Telecom Bill 2023 stirs controversy over government's intervention powers

The Lok Sabha witnessed a contentious session on Monday, 18 December, as Union communications minister Ashwini Vaishnaw introduced the highly anticipated Telecommunications Bill, 2023, opening a debate on the extensive powers it grants the government in the name of national security.

The Telecommunications Bill, 2023—slated to replace the archaic 138-year-old Indian Telegraph Act—was cleared by the Cabinet in August, in what was meant to be a significant step towards modernising the regulatory framework governing the telecom sector.

Among its key provisions, the current bill empowers the government to take control of—to manage or suspend—telecommunication services or networks in the interest of national security.

Understandably, this broad authority has sparked concerns and discussions among lawmakers and industry stakeholders.

One notable aspect of the bill is its attempt to bring internet-based calling and messaging apps—falling under the category of OTT (over-the-top) services—within the ambit of telecommunications. This move is seen as a measure to enhance user safety and regulatory oversight in an evolving digital landscape.

Also, the bill aims to limit the powers of TRAI (the Telecom Regulatory Authority of India), a move that also met with resistance from industry players.

However, government officials assert that the concerns related to OTT players and TRAI have been addressed and resolved before the bill was cleared by the Cabinet.

Some in the industry assert otherwise, and are lobbying fiercely at this last opportunity to have the bill re-drafted before it can pass into law.

The current draft bill proposed several changes—including the relaxation of rules pertaining to the refund of fees for licences and registrations if a company voluntarily surrenders its permit.

Additionally, it has introduced provisions allowing the government to waive entry fees, licence fees, penalties, etc., in the interest of consumers, ensuring market competition, the availability of telecom networks—and national security.

Overall, this grants the government a hitherto unparalleled mandate to decide what media and communications are allowed—not just 'what', but also 'who' gets to be broadcast and what/who suppressed or silenced.

The proposed bill has therefore naturally raised significant concerns among both experts and the general public, particularly regarding the provisions of Clause 24(2), empowering the central and state governments to suspend communication through any telecommunication network 'in the event of a public emergency' or 'in the interest of public safety'.

Critics argue that this broad power could be exploited to curtail even peaceful protests and debate—not necessarily in response to the likelihood or occurrence of violence, but merely as a means to stifle dissent—prompting questions about the proportionality of such measures.

Another contentious point is found in Clause 3, which grants the Central government the "exclusive privilege" to provide telecommunication services, operate networks and issue licences to telecom service providers.

In addition to the enlarged power of the government to regulate and drive communication per this bill, experts are also concerned over the potential bureaucratic hurdles being baked into this legislation. Many anticipate a cumbersome KYC process, akin to registering for SIM cards and phone connections, for users of over-the-top (OTT) platforms.

Additionally, the proposed dilution of TRAI's powers in the 2023 draft bill, compared to its earlier 2022 version, raises an alarm. Critics fear that this shift might limit TRAI's role and leave us with no industry watchdog with a neutral and independent approach—crucial for fostering progressive and positive growth in the telecom sector.

When Union IT minister Vaishnaw presented the bill in the Lok Sabha, it was already amidst vocal opposition from several MPs. Indeed, the proceedings had to be abruptly adjourned shortly after, given how impassioned the debate had become.

The various apprehensions outlined above are likely to fuel further debate on the bill's implications for individual rights, regulatory balance and the overall health of the telecommunications ecosystem in India. We can only hope there is adequate time allowed to actually debate this bill thoroughly before it is put to vote—and that all concerned can have enough decorum to allow the conversation to continue to a reasoned conclusion.

President Murmu, in a bulletin also issued on Sunday, 17 December, recommended the introduction of the bill in the House under Article 117(1) of the Constitution and urged its consideration under Article 117(3) of the Constitution.

Article 117(1) of the Constitution lays down that a finance bill that makes provision for any of the matters specified in clauses (a) to (f) of Article 110 (1) can be introduced or moved only on the President's recommendation and cannot be introduced in the Rajya Sabha. Likewise, Article 117(3) of the Constitution states that a Bill which, if enacted and brought into operation, would involve expenditure from the Consolidated Fund of India shall not be passed by either House of Parliament unless the President has recommended to that House the consideration of the Bill.

The proposed legislation aims to replace not only the Indian Telegraph Act of 1885 (whose main object was to give power to the government to install telegraph lines on private as well as public property besides also allowing the government to intercept messages), but also two other existing acts: the Indian Wireless Telegraphy Act of 1933 which prevents possession of any wireless telegraphy apparatus except under and in accordance with a license issued under this Act and the Telegraph Wire (Unlawful Possession) Act of 1950 which regulates the possession of telegraph wires and prescribes punishment of the offence of unlawful possession thereof.