Law Sans Safeguard: How the Telecom Act Undermines Personal Liberties

Why in News?

• Recently the Parliament of India passed the Telecommunications Act (TA) 2023,which justifiably seeks to bury remnants of colonial-era laws.
• While the modern digital age creates conditions for unprecedented surveillance, the question arises whether the law has enough safeguards and an independent regulatory architecture to protect the rights of citizens.
• Amid these debates, it is important to understand a quick recap of the major markers in digital governance in India, passing of TA 2023 and challenges and concerns associated with it.

The Institutional Evolution/Challenges of Telecommunications Regulation in India

• Introduction of Regulatory Framework
  • The telecommunications regulatory framework in India took shape during the late 1990s as a response to the influx of private sector investments.
  • The necessity arose from the dual role of the public sector operator, acting as both a player and a referee.
  • These complex dynamic created conflicts and prompted the establishment of the Telecom Regulatory Authority of India (TRAI).
• Role of TRAI and Establishment of TDSAT
  • TRAI's creation was an attempt to bring order to a sector facing disputes and litigations.
  • However, the challenges continued, leading to the subsequent establishment of the Telecom Dispute Settlement Appellate Tribunal (TDSAT).
  • TDSAT was designed to streamline dispute resolution and overcome the delays associated with traditional legal proceedings.
• Dissolution of TRAI and Power Dynamics
  • The dissolution of the initial TRAI highlighted the intricate power dynamics within the regulatory landscape.
  • Questions arose about the ultimate authority in the sector, as conflicting interests and desires for regulatory roles began to dominate the original intent of creating an independent regulatory body.
• Desire for Regulatory Roles and Personal Advantages
  • Over the years, the wish to work in regulatory jobs got mixed up with wanting personal benefits.
  • People began wanting regulatory positions that offered stability and power.
  • However, this was not just happening in India; similar patterns were noticed in other places too.
• The Issue of Balancing Autonomy and Governmental Influence
  • The relationship between the legislative and executive branches further complicated the regulatory scenario.
  • While the goal was to establish an independent regulatory body, the execution fell short, and the delicate balance between autonomy and governmental influence remained vague.
  • The need to address disputes and maintain regulatory control sometimes led to compromises.

Key Features of the Telecommunications Act2023 (TA 2023)

• Replacing Outdated Legislation
  • The primary objective of the TA 2023 is to replace two colonial-era legislations— the Indian Telegraph Act1885 and the Indian Wireless Telegraphy Act 1933.
  • This replacement is a strategic move to align regulatory frameworks with contemporary technological advancements in the telecommunications sector.
• Introduction of Section 20(2)which Pertains to the Interception of Messages
  • This section is like Section 5(2) of the Indian Telegraph Act 1885[provided a framework for interception in emergent cases and delegated powers to law enforcement agencies], but with procedural details now incorporated into the Act itself.
  • This alteration aims to streamline and clarify the legal provisions for interception in the realm of telecommunications.

Concerns Associated with TA 2023

• Ambiguous Definition of Telecommunication Services
  • A significant challenge arises from the open-ended definition of telecommunication services within TA 2023.
  • The ambiguity in the language raises concerns about the potential inclusion of internet-based services, such as WhatsApp and Gmail, within the Act's regulatory ambit.
  • This ambiguity could have far-reaching implications for the scope of the legislation and its impact on various digital services.
• Encryption and Privacy Concerns
  • TA 2023 grants the government powers to notify standards, conformity measures, and even request alternatives to end-to-end encryption.
  • This has raised concerns regarding user privacy, as the legislation could pave the way for interference with encryption mechanisms.
  • The requirement to disclose messages in an intelligible format is particularly worrisome, as it seems conflicting with the principles of end-to-end privacy engineering.
• Governmental Authority and Potential Overreach
  • The grounds outlined in Section 20(2) of TA 2023 for seeking information, including sovereignty, integrity, security, and public order, appear reasonable on the surface.
  • However, the broad phrasing of these grounds leaves room for expansive interpretation, potentially enabling overenthusiastic enforcement machinery to go beyond the letter of the law.
  • This raises concerns about possible governmental overreach into citizens' private communications.
• Lack of Procedural Safeguards
  • The Act, in its current form, lacks crucial procedural safeguards, especially concerning the suspension of internet services under Section 20(2)(b).
  • The absence of safeguards such as the proportionality test, exploration of suitable alternatives, and the adoption of least intrusive measures, as outlined by the Supreme Court in the Anuradha Bhasin judgment, leaves the legislation easy to misuse.
• Inadequate Oversight Mechanism: TA 2023 fails to establish an independent oversight mechanism for interception and suspension orders related to telecommunications.

Ways to Address the Concerns Surrounding TA 2023

• Need to Setup a Mechanism of Constant Vigilance
  • Unchecked powers assigned to regulatory bodies or government agencies, can potentially undermine institutional integrity.
  • The desire for regulatory roles, as seen in the evolution of India's telecommunications sector, sometimes intertwines with personal aspirations, risking the subversion of institutions for individual gains.
  • So, there is a need for perpetual vigilance against the subversion of institutions and powers.
• Lessons from Legal Mandates in Other Jurisdictions
  • Separation of powers alone is insufficient; it must be complemented by robust mechanisms that ensure checks and balances to prevent potential abuses.
  • In the UK, legal mandates require approval of interception warrants by judicial commissioners.
  • India should consider this UK model in its approach to designing oversight mechanisms.
• Incorporations of Procedural Safeguards
  • The absence of procedural safeguards in legislation like TA 2023 leaves room for potential misuse and raises concerns about privacy violations.
  • Incorporating safeguards such as the proportionality test, exploration of alternatives, and the adoption of least intrusive measures is essential for preserving institutional integrity.

Conclusion

• The evolution of India's telecommunications regulatory framework from the late 1990s to the introduction of TA 2023 reflects a dynamic process shaped by necessity, unintended consequences, and ongoing challenges.
• The ambiguities and deficiencies within TA 2023 underscore the need for careful consideration of privacy implications and procedural safeguards.
• As the telecommunications sector continues to evolve, a balance must be struck between regulatory powers and the preservation of individual liberties to ensure the effective functioning of institutions.