. The Digital Infrastructure Providers Association, too, in a statement, emphasised the importance of the removal of ambiguities prevailing in the telecom sector, and applauded the bill for being a long-awaited initiative to restructure and revolutionise the legal and regulatory framework for the telecommunications sector since the era of ‘telegraph’.
The bill is based on Wireless-Planning Coordination reforms to remove physical interferences in the process of application for permits and the right of way (‘RoW’), thus making the process simpler and efficient. It seeks to provide a robust regulatory mechanism for a uniform and non-discriminatory manner of obtaining RoW, which is a pre-requisite for the establishment of telecom networks. Union Communications Minister Ashwini Yadav also argues that the bill is inclusive and cognisant of user-security by removing the distinction between voice and data-calls, thus bringing all platforms under the same regulation.
The government intends to bring OTT platforms like WhatsApp and Signal, among others, under the ambit of the bill by widening the definition of ‘telecommunication services’. Furthermore, now both service providers and users can know their caller’s identity, preventing user-harassment through regular unsolicited calls.
The passing of this bill would mean that there would be no more anonymity available for the users of internet calling services.
While the bill has among its provisions some welcome steps, the questions of user security, privacy and unwarranted surveillance and internet bans are also being raised.
According to Clause 4(7) of the Draft Bill, licensed operators are mandated to validate their identity by requiring such entities to “unequivocally identify the person to whom it provides services”, the mode for verification of which has not been prescribed yet. Clause 4(8) further says that the identity of persons sending messages through telecommunication services would also be made available to the recipient of such messages.
This provision has been added with the intent to “prevent cyber frauds”. The passing of this bill, therefore, would mean that there would be no more anonymity available for the users of internet calling services. This is in congruence with the demands made by mobile operators to require OTT platforms to be subjected to the same laws as them. This inclusion of OTTs under telecommunication services (under Clause 2 (21) of the Bill) would mean that user privacy on the internet would be severely affected.
While it may also help fulfil the intended purpose, users on internet have a certain expectation of privacy which would be ultimately taken from them. Experts have called this an attack on people’s fundamental rights and freedoms, including that of privacy and free expression. It has also been called an attempt to reinforce the colonial Indian Telegraph Act, and an undoing of the progress made after the Supreme Court’s landmark Puttaswamy judgement.
The draft bill also empowers the Union and state governments to suspend internet services in cases of “occurrence of any public emergency or in the interest of the public safety or in cases of national security”, under Clause 24(2). This resulted in internet freedom activists bringing up concerns of civil rights, and has yet again brought up the much-debated issue of internet shutdowns. The explanatory note adds that this is an enabling provision which provides for “ the time-bound limited suspension of transmission”. However, such a time limit has not been given in the draft bill.
The Software Freedom Law Centre (SFLC), a legal services organisation that tracks global internet shutdowns, has found that there have been 683 internet shutdowns in India since 2012, 66 of which were in 2022. According to the digital rights advocacy group, Access Now, India leads the list of countries in terms of the blocking of the internet. Many activists have questioned the proportionality of the human rights infringed in the process, and the need for such bans in the 21st century.
The draft bill ultimately solidifies the ability of governmental authorities to ban the internet for arbitrary and unjust reasons under the garb of public safety and national security.
The Parliamentary Standing Committee on Communications and Information Technology, in its 26th report, titled ‘Suspension of Telecom Services/Internet and its Impact’, noted the human rights impact of the misuse of internet shutdowns in India, and how the grounds of “public emergency” and “public safety” are used as a tool of policing and for administrative purposes. The report also asked the government to avoid the frequent suspension of the internet based on “flimsy grounds” in the current era of digitisation.
On July 1, 2016, the United Nations Human Rights Council passed a resolution condemning network disruptions and measures resorted by States to curb online access and/or dissemination of information. In Anuradha Bhasin versus Union of India (2020), the Supreme Court also expressed displeasure regarding the frequent shutdowns of internet, and opined that they should only be enacted if absolutely necessary and only after carrying out certain balancing tests as a restrictive step.
The addition of such an enabling provision in the draft bill effectively goes against these observations and recommendations, as it would ultimately solidify the ability of governmental authorities to ban the internet for arbitrary and unjust reasons under the garb of public safety and national security. This can be seen as a chance deliberately missed to include the recommendations of the Parliamentary Standing Committee, including that of judicial oversight of such administrative actions, into the bill.
The draft relies heavily on the terminology of the Indian Telegraph Act. Clause 24(2)(a) of the draft bill not only mirrors, but also expands the scope of Section 5(2) of the Act. While the latter only authorises the Union or state government or any officer authorised on their behalf to intercept messages through telegraph as a part of the surveillance framework of the country, the draft bill moves one step forward and expands the scope to “telecommunication services or telecommunication network”.
This is a worrisome provision. As noted above, encryption has already been undermined by the bill under clause 4(7) by mandating licensed providers to identify all their users, and clause 24(2) may cause OTT platforms practicing end-to-end encryption to disclose information to surveillance officers authorised by the government.
The bill is regressive in that sense by making interception virtually effortless, all the while completely disregarding civil liberties and rights.
Such concerns of privacy have already been brought up during deliberations around the IT Rules and the Personal Data Protection Bill, 2019, which essentially threaten the freedom of the people, and have even been alleged to have the potential to convert India into an Orwellian State. The Justice B.N. Srikrishna-led Committeeof Experts on a Data Protection Framework for India also noted the plague of surveillance without any protections from legislation and judiciary, which needed to be addressed.
The draft bill essentially goes against these recommendations and evolutions, such as the Puttaswamy judgment, that have been achieved since Independence. It is regressive in that sense by making interception virtually effortless, all the while completely disregarding civil liberties and rights.
The use of the façade of ‘national security’ to infringe human rights is not new to India. While the draft bill is an important step towards the goal of Atmanirbhar Bharat, it poses the question whether this must be achieved at the expense of the rights of the users of telecom services.
The replication of the provisions of the Indian Telegraph Act goes against many notable judicial pronouncements and expert recommendations. The concerns are urgent and as things stand, if the bill is passed in its current state, it would not only fail to achieve its objectives, but also prove an impediment to human liberties and the goal of digitisation claimed by the world’s largest democracy.
Indian authorities need to be cautious and understand the gravity of the wide-ranging implications that this bill could have on the country. The government needs to take appropriate steps to harmonise the current needs of the nation with State security and technical considerations, while prioritising the least intrusive measures.