The Telecommunications Bill 2023 in brief

The Telecommunications Bill, 2023, which was passed in December 2023, replaced the Indian Telegraph Act of 1885, the Indian Wireless Telegraphy Act of 1933 and the Telegraph Wires (Unlawful Possession) Act of 1950.

Recognising that telecommunication sector is a key driver of economic and social development, there was a need to create a legal and regulatory framework that focuses on safe and secure telecommunication network that provides for digitally inclusive growth.

The existing statutes were ill equipped to handle the challenges thrown by technological growth.

• Definition of Telecommunication has been widened to include transmission, emission, or reception of any messages, by wire, radio, optical or other electro-magnetic systems, whether or not such messages have been subjected to rearrangement, computation or other processes by any means in the course of their transmission, emission or reception.

• ‘Message' is defined as any sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication.

• Though popular messaging apps like WhatsApp or even messages sent through emails have not been explicitly mentioned, the proposed legislation will be applicable to them also by virtue of the new definition of telecommunications.

• Telecommunication entities will require authorisation from the government to provide services and establish, maintain, and operate. This is as opposed to the licenses that are currently issued.

• As per the new definition of telecommunications, all online messaging platforms like WhatsApp, Zoom, Gmail. etc. will be required to obtain authorisation from the government similar to telecom providers like Jio, Vodafone, Airtel, etc. if they want to make their services available to Indian users.

• The government at its discretion could permit unauthorised entities to operate if it is deemed to be in the public interest.

• These regulations will be applicable to all existing parties after the expiry of their existing license.

• Biometric-based identification: WhatsApp and other authorised entities would be required to carry out biometric-based identification of users (that is, verification of a person's identity through their fingerprints, iris, etc.).

• Measures against spammers and spam messages :

  a. Prior consent is necessary to send messages "offering, advertising or promoting goods, services, interest in property, business opportunity, employment opportunity or investment opportunity."

  b. To create a register of  “Do Not Disturb’ to implement the same

  c. An authorised entity providing telecommunication services to establish an online mechanism to enable users to register any grievance.

• Dispute Resolution: To address disputes, the Central government is to establish or approve one or more online dispute resolution mechanisms and the authorised entity providing telecommunication services shall comply with such terms and conditions of participation in such mechanism as may be prescribed. This provision, however, does not affect the rights of consumers under the Consumer Protection Act, 2019. The Bill also provides that in the event of any conflict between a provision of the Act and a provision of any other law for the time being in force in the whole of India or restricted to the application within the territory of any State, the provisions of this Act shall prevail to the extent of such conflict.

• The Bill empowers the government to take temporary possession of any telecommunication service or network from an authorised entity, during any times of any public emergency, including disaster management, or in the interest of public safety.

The proposed Bill enables the State to screen messages even if encrypted, seize control of any telecom service, ban the use of telecom equipment from notified countries, monitor data traffic, and direct service providers to transmit specific messages if it is expedient to do so. Most of these powers already existed in the repealed statutes and the same have been carried forward under the new regime.

The Bill provides for biometric based identification. It is likely that in future, the legislature may deem it mandatory to link the same to the Aadhar card. The bio metric data in the hands of private entities is a cause for concern with respect to personal privacy and security and may infringe the fundamental right to privacy.

The Telecommunications Bill, 2023, was introduced as a financial bill. A Financial Bill needs to be passed by both Houses of Parliament. However, the Speaker has the authority to certify a financial bill as a 'money bill' after it is passed by the Lok Sabha. If a financial bill gets certified as a money bill, then the Rajya Sabha can only make recommendations on such a bill which are recommendatory in nature and are non-binding on the Legislature.  

Interestingly, an online newspaper (Indian Express dated October 7, 2023) had reported that the Chief Justice of India, while hearing a plea challenging certain amendments to the Prevention of Money Laundering Act (PMLA) revealed that a seven-judge bench will soon be set up to hear a batch of pleas challenging the Centre’s use of the Money Bill route to pass certain key legislations. The seven-judge bench will essentially examine whether a law was validly categorised as a money bill or only to circumvent scrutiny of the Rajya Sabha.  It is reported that the Court will examine the ingredients necessary to classify a bill as a money bill, and which legislations are under challenge for being passed as a money bill.

While there are concerns, it cannot be denied that the legislature has tried to move away from the erstwhile licensing regime, and has tried to provide a comprehensive framework of legal and regulatory nature for digitally inclusive growth, keeping the safety and security of its citizen and country at large.

About the author: Mahua Roy Chowdhury is the Managing Partner of Royzz & Co.