The Telecom Bill, 2022: The department of telecommunications (DoT) has issued the draft Indian Telecommunication Bill, 2022 in an attempt to rid the telecom industry of the archaic British-era laws. The Bill looks to bring in sweeping changes to how the sector is governed while giving the Union government more powers in several areas. Like in the case of every draft legislation proposed by the government, this one also has its own share of shortcomings, most of them in the area of protection of privacy.
In its present form, the Bill lacks safeguards against preventing misuse of national security provisions. There is a need for clarity on the grounds for breaching of the right to privacy by the state. There is an outcry for intervention by courts to set the law in order and to hold security forces accountable in case of misuse of provisions.
The draft Telecom Bill
Through the Indian Telecommunication Bill, 2022, the government seeks to consolidate and amend three separate acts — the Indian Telegraph Act (1885), the Indian Wireless Telegraphy Act (1933) and the Telegraph Wires Act (1950). One of the key changes proposed in the Bill is the inclusion of new-age over-the-top communication services such as WhatsApp, Signal and Telegram in the definition of telecommunication services.
These OTT communication services which are essentially Internet-based apps/ software will now be required to obtain telecom licences. This brings them under the telecom framework. However, experts are of the opinion that the move will stifle innovation or even isolate India.
India is the second-largest telecom market in the world and the industry is one of the largest contributors to India’s GDP. In the last few years, the government has allowed 100% FDI in the sector, largely deregulated BPOs and call centres, enabled in-flight Wi-Fi, and allowed deferred payments from telecom operators. The telecom Bill is seen as a move that will future-proof the industry.
The telecom Bill has a provision to revert assigned spectrum back to the Union government in case a telecom entity goes defunct or enters insolvency. Presently, there is no clarity on whether the spectrum owned by a defaulting operator should go to the creditors or whether the government can claim control over it. However, industry insiders have called out the same stating that since spectrums are bought entities, they should be considered assets and hence should be saleable in case of insolvency.
Moreover, the Bill does nothing to address the draconian surveillance provisions built over the archaic laws from the British era. These laws not only pose a threat to the fundamental rights of citizens, but also threaten their online privacy by undermining the encrypted apps.
As the Bill proposes more provisions that empowers the government, it has drawn flak from the industry and consumer protection bodies. Critics of the Bill are especially vocal against a provision that allows the authorities to shut down internet services. This is at a time when India has the reputation of having the highest number of internet shutdowns globally.
The positives in the Bill include a provision stipulating that the identity of the person communicating via any telecommunication service must be available to the user receiving such communication. This will end the menace of spam calls and attempts to defraud people. Thus, the name of the person would be displayed to the person who receives the call. This means that the facility would not only be available for voice calls but also for the users of OTT communication services.
The Bill also proposes to reduce criminal penalties in case of lapses. For instance, offences such as trespass in telegraph office will be decriminalised. The Bill introduces settlement of offences by payment of fines and voluntary undertakings. This, on paper, will augment the ease of doing business and considerably reduce the threat of criminal prosecution for operational issues faced by telecom operators.
The Bill has also found an unusual critic in TRAI. Not because TRAI is concerned with privacy issues or any other problems with the Bill, but because it seeks to transfer some of the watchdog’s powers to the department of telecommunications. The DoT will now address the concerns raised by the Telecom Regulatory Authority of India. The TRAI Act mandates the telecom department to seek the regulator’s views before issuing new licences to service providers. The proposed Bill has removed this provision empowers TRAI to request the government to furnish information or documents necessary to make such recommendations. The regulator fears that this provision will make it toothless in a vibrant and technology driven market.