In a bid to upgrade the Indian Telegraph Act 1885, a law that is more than a century old, the Department of Telecommunications, or DoT, issued the Draft Indian Telecommunications Bill 2022 on 21 September. Among other things, the proposed legislation brings digital communications applications like Signal and Telegram under telecommunications law and regulation and treats them like internet and telecom service providers and broadcasters. A key implication here is that as telecommunications services, these applications would require licences to operate in India.
Digital communication applications are currently governed by the Ministry of Electronics and Information Technology (MeitY) and the Information Technology Act 2000 where there is no licensing requirement. The move has been debated for some years now, with the Telecom Regulatory Authority of India (TRAI) issuing multiple consultations on the matter, most recently in 2018. DoT may have legitimate grounds for extending its jurisdiction over digital communications applications, including a policy mandate established by the National Digital Communications Policy in 2018. However, there is a conflict that must be resolved, namely the jurisdictional overlap between the prospective law and the existing information technology framework.
What the government thinks
A key reason for the DoT to bring such applications under telecommunications law is national security. Licensed telecom service providers must provide law enforcement authorities access to their networks and intercept messages in the course of investigations. Conversely, there is a contention that there is no corresponding obligation on digital communications applications, potentially leaving a gap in safeguarding national security interests. A further assertion is that the encryption used by most digital communications apps hampers investigative efforts as it becomes difficult to ascertain user identity on these platforms and stop malfeasance. The draft telecom bill attempts to address this gap by including a provision which enables the government to undertake measures in the name of national security, including issuing directions regarding the use of any telecommunication service. Presumably, licences issued for digital communications applications under the proposed legislation will prescribe conditions that would require these apps to give law enforcement authorities access to their systems for monitoring and intercepting communications.
However, the IT Act already has provisions to enable lawful interception and monitoring of messages sent through digital communications applications. Under Section 69 of the IT Act, the central or state government may issue directions to do so in the interest of preserving, among other things, national security and public order. Moreover, rule 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) 2021 requires digital communications applications with 50 lakh users or more to enable identification of those sending messages on their platforms. The implication here is that digital communications apps would have to break encryption and create meaningful pathways for the surveillance of their services. Importantly, while rule 4 has been challenged, it has not been stayed by any court, meaning digital communications apps must comply with it.
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IT act vs telecom bill
It would appear, then, that the provisions regarding national security in the draft telecom bill and the IT Act overlap. So how would the situation be resolved, as both have clauses that give them the ability to override provisions in other laws? Specifically, both the Draft Telecom Bill, 2022 and the IT Act have a non-obstante clause, a provision that enables a statute to uphold the enforceability of its provisions over others that contradict it. Thus, in case of a contradiction between these two laws, which would prevail?
Jurisprudence classifies certain statutes as special laws, enactments designed to address a specific purpose. In the past, the courts have observed that the Indian Telegraph Act 1885 is a special law. By extension, it can be assumed that the same designation will be accorded to its successor, the draft telecom bill 2022. However, in the matter of Sharat Babu Digumarti vs Govt of NCT of Delhi, the Supreme Court also deemed the IT Act a special law. Now, according to judicial precedent, if there are two special laws, the law enacted at a later date prevails if it contains a clause giving it an overriding effect. At the outset, then, it would seem that the telecom bill would prevail over the IT Act as the former will be enacted at a later date.
However, reports indicate that MeitY aims to introduce a newer version of the IT Act, namely the ‘Digital India Act’. This law will likely deal with matters related to lawful interception and other matters related to the governance of digital communications applications. If such a law is passed, the ‘Digital India Act’ would override the enacted version of the telecom bill.
A situation emerges where the telecom bill, if enacted, may face a judicial challenge. Based on the analysis of the court’s treatment of special laws, this proposed legislation is unlikely to prevail as the ‘Digital India Act’ will emerge after it. There is, then, a good chance that the efforts undertaken to issue the telecom bill will come to nought or be held in abeyance by drawn-out litigation. As such, it may behove the DoT to work with MeitY to create a framework for lawful interception relating to digital communications under the new information technology law. A broader and more critical point is that legislative and institutional continuity makes better policy sense.
The MeitY has ably managed the digital sphere for the last two decades. It also has expertise in emerging technologies. Involving the DoT to now govern digital communications applications may serve as a disruption of the status quo with possible unintended and unforeseen consequences, and no guarantee of desired policy outcomes.
Meghna Bal is a Fellow at the Esya Centre and a consultant for Koan Advisory on issues related to emerging technologies. Views are personal.
This article is part of ThePrint-Koan Advisory series that analyses emerging policies, laws and regulations in India’s technology sector. Read all the articles here.
(Edited by Zoya Bhatti)