The Expansion of Executive Discretion v. Constitutional Safeguards: A Critical Analysis ofthe Telecommunication Act 2023

Abstract

NITHYAPRASATH S

The enactment of the Telecommunications Act 2023 signifies a watershed moment in India’s legal history, replacing the colonial-era Indian Telegraph Act 1885 with a framework ostensibly designed for the digital age. While the legislation modernises spectrum allocation and infrastructure development, a forensic analysis reveals a statutory architecture that systematically consolidates executive power at the expense of constitutional checks and balances. This paper, titled “The Expansion of Executive Discretion v. Constitutional Safeguards” subjects the Act to a rigorous constitutional audit against the “Golden Triangle” of Fundamental Rights—Articles 14, 19, and 21 of the Constitution of India. Through a doctrinal methodology, this research critically analyses three specific “grey areas” where executive discretion has been expanded: (1) the ambiguity surrounding Over-the-Top (OTT) services and the “excessive delegation” of essential legislative functions; (2) the surveillance regime under Section 20(2), operationalised by the Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules 2024, which fails to meet the proportionality standards of K.S. Puttaswamy v Union of India; and (3) the administrative allocation of spectrum under the First Schedule, which challenges the anti-arbitrariness mandate of the 2G Spectrum Case. The paper argues that by retaining the colonial logic of “public emergency” without introducing judicial oversight, the Act creates a digital panopticon. It concludes that the legislation suffers from the vice of manifest arbitrariness and disproportionate restriction of civil liberties, necessitating urgent judicial review or parliamentary amendment to align it with the transformative vision of the Constitution.

Keywords: Telecommunications Act, 2023, Proportionality test, Administrative discretion, Article 19 and Arbitrary

Chapter 1: Introduction

1.1 The Colonial Logic of Control

To understand the Telecommunications Act 2023, one must first exorcise the ghost of its predecessor. The Indian Telegraph Act 1885 was not merely a regulatory statute; it was a security apparatus forged in the aftermath of the 1857 Mutiny. For the British Raj, the telegraph was the “nervous system” of the empire, a tool to crush dissent and coordinate military response. Section 5(2) of the 1885 Act, which authorised the interception of messages during a “public emergency” or for “public safety,” was the statutory embodiment of this colonial anxiety.

For 138 years, independent India retained this colonial instrument. As technology evolved from Morse code to 5G, the state’s power to intercept remained tethered to the archaic language of 1885. The jurisprudence surrounding surveillance—most notably People’s Union for Civil Liberties (PUCL) v Union of India (1997)—attempted to read procedural safeguards into this colonial law. However, the structural deficit remained: the executive was empowered to judge the necessity of its own surveillance.

1.2 The 2023 Act: A Paradigm Shift or Old Wine in New Bottles?

In December 2023, the Parliament enacted the Telecommunications Act 2023, repealing the 1885 Act and the Indian Wireless Telegraphy Act 1933. The Act was presented as a catalyst for Viksit Bharat (Developed India), aiming to simplify the licensing regime into a unified “authorisation” framework, rationalize spectrum usage, and codify Right of Way (RoW) norms.

However, a critical textual analysis suggests that while the Act embraces modern economics, it retains colonial politics. The definition of “telecommunication service” is expansive enough to cover the entire digital ecosystem. The powers of interception (Section 20) and suspension (Internet shutdowns) mirror the 1885 Act almost verbatim. Crucially, the Act arrives in a post-Puttaswamy era, where the Right to Privacy is a fundamental right. The central research question of this paper is whether the Telecommunications Act 2023 respects the “constitutional morality” established by recent Supreme Court judgments or whether it constitutes a legislative overruling of judicial safeguards.

1.3 Scope and Methodology

This paper employs a doctrinal legal research methodology. It interprets the black letter of the law—the Telecommunications Act 2023 and its subordinate 2024 Rules—against the touchstone of Supreme Court precedents.

• Chapter 2 establishes the constitutional yardstick: the tests of manifest arbitrariness (Art. 14), reasonable restriction (Art. 19), and proportionality (Art. 21).
• Chapter 3 examines the “Delegation Problem,” focusing on the vague definitions of OTTs and biometrics.
• Chapter 4 analyzes the “Surveillance Problem,” critiquing the lack of judicial oversight in interception and shutdowns.
• Chapter 5 investigates the “Allocation Problem,” assessing the move from auctions to administrative spectrum assignment.

Chapter 2: The Constitutional Framework

The constitutionality of any legislation restricting civil liberties in India must be tested against the “Golden Triangle”—Articles 14, 19, and 21. These articles do not operate in silos but form an interconnected web of rights, as established in Maneka Gandhi v Union of India.

2.1 Article 14: The Doctrine of Manifest Arbitrariness

Article 14 guarantees equality before the law. In recent years, the Supreme Court has expanded this to strike down legislation that is “manifestly arbitrary.” In Shayara Bano v Union of India, the Court held that a law is manifestly arbitrary if it is capricious, irrational, or lacks an adequate determining principle.

Relevance to Telecom Act:

The 2023 Act relies heavily on delegated legislation. The phrase “as may be prescribed” appears over 46 times. While delegation is necessary for administrative functioning, excessive delegation without legislative policy guidelines violates Article 14. If the Parliament delegates the power to define “telecommunication services” (potentially including OTTs) or “telecommunication identifiers” to the executive without setting boundaries, it abdicates its essential legislative function. This creates a risk of arbitrary selective application, where the government could target specific encrypted platforms or enforce biometric mandates capriciously.

2.2 Article 19(1)(a): Freedom of Speech and the Chilling Effect

The right to freedom of speech and expression includes the right to communicate via the internet (Anuradha Bhasin v Union of India) and the right to receive information.

The Chilling Effect:

Surveillance laws that are vague or overbroad create a “chilling effect” on free speech. In Shreya Singhal v Union of India, the Court struck down Section 66A of the IT Act because its vagueness (“grossly offensive”) caused citizens to self-censor. Section 20(2) of the Telecom Act, which permits interception for “public safety” (an undefined term), poses a similar threat. If citizens believe their private communications are subject to executive snooping without judicial warrant, they refrain from expressing dissent. This self-censorship is a direct violation of Article 19(1)(a).

2.3 Article 21: The Proportionality Standard

Since K.S. Puttaswamy v Union of India (I) (2017), privacy is a fundamental right flowing from Article 21. Any state intrusion into privacy must satisfy the Four-Fold Test of Proportionality devised by Justice D.Y. Chandrachud (as he then was):

1. Legality: The action must be sanctioned by a valid law.
2. Legitimate Goal: The state must have a valid objective (e.g., national security).
3. Necessity (Least Restrictive Measure): There must be no other less intrusive way to achieve the goal.
4. Proportionality Strictu Sensu: The harm caused to the right must not be disproportionate to the benefit achieved.

Application:

The Telecommunications Act 2023 satisfies the first prong (Legality) as it is a statute. However, it falters on Necessity and Proportionality. By allowing the executive to authorize its own interception orders (via the Home Secretary) rather than a judicial authority, the Act fails to adopt the “least restrictive measure.” Judicial oversight is a standard safeguard in democratic jurisdictions (e.g., the UK) to prevent abuse. By rejecting this, the Act arguably fails the constitutional test of Article 21.

Chapter 3: The “Delegation” Problem: Vague Definitions and Executive Overreach

The “New Leviathan” draws its power not just from what is written in the Act, but from what is left unwritten. The Act is a skeleton legislation, leaving the “muscle and sinew” to be added by the executive through Rules. This chapter critiques this excessive delegation.

3.1 The OTT Ambiguity: A Damocles Sword

One of the fiercest debates during the consultation phase was whether Over-the-Top (OTT) communication services (like WhatsApp, Signal, Telegram) would be regulated as “telecommunication services.”

Statutory Text Analysis:

Section 2(t) defines “telecommunication service” as “any service for telecommunication.”

Section 2(p) defines “telecommunication” as the transmission of any message by wire, radio, optical, or other electromagnetic systems.

Section 2(g) defines “message” to include data streams, text, video, and intelligence.

On a plain reading, an OTT app sends “messages” (data packets) via “telecommunication” (the ISP’s optical/radio network). Therefore, OTTs fall within the textual ambit of the Act. Although the government removed explicit references to OTTs that existed in the 2022 Draft Bill, they did not add an exclusion clause.

The Constitutional Vice:

This ambiguity violates the Rule of Law, which requires laws to be clear and accessible. By leaving the status of OTTs ambiguous, the Act grants the executive the power to “notify” OTTs as regulated entities at a time of its choosing. If notified, OTTs would require “authorisation” under Section 3(1). This could force them to comply with “Know Your Customer” (KYC) norms and, critically, encryption-breaking interception orders.

This delegation is “excessive” because regulating the internet’s application layer (OTTs) vs. the infrastructure layer (ISPs) is a matter of substantive policy, not administrative detail. By delegating this essential legislative function to the executive, Parliament may have acted unconstitutionally, as per the doctrine laid down in In re Delhi Laws Act.

3.2 Biometrics: Section 3(7) and the Defiance of Puttaswamy II

Section 3(7) mandates that any authorised entity “shall identify the person to whom it provides telecommunication services through use of any verifiable biometric based identification as may be prescribed.”

Conflict with Puttaswamy II:

In K.S. Puttaswamy (Aadhaar) v Union of India (2019), the Supreme Court struck down the circular issuing the mandatory linking of mobile numbers with Aadhaar. The Court held that the state did not have a “legitimate state interest” in mandating biometrics for private contracts (between a telecom user and a private TSP) and that it was disproportionate.

The Act’s Re-enactment:

Section 3(7) essentially re-legislates the provision struck down by the Supreme Court. While the government argues this is for “national security” (preventing SIM fraud), the Necessity test asks: is biometric data the only way to verify identity? The answer is no. Passports, Voter IDs, and other documents have sufficed for decades. By mandating biometrics—the most intrusive form of identification—for accessing a utility as basic as a phone connection, the Act violates the proportionality standard. It forces citizens to barter their biological data for connectivity, a condition that the Supreme Court explicitly termed “unconstitutional” in the absence of a law backing a specific subsidy or benefit.

3.3 The “As May Be Prescribed” Trap

The phrase “as may be prescribed” is a blank cheque. It appears in contexts ranging from the terms of authorisation to the suspension of services. In Hamdard Dawakhana v Union of India, the Supreme Court held that discretion given to the executive must be guided by a policy laid down in the Act. The Telecommunications Act 2023 contains broad objectives like “national security” but lacks specific guidelines on how biometrics should be stored, who defines the technical standards for OTTs, or what constitutes a fair authorisation fee. This unguided discretion invites “legislation by notification,” bypassing parliamentary scrutiny.

Chapter 4: The “Surveillance” Problem: Interception and Shutdowns

If the definitions are the Leviathan’s reach, surveillance is its gaze. The Act codifies a surveillance architecture that is executive-driven, opaque, and devoid of judicial oversight.

4.1 Interception: Section 20(2) vs. The Constitution

Section 20(2) empowers the Central/State Government to intercept, detain, or disclose messages on the occurrence of “public emergency” or in the interest of “public safety.” This language is identical to Section 5(2) of the 1885 Act.

The Failure to Modernise:

The Supreme Court in PUCL v Union of India (1997) upheld the 1885 Act only by reading in procedural safeguards (the PUCL Guidelines), such as review committees. However, in the 26 years since PUCL, democratic standards have evolved. The Puttaswamy judgment (2017) recognized privacy as a fundamental right, demanding a higher threshold of protection than what PUCL (based on Art 19) envisaged.

The 2023 Act ignores this evolution. It does not introduce Judicial Oversight (a warrant from a judge) which is the gold standard in democracies like the UK (Investigatory Powers Act 2016, requiring a Judicial Commissioner’s approval) or the US (FISA courts).

Critique of the 2024 Interception Rules:

The Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules 2024 operationalize Section 20.

1. Executive Review: Rule 5 constitutes a Review Committee comprising the Cabinet Secretary, Law Secretary, and Telecom Secretary. This is an “executive reviewing the executive.” There is no independent member. This violates the principle of nemo judex in causa sua (no one should be a judge in their own cause).
2. Duration: Orders can last up to 180 days. In the digital age, six months of surveillance can capture a citizen’s entire private life, financial history, and political associations. This duration is arguably disproportionate.
3. Decryption: When read with Section 19(f), which allows the government to notify encryption standards, Section 20(2) could act as a backdoor to break End-to-End Encryption (E2EE). If the government mandates that messages be intercepted in “intelligible format,” platforms like WhatsApp would have to break encryption, compromising the privacy of 500 million Indians.

4.2 Internet Shutdowns: The Suspension Rules 2024

India leads the world in internet shutdowns. Section 20(2)(b) provides the statutory basis for “temporary suspension” of services. The Telecommunications (Temporary Suspension of Services) Rules 2024 replace the 2017 rules.

The Anuradha Bhasin Gap:

In Anuradha Bhasin, the Supreme Court mandated:

• Publication of orders.
• Periodic review.
• Proportionality.

Critique of the 2024 Rules:

While Rule 3(2) mandates publication of suspension orders, it does not specify where (e.g., a central searchable database vs. a notice on a district collector’s office wall). This allows for “transparency in name only.”

Furthermore, the power to suspend remains with the Home Secretary (or a Joint Secretary in unavoidable circumstances). The Review Committee is the same bureaucratic body as for interception.

The Rules do not define “Public Emergency.” Consequently, shutdowns are frequently used for administrative convenience (e.g., preventing cheating in exams), a practice the Parliamentary Standing Committee has condemned. Using a national security provision to conduct exams is a textbook example of Manifest Arbitrariness under Article 14.

Chapter 5: The “Allocation” Problem: Economics and Discretion

The allocation of spectrum represents the intersection of administrative law and economics. The 2023 Act shifts the default mechanism from “Auctions” to a hybrid model, raising constitutional questions about the distribution of state largesse.

5.1 The 2G Case and the Shift to Administrative Assignment

In the 2G Spectrum Case (CPIL v Union of India, 2012), the Supreme Court cancelled 122 licenses, holding that “auction” is the best method to ensure equality and avoid arbitrariness in allocating natural resources. However, in a subsequent Presidential Reference, the Court clarified that auction is not a constitutional mandate for all resources, provided the alternative is fair.

Section 4(4) and the First Schedule:

Section 4(4) of the 2023 Act retains “auction” as the default but creates exceptions for entries in the First Schedule, which will be assigned via “administrative process.”

Entry 16 of the Schedule includes satellite-based services (GMPCS). This aligns India with global norms (ITU practices) where satellite spectrum is shared, not exclusive. Auctioning shared spectrum is technically flawed (like auctioning the air in a room). Therefore, the move to administrative allocation for satellite spectrum is likely constitutionally valid as it is based on a rational intelligible differentia (shared vs. exclusive use).

5.2 The Henry VIII Clause: Section 4(5)

The constitutional danger lies in Section 4(5). This section empowers the Central Government to amend the First Schedule by notification to add new services for administrative allocation if it serves the “public interest” or if auction is not preferred for “economic reasons.”

Analysis:

This is a “Henry VIII clause”—a provision that allows the executive to amend the primary legislation. It grants the executive vast power to move commercial services (e.g., private 5G networks or backhaul spectrum) from the “auction” bucket to the “administrative” bucket without Parliamentary approval.

If the government uses this power to assign 6G spectrum administratively to favoured corporates under a vague “public interest” rationale, it would recreate the conditions of the 2G scam. The lack of legislative criteria defining “economic reasons” makes this power susceptible to abuse and potentially violative of Article 14’s non-arbitrariness doctrine. It vests unguided discretion over billions of dollars of public resources in the hands of the executive.

Chapter 6: Conclusion & Suggestions

The Telecommunications Act 2023 is a study in contradiction. Structurally, it is a modern, forward-looking statute that recognizes the realities of the satellite age and the need for simplified licensing. It rightly consolidates fragmented laws into a single code.

However, constitutionally, it is a “New Leviathan.” It constructs a digital sovereign with eyes everywhere (surveillance) and hands on everything (spectrum and licensing), yet with no heart (privacy protection).

1. Surveillance: By retaining the 1885 framework and rejecting judicial oversight in the 2024 Rules, the Act fails the procedural prong of the Puttaswamy proportionality test. The executive remains the judge in its own cause.
2. Delegation: The excessive delegation regarding OTTs and biometrics violates the separation of powers. It leaves essential legislative functions to the whims of the executive, creating a climate of legal uncertainty and potential censorship.
3. Checks and Balances: The Act systematically weakens checks and balances. The Review Committees are bureaucratic echoes of the executive.

Suggestions for Reform:

To align the Act with the Golden Triangle, the following amendments are legally necessary:

• Judicial Oversight for Interception: Amend Section 20 to require approval from a High Court judge for interception orders, except in cases of immediate urgency (with retrospective review within 48 hours).
• Define “Public Emergency”: Statutorily define “public emergency” to exclude administrative inconveniences like exams, limiting it to threats to sovereignty or public order.
• Exclude OTTs Explicitly: Amend the definition of “telecommunication services” to explicitly exclude Internet-based application services, preserving the distinction between the carriage layer and the content layer.
• Sunset Clause for Administrative Allocation: Introduce strict parliamentary reporting requirements for any additions to the First Schedule under Section 4(5) to prevent cronyism.

Without these safeguards, the Telecommunications Act 2023 risks transforming the Indian citizen from a rights-bearing individual into a transparent subject of the state, visible to power but unable to hold it accountable.