India’s rights activists slam new telecoms law as ‘grave threat to fundamental rights’

The legislation has broad powers that could “be used to target political opponents and critics”, said Rahul Narayan, a partner at New Delhi law firm Chandhiok and Mahajan.

“Hypothetically speaking, the surveillance powers, its insistence on biometric identification before provision of services, and the attack on encryption all provide a powerful toolkit to target any person. Even anonymous speech would be gravely threatened,” he said, while noting that was a worst-case scenario and may not be the norm.

“Civil liberties require proper procedure and safeguards to avoid misuse,” he added.

Concerns over insufficient safeguards prompted over 60 digital rights entities and individuals – both domestic and from overseas – to pen an open letter on December 21 urging the Indian government to revise elements of the law to ensure the protection of citizens’ rights and privacy.

“The bill imperils encryption, a crucial tool for privacy and free expression; amplifies unchecked powers of the government to impose internet shutdowns; and enhances surveillance without independent oversight. The Bill in its current form poses a grave threat to fundamental rights, democracy, and the internet as we know it, and must be withdrawn and altered to remove these flaws,” the letter said.

“Whether it is safety, security, consumer protection, or privacy – all these features are there in the Act but, without sufficient safeguards, have the potential to be used in a high-handed fashion,” cautioned Mahesh Uppal, head of ComFirst India, a consultancy that specialises in policy and regulation issues related to telecoms.

“You would want a situation where bureaucrats and politicians act under judicial oversight,” he added.

Uppal noted that several sections of the act gave the government special powers in the event of public emergencies or national security threats whose implementation – without any oversight from any other independent entity besides the government – could be problematic.

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Guardrails gone

“The new telecoms act mainstreams the internet shutdowns into Indian law,” Chima of Access Now said.

Activists say the new telecoms act goes further, by giving unrestricted powers to both central and state governments to suspend and limit telecommunication services whenever they deem it “necessary or expedient”.

Chima also highlighted the section of the new telecoms law that gives the government unchecked powers to intercept encrypted electronic communications.

“To say that the government can compel encryption providers or other actors to hand over data in ‘readable format’ undermines the very concept of encryption and threatens the very nature of secure communications,” he said.

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Despite the concerns over invasions of privacy and citizens’ digital rights, telecoms industry participants believe that clarity in the regulatory framework and removal of ambiguity in areas like spectrum allocation will attract more investment, both foreign and domestic.

“The Act ensures predictability and availability of spectrum for important areas like Satcom, telecoms backhaul, public utility and applications of defence and other strategic areas. It effectively clarifies as to what can and what can’t be auctioned,” said TV Ramachandran, president of the independent broadcasting policy think tank Broadcast India Forum (BIF).

On concerns over the legislation’s far-reaching powers, Ramachandran said: “While there has been talk about the Act empowering the government with overarching powers to take over any networks on grounds of national security, BIF believes that this is a justifiable right of the sovereign [government], provided it is exercised only on reasonable grounds.”