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WhatsApp users are familiar with the joke that the app will soon implement “the third tick” (or the “red tick” or “saffron tick”) to indicate that a message has been read by the government. The Draft Indian Telecommunication Bill, 2022, has taken that joke rather seriously.
Over the last five years, India’s tech policy world has been preoccupied with debates, critiques and expectations around the Personal Data Protection (PDP) Bill. In the last session, the government withdrew the PDP Bill pending before Parliament and promised to bring in fresh legislation on the subject.
The PDP Bill was first mooted in 2017 by the government to appease the Supreme Court, which had constituted a nine-judge bench to determine the nature and the scope of the right to privacy. It arose in the context of the Aadhaar case, where the government was the infringer-in-chief.
The main concern at the time was the protection of citizens’ rights. Later, when the Justice Srikrishna Committee, set up to deliberate on a data protection law, came out with the draft in 2018, the concern had already changed to ‘balancing’ citizen rights and protection of digital businesses.
In the latest version of the draft Bill (2021) that was withdrawn, the predominant concern had become protecting the government from citizens’ assertion of privacy.
The Indian Telecommunication Bill, 2022, floated perhaps in an effort to fill the void left by the PDP Bill, continues this trend of the government being increasingly insecure about its citizens’ freedoms. With no data protection law in sight, laws which would have been difficult to push through, or would have required compliance with a data protection regime, can now be conceived and implemented.
Earlier this year, when the government managed to push the Criminal Procedures (Identification) Bill through Parliament, several voices from the Opposition questioned the intent of the government, since the Bill bestows vast data collection powers to the police in the absence of a data protection law.
In the same vein, the Indian Telecommunication Bill makes no reform in the existing law on its powers of interception and instead extends those powers to over-the-top (OTT) messaging applications, defining these as “telecommunication services” in order to license and control them.
In doing so, the government has assumed powers that it never had under any law, and is trying to use legislation to force OTT messaging services, many of which are end-to-end encrypted, to make a backdoor.
Though the minister in charge has stated that decryption will not be forced, it is unclear how else the government can realise the purpose of interception and disclosure powers that are provided in Clause 24 of the Bill.
A key test that courts have articulated for assessing the reasonableness of state action (including legislation) that seeks to engage or restrict fundamental rights is that the measure must be “necessary in a democratic society”. The powers under Clause 24 of the Bill of blocking, interception, decryption and disclosure of private communications and correspondence do away with this requirement of ‘necessity’ as they can also be exercised on the ground of ‘expediency’.
The Supreme Court in Rangarajan v Jagjivan Ram (1989) explicitly drew the contrast between the two and went on to describe how fundamental rights cannot be restricted on ‘the quicksand of expediency’.
The right to privacy has several facets, of which privacy of correspondence is among the oldest and most well-recognised. It is an expressly recognised right under Article 17 of the International Covenant on Civil and Political Rights, which constitutes India’s inviolable international law obligation. This has also been dealt with in some detail in the landmark nine-judge bench decision in Puttaswamy vs Union of India, which incidentally overruled the eight-judge bench judgment in MP Sharma vs Satish Chandra, which had upheld broad search and seizure powers under the criminal procedure of the time.
Even the colonial Criminal Procedure Code of 1898 made a contrast between regular documents in the hands of third parties, which can be obtained by the police exercising search and seizure powers, and documents with the post and telegraph authorities during transmission, constituting private correspondence. The latter could only be detained. Disclosure would require a judicial order. This is also important to ensure the free exchange of ideas as the fear of Big Brother watching, listening and now reading our private correspondence can have a chilling effect on speech.
Constitutional court judgments, international obligations and evolving human rights standards can either be used as critical inputs and guidance in policy-making, or be treated as minor inconveniences to be worked around. The reckless assumption of powers under the Telecom Bill leaves no manner of doubt about the government’s attitude.
Maansi Verma and Prasanna S. are lawyers based in Delhi and part of Article 21 Trust India.