Apar GuptaThe removal of colonial vestiges from various facets of modern India, is not only focused on cultural artefacts and infrastructure debates, but also, increasingly, on policy and legal reforms. A recent consultation paper issued by the department of telecommunications (DoT) spoke about the need for “a new legal framework governing telecommunication in India” and indicated that the government was considering a radical overhaul of the 1885 Indian Telegraph Act.
Laws drafted by Parliament honour a formal arrangement of power between the citizen and the State; policymakers must maintain this balance and not let it tip in favour of the latter.
Such a revamp is sorely needed. The telegraph act and some ancillary statutes are archaic remnants of a repressive British era. Since the act first came into force, India has transitioned into a democratic Republic that is incompatible with a law formulated on the principle of State monopoly and control rather than fiduciary function. The nature of telecommunications has been revolutionised by digital technology, which has not only changed the medium but also the nature, pace and geography of information exchange. Today, we have moved away from the licensing of individual transistors and televisions by citizens to owning communication devices performing functions identical to entire broadcast networks. Moreover, access to the internet has grown tremendously — a fact that the paper acknowledges – though data published by the Telecom Regulatory Authority of India (Trai) shows that total number of internet or broadband subscribers in India has dipped recently, from 829.30 million in December 2021 to 794.68 million as of May 31, 2022. National Family Health Survey data hints that this gap is due to growing digital exclusion of women and people in rural areas.
The six-page consultation document begins with the ambitious policy objectives of Atmanirbhar Bharat (self-reliant India) and Antyodaya (welfare of the poorest). The paper talks about the need to create a future-ready framework for telecommunications, incorporate global best practices, simplify the regulatory framework — including for merger, acquisitions and insolvency — promote investment and provide clearer guidelines for spectrum management. Importantly, it calls for the new law to have “appropriate provisions” for public emergency, public safety and national security.
While drafting any such new framework, policymakers would do well to keep three principles in mind. The first is net neutrality, which says internet service providers must treat all websites, content and applications equally. The DoT has failed to create an enforcement framework for net neutrality principles and follow recommendations made by TRAI since September 22, 2020 even as rising market concentration in internet access and more power in the hands of a few operators have made net neutrality more urgent.
The second is the rampant and indiscriminate instances of internet shutdowns. Currently, section 5(2) of the telegraph act permits the central or state government to restrict or temporarily suspend internet services under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. In the 2020 case, Anuradha Bhasin v Union of India, the Supreme Court held that internet shutdowns are a “drastic measure” that may be imposed only if it is lawful, necessary and proportionate, and only after publishing internet suspension orders. However, these directions have found scant compliance. Further, criticism of the wide powers under the 2017 rule, especially in the absence of sufficient safeguards, has been mounting, with the parliamentary standing committee on communication and information technology making a series of recommendations to DoT in December 2021, including a review of the legal regime for suspension of internet services. None of these issues have been put to public consultation.
The third is the surveillance powers of governments. Section 5(2) of the telegraph act permits the executive to direct the interception of messages “on the occurrence of public emergency” or “if it is in the interest of public safety”. But the provision is opaque, lacks sufficient parliamentary or judicial oversight, and has little regard for the constitutional rights of the surveilled. The provision must be updated, with adequate safeguards in light of the 2017 top court’s decision declaring privacy a fundamental right.
Fundamental rights need to be at the core of a new telecommunications law in a democracy law. Any absence of constitutional values may further corporate profits and increase tele-connectivity, but hinder equitable access. Will citizens be safeguarded against censorship and surveillance?
Laws drafted by Parliament honour a formal arrangement of power between the citizen and the State; policymakers must maintain this balance and not let it tip in favour of the latter. In the aftermath of the first war of Independence of 1857, a mutineer cried, “There is the accursed string that strangles us”. He was referring to a telegraph line, on his way to being executed, as it had provided technical superiority to the British and allowed the colonial masters to snoop on, and act against, the fighters. In democratic India, the government’s role in telecommunications is that of a custodian. Hence, any new telecom law must provide for fundamental rights and fulfil its constitutional duty.
This article has been co-authored with Prateek Waghre and Anushka Jain. An edited version of the article was published by The Hindustan Times on September 14, 2022.