The criticality of telecom law
The first draft of the new law is welcome. But crucial aspects need fixing to make it fairer
The government has made public the draft of the Indian Telecommunication Bill, 2022, which sets out to replace the colonial-era Indian Telegraph Act, which has been the mainstay of telecommunications regulations in India. Drawn up in 1885 when the telegraph was the sole telecommunications system, the law predates the creation of even landline telephone exchanges. An update was long overdue, and the new law now includes definitions that capture the current landscape of technologies (including the various tools of high-speed internet and the services that sit within it) and lays down guidelines and obligations for service providers.
Over the years, the legal framework came to rest on a patchwork of rules that the government issued under the telegraph Act or the Information Technology Act. The new law has two broad aspects. First, it has implications for how the telecommunications industry — which, according to the government’s estimates, contributes 4% of the Gross Domestic Product — is regulated. The new law codifies the principle that mobile telephony spectrum is a natural resource, and the State alone has the authority to issue licenses, for instance. Second, the draft proposes to bring into statute, the government’s powers for surveillance and telecommunications shutdowns.
Much of this is welcome. But some aspects of the second lack the adequate constitutional protections that have evolved in recent years. In Section 24, the draft gives the government the power to intercept communications if it is “necessary or expedient” for broad and vague purposes such as security and public order. Yet again, the need for surveillance to meet the test of proportionality — a key check laid down in a benchmark 2017 ruling of the Supreme Court on privacy — is ignored. Similarly, Section 25 of the draft, which deals with internet shutdowns, specifies only “necessary” and “expedient” as the conditions. It is important to fix these problems in future drafts of a critical and much-needed law.