The Department of Telecommunications (DoT) published the Indian Telecommunications Bill, 2022 on September 21, on the DoT’s website, inviting public comments. The Bill has redefined what telecom and telecom services would entail, bringing a larger range of topics within its ambit. The proposed Bill would be applicable to entities that provide telecom services, operate telecom networks, own telecom equipment and infrastructure and are assigned or seeking assignment of spectrum. This would cover entities, Over-The-Top (OTT) platforms and other service providers.

It is worth reviewing the implications of Telecom Bill in the context of the introduction of the Digital Personal Data Protection Bill, 2022 (DPDP Bill) on November 18, by the Ministry of Electronics and Information Technology.

The DPDP Bill has been seen in a more positive light than the previous Personal Data Protection Bill, 2019 (PDP Bill). The DPDP Bill has defined the term “public interest”, while the Telecom Bill does not provide clarity on terms such as public safety and public emergency within the Bill.

When taking a closer look at certain sections of the Telecom Bill, and in particular Chapter 6: ‘Standards, Public Safety and National Security’, we note that Section 24(2)(a) provides the Central Government with the following powers: “Direct that any message or class of messages, to or from any person or class of persons, or relating to any particular subject, brought for transmission by, or transmitted or received by any telecommunication services or telecommunication network, shall not be transmitted, or shall be intercepted or detained or disclosed to the officer mentioned in such order.”

Essentially, this is an enabling provision that allows the interception of any and all communications between people, if such communication proves to be pertinent to any issue threatening public safety or security. This might require a reduction in the degree of encryption and protection offered by such apps to individuals, which seems contrary to the intention of strengthening citizens’ rights.

Furthermore, Sections 4(7) and 4(8) of the Bill, which demand that licenced service providers must “unequivocally identify” all of their users and make this information available to all recipients of messages transmitted by those users, also undercut encryption.

It offers some comfort that the Telecom Bill contains the terms “public safety” and “public emergency” as requisites for intercepting communication; however, such terms must be defined to avoid open-ended interpretation. Additionally, the Bill does not outline the parameters of the power granted to the government to intercept communications.

The fundamental right to speech and expression, as enshrined within Article 19, was upheld by the Supreme Court in various instances subject to reasonable restrictions may be imposed on this right. However, public emergency has not been identified as a ground where such reasonable restrictions may be imposed on this fundamental right, by the SC, till date.

The right to privacy was held as being a fundamental right, under Article 21 of the Constitution by the Supreme Court, in the case of  Justice KS Puttaswamy (Retd.) & Anr. vs Union of India & Ors. (AIR 2017 SC 4161) (Puttuswamy judgment). The PDP Bill was drafted and introduced post the identification of privacy as a fundamental right in the Puttuswamy judgment.

The Puttuswamy judgment along with the Sri Krishna Committee report have been calling for reforms on data protection and privacy. The Telecom Bill may need to offer more clarity and comfort on the above provisions. The Bill would benefit from closer attention to the requirements of industry players while balancing the needs of the country.

The writers are partner and associate, respectively, with JSA, Advocates and Solicitors. Views are personal

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