[This is the first part of a two-part post analyzing the Draft Indian Telecommunication Bill, 2022. It is authored by Intisar Aslam, a second-year student at National University of Study and Research in Law, Ranchi. The second part can be found here]
Recently, the Ministry of Communications released the Draft Indian Telecommunications Bill, 2022 (“Draft Bill”), which seeks to bring sweeping reforms in the telecom sector of the country. The significance of the Bill has increased manifold due to its expansive nature and character, which seeks to include social media platforms and OTT communication services within the ambit of ‘telecommunication services.’ The Draft Bill aims to make up for the changing dynamics and advances in technology and telecom regulatory framework by consolidating the present archaic telecom legislations, namely, the Indian Telegraph Act, 1885; the Indian Wireless Telegraphy Act, 1833; and the Telegraph Wires (Unlawful) Possession Act, 1950. This article analyses the extensive powers granted to the government and its likelihood of misuse. It further argues how certain provisions are violative of the fundamental rights of individuals and lastly, the article discusses the unwarranted dissolution of powers of the Telecom Regulatory Authority of India.
Expanding the definition: Incorrect Application of ‘Same Service, Same Rules’
The definition of “telecommunication services” under Section 2(21) of the Draft Bill has been expanded to include Over-the-Top (OTT) Communication Services. This means that the OTT Services shall be treated on par with Telecom Service Providers (TSPs). However, to bring the TSPs and the OTT Applications on a level playing field is fallacious, as both are not synonymous with each other. OTT Applications do not have to comply with regulatory or network requirements, whereas the Telecom Service Providers (TSPs) are subjected to government-mandated obligations, and undergo the government-allocated spectrum auction under the license agreement. Furthermore, OTT Services require an internet service provider to function and operate. On the contrary, telecom operators do not require the same. Thus, there is no co-dependency between the two entities, and they are devoid of a common base to bring the claim of ensuring “fair and healthy competition” into practice.
Provision for Internet Shutdown: Enabling or Whimsical?
It is for the first time that India has come up with a provision specifically dealing with the suspension of internet services. Section 24(2)(a) of the Draft Bill provides for the “interception, detention, and disclosure” of any message transmitted through any telecommunication services or telecommunication network due to reasons of “interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence.” Further, sub-clause (b) of the said section provides for the suspension of telecom services in such a scenario. These provisions give rise to several serious concerns concerning both the privacy of an individual, and the freedom of speech and expression.
Firstly, the terms “sovereignty, integrity and security” and “public order” have nowhere been defined in the Constitution or any legislation of India, leaving broad discretionary powers to the state. In a scenario where there is a possibility of harm to the political interest of the government, it may order the suspension of internet services on the pretext of curbing misinformation and maintaining public order. This fact gives legal recognition to more frequent Internet shutdowns in various parts of the country, especially Jammu and Kashmir. In the case of Anuradha Bhasin v. Union of India, the Supreme Court held that an internet shutdown should only occur when it is absolutely necessary, while adhering to the test of proportionality. Thus, this provision attempts to restrict the right to freedom of speech, expression, and information of Indian citizens under Article 19(1)(a) of the Indian Constitution.
To curb the misuse of such provisions, an independent committee must be set up to oversee the state action of suspending internet services. It must be headed by a retired judge of any High Court or Supreme Court along with other members. The reason for such a composition is that this will ensure a transparent and impartial decision by the appointed committee. Further, these officials shall have expert knowledge in the field of law and in interpreting such vague terms. It will also help in ascertaining whether any emergency existed to realize the need for the suspension of internet services. Lastly, to give legal backing, a provision for setting up such a committee should be introduced in the Draft Bill.