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Updated: Feb 9

by Prashant Babbar *

The era of the 21st century has made communication among people one of the indispensable parts of life. Effective telecommunication technologies have been proven as one of the crucial drivers behind the globalization we have seen in the last 4 decades. Around 570 crores of people in the world were using mobile phones in 2020, according to a report. India, having an enormous population of about 140 crores is home to the world’s second-largest telecommunication ecosystem with 117 crore subscribers across the country.

Having taken into consideration the unprecedented growth, modernisation, and changing realms of the telecom sector, the government felt the dire need to frame new laws to regulate various facets of telecommunication services, telecommunication networks, and telecommunication infrastructure accordingly. The need was further felt given the fact that all the three pre-existing laws (Indian Telegraph Act, 1885; Indian Wireless Telegraphy Act, 1933; The Telegraph Wires, (Unlawful Protection) Act, 1950) governing the telecom sector had become extremely obsolete. On September 21, 2022, the Department of Telecommunications released The Draft Indian Telecommunications Bill, 2022 for public comment. The draft is designed to change several existing provisions and to come up with numerous new regulatory mechanisms for the telecom sector. The bill regulates various facets and dimensions of the telecom sector: regulation of OTT Platforms, the establishment of the Telecom Development Fund, related rules, etc.



Section 24 (2) (a) of Chapter 6 of the draft bill says that the Central Government, State Government, or any designated officer would be authorized to pass an order to prohibit the transmission of any message, suspend the transmission of any message/s, intercept, detain or disclose any message to that designated officer or institution. The grounds on which this provision can be used are the occurrence of a public emergency or in the interest of public safety, or the interest of the sovereignty, security, and security of India, friendly relations with foreign states, public order, or providing incitement to violence. Various issues are attached to this provision with regard to privacy. Terms like public order, preventing incitement to an offence, and national security are too vague to be interpreted easily. The term 'public emergency' as used in Section 24 is not defined in the bill, which raises questions about the scope of this term and how it may play out. However, Mr Ashwini Vaishnav, Minister of Communication during the Media Interaction of this draft bill claimed that on the foundations of the time-tested and specific provisions relating to ‘public safety’ and ‘national security’ throughout the world, the provisions are formulated clearly.

But the term national security has been left undefined, the government can easily abuse its power on this vague ground. The incident in 2021 when the state refused to file a detailed affidavit to the Supreme Court of India under the Pegasus probe citing national security reasons, however, which was later contested by the court is a good instance exemplifying how the misuse of this term could happen.

The measure is introduced at a crucial time, as the field of telecommunications and related technology is becoming increasingly complex. In the case of K.S. Puttaswamy and Anr. v. Union of India and Another, the Supreme Court of India had included the ‘Right to Privacy’, within the gamut of Article 21 of the Constitution. The Court has relied on the doctrine of ‘every man's house is his own castle’ as recognized in the Kharak Singh v. State of U.P. The right to privacy has now become inalienable and ought to be protected.

Another problem with this clause is that the messaging platforms and OTT service providers, who were offering End-to-End Encryption (E2EE) facility for their users so far, like WhatsApp, would be compelled to do away with it and it would necessitate them to rebuild the whole security measures, which will entail incurring of huge operation cost. The importance of E2EE in protecting privacy cannot be overstated.



The feature of the E2EE serves as an attractive and advantageous feature to WhatsApp and has resulted in the tremendous growth of its users-base in the past few years. The feature has also proved to be an important driver behind the shift of various users to WhatsApp from another massaging app devoid of this feature. In November 2022, when news broke out that hackers had obtained the personal information of 500 million active WhatsApp users, WhatsApp faced harsh condemnation from all over the world. Although India was not included in the list of nations whose citizens' data was allegedly stolen by hackers, users there vehemently denounced WhatsApp and expressed outrage nonetheless.

That’s why even if the government’s intent behind the said provision is public safety and national security, it should seek some ‘middle path’ striving to balance the user’s privacy on one hand and the public good on another. The formation of a completely independent authority for scrutinizing and preventing the possible misuse of personal data from the government side can best serve the purpose of this balancing act. Prior and requisite permission from that authority should be made mandatory. The government can be obliged to submit a comprehensive report to that authority detailing the appropriation and disposal of the data received. Furthermore, there should be a restriction on the frequency and quantity of a user’s chat or recording that could be intercepted. This rigorous framework for permission and scrutiny could also serve as a deterrent factor for misusing the provision of interception. However, the authority should be independent enough to carry out its functions properly without any fear and favour.



The Draft Telecom Bill needs to go through a lot of work before it can be voted into law. We have seen, while some of the draft's enabling clauses are designed to fulfil urgent needs, many others lack caution and, if these provisions are left unchecked, they could have disastrous consequences. Therefore, there needs to be a lot of debate and discussion in the public to persuade the government to engage in open dialogue and make use of the enormous opportunities presented by the telecom sector. Since experts and other interested parties are continuously submitting their opinions, questions, and concerns regarding this draught bill, it is sincerely believed that the government will consider these and adopt the required changes positively.

*Prashant Babbar is a second year student at Rajiv Gandhi National University of Law,Punjab at the time of publication of this blog.


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