Context

• The Parliament has passed the ‘Telecommunications Bill, 2023’ to transform and reform the telecommunications sector, services, and its networks. 
• The Bill seeks to amend and consolidate the law relating to the development, expansion, and operation of telecommunication services. The Bill seeks to replace the ‘Indian Telegraph Act, 1885’.

Key Features  

Authorisation for telecom-related activities:  

• Prior authorisation from the central government will be required to: 

(i) establish and operate telecommunications networks, 

(ii) provide telecommunications services, or 

(iii) possess radio equipment.  

• Existing licences will continue to be valid for the period of their grant, or for five years, where the period is not specified.

Assignment of spectrum: 

• Spectrum will be assigned by auction, except for specified uses, where it will be allocated on an administrative basis.  
  • Specified purposes include: (i) national security and defence, (ii) disaster management, (iii) weather forecasting, (iv) transport, (v) satellite services such as DTH and satellite telephony, and (vi) BSNL, MTNL, and public broadcasting services.  

Powers of interception and search:  

• Messages or a class of messages between two or more persons may be intercepted, monitored, or blocked on certain grounds.  
  • Such actions must be necessary or expedient in the interest of public safety or public emergency, and must be in the interest of specified grounds which include: (i) security of the state, (ii) prevention of incitement of offences, or (iii) public order.  
  • Telecom services may be suspended on similar grounds.  
• The government may take temporary possession of any telecom infrastructure, network, or services on occurrence of any public emergency or public safety. 
  • An officer authorised by the government may search premises or vehicles for possession of unauthorised telecom network or equipment.

Protection of users:  

• The central government may provide for measures to protect users which include: 

(i) prior consent to receive specified messages such as advertising messages, 

(ii) creation of Do Not Disturb registers, and 

(iii) a mechanism to allow users to report malware or specified messages.  

• Entities providing telecom services must establish an online mechanism for registration and redressal of grievances. 

Right of way:  

• Entities laying telecommunication infrastructure may seek right of way over public or private property. 
  • Right of way must be provided on a non-discriminatory and non-exclusive basis to the extent possible.

Appointments to TRAI:  

• The Bill amends the TRAI Act to also allow individuals with: 

(i) at least 30 years of professional experience to serve as the Chairperson, and 

(ii) at least 25 years of professional experience to serve as members.

Digital Bharat Nidhi:  

• The Universal Service Obligation Fund has been established under the Indian Telegraph Act, 1885 to provide for telecom services in underserved areas. The Bill retains this provision, renames the fund as Digital Bharat Nidhi, and also allows its use for research and development in telecom.   

Offences and penalties:  

• The Bill specifies various criminal and civil offences with provision of stringent punishment for violators.

Adjudication process:  

• The central government will appoint an adjudicating officer to conduct inquiries and pass orders against civil offences under the Bill. The officer must be of the rank of joint secretary and above.   
• Orders of the adjudicating officer may be appealed before the Designated Appeals Committee within 30 days.   
• Members of this Committee will be officers of the rank of at least Additional Secretary.  Appeals against the orders of the Committee, in connection to breach of terms and conditions, may be filed with Telecom Disputes Settlement and Appellate Tribunal (TDSAT) within 30 days.

Key Issues and Analysis

• The Bill provides that procedure and safeguards related to interception will be prescribed by the central government. The question is whether these should be provided by the Bill.
• The Bill may allow mass surveillance; such measures may violate the fundamental right to privacy on the account of proportionality.
• The Bill vests several regulatory functions with the central government. This is distinct from sectors such as power and finance, where these functions have been delegated to the regulators.