Analysing India's New Telecommunication Act: Impact and Implications

[Adit is a student at Institute of Law, Nirma University.]

The Telecommunications Act 2023 (Act), passed by both houses of Parliament and assented to by the President of India in December last year, came into partial effect with only certain sections of the Act coming into force from 26 June 2024 (Sections 1, 2, 10 to 30, 42 to 44, 46, 47, 50 to 58, 61 and 62). This selective enforcement raises concerns about the potential gaps and ambiguities in the current legal framework, necessitating a thorough examination of how the Act will bridge these issues and shape the future of telecommunications in India.

This article examines how the Act differs from the outdated laws it replaces, focusing on some of the prominent enforced provisions, and how it updates the regulatory frameworks  in accordance with technological advancements. This article concludes by offering a nuanced analysis of the Act’s potential impact on India's digital landscape, emphasizing the need for balancing regulatory advancements with the protection of fundamental rights.

Current Landscape of the Telecom Sector in India

India's telecommunications sector is one of the largest globally, with over 1.2 billion subscribers and a tele-density exceeding 85%. This extensive reach highlights the need for modern regulations. The Act has received commendation from key industry players for its alignment with global standards, particularly in areas such as  satellite spectrum allocation, non-discriminatory right-of-way (RoW) grants, tax exemptions, and dispute resolution mechanisms.  

However, it has also drawn criticisms from NGOs, advocacy groups, and academic institutions concerned with digital rights, internet freedom, and privacy. The primary concerns revolve around seemingly weakened encryption standards, increased government powers to impose internet shutdowns, and enhanced surveillance capabilities without sufficient independent oversight. These issues raise alarm about potential threats to fundamental rights and the integrity of the internet. 

Enforceable Provisions of the Act

The Act aims to modernize and streamline India's telecommunications regulations by replacing colonial-era laws  such as the Indian Telegraph Act 1885, the Indian Wireless Telegraphy Act 1933, and the Telegraph Wires (Unlawful Possession) Act 1950. This Act consolidates the regulation of wireless networks and internet services, simplifies licensing processes, and introduces provisions for spectrum management, right-of-way for telecom infrastructure, and emergency measures for national security.

However, the Act has only been implemented partially;  only 39 out of its 62 sections have been notified. The reason for this partial implementation remains unclear, meaning some provisions of the older laws will continue to be in effect until further notifications are issued. 

Among the prominent provisions that have been implemented are: specific, updated and expanded definitions and terminologies, frameworks to facilitate easier installation of telecom infrastructure through RoW provisions, enhanced government control over  telecom services in emergencies, public order, or offense prevention, online dispute resolution mechanism for grievance redressal, measures against spam messages, significant changes in the regulation of the Digital Bharat Nidhi (formerly, the Universal Service Obligation Fund)  and  stringent penalties for non-compliance.

Analysis and Insights

Expanded definitions and terminology

The Act provides significant clarity compared to its predecessors by defining various aspects of the modern telecommunication ecosystem in detail ensuring specificity  in line with today's technological landscape. 

The Act introduces terms such as “assignment”, “authorization”, and “critical telecommunication infrastructure”, expanding the scope of existing definitions to encompass modern technologies and practices. This expansion also marks a departure from outdated terminologies, such as replacing “telegraph” with “telecommunication”, to align with current communication standards and technologies. 

However, despite these updates, the Act remains consistent with older legislation in defining foundational terms such as “message” and “person”, albeit with more detail. Both the Act and the Indian Telegraph Act 1885 maintain consistency in terms like “notification” and “prescribed rules”, thereby ensuring continuity in administrative processes and legal usage and interpretation. This continuity helps to minimize disruptions in legal and administrative practices, providing a familiar framework for stakeholders while gradually introducing more modernized aspects of the law.

RoW framework  

In the context of telecommunication infrastructure, RoW provisions pertain to the use of   public and private properties for installation and maintenance of networks.  

Under the outdated Indian Telegraph Act 1885, the power was vested in the telegraph authority to lay down, maintain and remove telegraph lines subject to the consent from private property owners, and with provisions for dispute resolution through the local authorities or the civil courts. In contrast, the Act, in its Chapter III, introduces a detailed application process for RoW on both public and private properties. It allows facility providers to seek permissions from public entities for using public property and to negotiate agreements with private property owners. Additionally, the Act empowers the Central Government to mandate RoW in the public interest, meaning that it can enforce RoW even if a private property owner refuses, provided that the public interest is at stake. The new provisions prioritize fair access, transparent conditions, and prompt permissions while ensuring compensation for any damage caused.

Ownership and legal status of networks

Under the now repealed Indian Telegraph Act 1885, there was an implicit assumption of ownership and legal status of telecommunication networks based on general property laws, intertwining it with the property itself. 

However, Section 14 of the Act clarifies that telecommunication networks installed under this law do not confer ownership rights or alter the legal status of the  property on which they are established. This clarification aims to protect the rights of property owners and facilitates better handling of property claims and disputes. 

Regarding government intervention and infrastructure development, the older laws depend on local permissions and dispute resolution. In contrast, Section 15 of the Act grants the Central Government the discretion to establish and designate essential common infrastructure, such as ducts, cable corridors, or conduits, which are crucial for telecommunication networks. This provision aims to promote efficient network deployment by facilitating the expansion of services in the telecommunication sector.

Dispute resolution

The Act improves upon dispute resolution and regulatory oversight compared to the now-repealed laws. Previously, disputes between telegraph authorities and property owners were addressed through local authorities or civil courts. 

Section 17 of the Act now mandates notifications and precautionary measures for activities that could disrupt networks, thereby ensuring efficient dispute resolution and protection against disruptions.

Additionally, Section 30 provides for the establishment of online platforms for resolving disputes between users and service providers, thereby upholding consumer rights in conjunction with existing legislation, such as the Consumer Protection Act 2019.  

Digital Bharat Nidhi 

Section 24 of the new legislation renames the existing “Universal Service Obligation Fund” to “Digital Bharat Nidhi”. This fund is established by imposing a 5% levy on the Adjusted Gross Revenue of telecom companies and is managed by the Central Government. Its primary aim is to enhance telecommunications in rural and remote areas, ensuring connectivity in these underserved regions. Additionally, the fund now includes provisions for incorporating financial support for research and development initiatives aimed at promoting innovation in the telecommunications sector. This amendment represents a strategic shift towards expanding telecommunications infrastructure across India, supported by new regulations governing telecom security and the revamped Digital Bharat Nidhi. 

Regulatory sandboxes 

Section 27 of the Act introduces regulatory sandboxes, which are controlled environments designed for testing new telecommunications innovations under relaxed regulatory conditions. . This provision supports the advancement of telecommunication technologies by allowing for experimentation and innovation within defined frameworks, a concept not anticipated by the older legislation.

Offenses, regulations, and penalties

The older laws reflect the concerns of their times; the Indian Telegraph Act 1885 focused on offenses such as unauthorized interception of messages and tampering with telegraph lines; the Indian Wireless Telegraphy Act 1933 advanced regulations for wireless communication, addressing the establishment, possession, and interference with wireless apparatus to ensure regulatory control; the Telegraph Wires (Unlawful Possession) Act 1950 specifically targeted the unauthorized possession of telegraph wires to safeguard telecommunication infrastructure from theft and misuse.

In contrast, the Act, particularly under Section 42, provides comprehensive provisions better suited for modern telecommunications. It covers a broader range of offenses, such as unauthorized service provision, network establishment, data interception, and violations affecting national security or telecommunication networks. The Act also emphasizes stringent and cognizable penalties, covering abetment, attempts, and conspiracies related to these offenses.

Certification 

The Act introduces provisions for certifying individuals who operate radio equipment and amateur stations, detailed in Sections 46 and 47. This power of certifying individuals on specified vessels, aircraft, and other designated vehicles lies with the Central Government. These provisions also address the diverse uses of radio frequencies.

In contrast, the older laws mainly focused on broader regulatory controls related to telegraphy and wireless communication and lacked this kind of specific certification framework.

Jurisdiction and immunity

The Act, in Sections 50, 51, and 52, introduces provisions for extraterritorial jurisdiction, immunity for actions taken in good faith, and detailed hierarchical clarity in case of legal discrepancies. In contrast, the older legislation lacked provisions for international reach, specific immunities, or a clear hierarchical framework within the telecommunications sector.

Regulatory evolution

Section 57 of the Act empowers the Central Government to amend its schedules via notification, ensuring adaptability with immediate effect. In contrast, the older laws required legislative processes for amendments, which could lead to delays and reduced flexibility.

Furthermore, Section 58 grants the Central Government the authority to issue orders to resolve implementation difficulties within three years of the Act's commencement, with all such orders published in the Official Gazette and subsequently laid before Parliament. The older laws lacked such measures, relying instead on judicial interpretation or legislative amendments. As a result, the Act facilitates greater regulatory flexibility, leading to more effective governance compared to the older laws.

Conclusion

The Act marks a significant overhaul of India's telecommunications regulatory framework, replacing outdated colonial-era laws with modern provisions that better align with contemporary technological advancements. The partial implementation of the Act, covering 39 out of its 62 sections, introduces crucial updates such as expanded definitions, streamlined right-of-way frameworks, enhanced government control during emergencies, and advanced dispute resolution mechanisms. Additionally, it promotes innovation through regulatory sandboxes and modernizes the Universal Service Obligation Fund into the Digital Bharat Nidhi, with a focus on rural connectivity and research. 

Despite these advancements, the Act has sparked substantial debate and criticism, particularly regarding  privacy, encryption, and increased government surveillance capabilities. The discussions surrounding these contentions, alongside the commendations, highlight the need for a balanced approach that ensures efficient governance of technological advancements while safeguarding fundamental rights and freedoms in the digital era.