CCG’s Comments to the Department of Telecommunications on the Draft Telecommunication Bill, 2022

On 21st September 2022, the Department of Telecommunications (“DoT”) released the Draft Telecommunication Bill, 2022 for feedback and public comments. The draft is based on the consultation paper on ‘Need for a new legal framework governing Telecommunication in India’ which was published by the DoT in July 2022. The proposal aims to replace three laws: the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950.

CCG submitted its comments on the Bill, highlighting its feedback and key concerns. The comments were authored by Aishwarya Giridhar, Priyanshi Dixit, Sidharth Deb, reviewed and edited by Jhalak M. Kakkar, Shashank Mohan, Sachin Dhawan with research help from Shreenandini Mukhopadhyay and Shreya Parashar. 

CCG’s key comments on the Government of India’s proposals under the Bill are divided into 6 parts –

Exclude digital/ internet based services from telecommunication regulation

The Information Technology Act, 2000 (“IT Act”) exclusively deals with issues pertaining to the internet and digital platforms, and provides corresponding regulation and user safeguards. The Bill’s proposed inclusion of digital services within telecommunications law may create a parallel legal regime and regulatory confusion that hinders innovation and the ease of doing business. Additionally, this Bill would likely subsist in parallel to the forthcoming Digital India Act which is under development at the Ministry of Electronics and Information Technology (“MeitY”). Therefore, we propose that the telecommunication regulation in India should not include digital services as it would create dual compliances for services which will negatively impact India’s overall internet ecosystem.

Revisit the Premise of Licensing Internet Based Digital and Software Services

Telecom Service Providers (“TSPs”) require a license to operate in the market since their operations are dependent on the use of spectrum, which is a limited natural resource. It is based on this scarcity that the Government grants exclusive licenses to access and use spectrum to select service providers. The Government’s privilege in this regard emerges from spectrum scarcity and the public trust doctrines. Conversely, internet based services do not function with the same scarcities and resource requirements as TSPs. Instead, they offer their services over the internet/ telecom network infrastructure. The internet is an ecosystem of abundance and thus digital service providers need not contend with the same infrastructural scarcities as network operators. Since OTTs services do not require exclusive allocation of a scarce public resource like spectrum, imposing strict licensing requirements on them would hinder innovation, consumer choice and user accessibility.

The Bill Should Avoid One Size Fits All Regulation

The Bill in its current form deploys overbroad definitions for several terms including “telecommunication services” and “message”. This particular definition will envelope all OTT communication services, data communication services, email, and other digital platforms within a common licensing regime as all telecom services. Aside from compromising the principle of legal certainty, this overbroad definition contributes to a one size fits all regulatory approach for both carriage and content providers. Such a broad approach is antithetical to the internet’s innate characteristics and heterogeneities across its network stack. It is also inconsistent with the growing international and domestic consensus that the internet requires differential regulations which are curated to the features and contextual harms which are native to specific types of platforms and services. 

The Bill’s Interception Proposals are Overbroad and may Violate Constitutional Rights

The Bill allows the State to order the interception of messages transmitted over telecommunication services or networks in specific situations. The broad definition in the Bill allows this provision to broadly apply to all messages communicated over all digital services, which may amount to a disproportionate restriction on users’ right to privacy. Under Indian jurisprudence, measures restricting privacy must: (a) be provided by law; (b) pursue a legitimate aim and be necessary in a democratic society; (c) be proportionate to the need for the interference with the right to privacy; and (d) contain procedural safeguards to prevent against abuse. Existing provisions permitting interception must be re-examined for conformity with these standards and recent Supreme Court jurisprudence. Additionally, interception provisions in the Bill overlap with those in the IT Act and risks creating a parallel regulatory regime over digital services. 

The Bill’s ID Verification Proposals may Violate Constitutional Rights to Privacy and Free Expression

The Bill requires service providers to identify users of their services, and also requires the identity of persons sending messages over telecommunication services to be made available to the recipient. Although these measures may have sought to target cyber-fraud, they will also serve to effectively remove anonymity in online communications. Online anonymity and encrypted services can however play a key role in protecting user privacy and the right to free expression, and mandated identity verification systems can significantly restrict these rights, particularly for minorities and vulnerable populations.

Provisions relating to the Suspension of Telecommunications Services Would Restrict the Right to Free Expression

The Bill authorises the State to direct the suspension of communications transmitted or received by telecommunication networks. It allows for the suspension of ‘telecommunication services’, which would include all digital services, along with phone calls, text messaging, etc. This provision would expand the ambit of suspension powers to allow states to restrict or blacklist specific services, in addition to restricting access to the internet as a whole. The internet plays a key role in exercising fundamental rights such as free expression and education, and in accessing essential services. Wide powers to restrict access to the internet as a whole, as well as specific services can therefore significantly restrict the fundamental rights of users.

You can read CCG’s full submission to the DoT here.

CCG’s recommendations to the TRAI Consultation Paper on Privacy, Security and Ownership of Data in the Telecom Sector – Part II

In this series of blogposts, we discuss CCG’s responses and recommendations to the TRAI (available here), in response to their Consultation Paper on Privacy, Security and Ownership of the Data in the Telecom Sector. We focus on the principles and concerns that should govern the framing of any new data protection regime, whether limited to the telecom sector or otherwise.

In our previous blogpost, the first of the series, we discussed the background against which we have provided our responses and recommendations. In this post, we look at whether there is a need for a separate regulatory framework for data within the telecom sector, and the jurisdiction and powers of the TRAI.

We note that the Consultation Paper makes several references to stakeholders / players in the digital / telecommunications eco-system that are not traditional telecommunication service providers. These include online content / application service providers, device manufacturers, and providers of online communication services, operating systems, browsers. The Consultation Paper poses several questions about the regulation of data use and processing by such stakeholders.

In this context, we have examined the role and responsibilities of the TRAI beyond the regulation of traditional telecommunication service providers.

The preamble to the Telecom Regulatory Authority of India Act, 1997 (TRAI Act) states that the law is meant to “provide for the establishment of the Telecom Regulatory Authority of India and the Telecom Disputes Settlement and Appellate Tribunal to regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interests of service providers and consumers of the telecom sector, to promote and ensure orderly growth of the telecom sector and for matters connected therewith or incidental thereto”.

Telecommunication services have been defined to mean “service of any description (including electronic mail, voice mail, data services, audio tax services, video tax services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electromagnetic means”[1]. Broadcasting services have been excluded from the definition of telecommunication services[2].

Service providers means either the government as a service provider, or a licensee[3] – which refers to any person licensed to provide telecommunication services under the Indian Telegraph Act, 1885[4].

Section 11 of the TRAI Act describes the functions of the TRAI. These functions are divided into two broad areas: (i) making recommendations of certain matters, and (ii) regulatory functions. The regulatory functions largely deal with monitoring compliance with the telecom licenses, and other functions of service providers.

The TRAI’s powers to make recommendations extend to the following matters:

  • need and timing for introduction of new service provider;
  • terms and conditions of licence to a service provider;
  • revocation of licence for non-compliance of terms and conditions of licence;
  • measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services;
  • technological improvements in the services provided by the service providers;
  • type of equipment to be used by the service providers after inspection of equipment used in the network;
  • measures for the development of telecommunication technology and any other matter relatable to telecommunication industry in general;
  • efficient management of available spectrum

We note that most of the above matters deal specifically with functions of service providers. However, as mentioned above, telecommunication services do include some services beyond those provided by traditional telecommunication service providers – such as electronic mail and voice mail among others.

In this context, we would argue that the functions and powers of the TRAI would not extend to making recommendations regarding, or regulating online content and application providers, device manufacturers or other businesses that do not provide communication services.

At best, the TRAI may derive powers to make recommendations regarding based on questions posed in the Consultation Paper, under sub-section (iv) which provides the TRAI with the authority to make recommendations on improving efficiency of telecommunication services.

In our next posts in this series, we will discuss principles that we believe any data protection regulation, irrespective of the sector it applies to, should address. We also note that as Indian businesses grow and adopt new technology, they are increasingly beginning to function across sectors. In this context, we recommend that a basic data protection law that is applicable horizontally across sectors and regions, to cope with these cross-sectoral business models.  Where required, additional regulations may be made applicable to collection and processing of sector specific sensitive personal data.

[1] Section 2(1)(k) of the Telecom Regulatory Authority of India Act, 1997

[2] Section 2(1)(k) of the Telecom Regulatory Authority of India Act, 1997

[3] Section 2(1)(j) of the Telecom Regulatory Authority of India Act, 1997

[4] Section 2(1)(e) of the Telecom Regulatory Authority of India Act, 1997

TRAI releases Regulations enforcing Net Neutrality, prohibits Differential Pricing

Written by Siddharth Manohar

The Telecom Regulatory Authority of India (TRAI) has come out with a set of regulations explicitly prohibiting differential pricing for data services in India.

3. Prohibition of discriminatory tariffs.— (1) No service provider shall offer or charge discriminatory tariffs for data services on the basis of content.

(2) No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that has the effect of discriminatory tariffs for data services being offered or charged to the consumer on the basis of content

TRAI recently concluded a public consultation process regarding differential pricing in data services (resources). The consultation paper covered all differently-priced or zero-rated services offered through data. The process has witnessed tremendous public participation, with a spirited campaign by Internet activists ( and a counter-campaign by Facebook where it garnered support through users by using the narrative of connecting those who have no access (

CCG submitted a formal response as part of this process, which you can read here, and filed an additional counter-comment signed by ten different civil society and research organizations.

The consultation process also involved a public discussion on the questions raised, where the usual suspects were all present – telecom companies arguing for differential pricing, and internet activists against. Also present were startup- and user- representatives.

Facebook’s telecom partner for carrying the Free Basics platform in India —Reliance Communications — was then instructed by TRAI to put a hold on rolling out Free Basics until they came up with a clear position on differential pricing and net neutrality. The regulator later confirmed that they received a compliance report to this effect as well. Facebook had been aggressively pursuing its campaign to collect support in favour of its platform for the entire duration of the public consultation.

TRAI has clarified that these regulations ‘may’ be reviewed after a two year period, or at an earlier time as decided by the Authority. An exception to the prohibition has also been included, to account for emergency services and services offered during ‘times of grave public emergency’. An additional exception is that of closed networks which charge a special tariff for their usage.

[We will shortly update the piece with more analysis of the regulations] 

Wire Trap: Net neutrality and India’s long history of controlling Technology

The post originally appeared on Caravan on 1st June 2015.

Students access the internet at an event in Bengaluru, in 2003. Contrary to popular belief, the internet is one of the world’s most heavily policed public resources.

Students access the internet at an event in Bengaluru, in 2003. Contrary to popular belief, the internet is one of the world’s most heavily policed public resources.

IN 1989, the International Science Policy Foundation hosted a three-day symposium on “Scientific Temper and National Development” in Delhi. Prime Minister Rajiv Gandhi—whose hand-picked team of technocrats were promising messianic solutions to India’s fledgling IT sector—delivered the opening remarks. All technology, Gandhi declared, was “value neutral.” Those who opposed technology transfer from the West simply did not understand that it could be “injected with proper values” at home.

The prime minister’s words generated much controversy, with one commentator in the Economic and Political Weekly accusing his government of social engineering through technology. In his rush to embrace digital development, Gandhi had unwittingly courted the idea that the digital medium was somehow especially pliable to what the Indian government perceived as core national values.

For the better part of two decades, this idea has remained largely unchallenged, and in their relentless march on the digital frontier, government agencies have tried to capture the internet, too. A consultation paper on “Over-The-Top” services—or OTTs, an umbrella term for all internet applications—released in March by India’s telecom watchdog is only the latest attempt by the Indian state to satisfy its regulatory appetite. In it, the Telecom Regulatory Authority of India, or TRAI, suggests that OTTs have been “overwhelming” telecom service providers, presenting “cybersecurity threats,” and could even “cause disturbance and affect the social fabric.” TRAI predicts that YouTube and other video content hosts will clog India’s poor network infrastructure within five years, even as applications such as WhatsApp may be used to foment mischief, not unlike how messages were circulated across Bengaluru in 2012 “targeting students from the North East.”

But by recommending that internet applications share revenue and information with telecom operators, TRAI would be putting paid to net neutrality—the principle that all digital content should pass unhindered from one end of a network to another. Given a free hand to discriminate between the data that passes through their servers, telecom giants could determine which applications are allowed to work faster, and which ones see their data delivered at all. They could enter into “zero-rating” agreements with successful apps, to subsidise limitless access of their data to consumers. To sift data from applications that facilitate voice-calling over the internet, telecom companies may use Deep Packet Inspection, a filtering technology that allows ISPs to gauge not only the volume of data being transferred, but also the content of online conversations. In other words, the telecommunications industry could become the arbiter of Indian citizens’ rights to digital access, information and privacy; and of emerging internet ventures’ ability to innovate and compete with established players.

There has been a tide of popular support for net neutrality in the wake of the consultation paper. TRAI, nevertheless, has stood its ground, declaring that “shrill voices” won’t “win the debate.” On the other hand, the department of telecommunications, led by the minister Ravi Shankar Prasad, has defiantly announced its support for “non-discriminatory” internet access.

Whether the minister’s posturing or TRAI’s persistence carries the day, ordinary internet users have been edged out of consideration in these policy debates. And despite the enormity of the questions of public interest involved—some of which go well beyond their mandates—TRAI and the telecom department seem to have relegated net neutrality itself to a footnote within the larger story of regulation.

The internet, despite its enduring reputation as a virtual badlands, is among the most tightly controlled public resources in the world. Few functional or technical aspects of cyberspace today are outside the purview of regulation, be they the rights to domain names, access to online content, or even the number of internet protocol, or IP, addresses that can be allocated to a country. The political economy spawned by the internet requires a sophisticated regulatory framework: one that can reconcile the rights of end users, the pressures of the market, and the responsibility of governments to maintain national security.

Most countries are yet to strike a balance between these forces. In the United States, for instance, the internet was incubated on university campuses across the West Coast in the 1970s, without government strictures or bureaucratic intervention. Today, security concerns dominate debates on the country’s cyber norms, reflecting how regulation has been influenced by the fallout of the terrorist attacks of September 2001. In Brazil, on the other hand, where decades of dictatorship before 1985 had strengthened the hands of security forces, a surprisingly robust civil rights movement recently pulled off the seemingly impossible: the enactment of a “Marco Civil,” a Brazilian constitution for the internet.

In independent India, the growth of technology—specifically of the computing industry, IT services, telecommunications and, finally, the internet—has been symbiotic with the country’s politics. A succession of leaders, beginning with Jawaharlal Nehru, situated technology within a deeply political agenda that fed the state’s regulatory impulse. The desire to inject it with political values, which Rajiv Gandhi let slip at the ISPF symposium, required a new bureaucratic apparatus. The telecom department is at the core of that bureaucracy; TRAI, an independent regulator on paper but tethered to the state in practice, is simply an extension of it. To understand these two agencies’ oppositional overtures on net neutrality requires contextualising them in the Indian state’s historic role as regulator for the digital medium.

Bureaucratic control over technology took root through Nehru’s Second Five Year Plan, which was in effect between 1956 and 1961 and aimed to promote industrialisation. Pursuant to the Plan, parliament passed the Scientific Policy Resolution of 1958, which sought “large scale development” of technology to “reduce the drain on capital” through imports. Indigenous computing systems, despite being carefully nurtured by Nehru’s aides Homi Bhabha and PC Mahalanobis, failed to take off, resulting in the capture of the Indian market by the US giant International Business Machines Corporation. IBM’s domination set the cat among the pigeons, prompting the parliament to declare in 1966 that “India should participate in the ownership and control of foreign computer subsidiaries in the country.”

If the Nehru regime invoked the mantra of “self-reliance” in computing, Indira Gandhi sought to promote home-grown technology through nationalisation. For nearly a decade, IBM resisted government attempts to wrest ownership of its Indian subsidiary, until the passage of the Foreign Exchange Regulation Act made it difficult for the company to manage one at all. Reluctant to cede control to an Indian counterpart, IBM left the country in 1978, setting the use of computers for both civilian and research purposes back by years. Indian businesses, too, were hurt in this regard by labour laws requiring “prior agreement” from trade unions before introducing computers on their premises.

Regulations were eased during Rajiv Gandhi’s term. Software and computer imports were liberalised in 1984. The Education and Research Network, or ERNET, a precursor to the internet in India, was set up with assistance from the United Nations Development Program. Telephone services were “corporatised” with the setting up of MTNL and VSNL as public-sector units. The Centre for Advanced Computing was created in 1988. For a while, it seemed civilian and commercial users would have a say in the growth of digital networks.

The institutional and policy changes in India’s IT landscape during this period were, nevertheless, engineered to realise Gandhi’s goal of a technological “revolution.” The government added a new layer of bureaucracy to the sector with the creation of the department of telecommunications in 1989. The National Informatics Centre, or NIC, formerly under the department of electronics, was placed under the planning commission for greater coordination with Gandhi’s political goals.

Despite the rhetoric of modernising governance, few ministries were actually plugged into the NIC’s mainframe database to make use of its volumes of data. The running of ERNET, technically a research network linking India’s premier scientific institutions, was supervised by bureaucrats close to Gandhi. The “License Raj” of previous regimes continued, leaving entrepreneurs at the mercy of regulators. The National Association of Software and Service Companies successfully navigated this space by creating institutional links between the bureaucracy and the industry, a practice that continues to this day. But lost in the melee of reform was any serious evaluation of the rights of a growing community of consumers—both software and internet users.

TRAI, too, was born out of political exigency. The balance of payment crisis in the 1990s resulted in a clamour, both at home and abroad, for private investment in telecommunications. Ahead of a crucial prime ministerial visit to the United States, the Narasimha Rao government hastily drafted the National Telecom Policy of 1994, which acknowledged the need for privatisation. Although several government advisory committees had mooted the idea of a telecom regulator, the NTP stopped short of creating one in the face of staunch resistance from the department of telecommunications. But the following years saw the department embroiled in corruption—the telecom minister Sukh Ram Singh eventually resigned—leaving the government with no option but to set up TRAI in 1997.

Of the scramble to draft the TRAI statute, one consultant involved said that “to suggest, even indirectly, that the government had, at that time, a clear idea of what it was that it wanted the TRAI to achieve, is stretching credibility.”

The telecom department’s attempts to protect its turf are singularly responsible for TRAI’s peculiar present existence as an intermediary between telecom operators and the government. TRAI’s formative years were marked by legal and political battles with the telecom department, in which it invariably took up cudgels on behalf of private operators. An alliance developed between the regulator and industry associations as they found common cause in dismantling the state monopoly on telecommunications. But, at the end of a protracted dispute in court, TRAI was left with nothing but recommendatory powers, while the telecom department—despite its conflicting positions as both a licensor and provider of services—remained the supreme policy-making authority.

TRAI’s emergence as a reactionary to the telecom department’s policies defined its institutional role, effectively making it an echo chamber for the concerns of private service providers. Subsequent policy instruments, such as the National Telecom Policy of 1999, the Internet Policy of 1998, and the Information Technology Act of 2000, all focused on the relationship between telecom companies and internet service providers and the state, and broadened TRAI’s capacities. A small group of industry representatives emerged as the most vocal participants in the body’s consultative processes, which became inaccessible to most consumer-rights activists and ordinary citizens. It should be no surprise that TRAI has now thumbed its nose at net neutrality in its consultation paper on OTTs. The regulator is merely leaning back on a decades-old institutional culture of voicing the concerns of its most powerful constituency: private industry.

That the telecom department is appearing to bat for net neutrality should offer little relief to Indian internet users. The truth is that the raison d’être of internet regulation continues to exist, and the telecom department’s ongoing exchange with TRAI is just an extension of a long-running turf battle. The government remains keen to harness the internet to serve its political goals, be they censorship or constituency mobilisation.

The real scandal lies in how all of this is ceding control over a matter of genuine public interest to the regulatory machine. A system hardened by years of politicking has left little room for democratic interventions in digital policies. The public has been left to fight poorly crafted laws—of which Section 66A of the IT Act was until recently the poster child—that have, for years, been taking a toll on fundamental constitutional guarantees. Indian internet users have been gradually disempowered by a regulatory leviathan. To rein it in may require a grassroots movement that resets the digital agenda.

(Arun Mohan Sukumar is a Senior Fellow at the Centre)