The Telecom Act, 2023 is ready for (partial) take off: Outdated, colonial provisions to go into effect from June 26

tl;dr

On June 21, 2024, the Ministry of Communications (“MoC”) issued a Gazette notification for enforcing certain sections of the Telecommunications Act 2023. Sections 1, 2, 10 to 30, 42 to 44, 46, 47, 50 to 58, 61 and 62 of the Act will go into effect from June 26, 2024. This post analyses, from a digital rights lens, the various sections of relevance that will come into force. 

Important documents

1. E-gazette notification for enforcement of sections of the Telecommunications Act, 2023 dated June 21, 2024 (link)
2. The Telecommunications Act, 2023 (link)
3. Public Brief on draft Indian Telecommunication Bill, 2022 dated October 27, 2022 (link)
4. IFF’s first read of the Telecom Bill, 2023 (link)

Background

The Telecom Act, 2023 was passed by both houses of the Parliament in December 2023 despite the suspension of over 140 opposition Members of Parliament and amidst chaos and disarray, and received Presidential assent on December 24, 2023. The Act, after it comes into effect, will repeal the Indian Telegraph Act, of 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wire (Unlawful Protection) Act, 1950. The Telecom Act, 2023 continues to hang on to the colonial provisions of its 1885 predecessor it purportedly aims to overhaul. It misses a huge opportunity to reform the telecom sector and create a rights-centric law that protects user rights instead of infringing on them. Read our initial analysis of the Telecom Bill, 2023 here. 

Sections in action and implications of their enforcement

The relevant sections of the Act that have been listed in the Gazette notification for enforcement are as follows:

1. Definitions [Section 2]: The definition of ‘telecommunication’ [Section 2(p)] read with ‘telecommunication service’ [Section 2(t)] is heavily diluted and truncated in the Act. Although the Telecom Act, unlike the draft Indian Telecom Bill, 2022, does not explicitly include a long list of online communication services, its definitional ambiguity and open-ended phrasing still leave the scope wide enough for online communication services such as WhatsApp and Zoom to be included in its ambit. Such a potential wide ambit implies that several alarming provisions related to surveillance, possession, suspension, authorisation, interception, etc will apply to internet services. Although the then Union Minister of MoC, Ashwini Vaishnaw, clarified to the media in December 2023 that Over-the-Top (“OTT”) communication services like WhatsApp are not covered under the Telecom Act, 2023, in May 2024 the Additional Secretary of the Department of Telecommunications (“DoT”) stated that the “licensing for OTT services would be decided after consultation between a lot of different ministries including the Ministry of Information and Broadcasting”. To avoid expansion or re-interpretation of the scope in the future, we recently urged the current Union Minister to explicitly exclude internet services in the definition of ‘telecommunication’ and ‘telecommunication services’ in the Act itself. 
2. Duties on users [Section 29]: This Section imposes a duty on users to not furnish any false information while establishing their identity for availing ‘telecommunication services’. If applicable to internet services, Section 29 will have damaging consequences for a user’s ability to stay anonymous while communicating. The Digital Personal Data Protection Act, 2023 similarly imposes a duty on data principals to not register a false or frivolous grievance or complaint, the violation of which could result in penalties (of up to 10,000 INR). Such provisions can have a deleterious impact on vulnerable individuals such as whistleblowers and journalists, who wish to keep their identity anonymous, as well as on services such as Twitter and Instagram which currently provide users with the option to communicate anonymously. 
3. Provisions for public emergency or public safety and notifying standards. [Section 19; 20]: The entirety of Section 20 in the Telecom Act, 2023, whether it is the Union government’s power to temporarily possess, suspend, intercept, detain any telecommunication service [20(1)(a)], to intercept, detain, disclose, or suspend any message or class of messages [20(2)(a)], to direct suspension of any telecommunication service or class of telecommunication [20(2)(b)], or to notify encryption and data processing standards [19(f)], all on the grounds of public emergency (including disaster management) or in the interest of public safety, cements the colonial powers of the Union government. Misuse of these provisions, especially if the scope of the Act is extended to internet services, may result in draconian outcomes. Section 22(3) read with 2(f) empowers the Union government to notify ‘critical telecommunication infrastructure’ and issue measures related to the protection of such telecommunication networks and services. Protection measures listed include collection, analysis, and dissemination of traffic data, wherein ‘traffic data’ is defined as “any data generated, transmitted, received or stored in telecommunication networks including data relating to the type, routing, duration or time of a telecommunication”. This special categorisation and the Union government’s power to notify them, provide rules for their standards, and give them directions did not exist in the Telegraph Act, 1885. Thus, in addition to retaining several provisions that centralised power and control with the Executive, the Telecom Act, 2023 has created new ones that do so. Notably, Section 20 is almost identical to Section 5 of the Indian Telegraph Act, 1885. The Act meant to reform the colonial provisions under the latter fails to introduce meaningful oversight, accountability mechanisms, and/ or procedural safeguards in the surveillance and internet shutdown architecture of the country.
4. Power to search and supply of information [Section 43; 44]: Section 43 confers quasi-judicial powers to any officer authorised by the Union government to “search any building, vehicle, vessel, aircraft or place in which he has reason to believe that any unauthorised telecommunication network…. in respect of which an offence punishable under section 42 has been committed, is kept or concealed and take possession thereof.” Such search and seizure powers are accompanied by the power to summon information, documents, or records in possession or control of any authorised entity if it is believed by the Union government to be necessary for any pending or apprehended civil or criminal proceedings [Section 44]. Such powers, non-existent in the Telegraph Act, 1885, may be open to misuse due to their ambiguous phrasing, absence of clear parameters of information that may be revealed, and overbroad grounds for revealing information due to the use of the phrase “apprehended”. This vagueness may lead to overbroad requests for disclosure which could result in the violation of the right to privacy of users, especially if it applies to internet services.
5. Continuation of existing rules [Section 61]: Several provisions, including procedures and safeguards related to interception and suspension of services, are reliant on the yet-to-be-notified Rules under the Telecom Act. Until then, the current rules and regulations will continue to be applicable unless they are inconsistent with the Telecom Act. Reportedly, the Union government is working to release around 35-37 Rules under the Act. As per reports from May 2024, DoT is likely to take at least six months before it begins notifying rules under the Telecom Act. 

The need for repeal and reform

Provisions of an Act which has retained its colonial roots, missed an opportune moment for bringing about reform, and was passed despite the suspension of 140+ opposition Members of Parliament as well as protests and walkouts in the Parliament, are going to come into force tomorrow. We stand by our initial ask to the Ministry to repeal the Telecom Act, 2023 and appoint a Law Commission and/or an unbiased, independent Standing Committee or expert body to look into the kinds of reforms needed for the telecommunication sector. Any regulatory framework for the telecom sector must be a right-centric version that protects and promotes individual rights and should be preceded by a broad, multi-city, in-person stakeholder consultation.