The Indian Telecommunication Bill 2023, introduced in the Lok Sabha on Monday, includes significant changes in the telecom sector.
The Bill, which aims to replace the 138-year-old Indian Telegraph Act, allows the government to take over, manage or suspend any or all telecommunication services or networks in the interest of “national security.”
The draft of the amendment which was endorsed by the cabinet in August, proposed to incorporate internet-based calling and messaging apps under the definition of telecommunications, and curb the statutory power of the Telecom Regulatory Authority of India (TRAI), though direct references have been removed from the final draft.
With the introduction of this legislation, the government will be endowed with the power to waive off entry fees, licence fee, penalty etc., and freely allocate permits and rights for satellite broadband services.
The clause regarding “Licensing and Registration” grants the union government the “exclusive privilege” to “provide telecommunication services,” operate networks and issue licences to telecom service providers.
This method will bypass auctions, and the key beneficiaries of this extra power for administrative allocation will be companies like Bharti’s OneWeb, Reliance’s Jio Satellite Communications, Elon Musk’s Starlink, and Amazon’s Project Kuiper.
The scope of entities outside of auctions includes provisions for teleports, TV channels, DTH, mobile satellite services, and in-flight and maritime connectivity services as well.
Clause 2(21) of the Bill’s 2022 version had altered the definition of “Telecommunication Services” to include “Over-The-Top (OTT) communication services”. The new definition would also cover instant messaging applications that run as services over the internet using data. WhatsApp, Zoom, Telegram, and Signal are a few such examples.
Additionally, Clause 24(2) of the Bill empowers the union or state government to intercept “any message or class of messages, to or from any person or class of persons, or relating to any particular subject” citing reasons of public emergency or national security.
A major concern that arises in this case is the breach of end-to-end encryption in messaging services like WhatsApp and Signal, which may be required to either not transmit messages or intercept them.
According to the Bill, the unauthorised entry into telecom networks including hacking or illegally obtaining data, can result in up to three years of imprisonment and a fine of up to ₹2 crore.
On those who fraudulently acquire subscriber identity modules, a similar prison sentence, but with a ₹50 lakh fine, will be imposed.
The government is also entitled to arbitrarily exercise its will to “suspend communication via any telecommunication network, as long as it is necessary or expedient to do so, by issuing an order in the interest of sovereignty, integrity or national security, friendly relations with foreign states, public order, and preventing incitement to an offence.”
“Just because the government wants to curtail protests by people, shutdowns can be imposed; not because there is a chance of violence happening or because there is already violence happening. Is that something that’s really proportionate? That’s the question that the Anuradha Bhasin judgment asks. Hence, any action to shut down the internet should be infused with the proportionality principle,” Prasanth Sugathan, the legal director of Software Freedom Law Center (SFLC), told The Quint.
The controversial aspect of regulating OTT (over-the-top) services, such as streaming platforms, already governed by the IT Act, has been said to be omitted from the final version of the bill.
Similar to the pattern of amendments under the NDA government, the bill seeks to rename the universal services obligation fund to “Digital Bharat Nidhi.”