Amid the many bills bulldozed through the recent winter session of parliament after the suspension of 146 opposition MPs were those on crucial issues that deserved serious debate in both Houses—post office reform, telecommunications, revisions to the three colonial-era criminal laws and the appointment of election commissioners. But whereas any democratic government would have gone out of its way to ensure a debate on such important matters—such as by accommodating the opposition’s reasonable request for a statement by the home minister on the security breach in the Lok Sabha—this government has scant regard for the institution of parliament or its conventions. Instead, it cheerfully observed how much more pleasant it was to discuss such weighty matters without dissent.
A case in point is the Telecommunications Bill of 2023. Meant to replace colonial laws that permitted extreme forms of state control over communications during the Raj, the new law is a draconian reincarnation of a colonial monstrosity, updated for the 21st century and with a smattering of Hindi terms to demonstrate post-coloniality. The law enshrines complete freedom—not for the citizen, but for the government—to conduct surveillance and internet suspensions. It seems that after hollowing out the citizens’ Right to Information, the government plans to arrogate to itself a Right to Snoop on citizens’ information.
While dealing with internet shutdowns, the Supreme Court in 2020 had held that restrictions of the fundamental rights to freedom of speech and expression and freedom of trade and business must meet the test of proportionality. Back in 1996, the court had also emphasised that the State’s powers to intercept communication had the potential to violate the fundamental rights of privacy, freedom of speech and expression if there were no established safeguards. The court suggested several safeguards, including establishing necessity, limiting the purpose for which intercepted material was used, time limits, sunset clauses for interception orders, issuance of orders only by high-ranked officials such as the home secretary, and mandatory reviews by an internal oversight committee. A revised bill had been pushed by the parliamentary Committee on IT and Communications—before I was removed as its chairman—as an opportunity to codify more democratic arrangements, moving away from a committee consisting exclusively of senior government officials to a mechanism including judicial oversight. But the government chose to take the opportunity to perpetuate the stranglehold of officialdom.
The bill further mandates biometric verification of every social media user by the telecommunication services provider. This creates the architecture of an identity-linked internet telecommunication service that will erase all anonymity online. Biometric information is sensitive personal data and its collection and use are protected by the fundamental right to privacy. The question is: when less intrusive means exist to establish identity for issuing a SIM card (or a PAN card, voter ID, etc), why resort to biometrics at all?
Then there is the Kafkaesque search-and-seizure proviso. Any government officer is now authorised to search your premises or vehicle, provided they have reason to believe that unauthorised telecommunication equipment, including your personal phone, or network used to commit an offence, is kept there—and to take possession of such equipment or network. The bill neither specifies the procedure for nor any safeguards against such actions, making intrusive abuse all the more likely. The government also has given itself the power to summon any information, documents or records it believes necessary.
In my critique of the Data Protection Bill earlier this year, I had mentioned that the Modi government has an uncanny knack for identifying the most ambiguous grounds in the law, which it conveniently uses to impinge on our freedoms. Just like our unprotected data under that bill, the Telecoms Bill provides that any message may be intercepted, monitored or blocked on the usual vague grounds: the security of the state, friendly relations with other countries, public order or prevention of incitement of offences. “National security” is nowhere defined; anything could be covered by the term. Telecoms and internet services may be suspended on similar grounds. This interception is purportedly subject to procedures and safeguards, but here’s the catch: these are to be prescribed by the central government at a later date. If procedure and safeguards were meant to protect the fundamental rights of citizens, what prevented the government from making them a part of the bill itself?
The definition of a “message” in the bill is deliberately vague. It includes signs, signals, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication. This is so vast that every OTT service within the contours of India—even apps such as WhatsApp, Signal and Telegram—could fall within this law’s ambit, spelling an end to encryption and privacy. The Union minister’s reply to the anodyne discussion on the bill in both Houses of parliament failed to clarify whether OTT messaging platforms come under the regulatory ambit of the bill he was just passing.
The law also tweaks the spectrum allocation process. While auctions will remain the preferred way to assign spectrum, satellite communications will be allotted administratively; so will telecoms for sectors like metro rail, defence, railways and police. The question the government doesn’t want us to ask is whether the law has any safeguards against illegal allocations, favouritism or scams in a purely government-driven spectrum allocation process. Since the government specialises in shrugging off any accountability to the elected representatives of the people, it predictably did not bother to disclose any feedback received from the stakeholder consultations it claims to have undertaken.
Even as India is being recognised worldwide for its exceptional advancements in digital public infrastructure, the government seems determined to undermine citizens’ digital rights. As this bill becomes law, we must all ask ourselves: is a suffocating surveillance society the future we want for ourselves? Are we fine with the state encroaching on our personal lives? Do we want large corporations’ interests trumping citizens’ rights? And, perhaps most important, do we really want to support a government that has no qualms about passing laws that threaten our freedoms by imperiously suppressing every voice of dissent?
“Bharat moves on,” telecoms minister Ashwini Vaishnaw tweeted when the bill was passed. But in which direction are we moving? Towards the world of 2024 or the dystopia of 1984?
Shashi Tharoor, Third-term Lok Sabha MP from Thiruvananthapuram and the Sahitya-Akademi winning author of 24 books, most recently Ambedkar: A Life