The Telecommunications Act, 2023

After being unanimously passed by the Rajya Sabha and Lok Sabha, the Telecommunications Bill, 2023 has now received the President’s assent on December 24, 2023. The Telecommunications Act, 2023 (“Act”) replaces three legislations which regulated the telecommunications sector in India i.e., the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950. The key features of the Act are as follows:-

1. Ambiguous definition of Telecommunication Services In the previous iteration of the draft bill, the term telecommunication services contained services of any description, including broadcasting services, electronic mail, voice mail, video audiotex services, videotex services, internet and broadband services, internet based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine to machine communication services, over-the-top (OTT) communication services (collectively referred as “Internet Services”) etc which brought Internet Services under the purview of the Act and at par with the telecom service providers. While the definition of Telecommunication Service in the Act does not explicitly contain the aforesaid expressions, the same is stated as ‘any service’ in relation to telecommunication. Further, the term ‘telecommunication’ has been defined as the transmission, emission or reception of any messages, by wire, radio, optical or other electro-magnetic systems. Further, the definition of a message has been defined as “any sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication”. The aforesaid creates ambiguity and even after the removal of the Internet Services from the Act, any internet based communication, such as WhatsApp, Gmail and In-Game chats may be argued to be regulated by  the Act.
2. Authorisation from the Central Government Section 3(1) of the Act requires any person who intends to provide telecommunication services or establish, expand, operate telecommunication or possess radio equipment shall obtain an authorisation from the central government. As stated above, any internet based communication may fall under the purview of the Act, internet service providers may be required to seek authorisation for offering their services in the country.
3. Biometric Verification Section 3(7) of the Act requires all the authorised entities to identify and verify their users through use of any biometric based identification. Mandatory requirement of biometric verification of all users may impinge upon the fundamental right of privacy of citizens of this country. The said requirement fails the test of proportionality laid down by the Supreme Court in the Aadhar uplinking case.
4. Assignment of Spectrum Spectrum will be assigned by the central government through auction, except for specified purposes (such as national security and defence, weather forecasting, law enforcement and crime prevention, and the other 15 heads that are culled out in the First Schedule of the Act), for which assignment shall be done by administrative process. The central government may, to promote optimal use of the spectrum, assign the same spectrum to one or more additional entities (secondary assignees); permit sharing, trading, leasing and surrender of the assigned spectrum; and establish a monitoring and enforcement mechanism to ensure adherence to the terms and conditions of spectrum utilisation.
5. Attainment of Telecommunication services by the Government In cases of any public emergency, including disaster management or public safety, the central government, or state government or any officer authorised by them may take temporary possession of any telecommunication service or network. Further, the central government in the interest of national security, friendly relations with foreign States, or in the event of war, may issue directions in relation to areas which would render complete control of the telecommunication services, networks and equipments by the government such as:- (i) use of telecommunication equipments, services, networks and identifiers; (b) suspension, removal or prohibition of the use of specified telecommunication equipment and telecommunication services from countries or person as may be notified; (c) taking over the control and management of, or suspending the operation of, or entrusting any authority of the Central Government to manage any or all of any telecommunication services, or any telecommunication network or part thereof, connected with such telecommunication services.
6. Mass surveillance The present Act further allows the central government to direct any message or group of messages to not be transmitted, intercepted or monitored in the event of any public emergency or in the interest of public safety and in the interest of the sovereignty and integrity of India, defence and security of the State, friendly relations with foreign States, public order, or preventing incitement to the commission of any offence. Such actions will, however, be subject to the central government’s procedures and safeguards which are yet to be prescribed. These provisions have a direct impact on the privacy of all users, as they imply that any or all messages between two or more users can be monitored or intercepted. Interestingly, while addressing the House, the Hon’ble Communication Minister, Mr. Vaishnaw, mentioned that the provisions and safeguards in relation to interception under the present Act are in line and contain the same checks and balances as observed in the landmark PUCL judgement of 1996 (People’s Union for Civil Liberties (PUCL) v. Union of India), wherein the Supreme Court held that telephone tapping infringed the fundamental right to privacy and laid down guidelines for the exercise of executive’s surveillance as a temporary solution to the misuse of these powers. In the said case, the Court declined to impose prior judicial scrutiny due to two reasons: (a) judicial scrutiny alone would take away the apprehension of arbitrariness or unreasonableness and (b) in the absence of a provision to that effect in the statute. The fact that this 2023 Act still relies on the procedures and safeguards set out in 1996 and does not take into account prior judicial scrutiny raises the question of potential misuse of this power in the hands of the government.
7. Measures for protection of Users The central government may issue measures for the protection of users from time to time, such as (i) prior consent of users for receiving messages in relation to offering, advertising, or promoting goods or services, interest in property, business opportunity, employment opportunity or investment opportunity; (ii) preparation and maintenance of a “Do Not Disturb” register so that users do not receive any message enumerated in point (ii) without prior consent of the user; (iii) mechanism to enable users to report any malware or messages in contravention of points (i) and (ii). As the present Act has a digital implementation, the entities are required to establish an online mechanism for registration and redressal of any user grievance pertaining to the telecommunication service. Contravention of the aforesaid measures may invite a civil penalty up to rupees fifty thousand, which may extend to two lakh rupees per instance for each subsequent offence or suspension of telecommunication service, or a combination thereof.
8. Offences and Penalties Anyone who offers unauthorised telecommunication service, establishes an unauthorised telecommunication network, causes damage to critical telecommunication infrastructure, gains or attempts to gain unauthorised access to a telecommunication network or to data or transfers data of an authorised entity, or intercepts unlawfully may be punished with imprisonment for a term up to 3 years, or with fine up to 2 crore rupees, or both. Further, any person who impersonates to procure SIM cards and uses the telecommunication services may be imprisoned for a term of up to 3 years or fined up to 50 lakhs, or both.
9. Adjudicatory Process The central government has the power to appoint one or many Adjudicating Officers (“AO”), not below the rank of Joint Secretary, who shall conduct an inquiry (suo-moto or upon receipt of a complaint) in case of breach of any of the terms and conditions of authorisation or assignment. Such an AO will have the power to pass an order, impose civil penalties, and make recommendations to the central government. Any appeal against orders passed by the AO shall be preferred before the Designated Appeals Committee (“DAC”) within 30 days of such an order. The members of the DAC shall be appointed by the central government- not below the rank of Additional Secretary. Any person aggrieved by an order of the DAC may prefer an appeal to the appropriate civil court.
10. Power to search and seizure Section 43 of the Act states that any authorised officer may search any building, vehicle, vessel, aircraft, or place in which he has reason to believe that any unauthorised telecommunication network, or telecommunication equipment or radio equipment used to commit an offence is kept or concealed and take possession thereof. The Act does not contain any safeguards and procedures that shall be observed in a case of search, and in the absence of the same, the said provision is likely to be misused.
11. Regulatory Sandbox The central government may create one or more regulatory sandboxes for facilitating innovation and technological development in the telecommunication sector, such as a live testing environment of new products, services, processes and business models etc.