This article is written by RADHIKA, pursuing BA LL.B at UILS PANJAB UNIVERSITY during her internship at LeDroit India.
Keywords:
Telecommunications Act 2023, Right to Privacy, Freedom of Speech, Spectrum Allocations, regulatory sandboxes, National Security, telecom industry , Constitutional Law, Digital Bharat Nidhi.
Abstract:
The Telecommunications Act, 2023 are a crucial legislative change with the purpose of updating India’s telecom industry and eliminating the colonial laws—the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933 with a codified structure. The Act touches upon spectrum allocation, protection and rights of users and infrastructure growth in network and national security. Whereas the law brings in progressive measures like the Digital Bharat Nidhi, regulatory sandboxes, and liberalization of spectrum, it does so at the same time also entrusting its certain powers to the executive branch as well, invoking a certain form of opposition in some measure to the constitutional rights. This article critically analyzes the Act from the perspectives of the Indian Constitution, keeping in view the possible contraventions of Articles 14, 19, 21, 32, and 300A. Based on landmark judgments and constitutional precepts, the effect of the Act on civil liberties, right to privacy, freedom of speech and expression, and due process is outlined herewith. It terminates by suggesting reforms in order to bring the Act into harmony with spectrum allocation and constitutional protections.
Introduction:
The telecommunications sector is the backbone of a digitally connected India. With the growing penetration of 5G, artificial intelligence, and Internet of Things (IoT), a modern legal regime for telecommunications was required at the earliest. The Telecommunications Act, 2023 was enacted on 24 December,2023 with the aim to amend and consolidate the law relating to development, expansion and operation of telecommunication services and telecommunication networks; assignment of spectrum; infrastructure development, and user protection and for concerned matters. However, The Telecommunications Act, 2023 replaces colonial-era legislations—the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933 with the aim to modernize India’s telecom framework. Though, the Act streamlines regulatory governance, it has also raised red flags among constitutional scholars and civil society. Basically, the concern lies with the extensive delegation of powers to the executive, opaque provisions on surveillance and interception, and minimal judicial oversight that raise concerns over constitutional validity, privacy, and checks and balances.
Overview of the Act:
All entities must obtain authorization from the Central Government to offer telecommunication services, establish networks, or possess radio equipment under Section 3 of the Act. There is a Spectrum Assignment explained under Sec. 4 as Spectrum is considered a national resource and is assigned primarily through auctions. Administrative assignments are allowed in specified cases. Whereas, the Right of Way has been specified under Sec. 10–17 and it provides authorized entities with rights to access public and private property for laying telecom infrastructure, with limited power to reject requests. The National Security Powers under Sec. 20 and 21 allows the government to intercept messages, suspend services, or take over telecom networks during public emergencies or in the interest of sovereignty and security. However, the User Protection mandates prior consent for promotional messages, redressal mechanisms, and user identity verification.
Moreover, the Penalties & Adjudication has been categorized under Chapter VIII–IX by Introducing a new adjudication system for non-compliance with provisions and empowers the government to impose significant civil and criminal penalties. The Digital Bharat Nidhi mentioned under Sec. 24–26 replaces the USOF to promote universal telecom access, especially in rural areas and the most important Sec. 60 states repeals the Indian Telegraph Act, 1885, and Indian Wireless Telegraphy Act, 1933.
Objectives:
The Act seeks to:
• Provide a comprehensive legal framework for telecom services and networks.
• Repeal the Indian Telegraph Act, 1885, and the Indian Wireless Telegraphy Act, 1933.
• Regulate spectrum assignment, including auctions and administrative allocations.
• Ensure national security through state control over telecom infrastructure when needed.
• Empower users through grievance mechanisms and data protection measures.
Key Challenges:
In the context of India, the Telecommunications Act, 2023 could potentially face constitutional challenges under several provisions related to fundamental rights and constitutional protections. The first could be Content Moderation and Censorship as the act may impose stricter content moderation rules, requiring telecom operators and service providers to remove or restrict certain types of content on the internet that could be challenged under Article 19(1)(a) of the Indian Constitution, which guarantees the right to freedom of speech and expression. Any excessive government regulation of online content may be seen as an infringement on free speech rights. The law requiring widespread content filtering or government control over internet platforms may be seen as overbroad or vague, leading to concerns about self-censorship. Secondly, Surveillance and Privacy Issues as the act could include provisions that enable government agencies to mandate telecom companies to store user data or provide access to surveillance tools. But, such provisions could infringe on right to privacy, which was recognized as a fundamental right by the Supreme Court in K.S. Puttaswamy v. Union of India (2017). as the provisions mandating excessive data retention or government access to personal communications may face challenges for violating the right to privacy.
The other reason could be Net Neutrality and Equal Access to the Internet as the Provisions related to net neutrality may either reinforce or weaken rules that ensure telecom companies treat all data on the internet equally, without discrimination and if the Act weakens net neutrality protections, this could be seen as undermining the right to equality and the right to information, both of which are guaranteed under the Indian Constitution. The Excessive Licensing Requirements and Competition signifies that the act may impose stringent licensing requirements on telecom companies, potentially favouring large, domestic companies and limiting foreign investments and it would violate Article 19(1)(g), which guarantees the right to practice any profession or carry on any occupation, trade, or business. If the Act disproportionately impacts foreign companies or creates barriers to market entry, it may be seen as unconstitutional. There could be several other reasons as Data Localization and Privacy, Right to Information (RTI) and Transparency, National Security and Encryption and Impact on Rural Access and Economic Equity etc.
Relevant Case Laws:
1. Shreya Singhal v. Union of India (2015), where the Supreme Court struck down Section 66A of the Information Technology Act, which criminalized offensive online content, as it was deemed unconstitutional for being overly vague and an unreasonable restriction on free speech.
2. K.S. Puttaswamy v. Union of India (2017), the landmark judgement recognized the right to privacy as a fundamental right under Article 21 of the Constitution for security and encryption.
3.Telecom Regulatory Authority of India (TRAI)’s net neutrality recommendations in 2018 and the subsequent Supreme Court ruling in Internet Freedom Foundation v. Union of India (2020) reaffirmed that net neutrality is essential for preserving free access to the internet.
4. Indian Council of Legal Aid and Advice v. Bar Council of India (1995), where the Supreme Court held that restrictions on the right to engage in certain professions must be reasonable and in the public interest.
5. Unnikrishnan J.P. v. State of Andhra Pradesh* (1993), where the Supreme Court affirmed that the right to life extends to the right to education, which could be analogized to the right to access digital infrastructure.
Constitutional Provisions:
1. Excessive Executive Discretion– The Act empowers the Central Government to frame rules on crucial matters like licensing (Sec. 3), spectrum assignment (Sec. 4), user verification (Sec. 3(7)), and even interception and suspension of services (Sec. 20-21). It may violate the doctrine of separation of powers by giving legislative powers to the executive, without clear policy guidelines. As, in Delhi Laws Act Case (1951 AIR 332) – Excessive delegation held unconstitutional under Article 143.
2. Violation of Right to Privacy (Article 21)– Section 3(7) mandates biometric-based user verification. Section 20 allows interception/suspension of services on vague grounds like “public safety.” There is lackness of clear proportionality, oversight, or judicial safeguards as required by Puttaswamy v. Union of India (2017), where the Supreme Court upheld privacy as a fundamental right. The absence of a data protection law makes the privacy risk even more.
3. Restrictions on Free Speech (Article 19(1)(a)– The power to suspend or intercept telecom services can curtail communication arbitrarily, affecting press freedom, protest rights, etc. In the case of Anuradha Bhasin v. Union of India (2020) – SC ruled that internet shutdowns must be necessary, proportionate, and time-bound. The Flaw of act is no provision for independent or judicial review before or after action.
4. Bar on Civil Court Jurisdiction– Curtails the right to judicial remedies by barring civil court jurisdiction in matters that may affect property, contracts, or user rights. It could violate Article 32 and Article 226, which guarantee access to the judiciary for enforcement of fundamental rights.
5. Weak Protection for Private Property (Article 300A)– Right of Way provisions (Sec. 11–17) allow telecom entities to access private property, sometimes even without the owner’s consent, with vague compensation rules. The absence of judicial review and potentially forced access could violate the right to property, a constitutional right under Article 300A.
Comparative Constitutional Perspectives
In United States, Telecom surveillance is subject to the Fourth Amendment and requires a court-issued warrant under the Foreign Intelligence Surveillance Act (FISA). Whereas under European Union, the General Data Protection Regulation (GDPR) ensures that biometric data collection meets transparency, purpose limitation, and user consent requirements. Here, India lacks a comprehensive privacy law akin to GDPR or FISA safeguards. The Telecommunications Act, 2023, widens this gap instead of reducing it.
Positive Aspects: A Balanced View
Despite its flaws, the Act introduces some progressive measures:
- Digital Bharat Nidhi- It promotes digital inclusion and aligns with Directive Principles of State Policy (Article 39 – promoting equitable distribution of material resources).
- Regulatory Sandboxes (Section 27)- Encourages innovation in telecom technologies by allowing temporary regulatory relaxations in controlled environments.
- Uniform Licensing Framework- Reduces fragmentation by introducing a unified approach to authorisation and spectrum management.
Ambiguities & Gaps
• Unclear Criteria for Interception: The law uses vague terms like “public safety” or “emergency” without defining thresholds.
• No Data Protection Framework: In absence of a functional data protection law, mandatory biometric verification and data sharing (Sec. 44) may lead to misuse.
• Technological Neutrality Claimed, But… Spectrum pricing and assignment discretion (Sec. 4(5)) may still favour certain players, risking inequality and litigation.
7. Recommendations
To align the Act with constitutional principles, the following reforms are suggested:
- Data Protection & Privacy Safeguards
- Introduce independent oversight for surveillance orders.
- Mandate data minimization and retention limits for biometric data.
- Codify the three-pronged Puttuswamy test into the Act.
- Judicial Review & Access to Courts
- Revive limited jurisdiction of civil courts in property and compensation disputes.
- Create fast-track telecom grievance redressal benches.
Conclusion
The Telecommunications Act, 2023 is an important piece of legislation to digitally transform India’s infrastructure. However, the Act, in its current form, centralizes excessive powers in the executive branch and lacks sufficient constitutional safeguards. From biometric surveillance to property access, and from interception to civil court exclusion, multiple provisions raise concerns under Articles 14, 19, 21, 32, and 300A of the Indian Constitution. India’s constitutional jurisprudence has evolved to uphold civil liberties, the right to privacy, and the rule of law. The Telecommunications Act must evolve accordingly to ensure it is not only modern in technology but also modern in spirit — respecting democratic accountability, user autonomy, and constitutional supremacy.
End Notes:
1. file:///C:/Users/dell/Desktop/Telecommunications%20Act%202023_1.pdf
2. https://internetfreedom.in/the-telecom-act-2023-partial-notification/
3. https://indiankanoon.org/doc/91938676/
4. https://api.sci.gov.in/jonew/judis/18737.pdf
5. https://indiankanoon.org/doc/82461587/
6. https://www.scobserver.in/cases/challenge-to-the-all-india-bar-exams/
7. https://www.indiacode.nic.in/bitstream/123456789/19151/1/constitution_of_india.pdf
