The deadline has ended for public comments on the draft Indian Telecommunication Bill, 2022—a legislative throwback to the pre-liberalisation Licence Raj. The Industries (Development and Regulation) Act, 1951 allowed the Centre to appropriate industries. Seven decades later, this bill seeks to give it the same power over telecom—and free speech.
Critically erudite sheaves have already been written on it. But my focus is on the peculiar (but inescapably purposeful) imprecision of the wording of the draft—a definitional and phrasal looseness that allows those who penned this draft to interpret, intermediate, and implement its prescriptions in ways that can fettle Freedom of Expression where it stands.
The Union Ministry of Communications prepared the bill to replace legislations that govern telecommunication in India, including the Indian Telegraph Act, 1885, the Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950. It will repeal them until new rules are formulated and will also amend certain provisions of the Telecom Regulatory Authority of India Act, 1997. The bill’s scope being as toilsome as it is formidable, the government has used a shortcut: it has reintroduced into the bill many of the existing terminologies of the Indian Telegraph Act.
The bill seeks certain terminological modernity by replacing ‘telegraph’ with ‘telecommunication’ (the world’s last telegram was sent by the BSNL in 2013), but undoes itself by overlapping the jurisdictions of the terms ‘telecommunication services’ and ‘telecommunication networks’.
Telecommunication networks use spectrum; telecommunication services, not always. But, while talking about spectrum, the draft has included in telecom services a raft of services that do not use spectrum. Telcos use spectrum; telecasters, such as OTTs, for instance, don’t. It is possible to auction spectrum; it isn’t possible to auction telecast rights.
This drafting inexactitude infects the entire bill, leaving it indefensible against both industry and civil-rights criticism and capable of freewheeling, self-serving interpretative actionalising by the government.
For example, the Telecom Services (Public Emergency or Public Safety) Rules, 2017, allows “time-bound, limited” internet shutdowns. (Of course, this guideline is easily elasticated using political will: the longest downtime in Jammu & Kashmir was 552 days, or nearly a year and a half.) The telecom bill, however, doesn’t even make a passing bow in the direction of these words.
From January 2012 to June 2022, there have been 683 internet shutdowns in India (the most numerous in the world); 66 of them have been in 2022—so far. (In 2014, when the BJP first took power at the Centre, there were six; in 2015, 14; in 2021, 106.)
According to the draft bill, the telecommunication services that the government intends to both surveil and licence include “broadcasting services, electronic mail, voice mail, voice, video and data communication services, audiotex services, videotex services, fixed and mobile services, internet and broadband services, satellite-based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine to machine communication services, over-the-top (OTT) communication services, which is made available to users by telecommunication”.In other words, the bill ensures the monitoring of every word written or spoken, every video uploaded, watched, or exchanged (no matter that the sender might have timed them to disappear after a set passage of time) in WhatsApp/Telegram/Signal/FB, Twitter Direct Messages, Facebook Messenger, Clubhouse, Zoom calls, webinars, web conferences, chatrooms, podcasts, Gmail and Yahoo!, VPNs, VoIP, services that transmit content (such as software updates) to machines, communications via undersea cables, ham radio, walkie-talkies, in-flight phone calls and internet access, AI research, laptops, tablets, phones and, potentially, even TV feedback.
Everything in the digital form said or written or seen or heard or exchanged, intentionally or inadvertently. The digital entities will be mandated to confirm user identities and keep granular logs.
This bid for all-encompassing supersurveillance has so far been unheard of anywhere in the world—even in dictatorships. “Cartoonishly evil”, indeed, as Anupam Guha, a Twitter user who highlighted the draft bill’s definitional reconditeness, called it. Perhaps that is the draft bill’s intent because equivocality in a law leaves it wide open to deliberate allegorisation.
The Department of Telecommunication and Ministry of Home Affairs had informed the 2021 Standing Committee on Communications and Information Technology that “public emergency” and “public safety” were the only grounds for which the internet could be suspended. These terms remain undefined in the draft telecom bill, in particular, and the law, in general, and no objective parameters have even been codified. They can mean whatever the ruling dispensation wants them to mean and can be distorted and retreaded case-by-case.
What is the possibility of the establishment wielding the proposed telecom law like a giant, all-felling hammer? Going by precedent, very high. Half the internet shutdowns in the country were implemented after 2017—the year that the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, superseded Section 144 of the CrPC.
There is a possibility (however faint, because this mesomorphic government is not given to feinting) that the vast dictatorial scope of this proposed law has been cleverly designed for recalibration after downsampling—that is, not for continuous, wall-to-wall monitoring (ConMon) or real-time BigData-collation (which are tasks so colossal as to be nearly infeasible), but for sly data backdooring as and when found politically expedient. It is, therefore, prudent to publicly supervise an impending catchall law that has an infinitely expandable perimeter. The government’s assurance that this will be a “light touch regulation” cannot be taken at face value, given that no government dilutes a panoptical law—ever.
Or else we could end up with the government riding shotgun, up close and personal, on every single thing we express or seek to—personal, professional, creative, critical, analytical, hagiographical, poetic, prosaic. A law conceived for political hyper-interpretation and (mis)use.
Kajal Basu
Veteran journalist