Telecommunications Act, 2023

Context: The Parliament has passed the Telecommunications Act, 2023, which seeks to replace the Indian Telegraph Act, 1885; the Indian Wireless Telegraphy Act, 1933; and the Telegraph Wires (Unlawful Possession) Act, 1950. Additionally, it amends the Telecom Regulatory Authority of India (TRAI) Act, 1997.

Objective of the Telecommunications Act, 2023

• The Act aims to comprehensively rewrite telecommunications law, consolidating various aspects of telecom regulation, including spectrum rules, right of way, dispute resolution, and other administrative procedures, into a single statute.
• The Act gives statutory force to the National Frequency Allocation Plan.
• It provides for the allocation of spectrum.
• It establishes the mechanism of interception and search in certain cases and provides for penalties in case of violation.

Salient Feature of the Telecommunications Act, 2023

• Authorisation for telecom-related activities:  Prior authorisation from the central government will be required to:
  • provide telecommunication services.
  • establish, operate, maintain, or expand telecommunications networks.
  • possess radio equipment.
• Provisions for Existing licences: Existing licenses will remain valid for the duration of their grant or for five years if the period is not specified.
• Assignment of spectrum:  Except for specified uses mentioned in the act, such as national security and disaster management, where spectrum will be assigned on an administrative basis, for other uses, the spectrum will be assigned through auction.
• Repurpose and Reassignment: The central government may re-purpose or re-assign any frequency range.  
• Provision for leasing: The central government may permit sharing, trading, leasing, and surrender of spectrum.
• Power of interception and search: Such actions must be necessary or expedient in the interest of public safety or public emergency. An officer authorised by the government may search premises for the possession of unauthorised telecom equipment.
• Protection of users: The central government may implement measures to protect users, including:
  • obtaining prior consent for receiving specified messages, such as advertising messages.
  • establishing Do Not Disturb registers. 
  • creating a mechanism for users to report malware or specified messages.
• Grievance redressal: Entities providing telecom services must establish an online mechanism for the registration and redressal of grievances.
• Right of Way: Entities laying telecommunication infrastructure may seek the right of way over public or private property, which must be provided on a non-discriminatory and non-exclusive basis to the extent possible.
• Qualification for members of TRAI: The Act amends the TRAI Act to allow individuals with at least 30 years of professional experience to serve as the Chairperson and those with at least 25 years of professional experience to serve as members.
• Renaming of Fund: The Act retains provisions related to the Universal Service Obligation Fund but renames the fund as Digital Bharat Nidhi, allowing its use for research and development in telecom.  
• Offences and Penalties: 
  • Providing telecom services without authorisation or gaining unauthorised access to a telecom network or data is punishable by imprisonment, a fine, or both.
  • Breaching the terms and conditions of authorisation is punishable by a civil penalty.
  • Possessing unauthorised equipment or using an unauthorised network or service is punishable by a penalty.
• Adjudication Process: The central government can appoint an adjudicating officer to conduct inquiries and issue orders in response to civil offenses under the Act.

Issues associated with the Telecommunications Act, 2023

• Amplification of Oligopoly: The method of spectrum allocation, especially administrative allocation in certain cases specified in the Act, can exacerbate the already present oligopoly in the telecommunications sector.
• Interception of Communication: The Act permits interception and monitoring; however, critics have raised concerns about the procedures and safeguards delegated to the government.
• Colonial Oversight Mechanism: Existing rules under the Indian Telegraph Act, 1885, specify the procedure for interception. The Act proposes to continue these rules, which were a colonial-time requirement. However, with citizens now being sovereign, the utility of this oversight mechanism is questionable.
• Mass Surveillance: The Act allows interception of any message or class of messages, raising concerns about potential mass surveillance.
• Search and Seizure Powers: The Act grants search and seizure powers to authorized officers without specifying procedural safeguards, which raises concerns about the potential for misuse.
• Biometric Verification: Telecom service providers are required to verify users' identities through verifiable biometric-based identification. Concerns are raised about its potential infringement on the fundamental right to privacy.
• Delegation of Regulatory Functions: The central government is tasked with providing authorisations and assigning spectrum. The delegation of regulatory functions, which are not specified under the law, can give the executive unparalleled power to curb the freedom to do business.
• Offenses and Penalties: The Act allows the central government to amend the schedule specifying civil offenses and penalties through notification. Questions arise about the appropriateness of modifying offenses through notifications rather than through parliamentary acts.
• Legal Limit on SIM Cards: The Act introduces penalties for using SIM cards beyond the notified limit, prompting questions about whether there should be a legal limit on the number of SIM cards a person may use.

Way Forward

• The Act should have a provision that minimises executive discretion in the allocation of spectrum.
• An independent oversight mechanism with members having security of tenure and conditions of service changed only by a law should be put in place.
• Interception of messages should be done based on a threat perception index. The government should not get a free pass in intercepting a message or class of messages.
• Biometric verification should be done on a proportional basis, balancing it with the fundamental right to privacy.
• New civil offenses and penalties should be incorporated into the act through an amendment, rather than being introduced via a government notification.