The Telecommunications Act 2023 - A Breach Of Right To Privacy
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
THE TELECOMMUNICATIONS ACT 2023: A BREACH OF
RIGHT TO PRIVACY?
Atif Chaudhary, Jamia Millia Islamia University Introduction Telecommunication is a broad term that includes a wide array of information-transmitting technologies and communication infrastructure. In simpler terms, it is an exchange of information over a wide span through electronic means. India is the second largest telecom industry in the world with a 1. 09bln subscriber base. The Indian telecom industry includes telephone, internet, and television broadcast industries. The Telecommunications Bill was introduced to regulate and bring all the sectors under the governance of the centre which has powers to take action along with the state government. The bill was introduced on 18 December 2023 after receiving the assent the bill passed as the Telecommunications Act 2023.
The act replaces the 138-year-old Telegraph Act of 1885, The Wireless Telegraphy Act of 1933, and The Telegraph Wires (Unlawful Possessions) Act of
1950. This Act is An Act to amend and consolidate the law relating to the development,
expansion, and operation of telecommunication services and telecommunication networks; assignment of spectrum; and for matters connected therewith or incidental thereto1. This legislation confers broad authority on the government to intercept and decrypt messages, and stripping the Telecom Regulatory Authority of India of its jurisdiction. Privacy is yet not legally defined but many scholars believe it to be and integral part of the very existence of Human Rights of a person. Privacy may include Dignity, Protection from surveillance, confidentiality etc. The Right to privacy was not envisaged in the part III of the Indian constitution as a fundamental right but significant judgments of the supreme court have led the way for this right to be a fundamental right guaranteed by the constitution to its citizens.
The right to privacy is granted to the citizens through Article 21 Right to Life and Liberty. The
1 THE TELECOMMUNICATIONS ACT, 2023 (Act No. 44 OF 2023)
court in Justice K.S Puttaswamy & Another vs. Union of India and Others2 held that privacy is a Fundamental Right and is an innate part of Right to Life and Personal Liberty under Article
21 of the Constitution. The bench ruled that such right is not absolute and is subjected to
reasonable restrictions. The telecom act introduced by the parliament was passed without any opposition as not a single MP participated in the debate in the upper house and a few members from the lower house participated as the others were suspended. The act was passed without any voice of criticism and the act can be said to be a revamp of the laws under the Telegraph act which paved the way for swingeing surveillance. Does the act really violate privacy? Section 3(7) sanctions any authorized entity notified by the central government to identify their users through Biometric based identification. This section contravene to the right to privacy which has expanded and incorporated personal sensitive data and Biometrics as stated in Gobind v.
State of MP & ANR where the court brought the American state interest test and held that the right to privacy of an individual would have to give way to larger state interest, the nature of which must be convincing. In puttaswamy v. Union of India the Apex Court held linking Aadhaar with SIM Cards was unconstitutional. The court specifically mentioned the sensitivity of biometric information and its draconian usages if felt in the wrong hands. The Court laid down a test for the legislations to pass under Article 21 these include legality, legitimate state interest and nexus between the objective and the means to achieve them. Section 20 states that the government or any person authorized has the power to intercept messages from any person or a group or persons or take possession of any telecommunications service or network in an occurrence of any public emergency.
section 21 empowers the central government to take measures for national security, friendly relations with foreign state or in the event of a war. the central government can collect store or analyze data involved with the telecommunication networks under section 22. sub section (2) defines "traffic data" as and data generated, transmitted, received or stored in a telecommunications network. This creates a backdoor which enables the government to look into private data of any individual or class of individual in the name of national security.
2 AIRONLINE 2018 SC 237 (https://indiankanoon.org/doc/127517806/)
In PUCL v. Union of India3 known as the telephone tapping case the Apex court held that people have individual privacy and that privacy grants them privacy of their telephonic communications at home or at work. The court said that phone tapping would infringe Right to privacy Article 21 of the Indian constitution and can only be done through procedure established by the law as the right is not absolute. The apex court in its judgment also pointed out that telephonic conversation is an expression of a person's Freedom of speech and expression under Article 19(1)(a). The Telecommunications Act includes provisions for interception and data collection during public emergencies or for national security reasons under Sections 20, 21, and 22, it does not clearly define the scope of these emergencies or the criteria for invoking these powers.
This lack of clarity increases the risk that such powers could be invoked excessively or inappropriately, potentially infringing on privacy rights without sufficient justification. The Apex court in Hukum Chand Shyam Lal v. Union of India clarifies upon the meaning of public emergencies The conditions specified in the subsection related to "sovereignty and integrity of India," state security, friendly relations with other countries, maintenance of public order, or prevention of provocation to commit a crime were found to be relevant. Although the courts have tried to clarify the definition, there is still a chance that it could be misused, especially in situations where the government has complete governing power. Furthermore there is no explicit provision in the Act requiring judicial oversight or approval for interception of communications or collection of telecommunications data.
The Digital Personal Data protection Act 2023 enumerates the rights and duties of data principles and obligations, imposes penalties for data breaches. This act defines personal data as any data which belongs to an individual which have characteristics that can identify that individual is personal data. This act has introduces strong data protection measures and has a strong emphasis on Right to Privacy. This legislation ensures that entities operate fairly and act in an accountable manner towards handling personal data. Section 6(1) of the act emphasizes on consent as a basis of data processing. Section 20, 21 and 22 of the telecommunications act empowers the government to intercept personal/traffic data in the name of public emergency or National security without any provision of consent of the individual or class of individual.
3 AIR 1997 SC 568 (https://indiankanoon.org/doc/31276692/)
Conclusion
In conclusion, while the Telecommunications Act 2023 aims to modernize and consolidate India's telecom laws, it raises significant concerns regarding privacy rights. The Act's provisions, such as those in Sections 3(7), 20, 21, and 22, empower the government to intercept and collect telecommunications data without explicit consent, under the pretext of public emergency or national security. This directly contradicts the spirit of the Digital Personal Data Protection Act 2023, which emphasizes consent and data protection as fundamental rights. The Act's broad powers to monitor and access personal and traffic data pose a threat to individual privacy, as recognized by landmark judicial decisions like Justice K. S. Puttaswamy & Another vs. Union of India.
While national security concerns are important, the Act's provisions lack adequate safeguards against potential misuse or overreach, potentially undermining the right to privacy enshrined under Article 21 of the Indian Constitution. Therefore, while the Telecommunications Act 2023 represents a step forward in regulating India's telecom sector, its impact on privacy rights raises critical questions about the balance between national security imperatives and individual freedoms.