New Telecom Act risks normalising dangerous culture of unaccountable state intrusion

Any law student can attest to the principle that definitional uncertainty goes against the core tenets of good legislative drafting, which call for clear and targeted provisions
Telecommunications Act 2023
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Almost half a year after gaining Presidential assent last December, key provisions of the Telecommunications Act 2023 ("the Act") came into force on June 26, 2024. The Act faced a tumultuous journey, culminating in a hurried passage through both Houses of Parliament following the unprecedented suspension of 140 opposition members. It replaces the Indian Telegraph Act, 1885 (except for Part III), the Indian Wireless Telegraphy Act, 1933, and related rules.

Amongst the provisions of the Act that just became law are Sections 2 (p) and 2 (t), which define "telecommunications" and "telecommunication services" vaguely and expansively. These overbroad definitions potentially cover a wide array of digital platforms, including internet services and over-the-top services like WhatsApp and Zoom. Despite assurances from a Union minister and government officials that this is not the intent, the definitional ambiguity leaves the door wide open for potentially broad interpretations in the future.

Any law student can attest to the principle that definitional uncertainty goes against the core tenets of good legislative drafting, which call for clear and targeted provisions. Overbroad clauses delegate excessive discretion to those charged with enforcing the law, thus inevitably inviting executive abuse. Concerns about selective or arbitrary enforcement of a law are particularly warranted when it regulates fundamental liberties like speech. In addition to the rule of law and civil liberties concerns, overbroad laws are also an inefficient use of state capacity and resources. Divining the extent of the Act's scope and applicability to different kinds of activities or services would also burden a judiciary (that is already stretched thin) with potentially extensive litigation.

Much criticism has been particularly directed at Chapter IV of the Act, which grants the Union government sweeping powers to intercept, monitor and suspend telecom services on numerous ill-defined grounds, such as "national security" and "public emergency".

Of course, no one disputes that governments may, under certain circumstances, need to intercept communications to preserve "national security" or investigate serious crimes, for example. However, in a democracy committed to the rule of law, such intrusive powers must be tightly circumscribed by robust legal safeguards, ideally enumerated within the legislation, and scrutinised by elected lawmakers.

To be clear, these powers existed vide erstwhile laws such as Section 5 of the Telegraph Act. Over the years, India's erstwhile telecom laws and rules had developed some guardrails, however meager, either through amendments or via case law (such as PUCL v UoI, Puttaswamy v UoI, and Vinit Kumar v CBI, to name a few.). It is unclear to what extent the precedential value of existing jurisprudence will carry over in the interpretation of the 2023 Act.

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Rules that clarify the circumstances under which government agencies can exercise these powers and the concomitant procedures they must follow are yet to be framed under the Act. Combined with the definitional conundrums enumerated above, this means that the Union government’s surveillance (both targeted, or bulk) powers, for now, remain essentially uncircumscribed.

Other democratic nation-states worldwide have also constructed legal frameworks where the government retains similarly broad powers and empowers the executive to formulate the relevant rules and procedures for their exercise.

For instance, the United Kingdom’s Investigatory Powers Act, 2016, gave the Home Secretary the power to issue the associated Interception of Communications Code of Practice. The code provides a detailed framework for using interception powers within the overall statutory scheme set out by the UK Parliament in the legislation.

But, while far from perfect (concerns persist over bulk data collection and its extraterritorial overreach), the Investigatory Powers Act and its explanatory notes, enumerate various procedural and legal safeguards. The legal framework is characterised by a “double-lock”, two-stage approval process for any application by a public authority to use the most “intrusive investigatory powers” outlined in the legislation.

More important, however, is the fact that most applications must be approved by a Judicial Commissioner, who must either be a serving or retired member of the senior judiciary. Even in exigent circumstances, where prior approval for exercising these powers may be dispensed with, Judicial Commissioners can approve or quash such applications post facto. The incorporation of judicial authorisation in the course of executive action, therefore, provides some semblance of checks and balances in the exercise of power.

It is also important to note that here too, considerations of "national security" are relevant when issuing approval. While still decided on a case-to-case basis, these considerations are meant to clearly make out a case to the reviewing authority (executive or judicial), that the warrant being sought, is necessary and proportional to what it intends to achieve. In assessing this, Judicial Commissioners can seek additional information from the executive, and "apply the same principles as would be applied by a court on an application for judicial review". Apart from the aforementioned explanatory notes and code of practice, the UK legislative framework also ensures that the independent Investigatory Powers Commissioner's Office (IPCO) maintains oversight of public authorities seeking to exercise interception powers.

By approving the delegation of all the crucial procedural and substantive safeguards to the rulemaking stage, the Indian Parliament has signalled that it trusts the executive to, at the very least, formulate a similarly balanced and judicial oversight-respecting approach to the use of the extensive powers enumerated in Chapter IV of the Act. With the recent elections ushering in a stronger opposition presence in the Parliament, there is a renewed opportunity to revisit the Act's more contentious provisions and extend heightened scrutiny to the rules made thereunder.

The imperative to follow due process under the law is an essential feature of the Indian republic, even in the face of genuine security challenges. A failure to do so risks normalising a dangerous culture of unaccountable state intrusion on individual rights and liberties.

(Satya S Sahu is a Research Analyst with the High-Tech Geopolitics programme at the Takshashila Institution, Bangalore.)

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