Transforming Communication: An In - Depth Look At The Telecommunication Act 2023

Author: S M NAWAZ AHMAD
College: University Institute of Legal Studies, Chandigarh University, Punjab

INTRODUCTION

India, recognized by the Telecom Regulatory Authority of India (TRAI) as the world’s second-largest telecommunications market with a tele density of 85.11% as of July 2022, is witnessing significant growth in internet and broadband penetration, propelling the Digital India initiative and the nation’s entry into the 5G era. The Telecom Act 2023 marks a pivotal shift in India’s booming telecommunications industry, replacing the outdated Telegraph Act of 1885 with a contemporary regulatory framework. This legislation, effective from June 26, 2024, aims to balance the industry’s rapid technological advancements and market reforms with the protection of user rights. A critical aspect of the Act permits the central and state governments to intercept messages and temporarily take control of telecom networks during public safety concerns or emergencies.
The Telecommunication Act 2023, introduced on December 18, 2023, and swiftly passed by the Lok Sabha and Rajya Sabha on December 20 and 21, respectively, received presidential assent on December 24, 2023. It focuses on creating a robust security framework to safeguard critical mobile networks against cyber threats and unauthorized access. Additionally, the Act repeals the Indian Telegraph Act of 1885, the Indian Wireless Telegraphy Act of 1933, and the Telegraph Wires (Unlawful Possession) Act of 1950, while amending the Telecom Regulatory Authority of India (TRAI) Act of 1997, thus streamlining regulatory oversight and modernizing telecommunications governance in India.

OBJECTIVE AND APPLICABILITY

The primary objective of the Telecommunication Act 2024 is to regulate and oversee the telecommunications sector to ensure its orderly growth, protect consumer rights, enhance data security, and promote innovation. This includes establishing clear guidelines for the issuance and use of SIM cards, preventing fraudulent activities, ensuring fair competition, and fostering the development of modern telecommunications infrastructure. The Act applies to all entities and individuals involved in the telecommunications sector within the country, including telecommunications service providers, mobile network operators, internet service providers, consumers and end-users of telecommunications services, equipment manufacturers and vendors, regulatory bodies, and government agencies overseeing telecommunications, and any person or entity involved in the sale, distribution, or use of SIM cards and related telecommunications services. The Act encompasses a wide range of activities, such as the issuance and regulation of SIM cards, prevention of fraud, data protection, competition laws, and the development and maintenance of telecommunications infrastructure. It aims to create a secure, fair, and efficient telecommunications environment for all stakeholders.

ISSUES

According to Section 20(1) of the Telecommunication Act, 2023 during public emergencies or for public safety reasons, the Central or State Government, or specially authorized officers, can temporarily take control of telecommunications services or networks from authorized entities. They can also establish mechanisms to prioritize the routing of messages from authorized users or groups involved in response and recovery efforts.

According to Section 20(2) of the Telecommunication Act, 2023 during a public emergency or for reasons of public safety, the Central or State Government, or authorized officers, may, in the interest of India’s sovereignty, integrity, defense, security, relations with foreign states, public order, or to prevent incitement to offenses, order the suspension of any telecommunication service or class of services. This can include communication to or from specific individuals or groups, specific telecommunication equipment, or on specific subjects, subject to prescribed procedures and safeguards, with reasons recorded in writing.
This potentially enables widespread surveillance, raising concerns about potential violations of the right to privacy, especially regarding the principle of proportionality.

SUPREME COURT CASE ON RIGHT TO PRIVACY AS “FUNDAMENTAL RIGHT”

In the case of K.S. Puttaswamy (Retd) vs Union of India on 26 September 2018, all nine judges on the bench unanimously upheld the right to privacy as a fundamental right under the Constitution of India. They emphasized that this right is essential to the freedoms guaranteed under various fundamental rights, and is inseparable from concepts of dignity, autonomy, and liberty.

BENEFITS

Government Authorization Required for Telecom Activities: According to Section 3(1) of the Telecom Act 2023, prior approval from the central government is mandatory for offering telecommunication services, setting up, operating, maintaining, or expanding telecommunications networks, and possessing radio equipment. Existing licenses will remain valid for their specified duration, or five years if no specific period is mentioned.
Digital Bharat Nidhi: Section 24 of the act introduces the establishment of Digital Bharat Nidhi, which replaces the Universal Service Obligation Fund created under the 1885 Act. This fund aims to ensure access to telecom services in underserved rural, remote, and urban areas. It retains the original objective while expanding its scope to include funding for research and development initiatives in telecommunication services, technologies, and products. Additionally, the fund supports pilot projects, consultancy, and advisory services aimed at improving service delivery in these areas.
Protection of Users in Telecom Services: Under Section 28, the legislation empowers the central government to implement measures to safeguard users. These measures encompass obtaining prior consent for receiving designated messages like advertisements, establishing Do Not Disturb registers, and setting up mechanisms for reporting malware or specified messages. Telecom service providers are mandated to establish an online platform for user registration and complaint resolution.
Protection of Telecommunication Networks and Services: Section 22 grants the Central Government authority to formulate rules ensuring cybersecurity and protection for telecommunication networks and services. These regulations encompass the collection, analysis, and dissemination of traffic data, including details on the type, routing, duration, or timing of telecommunications. Additionally, the government is empowered to declare any telecommunication network or its segments as Critical Telecommunication Infrastructure through official notification in the Gazette.
Assignment of spectrum: Spectrum allocation will primarily occur through auctions, except for specific purposes like national security, defense, disaster management, weather forecasting, transport, satellite services such as DTH and satellite telephony, and services provided by BSNL, MTNL, and public broadcasting, which will be allocated administratively. The central government retains the authority to repurpose or reassign any frequency range and may authorize sharing, trading, leasing, or surrendering of spectrum as needed.

IMPACT OF THIS ACT

On Encrypted Messaging Services and Online Safety: The Indian government’s new legislation grants it the power to intercept and disclose messages in a “readable format,” leaving no room for encrypted messaging services to resist. This poses a significant threat to the fundamental feature of end-to-end encryption, which ensures that messages can only be viewed by the sender and intended recipient(s), not even by the service provider. The Act’s requirements might lead secure services to withdraw from India, jeopardizing individuals’ freedom of speech and privacy, especially given the increasing instances of cyberattacks and surveillance.
On Interest Services: Historically, telecom laws in the country have been misused to monitor our devices and restrict internet access. These laws are evolving with the times, broadening their reach to encompass new and emerging services. The Telecom Bill 2022 attempted to bring online communication services (such as Signal, Zoom, Skype, and Gmail) under the same licensing framework that was previously applied to broadcasting services. The democratization of Internet communication services, combined with the expanded monitoring and suspension powers from traditional broadcasting services, would irreparably harm user rights and democratic freedoms. The Telecom Act 2023’s ambiguous definitions raise concerns and confusion about its applicability to internet services.
On Privacy and Cybersecurity: Section 3(7) of the Telecommunication Act 2023 mandates that authorized entities offering specified telecommunication services must identify users using verifiable biometric-based identification methods as prescribed by the Central Government. This requirement raises concerns about potential vulnerabilities to cyber fraud, as many individuals commonly use Aadhaar cards, which are linked to bank accounts, as identity proof for purchasing SIM cards. The use of Aadhaar cards for telecommunication service authentication could compromise user privacy and security, given the sensitive nature of biometric and financial data linked to these cards.
Authority and Finality in Resolving Disputes: Section 18(1) grants the District Magistrate, or any other authority designated by the Central Government, exclusive power to resolve disputes within their jurisdiction. According to Section 18(3), any dispute resolution determined by a District Magistrate or District Judge under this section is final and binding.

PUNISHMENT

Penalties for Fraudulent Activities: It also covers the consequences of using someone else’s government ID to obtain a SIM card, including the imprisonment term of up to 3 years and financial penalties of up to 50 lakhs or both. This section would address the specific offense of using a SIM card to hide the caller’s identity, including the associated penalties.
SIM Card Ownership Limits: As per schedule 3 of this act the maximum of 9 SIM cards an individual can own per Aadhaar card and the penalties for exceeding this limit are as much as Rs 50,000 for the initial offense and up to Rs 200,000 for each additional offense.
Penalties for Unauthorized Use of Telecommunication Services: As per schedule 3 of this act using a telecommunication service or network without the required authorization under this Act, or knowingly doing so, can result in a civil penalty of up to ten lakh rupees.
Adjudication process: The adjudication process begins with the appointment of an adjudicating officer by the central government. This officer, holding a rank of joint secretary or higher, conducts inquiries and issues orders concerning civil offenses under the legislation. Appeals against the adjudicating officer’s decisions can be made to the Designated Appeals Committee within 30 days. This committee consists of members holding at least the rank of Additional Secretary. Appeals related to breaches of terms and conditions may then be filed with TDSAT within the same 30-day timeframe.

CONCLUSION

The Telecommunications Act 2023 represents a crucial step forward in shaping India’s digital future, offering a comprehensive framework to modernize infrastructure and regulatory processes. While it aims to promote innovation and enhance national security through optimized spectrum utilization and streamlined regulations, its effectiveness hinges on robust implementation and stakeholder collaboration. Balancing regulatory scrutiny with fostering a competitive landscape will be essential to prevent stifling innovation, particularly for smaller entities. With a clear commitment to digital inclusion and economic growth, the Act sets a foundation for a secure telecommunication network vital for advancing India’s socio-economic development. A unified governmental approach across licensing, standards, skills development, and governance is crucial for maximizing the Act’s potential impact and ensuring a level playing field for all market participants.