A Instrument For Authorized Regulation Or Public Surveillance?

On September 21, 2022, the Department of Telecommunications initiated public consultations on a proposed new legal framework for telecommunications. The Draft IndianTelecommunications Bill, 2022 (hereafter, Draft ITB), is one of three proposed laws, collectively forming a pioneering scheme aimed at modernizing the archaic laws governing telecommunications and IT-related matters. The Bill seeks to mate, within its ambit, all forms of telecommunication platforms, including social media platforms and Over-The-Top (OTT) services. The Bill, once in effect, will repeal and consolidate the Indian WirelessTelegraphy Act, 1933, the IndianTelegraph Act, 1885 and the TelegraphWires (Unlawful) possession Act, 1950. To set the stage for the sequel, the Draft ITB raises concerns about violations of fundamental rights, which can be attributed to the potential of unrestricted governmental power provided in the text of the bill. This is a reiteration of the colonial position under the Telegraph Act, which empowered the government to resort to certain measures in situations of public emergency or in the interests of public safety.

Draft ITB: The Need For It And Its Features

The Draft ITB becomes relevant in the face of ever-increasing complexity in the field of telecommunications and associated technology. This is reflected in the expansive definition of ‘telecommunication services’ under p.2(21), which provides for the inclusion of OTT and social media platforms. Multiple existing social media and OTT platforms have various features matching the description of this section. For example, YouTube allows for video and data communication services along with broadcasting services; this shows an overlap of features that have been described under this clause. Thus, with the complexity that surrounds the telecommunication services and platforms, there was an urgent need to bring about a legal framework that would enable their regulation.

A combined application of S.3 and S.4 of the Draft ITB attributes power to the Central Government to provide the grant of license, registration, authorization and assignment of telecommunication services. It further states that the Central government has the exclusive privilege to conduct this task, thereby making it the sole authority deciding the grant of licenses. However, p.7 states the possible methods of suspension, curtailment, revocation and variation of licenses that can be adopted by the Central government in case there is a breach of terms and conditions. It is implied that in such a situation, this power under the bill might lead to indirect and tacit coercion by the government whereby the parties who have obtained a license might agree to certain contractual conditions simply under the fear of losing the obtained license. S.7(3) states that any such suspension would only be reversed if the alleged violation is rectified to the satisfaction of the Central Government. This implies that compliance on the part of the licensee is necessary for such a reversal. In addition to this, S.8 of the Draft ITB provides for the submission of a voluntary undertaking and if a licensee, assignee or a registered entity fails to abide by the conditions of such a voluntary undertaking, the government would be conferred the recourse under p.7. Furthermore, p.8(3) states that an acceptance of such a voluntary undertaking on the part of the Central Government would result in a bar of proceedings, thereby limiting legal recourse. It must be considered that the power bestowed upon the Central Government under these twin sections, creates an unjust situation of imbalance of contractual considerations.

Constructing ‘Public Emergency’: Comprehending The Undefined?

Chapter VI of the ITB 2022 contains provisions that contemplate exceptional situations. Section 24 enables both the Center and state governments to take certain actions in a situation of ‘public emergency’ or in the interest of ‘public safety’. Section 25 broadly contemplates action by authorities in the context of ‘national security, external relations or war’. The term ‘public emergency’ as used in Section 24 is not defined in the bill, which raises questions about the scope of this term and how it may play out.

Section 24 of the bill corresponds to Section 5 of the Indian Telegraph Act 1885, which has been scrutinized by courts previously to give meaning to the phrase ‘public emergency’. In Roop Lal Makkar v. Union of India¸the Delhi High Court used a ‘dictionary meaning’ approach to explain the concept of emergency as “an unforeseen combination of circumstances which calls for immediate action”. More notably, the court observed that an emergency does not necessarily imply an emergency arising out of physical causes (the court references a state of siege, war or pestilence). An emergency could arise out of the interaction of economic forces, where it led to a situation requiring immediate action. Another relevant observation of the court relates to the temporal character of an emergency, where it stated that an emergency need not necessarily be a sudden event. It could also arise out of a continuing process that may have been playing out for some time.

The Supreme Court in Anuradha Bhasin v Union of India had the opportunity to interpret the phrase ‘public emergency’ in a more contemporary context relating to internet shutdown. It reiterated that the term could draw meaning from the language of the provision, as was affirmed in its judgment in Hukam ChandShyam Lal v. Union of India. In particular, ‘public emergency’ would “take colour” from the subsequent phrase “public safety”. The court also goes on to distinguish between public emergencies and emergencies arising from situations where harm may be caused to persons and/or property. In doing so, the court references Article 4 of the International Covenant on Civil and Political Rights and Article 15 of the European Convention of Human Rights. The phrase “public emergency” is further contextualized in these two provisions by a perceived ‘threat to the life of the nation’. In addition, Article 4 of the ICCPR requires an official promulgation of the emergency by the state. In this regard, the court observed that ‘public emergency’ in the Telegraph Act would have to be of a serious nature and needed to be determined on a case-to-case basis.

More specifically in the context of telecommunications, the court observed that a broad suspension of services would be a drastic measure which should be resorted to by the authorities only where it is “necessary or unavoidable”. This would also require the state to assess the existence of a “lesser intrusive alternate remedy” prior to resorting to this power. Additionally, the court observed that the rules relating to temporary suspension of telecom services under the Telegraph Act did not provide for a maximum period for which the suspension could be effected. therefore, a maximum period of 15 days was inserted in the rules.

It would be pragmatic for this understanding of ‘public emergency’ aided by judicial interpretation to apply for the Draft ITB. However, Section 24(4) states that the relevant actions taken under the provision would be maintained for “so long as the public emergency exists” or “the interests of public safety require the taking of such action”. This would effectively mean that the action taken would no longer have to be temporary in nature. While Section 53 of the Draft ITB does state that the pre-existing rules under the Telegraph Act would continue in force, this would only happen to the extent that there is nothing inconsistent between the rules and the Draft ITB. There would be a clear inconsistency between Section 24(4) of the bill and the maximum period of 15 days contained in the Temporary Suspension Rules. There exists a need for an explanation of the elements that combine to form a situation of ‘public emergency’ under this bill as that ought to jolt the legislators to strictly define the boundaries for the government to adopt this recourse.

Where Do We Draw The Line?

This discussion above brings out three principal concerns. First, it raises questions regarding authorities carrying out due diligence in their assessment of a potential ’emergency’ situation and preventing an abuse of power. The judgment in Anuradha Bhasin attempted to read in safeguards that had to be ensured in the exercise of power by authorities in public emergencies. These included the availability of the suspension orders, judicial review and the obligation to assess the existence of less restrictive alternative measures before imposing a broad suspension of telecom services. However, the ITB does not include this obligation in its language and the possible range of factors that must be considered before any suspension of services is contemplated.

Given the policy intention of increasing reliance on digitization, any action taken on the basis of the existence of a ‘public emergency’ would have severe ramifications. Telecommunications are increasingly forming an integral part of several businesses and start-ups. The onset of the post-pandemic world has led to a massive shift of businesses on digital platforms. The use of sound, video and text in messages has significant importance for several businesses and a potential shutdown of services would inevitably have an effect on the fundamental right of citizens to carry out any trade, occupation or business. Any suspension of telecommunication services by the government under the guise of a ‘public emergency’ might result in the hindrance of the conduction of such businesses.

Additionally, the power to intercept certain communications would also have an effect on several components of Article 19. For instance, the freedom of assembly in the context of protests would be affected by suspension of telecommunication services in order to prevent people from communicating relevant information, as was done during the protests against the Citizenship Amendment Act (CAA). Social media and OTT platforms provide citizens with an avenue to conduct various forms of protest and assume their concerns through the dissemination of information to a wide audience. Any restriction on this, too, violates the ideals of Indian democracy. This becomes more concerning in certain political contexts such as Kashmir, where internet shutdowns have been prolonged and frequent. The language in the Draft ITB can be susceptible to mechanical reiteration, which is demonstrated by the last five orders passed by the Jammu and Kashmir administration (three of which can be accessed here, here and here). This section of the Bill is a legal manifestation of the intersection of a violation of the fundamental right to freedom to practice any profession or carry on any trade, business or occupation and the right to freedom of expression under Article 19 of the Indian Constitution and thus , by effect condenses to be unconstitutional. It is seen that the orders use the same language of possibility of misuse and invoke the sovereignty and integrity of India to justify the shutdown of internet. Inevitably, the question arises – where does the state draw the line? Given the importance of telecommunications as “a key driver of economic and social development”, how do authorities ensure reliable and secure telecommunications services while dealing with such contexts?

The Draft ITB would require considerable work before it can be passed into law. Concerns such as the nullification of the maximum duration by the Draft ITB raise great cause for concern. As Shrimoyee Nandini Ghosh has observed in the context of the Anuradha Bhasin judgment, such a position tends to characterize ‘public emergency’ as one which is not limited in its temporal scope, thereby becoming a ‘permanent’ emergency. The lack of a maximum duration would effectively lead to the exception superseding the norm without any limit. It is for these reasons that the Draft ITB requires extensive debate and discussion in public circles to urge authorities to communicate openly and engage with the tremendous possibilities arising from telecommunications and the potentially drastic effect resulting from their suspension.

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