Article 21 Trust collaborated with members of various digital and human rights groups, civil society organisations such as Hasgeek, ASEEM, Maadhyam etc. and intellectuals from varied disciplines and submitted detailed comments and concerns regarding the Telecommunication Bill, 2022 to the Department of Telecommunications, Government of India.
The bill sought to replace the laws such as the Indian Telegraph Act 1885, the Wireless Telegraphy Act 1933 and the Telegraph Wires (Unlawful Possession) Act 1950 which govern the existing legal framework of telecommunication in India, thus creating an entirely new framework to govern telecommunications in general as well as internet-based services. Our principal concerns with the Bill are summarised below:
The Telecommunication Bill has missed the opportunity of bringing reforms in much-needed areas such as privacy, transparency and accountability of government security apparatus which frequently resorts to surveillance and interception of telecommunication services. To this end, the Bill deviates from the ruling of the landmark judgement in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
The Supreme Court in K S Puttaswamy has ruled that a law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights, including life and personal liberty under Article 21. The Court further held that the law must meet the three requirements of: legality, legitimate state aim and proportionality which are not fulfilled in the case of the present Bill.
The Bill appears to violate fundamental rights and gives unchecked power to the state to conduct identification and surveillance of citizens while placing the physical and financial burden of identification and surveillance on telecom service providers.
The Preamble of the Bill ignores the public law doctrines and the telecommunication jurisprudence developed by way of litigation and judicial pronouncements of the constitutional courts. Particularly, the intersection of the economic and social rights vis a vis the rights pertaining to the freedom of speech and expression required a more nuanced approach.
The Bill, for the first time, gives explicit powers to the Central Government to shut down the internet without appropriate safeguards, despite a progressive ruling on this subject by the Supreme Court in Anuradha Bhasin vs. Union of India (2020) 3 SCC 637.
In Anuradha Bhasin, the Hon’ble Apex Court held that there is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. It was also held by the Court that the order of the suspension must meet the principle of proportionality and must not extend beyond the necessary period. However, the Bill not just gives unrestrained powers to the Government but is also silent about the period of the suspension of the Internet.
The Bill is marred with broad and unprincipled definitions. For instance, the definition of telecommunication service is all-embracing and includes within its fold not just the fixed line telecommunication services but also the OTT services.
The Bill is replete with provisions which empower the Government with wide powers of internet suspension, surveillance etc. Simultaneously, the Bill dilutes the powers and role of TRAI.
To read our complete submissions, please click here.