For most of the period in which India built the second largest telecommunication network on earth, the governing statute was written for the electric telegraph. The Indian Telegraph Act of 1885 was drafted when a message was a physical event performed by an operator at an instrument, and it was stretched, by amendment, by licence condition and by judicial interpretation, across the telephone, the mobile phone, the internet connection and the satellite link. The Telecommunications Act 2023 is the statute that replaces it, and the first thing to understand about the replacement is the pattern of what it changes and what it leaves alone. The machinery of entry, of spectrum and of land access has been rewritten. The powers of the State over the content of communications have been carried across in a form a nineteenth century draftsman would recognise at once.

That pattern is the argument of this article, and it can be stated as a single claim. The Telecommunications Act 2023 is new except where it matters most: the licensing, spectrum and right of way regimes were reconstructed, while the powers to intercept communications, to suspend services and to take possession of a network in an emergency reproduce the structure of the statute of 1885, so that India replaced a colonial telecommunications law without replacing the colonial framework for State access to communications, and the safeguards against misuse remain where they have always been located, in rules made by the executive and in guidelines laid down by courts, rather than in the Act itself.

A reader who finishes this article will be able to identify the two provisions that carry that continuity, explain how an authorisation differs from the licence it succeeds, state how spectrum is assigned and for which purposes Parliament accepted assignment without an auction, describe the right of way framework that network builders work under, and locate every consequential number in the statute: the graded civil penalties, the criminal punishments, the appeal periods and the commencement position, which is more complicated than most accounts admit.

The regime the new Act inherited

The statute of 1885 rested on a single architectural decision. Section 4 vested in the Central Government the exclusive privilege of establishing, maintaining and working telegraphs within India, and empowered the Government to grant licences on conditions and in consideration of payments. Every telecommunication service in the country therefore existed, in law, as an exception carved out of a State monopoly. The definition of telegraph was framed widely enough to absorb each new technology as it arrived: an appliance used or capable of use for transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature, by wire, visual or other electromagnetic emissions, radio waves or Hertzian waves. Because the definition travelled, the statute survived. A mobile network, a broadband connection and a satellite earth station were all, in the eye of the 1885 Act, telegraphs worked under licence from the privilege holder.

Two companion statutes completed the frame. The Indian Wireless Telegraphy Act of 1933, Act 17 of 1933, made the possession of wireless telegraphy apparatus without a licence an offence, and supplied the control regime for radio equipment as distinct from services. The Telecom Regulatory Authority of India Act of 1997, Act 24 of 1997, created a regulator and a disputes tribunal, and so divided the field between a licensor in the Department of Telecommunications, a regulator with largely recommendatory power over licensing and binding power over tariffs and interconnection, and a tribunal for disputes. That division is the subject of a separate article in this series, and the regulator’s own statute is treated there; what matters here is that the 2023 Act amends the 1997 Act at the margins and leaves its institutional settlement intact.

The licensing system that grew on the Section 4 privilege was elaborate and, by common consent across governments, unwieldy. A single operator might hold permissions under a unified licence with separate authorisations for each service and each service area, alongside separate instruments for internet services, for long distance carriage, for satellite services and for value added services, each with its own conditions, fees calculated on adjusted gross revenue, and compliance calendar. Entry was not merely permission; it was a negotiated status, and the licence document, rather than the statute, was where the operative law of the sector lived. That location of law in contract-like instruments was one of the standing criticisms the 2023 Act was drafted to answer.

Spectrum under the old regime was assigned through the licence, historically by administrative decision bundled with the permission to operate. That practice produced the defining scandal of the sector. In 2012, in Centre for Public Interest Litigation v Union of India, reported at (2012) 3 SCC 1, the Supreme Court quashed a set of licences granted on a first come first served basis and held that spectrum, as a scarce natural resource, had to be alienated by a method that was fair, transparent and non-arbitrary, with auction identified as the method that best served that standard on the facts before the Court. A Constitution Bench answering Special Reference No. 1 of 2012, reported at (2012) 10 SCC 1, then clarified that auction is not a constitutional command for every natural resource in every circumstance; the obligation is that the chosen method be fair and not arbitrary. That pair of holdings is the background against which Section 4 of the new Act must be read, because the Act writes auction into the statute as the default and then lists the exceptions, and the exceptions were the most fought over lines in the Bill.

Right of way under the old law came from Part III of the 1885 Act, which gave the telegraph authority power to place and maintain telegraph lines under, over, along, across, in or upon public and private property, subject to municipal and landowner objections decided by the District Magistrate, and was supplemented in 2016 by right of way rules prescribing timelines and charges. In practice, permission to dig a road, raise a tower or lay fibre across a municipality could take months or years, fees varied enormously between jurisdictions, and the gap between the statutory power and the administrative reality was a principal brake on network construction. The new Act converts that Part III scheme into a self-contained chapter with its own dispute machinery, examined below.

The old statute also contained, from its earliest years, the two powers that this article is chiefly concerned with. Section 5(1) empowered the Central Government, a State Government or an authorised officer, on the occurrence of any public emergency or in the interest of public safety, to take temporary possession of any telegraph established, maintained or worked by a licensee. Section 5(2) empowered the same authorities, on the same triggers and on stated grounds, to order that messages be intercepted, detained or not transmitted. Both powers survived every amendment of the old Act untouched in substance, and both reappear, in modernised vocabulary, in Section 20 of the new one.

The longevity of the 1885 Act is itself a fact of legal history worth pausing on, because it explains why the replacement had to be a consolidation rather than an amendment. The statute administered, in succession, a government telegraph monopoly operated as a department of the State; the licensing of private telephone companies in the metropolitan cities; the absorption of those companies into the department; the corporatisation of the metropolitan services and then of the department’s services into Bharat Sanchar Nigam Limited; and, from the middle of the 1990s, the entry of private operators under the New Telecom Policy of 1994 and their migration, under the New Telecom Policy of 1999, from fixed licence fees to a revenue sharing regime that set the industry’s financial structure for a generation. Each transformation was executed under the same section 4 privilege, by instruments made under it, without the statute’s text materially changing: the Act was a shell of extraordinary capacity, and the law of Indian telecommunications came to reside almost everywhere except in the Act, in policies, licences, guidelines, regulations and orders. That dispersion is the deepest of the defects the 2023 Act addresses. Whatever its other faults, a reader of the new statute can find the authorisation requirement, the spectrum rule, the right of way code, the emergency powers, the user provisions, the penalties and the repeals in one enacted text of sixty-two sections, which was not true of the law it replaced at any point in the previous century.

From the draft of 2022 to the Act of 2023

The replacement was prepared in public and then enacted at speed, and the difference between those two phases explains much of the debate that followed. The Department of Telecommunications released a draft Indian Telecommunication Bill in September 2022 with a consultation paper explaining the need for a new legal framework, and invited comments. The 2022 draft proposed, among other things, to bring over the top communication services expressly within the licensing net, to dilute the exclusivity questions by renaming licences as licences under a new scheme, and to write a detailed insolvency and regulatory architecture. Responses came from industry bodies, technology companies, civil society organisations and the public, and several of the draft’s most contested features did not survive into the enacted text.

The Bill that was introduced in the Lok Sabha on 18 December 2023 by the Minister for Communications, Ashwini Vaishnaw, as Bill No. 194 of 2023, was a shorter and different instrument. The express inclusion of internet based communication services in the definition of telecommunication services was gone, although, as a later section of this article explains, the width of the definitions that remained kept the question alive. The Lok Sabha passed the Bill on 20 December 2023 and the Rajya Sabha on 21 December 2023, in each case by voice vote, and the Bill was not referred to a parliamentary standing committee for examination. The Act received the assent of the President in December 2023 and was published in the Gazette as Act 44 of 2023.

The Government presented the Act as the replacement of a colonial framework with a modern, user focused and growth oriented statute, organised around four stated principles which the Ministry of Communications rendered as inclusion, security, growth and responsiveness. Supporters in the industry welcomed the simplification of entry, the statutory right of way, and the replacement of criminal sanctions for many regulatory breaches with graded civil penalties. Critics, including the Internet Freedom Foundation and other civil liberties organisations, directed their objection at a different part of the text: the breadth of the interception and suspension powers, the absence of judicial authorisation or of any requirement to notify a person whose communications had been intercepted, and the volume of operative detail the Act leaves to rules that the executive can amend without returning to Parliament.

The brief parliamentary debates concentrated the argument on two questions that have not gone away. Members of the opposition benches pressed the Minister on whether internet based communication services stood inside or outside the authorisation regime, pointing to the width of the definitions and to the removal of the express treatment the 2022 draft had contained, and received assurance in general terms rather than a textual answer; and they objected to the procedure of the passage itself, a Bill of first rank consequence for the digital economy taken through both Houses inside four days of its introduction, in the closing days of a session, without reference to the standing committee on communications and information technology, whose examination of the 2022 draft’s subject matter had been overtaken by events. The Government’s defence was that the subject had been consulted on since 2022, that the sector’s governing statute was 138 years old, and that the enacted text embodied the consultation by abandoning its most contested features. A reader weighing the passage record should notice what the two sides were each right about: the consultation on the subject was real and the enacted text is materially different from the draft because of it, and the scrutiny of the enacted text, as a text, by the legislature that passed it, was as thin as the timetable shows. Those two facts coexist, and the second one matters most for the provisions that were carried across unexamined because they were familiar, which is to say for section 20 and its neighbours.

Both descriptions are accurate about the provisions they describe, because the Act does both things at once. It is a serious simplification of the entry, spectrum and land regimes, and it is a careful preservation of the emergency and interception architecture of 1885. The speed of passage is relevant to the second fact rather than the first: a text that moved from introduction to assent within a single week in December carried forward the State power provisions of its predecessor with less line by line parliamentary examination than those provisions had received at any point since they were enacted for the telegraph. Readers who keep consultation documents, departmental responses and notification files for a sector they follow will find that material is often supplied as office documents and spreadsheets, which can be read in the browser through an office file viewer for documents and spreadsheets supplied as downloads rather than saved and opened one file at a time.

How the Telecommunications Act 2023 is put together

The Telecommunications Act 2023 has sixty-two sections arranged in eleven chapters, followed by three schedules. Chapter I contains the short title, extent and commencement provision and the definitions. Chapter II, sections 3 to 9, holds the powers of authorisation and assignment: the authorisation requirement, the assignment of spectrum, refarming and harmonisation, technologically neutral use, optimal utilisation, monitoring and enforcement, and a bar on refund of fees. Chapter III, sections 10 to 18, is the right of way code. Chapter IV, sections 19 to 23, deals with standards, public safety, national security and the protection of telecommunication networks, and contains Section 20. Chapter V, sections 24 to 26, establishes the Digital Bharat Nidhi. Chapter VI is a single section, section 27, creating the regulatory sandbox. Chapter VII, sections 28 to 30, contains the protection of users provisions and the duty of users. Chapter VIII, sections 31 to 41, builds the adjudication machinery for contraventions. Chapter IX, sections 42 to 44, states the offences. Chapter X, sections 45 to 59, is a miscellaneous chapter that includes the extraterritorial reach of the Act, the rule making power, the power to amend the schedules, and the amendments to the Telecom Regulatory Authority of India Act 1997. Chapter XI, sections 60 to 62, is the repeal and savings chapter.

Read as a piece of drafting, the Act is notable for how much of its operative content is delegated. The statute states the requirement of authorisation and leaves its terms, conditions and fees to rules. It states the method of spectrum assignment and leaves pricing methodology to rules. It states the interception power and leaves the procedure and safeguards to rules. It creates adjudication and leaves the manner of inquiry to rules. It sets the outer frame of penalties in its schedules and then empowers the Central Government, by section 57, to amend the schedules themselves by notification, subject to a ceiling of ten crore rupees on any penalty so set. The recurring phrase of the Act is “as may be prescribed”, and any honest account of the statute has to treat that phrase as one of its substantive features: Parliament has enacted the skeleton and a schedule of values, and the flesh of the regime is subordinate legislation administered by the Department of Telecommunications.

Three definitions do most of the work in the Act and should be fixed before the provisions are examined. “Telecommunication” means the transmission, emission or reception of any messages, by wire, radio, optical or other electromagnetic systems, whether or not the messages have been subjected to rearrangement, computation or other processes in the course of their transmission, emission or reception. “Message” means any sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication. “Telecommunication service” means, in terms that are deliberately circular, any service for telecommunication. An “authorisation” is a permission, by whatever name called, granted under the Act for providing telecommunication services, for establishing, operating, maintaining or expanding telecommunication networks, or for possessing radio equipment, and the person holding one is an “authorised entity”. The circularity of the service definition and the width of the message definition are the two textual facts on which the debate about internet based services turns, and they are examined in the section devoted to that question below.

The definitions that carry the scheme

The remainder of section 2 repays a slower reading than definitions usually receive, because several of its choices allocate power. “Person” is defined to include an individual and any company, association or body of individuals, incorporated or not, by whatsoever name called, which is why the authorisation requirement and the offences reach firms, societies and unincorporated ventures without further argument. A “telecommunication network” is a system or series of systems of telecommunication equipment or infrastructure, expressly including terrestrial, satellite and submarine networks or any combination of them, used or intended to be used for providing telecommunication services; the express inclusion of satellite and submarine systems matters, because both had lived under distinct permission families in the old regime. Against that width, the definition carries a delegated narrowing device: the network definition excludes such telecommunication equipment as the Central Government may notify, and the definition of telecommunication equipment carries the same exclusion, which means the outer boundary of the Act can be contracted by notification without amendment.

“Radio equipment” is telecommunication equipment used or capable of use for telecommunication by means of Hertzian or radio waves, and “spectrum” is the range of frequencies of those waves; the pairing of those two definitions is what connects the authorisation chapter to the assignment chapter, since possessing radio equipment requires authorisation and using spectrum requires assignment. A “telecommunication identifier” is a series of digits, characters and symbols, or a combination, used to identify uniquely a user, a service, a network, an element of a network, equipment or an authorised entity, which is the statutory category that gathers telephone numbers, network addresses and device identifiers into one administrable resource. “User” is a natural or legal person using or requesting a telecommunication service, expressly excluding the person providing the service or the network, a definition that keeps the user protection chapter pointed at the receiving end of the relationship. And “appointed day”, the date appointed under section 1(3) for a provision, is the hinge on which the entire commencement scheme turns, since almost every transitional provision in the Act keys its operation to that expression rather than to a calendar date.

Three provisions at the back of the Act fix its relationship with the rest of the legal system, and they belong in any structural account. Section 1(2) extends the Act to the whole of India and to any offence committed or contravention made outside India by any person as provided in the Act, and section 50 gives that extension its content: the Act applies to conduct abroad where the act involves a telecommunication service provided in India or equipment or a network located in India. Section 51 protects the Central and State Governments and persons acting on their behalf against suit, prosecution or other proceedings for anything done in good faith in pursuance of the Act or its rules. Section 52 states the consistency rule in two limbs: the Act’s provisions are in addition to, and not in derogation of, other laws and are to be construed consistently with them; but where a genuine conflict arises between a provision of this Act and a provision of another law in force, the provision of this Act prevails to the extent of the conflict. The second limb is a quiet non obstante clause of real significance for the overlaps mapped in this article, with the information technology statute’s interception and blocking powers in particular, since it tells a court that where the two regimes cannot be read together, the telecommunications text is to win.

One further miscellaneous provision should be recorded here because the industry reads it closely. Section 45 empowers the Central Government to provide for such security interest as an authorised entity may create in favour of lenders financing it, on prescribed terms. A telecommunication network is among the most capital intensive assets in the economy, and the value that secures its financing resides substantially in the authorisation and in assigned spectrum, both of which are permissions held at the pleasure of the grantor rather than property in the ordinary sense. The licence era left the bankability of those permissions to inference from licence language, and the question of what happens to spectrum when a licensee enters insolvency produced some of the hardest litigation of that period. Section 45 does not settle the underlying property question, since a security interest can be no better than the permission it attaches to, and the permission remains revocable for breach under section 32; but it signals, in the statute itself, that the permissions are intended to function as financeable assets, and it gives the rule maker a stated head under which a charge regime can be built.

Authorisation in place of licensing

Section 3(1) is the gateway provision of the Act. Any person intending to provide telecommunication services, to establish, operate, maintain or expand a telecommunication network, or to possess radio equipment, must obtain an authorisation from the Central Government, subject to such terms and conditions, including fees or charges, as may be prescribed. Section 3(2) permits the rules to prescribe different terms and conditions for different types of services, networks and radio equipment. Section 3(3) permits the Central Government, where it determines that the public interest requires it, to exempt a person or class from the authorisation requirement altogether, in the manner prescribed. Section 3(4) continues exemptions granted under the repealed statutes unless otherwise notified. Section 3(5) addresses corporate change: an authorised entity may undertake a merger, demerger, acquisition or other form of restructuring, subject to other law in force, and the entity that emerges stands in the shoes of the original entity for the terms, conditions, fees and charges of the authorisation, together with any further prescribed conditions. Section 3(8) and section 3(9) deal with telecommunication identifiers, the numbers and addresses of the network, which the Central Government may allot for use by authorised entities and whose equivalents allotted by recognised international bodies may be allowed.

The change from licence to authorisation is more than vocabulary, and it is also less than a deregulation. Under the Telegraph Act, the starting point was the exclusive privilege of the Government, and a licence was a grant out of that privilege, conceptually close to a concession. Under section 3, the starting point is a statutory prohibition addressed to everyone: the three listed activities may not be carried on without an authorisation. The practical consequences argued for the change are threefold. A single statutory permission replaces the family of licences and registrations that accumulated under the old regime, so that entry is obtained under the Act rather than negotiated under a privilege. The terms of entry are to be prescribed by rules published for all applicants rather than embodied in individual licence agreements of great length. And the authorisation is framed as a creature of the statute, so that its breach is handled by the adjudication machinery of Chapter VIII and the civil penalties of the Second Schedule, rather than as a contractual default under a licence whose ultimate sanction, revocation, was too destructive to use for ordinary defaults.

What did not change is the identity of the gatekeeper and the conditional character of entry. The Central Government grants the authorisation, prescribes its terms, fixes its fees, may exempt in the public interest, and may, on the recommendation of the Adjudicating Officer under section 32, suspend, curtail or revoke it. An applicant has no entitlement to an authorisation by right on satisfying published criteria in the way that, for example, a registrant under a registration statute does. The Act therefore simplifies the form of permission without altering the constitutional position that telecommunication is a field in which the Union licenses activity, a position that rests on Entry 31 of the Union List, which assigns posts and telegraphs, telephones, wireless, broadcasting and other like forms of communication to Parliament.

What does an authorisation under Section 3 actually permit?

An authorisation permits its holder to carry on one or more of the three activities named in section 3(1): providing telecommunication services, establishing, operating, maintaining or expanding a telecommunication network, or possessing radio equipment. It is granted by the Central Government on prescribed terms and fees, and different terms may be prescribed for different kinds of service, network and equipment.

The transition design in section 3(6) deserves attention because it is where the old sector meets the new statute. A licence, registration or permission granted before the appointed day under either repealed statute continues in force. Where the instrument carries a definite validity period, the holder may run it to its expiry on its own terms, or migrate to the terms of the corresponding authorisation as prescribed. Where no definite validity period is stated, the holder may continue on the existing terms for five years from the appointed day, or migrate. The five year bridge for instruments of indefinite duration is the Act’s answer to the disruption problem that defeated earlier attempts at consolidation: no operator wakes up unlicensed because the statute book changed, and every holder faces a known horizon within which the old permission must either expire, be migrated, or run out.

Two provisions at the end of section 3 connect authorisation to the user of the network. Section 3(7), which the next part of this article examines in the user protection context, requires a notified authorised entity to identify the person to whom it provides services through verifiable biometric based identification as prescribed. And section 9 closes the financial logic of the chapter: no person is entitled to a refund of fees or charges paid under an authorisation or an assignment if the authorisation or assignment is suspended, curtailed, revoked or varied. The fee, in other words, buys the permission for so long as it subsists, and the risk of early termination for breach lies on the holder.

To see what section 3 has to absorb, consider the permission landscape it succeeds. Under the licensing regime, an access provider operated under a unified licence with separate authorisations recorded for each service and each service area; internet service providers held their own licences in classes; national and international long distance carriers, infrastructure providers, very small aperture terminal operators, global mobile personal communication by satellite licensees, public mobile radio trunk operators, machine to machine service providers and a series of smaller permission holders each stood on a distinct instrument, and a corporate group of any size held a portfolio of them. The compliance consequence was that a change in the sector’s ground rules had to be executed by amending dozens of licence conditions across instruments, and the interpretive consequence was that courts and the tribunal spent substantial effort on the construction of licence language rather than of a statute. The authorisation model does not abolish categories: section 3(2) expects different terms for different types of services, networks and equipment, and the migration exercise under section 3(6) maps old instruments to corresponding authorisations. What it changes is the juridical home of the categories. They will live in rules made under one section of one Act, published in one place, amendable through one process, and enforceable through one adjudication chapter.

The criticism that survives that description should be stated, because it identifies the real limit of the reform. An authorisation whose terms, fees and exemptions are wholly prescribed by the grantor is, in substance, a licence whose document has changed format. The Act does not publish eligibility criteria on its face, does not give an applicant a right to a reasoned refusal, and does not subject the grant of an authorisation to the tribunal’s appellate jurisdiction in the way it subjects penalties to appeal. The gain of section 3 is therefore administrative and doctrinal rather than a transfer of power: the conditions of entry become subordinate legislation, visible and uniform, instead of negotiated instruments; but the discretion of the Centre over who enters the sector, and on what financial terms, is preserved in full, and in the exemption power of section 3(3) it is preserved in its most concentrated form. A reader evaluating the chapter should hold both halves of that sentence together, because the sector’s own commentary tends to quote only one of them.

Spectrum: auction as the rule, administration as the listed exception

Spectrum is the one asset in the sector that no technology can manufacture more of, and section 4 opens with the constitutional premise. The Central Government, being the owner of the spectrum on behalf of the people, assigns it in accordance with the Act and may notify a National Frequency Allocation Plan. Section 4(2) provides that any person intending to use spectrum requires an assignment from the Central Government, and section 4(3) leaves the terms of assignment, including the frequency range, the methodology for pricing, the price, fees and charges, the payment mechanism, the duration and the procedure, to prescription. Section 4(6) permits exemptions from the assignment requirement, and for specific usages within specified frequencies and parameters, by notification.

The operative rule is section 4(4). The Central Government shall assign spectrum for telecommunication through auction, except for the entries listed in the First Schedule, for which assignment shall be done by administrative process. The section defines its terms: an administrative process means assignment of spectrum without holding an auction, and an auction means a bid process for assignment of spectrum. Section 4(5) then permits the Central Government, by notification laid before each House of Parliament, to amend the First Schedule itself, in order to serve the public interest, to perform a government function, or where auction is not the preferred mode of assignment for technical or economic reasons. The exception list is therefore statutory but not frozen: it can be extended by delegated legislation laid before Parliament, without the laying procedure giving either House a veto unless it moves to annul or modify under the general laying provisions.

The First Schedule as enacted contains nineteen entries for administrative assignment. They are: national security and defence; law enforcement and crime prevention; public broadcasting services; disaster management and the safeguarding of life and property; the promotion of scientific research, resource development and exploration; the safety and operation of roads, railways, metro and regional rail, inland waterways, airports, ports, pipelines, shipping and other transport systems; the conservation of natural resources and wildlife; the meteorological department and weather forecasting; internationally recognised dedicated bands for amateur stations, navigation, telemetry and like usages; use by the Central Government, State Governments or their entities for the safety and operations of mines, ports and oil exploration and similar activities; public mobile radio trunking services; radio backhaul for telecommunication services, defined as the use of radio frequency only to interconnect telecommunication equipment other than customer equipment; community radio stations; inflight and maritime connectivity; space research and application, launch vehicle operations and ground stations for satellite control; certain satellite based services, namely teleports, television channels, direct to home broadcasting, headend in the sky, digital satellite news gathering, very small aperture terminal services, global mobile personal communication by satellites, national long distance, international long distance, and mobile satellite service in the L and S bands; use by the Central Government, State Governments or their authorised agencies for telecommunication services; Bharat Sanchar Nigam Limited and Mahanagar Telephone Nigam Limited, the two public sector operators, named in the schedule itself; and testing, trial, experimental and demonstration purposes for new technologies, including the creation of regulatory sandboxes.

Two features of that list repay notice. The first is that most of it is uncontroversial: no serious participant in the debate proposed auctioning the spectrum used by the armed forces, the police, the railways, disaster management or weather forecasting, and the schedule in large part codifies the standing practice under which governmental and safety uses were always assigned administratively. The second is that two entries are commercial in character and were the real subject of dispute: the naming of the two public sector operators, and entry 16, the satellite based services entry, which takes a set of services that compete, at the margin, with terrestrial broadband and assigns their spectrum without a bid process. The controversy belongs to the second of those, because entry 18 follows from public ownership, while entry 16 allocates a scarce input between competing private technologies by administrative choice.

Why is satellite spectrum assigned without an auction?

Because Parliament placed satellite based services in the First Schedule, where assignment is by administrative process rather than auction. Satellite operators said the spectrum is shared and coordinated internationally, so an auction built for exclusive terrestrial use fits it badly; terrestrial operators answered that a scarce input serving the same market must be auctioned like theirs.

The dispute, stated at full strength on both sides, is the satellite spectrum question, and it is the clearest worked example in the Act of the 2G settlement being applied rather than merely cited. The terrestrial operators, speaking through the Cellular Operators Association of India, argued that spectrum is a scarce national resource, that the Supreme Court’s judgment of 2012 made non-arbitrary and transparent alienation the governing standard, and that a satellite service delivering broadband to the same household that a terrestrial network serves is a competing service which should obtain its essential input on equivalent terms; anything else, on this view, is a level playing field failure that transfers value from the exchequer and from auction paying operators to satellite providers. The satellite industry answered that the comparison is false. Satellite spectrum in the relevant bands is not assigned exclusively to one operator in the way a terrestrial band is carved up; it is shared, coordinated through the International Telecommunication Union’s processes, and used simultaneously by multiple systems under technical coordination rules, so the auction of an exclusive right does not map onto the resource being assigned. Satellite operators also pointed out that the Constitution Bench in the Presidential Reference of 2012 had expressly declined to make auction a universal constitutional requirement, and that administrative assignment at a price determined by the Government, charged as a percentage of revenue, is a recognised non-arbitrary method for resources of this character.

Parliament adopted the administrative route in the statute, and the pricing question then passed to the regulator’s recommendation process. In May 2025 the Telecom Regulatory Authority of India recommended terms for the assignment of spectrum for satellite based commercial communication services: assignment for a period of up to five years, extendable by up to two further years, at a spectrum charge of four per cent of adjusted gross revenue, subject to a minimum annual charge per megahertz and, for one class of service, an additional per subscriber charge in urban areas. The industry association for the terrestrial operators publicly criticised the recommendations, with its Director General, S. P. Kochhar, arguing that they did not address the level playing field objection and rested on assumptions the association considered unjustified. That exchange is the honest state of the question: the statute has settled the method, the price is set through a recommendatory and governmental process, and the underlying argument about whether a shared, coordinated resource and an exclusive terrestrial resource can be priced equivalently has been decided politically rather than answered analytically.

The remainder of the spectrum chapter is about using what has been assigned. Section 5 empowers refarming and harmonisation, defined respectively as the repurposing of a frequency range for a different use and the rearrangement of a frequency range, on prescribed terms. Section 6 permits technologically neutral, flexible and liberalised use. Section 7 addresses optimal utilisation in two ways: the Central Government may make a secondary assignment of part of an assigned band to additional entities where that causes no harmful interference to the primary assignee, and, after giving the assignee a reasonable opportunity of being heard, it may terminate an assignment, in whole or part, or impose further conditions, where assigned spectrum has remained unutilised for insufficient reasons for the prescribed period. Section 8 provides for a monitoring and enforcement mechanism, and permits the sharing, trading, leasing and surrender of assigned spectrum on prescribed terms and charges. Sections 4(8) and 4(9) protect the existing position: spectrum assigned administratively before the appointed day continues on its original terms for five years from that day or until its expiry, whichever is earlier, and spectrum assigned through auction continues on the terms on which it was assigned.

Three structural features of the chapter deserve emphasis, because together they convert spectrum from a static grant into a managed public asset. The first is the planning layer. The National Frequency Allocation Plan, notified under section 4(1) and revised from time to time, is the document that states which bands are available for which services in India, within the international allocations coordinated through the International Telecommunication Union, and it is against that plan that any question of assignment, refarming or harmonisation is argued. The second is that administrative assignment is not free assignment. Section 4(3) subjects every assignment, by whichever method, to prescribed terms including the methodology for pricing, the price, fees and charges, the payment mechanism and the duration; the debate between auction and administration is therefore a debate about price discovery and exclusivity, not about payment, and the satellite recommendations discussed in this section illustrate the point, with the regulator proposing a recurring charge measured as a percentage of adjusted gross revenue rather than an upfront bid sum. The third is the naming of the public operators in entry 18 of the First Schedule. Bharat Sanchar Nigam Limited and Mahanagar Telephone Nigam Limited had received spectrum administratively throughout their history, including for their fourth generation services under government revival packages, on the ground that their universal service burdens and public ownership made auction participation against private bidders incoherent; by writing the two companies into the schedule by name, Parliament converted an executive practice into a statutory entitlement, and accepted the consequence that assignment policy in the Act is openly differentiated between the State as operator and the market, rather than differentiated by criteria that a private operator could in principle satisfy.

There is also a history inside the sharing and trading provisions that a specialist reader will recognise. Under the licensing regime, spectrum sharing and trading between operators were permitted by guidelines issued in 2015, liberalising an earlier position in which an assignment was effectively locked to its holder and its licensed service area; leasing was not generally available, and surrender carried no developed framework. Section 8(2) gathers sharing, trading, leasing and surrender into the statute itself, and section 7 adds the two instruments the guidelines era lacked: secondary assignment by the Government of a part of an assigned band to additional users where no harmful interference results, which is a statutory foothold for shared use of fallow bands, and termination or conditionalisation of an assignment that has remained unutilised for insufficient reasons, which is the use it or lose it principle stated as law rather than as a licence condition. The movement across the chapter is consistent: every point at which spectrum can sit idle, locked or mispriced has been given a statutory instrument, and every instrument is exercisable by the executive on prescribed terms.

Right of way: a code for putting networks on other people’s land

Chapter III is the part of the Act that a network builder reads first, because the binding constraint on Indian network construction has rarely been permission to operate and has almost always been permission to dig, to climb and to cross. The chapter defines its actors in section 10. A facility provider is the Central Government or an authorised entity, including its contractors, subcontractors and agents. A public entity includes the Central Government, a State Government, a local authority, any authority, body, company or institution incorporated or established by the Centre or a State or under any statute, and a notified non government entity vested with the ownership, control or management of a public facility. Public property is any property, movable or immovable, owned by, in the possession of, or under the control or management of a public entity.

Section 11 governs public property. A facility provider may apply to the public entity in which the property is vested for right of way under, over, along, across, in or upon it, for purposes that include surveying the property to assess feasibility and entering it from time to time to establish, operate, maintain, repair, replace, augment, remove or relocate a network. The public entity must grant permission in an expeditious manner and within prescribed timelines, subject to administrative expenses and compensation for right of way capped at prescribed amounts. A rejection must rest on reasonable grounds recorded in writing. The facility provider must do as little damage as possible and must not adversely affect the functionality and continuity of operations over the property, and where damage is caused must, at the public entity’s option, restore the property or pay mutually agreed compensation. Section 15 adds a forward looking instrument: the Central Government may notify infrastructure projects that require common ducts, conduits or cable corridors for telecommunication networks, to be made available to facility providers on an open access basis.

Section 12 governs property that is not public property, which is to say private land and buildings. The route there is agreement: the facility provider applies, and the owner or controller of the property may enter into an agreement specifying mutually agreed consideration for survey and for the network works. Section 12(5) empowers rules for the procedure, notice, objection handling and compensation. Section 12(6) is the override, and it should not be missed: if the person fails to provide the right of way requested and the Central Government determines that it is necessary in the public interest to do so, the Government may, itself or through a designated authority, determine that the facility provider shall be permitted the right of way, on prescribed terms including charges and compensation for damage. Private refusal is therefore a strong negotiating position but not an absolute veto where the Centre is prepared to certify public interest.

Section 13 states the discipline on the grant itself: any person providing right of way under section 11 or section 12 must ensure that it is granted to facility providers in a non discriminatory manner and, as far as practicable, on a non exclusive basis. Section 14 then performs a piece of legal engineering with large practical consequences. A facility provider acquires no right, title or interest in the property beyond the right of use; the network installed on the property is not subject to claims, encumbrances or liquidation processes relating to that property; and the network is not treated as part of the property for transactions or for property tax and similar levies. The same section restrains the State’s own instrumentalities: no public entity may take coercive action such as sealing, preventing access or forcibly shutting down a network established by an authorised entity, except with the permission of an officer authorised by the Central Government, and except where necessary to deal with a natural disaster or a public emergency. The target of that provision is the familiar municipal practice of sealing or cutting infrastructure in a revenue or planning dispute, and the Act answers it by requiring central permission before a network can be touched.

Can a landowner simply refuse right of way for a telecom network?

On private property, right of way begins with agreement under section 12, and an owner may decline or bargain over consideration. But refusal is not an absolute veto: where the owner fails to provide it and the Central Government certifies the public interest, section 12(6) lets the Government direct that the right of way be permitted on prescribed terms.

Disputes under the chapter are taken out of the ordinary civil courts at the first instance. Section 18 gives the District Magistrate, or another authority notified by the Central Government, exclusive power to resolve disputes under the chapter, save that disputes about compensation under sections 11, 12 and 17 go, on the application of either party, to the District Judge. Every determination by a District Magistrate or a District Judge under the section is final, without prejudice to a suit to recover compensation paid from the person who received it. Sections 16 and 17 complete the chapter with the mechanics of coexistence: a person entitled to deal with property on which a network sits may require the facility provider to remove, relocate or alter the network, tendering the expense where compensation was earlier paid, and may apply to the District Magistrate if the provider does not comply; and a person whose own works are likely to damage the network or interrupt services must give prior notice, with a District Magistrate empowered to restrain damaging dealing with the property for a period not exceeding one month. The scheme consciously follows the shape of Part III of the 1885 Act, including the central role of the District Magistrate, but it adds what the old scheme lacked: prescribed timelines, capped charges, recorded reasons for refusal, the non discrimination discipline, and the protection of the network itself against coercive action.

A worked application shows why the chapter is drafted as it is. Consider a facility provider laying a fibre route across a single municipal area to connect two exchanges, a routine project of no political significance. The route crosses land vested in the municipal corporation, a stretch of State highway verge, a railway crossing, a cantonment road and the forecourts of several private buildings whose owners must be negotiated with individually. Under the old dispensation, each of those custodians applied its own permission process, its own fee schedule and its own timeline, some under the 2016 rules and some under purely local practice, and the project’s completion date was set by the slowest of them; operators responded by routing around difficulty, which is one reason network quality in India has historically varied street by street within the same city. Under Chapter III, the applications to public entities run on prescribed timelines with charges capped as prescribed and refusal only on recorded reasonable grounds; the private segments proceed by agreement with the section 12(6) public interest direction behind the negotiation; disputes anywhere on the route go to one forum, the District Magistrate, with compensation questions to the District Judge; and once the cable is in the ground, section 14 prevents the same municipalities from sealing or cutting it in an unrelated dispute without central permission. The chapter does not abolish the heterogeneity of Indian land administration, and no statute could. What it does is convert right of way from a series of local favours into a governed entitlement with defaults that run in favour of construction, which is why infrastructure providers, more than any other constituency, treated the Act as their statute.

The administrative machinery around the chapter points the same way. The Department of Telecommunications operates a centralised online portal, the GatiShakti Sanchar portal, through which right of way applications to participating public entities are filed and tracked, and State governments framed their own right of way policies in alignment with the 2016 rules that Chapter III supersedes as the governing framework. The section 15 power to notify common ducts and cable corridors in new infrastructure projects extends the logic forward: where a highway, a railway or a utility corridor is being built, the duct for fibre is to be designed into the project and opened to facility providers on an open access basis, rather than dug up afterwards. Read together, the statutory chapter, the portal and the corridor power describe a policy that treats the physical path of the network as national infrastructure in its own right, and it is the part of the Act whose benefits, if the timelines and caps are honoured in the rules, will be visible to users who never learn its name.

Repealed and reproduced: the replacement at a glance

The table that follows is the findable artifact of this article, and its last column is the argument. It sets the position under the statutes that section 60 repeals against the position under the Telecommunications Act 2023, subject by subject, and marks each subject as replaced, modernised, or carried forward substantially unchanged. A reader who absorbs the pattern of the marks knows the most important thing about the Act before reading another word of analysis.

Subject	Position under the repealed statutes	Position under the Telecommunications Act 2023	Verdict
Entry to the market	Exclusive privilege of the Central Government under Section 4 of the Telegraph Act 1885, granted out as licences	Statutory authorisation under Section 3 for services, networks and possession of radio equipment	Replaced
Spectrum	Assigned with the licence, administratively for most uses, with auction adopted in practice after the judgment of 2012	Auction as the statutory default under Section 4(4), administrative assignment for the First Schedule entries	Modernised
Right of way	Part III of the Telegraph Act 1885, supplemented by the Right of Way Rules of 2016	Self-contained code in Chapter III, with timelines, capped charges, recorded reasons and a bar on coercive action against networks	Modernised
Interception	Section 5(2) of the Telegraph Act 1885, procedure in Rule 419A of the Telegraph Rules 1951	Section 20(2), on the same triggers and grounds, with procedure and safeguards left to rules	Carried forward substantially unchanged
Suspension of services	Section 5(2) of the Telegraph Act 1885, with suspension governed by the Temporary Suspension Rules of 2017	Section 20(2)(b), suspension as one limb of the same power, procedure to be prescribed	Carried forward substantially unchanged
Emergency possession	Section 5(1) of the Telegraph Act 1885	Section 20(1), temporary possession of a service or network, with priority routing for emergency traffic added	Carried forward substantially unchanged
User protection	Unsolicited communication controlled by regulations of the sector regulator under the TRAI Act 1997	Consent, a Do Not Disturb register and a malware reporting mechanism provided for in Section 28 of the Act itself	Modernised
Dispute resolution	Licence conditions and the tribunal under the TRAI Act 1997	Adjudication by an Adjudicating Officer with appeal to a Designated Appeals Committee, then to the tribunal for authorisation matters and to the civil court for other contraventions	Replaced

Three rows carry the mark of continuity, and they are the three rows that concern the State’s power over communications rather than the industry’s freedom to build. The sections that follow examine the interception settlement in detail, because it is the provision through which the Act will touch the largest number of people who never read it.

Section 20: the powers that were carried across

Section 20 is titled “Provisions for public emergency or public safety”, and it has three operative parts. Section 20(1) provides that on the occurrence of any public emergency, including disaster management, or in the interest of public safety, the Central Government or a State Government, or any officer specially authorised in that behalf by either, may, if satisfied that it is necessary or expedient to do so, by notification, take temporary possession of any telecommunication service or telecommunication network from an authorised entity, or provide an appropriate mechanism to ensure that messages of users or groups of users authorised for response and recovery during a public emergency are routed on a priority basis. Section 20(2) is the interception and suspension power. On the same triggering conditions, the Centre, a State or a specially authorised officer may, if satisfied that it is necessary or expedient in the interest of the sovereignty and integrity of India, the defence or security of the State, friendly relations with foreign States, public order, or for preventing incitement to the commission of any offence, subject to such procedure and safeguards as may be prescribed and for reasons to be recorded in writing, by order direct that any message or class of messages, to or from any person or class of persons, or to or from any telecommunication equipment or class of equipment, or relating to any particular subject, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed in intelligible format to the officer named in the order; or direct that any telecommunication service or class of services be suspended on the same dimensions. Section 20(3) carries the press exemption: press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained unless their transmission has been prohibited under section 20(2)(a). Section 20(4) provides that action under the section is for such duration and in such manner as may be prescribed.

Set that text beside its ancestor and the continuity is exact in everything except vocabulary. Section 5(2) of the Telegraph Act 1885 used the same trigger, occurrence of a public emergency or the interest of public safety; the same mental element, satisfaction that it is necessary or expedient; the same catalogue of grounds, sovereignty and integrity, security of the State, friendly relations with foreign States, public order and preventing incitement to an offence; the same three operations, non transmission, interception or detention, and disclosure; the same press proviso in the closing words of the sub-section; and, in section 5(1), the same power of temporary possession. The new provision is not a copy, and the differences are real: it names suspension of services expressly, which the old text achieved only by reading the detention and non transmission powers broadly and later by rules; it requires reasons to be recorded in writing on the face of the section; and it gathers possession, interception and suspension into one section rather than two. But the architecture, an executive satisfaction on executive grounds, exercised by order, with the procedural discipline located outside the statute, is the architecture of 1885 reproduced in 2023.

The procedural discipline has a history that every account of this power must carry, because it is judge made in origin. In People’s Union for Civil Liberties v Union of India, reported at (1997) 1 SCC 301, a public interest challenge to telephone tapping, the Supreme Court held that a tap on a telephone is an invasion of privacy protected by Article 21, permissible only under a procedure that is fair and reasonable, and, finding the statute bare of procedure, laid down guidelines: interception orders were to issue from the Home Secretary of the Centre or the State, with a narrow exception for emergent situations; orders were to be reviewed by a committee of senior secretaries; the duration of an order was to be limited, initially to two months and renewable within a ceiling of six months; records were to be maintained and destroyed when their purpose ended; and the power was to be used only when the necessary information could not be obtained otherwise. Those guidelines were later embodied in Rule 419A of the Indian Telegraph Rules 1951, inserted in 2007, which became the operative procedure for interception under the old Act for the remainder of its life. The suspension power acquired its own subordinate framework in the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017, which required orders at Home Secretary level with review committee scrutiny, and its constitutional discipline in Anuradha Bhasin v Union of India, reported at (2020) 3 SCC 637, where the Supreme Court held that orders suspending telecommunication services must be published, must satisfy the test of proportionality, must not be indefinite, and must be open to review, since the freedoms of speech and of trade carried on over the internet are constitutionally protected.

Do the interception safeguards sit in the Act or in rules?

In rules. Section 20 states the power, the triggers and the grounds, then provides that interception, detention, disclosure and suspension are subject to such procedure and safeguards as may be prescribed. The officer who may order interception, the committee that reviews orders, and the limits on duration all live in subordinate legislation, principally the Interception Rules of 2024.

The rules position under the new Act confirms the pattern. The Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules 2024, notified on 6 December 2024 in supersession of Rules 419 and 419A of the Indian Telegraph Rules 1951, designate the Union Home Secretary and the Home Secretary of a State as the competent authorities for interception orders, permit an officer not below the rank of Joint Secretary to the Central Government to issue an order in unavoidable circumstances, and allow the head or the second senior most officer of an authorised agency, at the State level not below the rank of Inspector General of Police, to issue an order where approaching the competent authority is not feasible for remote area or operational reasons. An order issued by an agency head must be submitted to the competent authority within three working days, and if it is not confirmed within seven working days the interception must cease and material obtained cannot be used, with destruction of the records to follow. Records of interception are to be destroyed every six months unless required for functional reasons or by a court. A review committee structure, headed at the Centre by the Cabinet Secretary and in a State by the Chief Secretary, continues the review architecture that descends from the guidelines of 1997. The rules, in short, reproduce the 419A settlement under the new section, with the agency head route widened in terms and the confirmation discipline made explicit.

It is here that the parallel power in the information technology statute should be noticed. Section 69 of the Information Technology Act 2000 empowers the Centre and the States to direct the interception, monitoring or decryption of information through a computer resource on sovereignty, defence, security, friendly relations, public order and incitement grounds that track the same constitutional vocabulary, and the two powers operate side by side over much of the same traffic; the reader who wants the anatomy of that power and of the blocking power that accompanies it should turn to the complete guide to the Information Technology Act 2000, which owns that statute in this series. The significance for the present Act is that a person examining Indian interception law finds not one gateway but several, built at different times to the same template, each with its procedure in rules.

The honest assessment of section 20 requires both cases to be put at their strongest. The case for the power, as governments of every composition have made it, is that lawful interception is an indispensable instrument of criminal investigation and national security, that no State operates without one, and that the Indian design is not a free standing executive discretion: it is confined to two triggering conditions, it may be exercised only on the five stated grounds, reasons must be recorded in writing, the procedure and safeguards are prescribed in rules that replicate a framework the Supreme Court itself designed, orders pass before a review committee of the senior most civil servants, and the whole exercise is subject to the proportionality discipline that the nine judge bench in the privacy judgment made the measure of State action touching fundamental rights, the standard elaborated in the article on the Puttaswamy judgment and the Aadhaar verdict. The case against, as the Internet Freedom Foundation and other civil liberties organisations have made it, is that every element of that discipline except the grounds sits outside the statute in instruments the executive can amend on its own authority; that there is no prior judicial authorisation of any order at any stage; that the subject of an interception is never notified, even after the event, and so can never test the order; that the review committee is composed of the executive reviewing the executive; and that a power copied from a statute enacted to control the telegraph in a colony sits uneasily with a constitutional order in which privacy is a fundamental right and each restriction must be justified as the least restrictive available measure. The verdict this article defends is the narrow one the text supports: the safeguards debate in India has never been about whether an interception power should exist, and the 2023 Act did not reopen it; what the Act decided, by carrying the 1885 architecture into a replacement statute without placing the procedure, the duration limits or any notification principle on the face of the Act, is that the discipline of the power will continue to be found in rules and in case law rather than in primary legislation. That was a choice, and a fresh statute was the occasion on which it could have been made differently.

The suspension limb of the power has a practice history that the interception limb, conducted in secret, cannot have, and it is the practice that most citizens encounter. Orders suspending telecommunication services, in practice orders suspending mobile internet in a district or a State, have been a routine instrument of public order administration in India for years, deployed during protests, examinations, communal tension and security operations; international digital rights trackers have repeatedly placed India at or near the top of their annual counts of State ordered internet shutdowns, which is a statement about the frequency of the instrument’s use rather than about any single order’s legality. The 2017 suspension rules required orders at the level of the Secretary in charge of Home Affairs, with review by a committee, and the Supreme Court in Anuradha Bhasin superimposed the constitutional conditions: the order must be published so that it can be challenged, it must be necessary and proportionate to the apprehended harm, the least restrictive alternative must be preferred, and an indefinite suspension is impermissible, with the reviewing court able to test the material on which the satisfaction rested. In the proceedings that followed in Foundation for Media Professionals v Union Territory of Jammu and Kashmir, the Court, rather than restoring services itself, directed the constitution of a high powered committee to examine the restrictions against the same standard, an outcome that displayed both the reach and the limit of judicial supervision in this area: the doctrine is demanding, and its enforcement proceeds case by case after the event. Section 20(2)(b) absorbs the suspension power into the new Act without writing any of those conditions into the section. The conditions continue to bind because the Constitution binds, and a suspension ordered under the new Act that was unpublished, indefinite or disproportionate would fail for the reasons given in 2020; but a reader of the statute alone would not learn that the conditions exist, and that gap between the text and the doctrine is the single most representative feature of the Act’s treatment of State power.

The security powers around Section 20

Section 20 does not stand alone, and a complete account of the Act’s security architecture needs the four provisions around it. Section 19 empowers the Central Government to notify standards and conformity assessment measures for telecommunication equipment, identifiers, networks and services, for the manufacture, import, distribution and sale of equipment, for telecommunication security, for cyber security for telecommunication services and networks, and for encryption and data processing in telecommunication. The encryption head is worth pausing on: the power to set standards for encryption in telecommunication is a standard setting power rather than a key escrow mandate, and the Act does not itself require any person to deposit keys or to build access into a product; what it does is locate the subject within the Centre’s standard setting competence, where future rules would have to be measured against the proportionality standard.

Section 21 is the national security provision. Where the Central Government is satisfied that it is necessary or expedient in the interest of national security, friendly relations with foreign States, or in the event of war, it may by notification take measures including directions about the use of telecommunication equipment, services, networks and identifiers; standards for the manufacture, import and distribution of equipment; standards to be adopted by authorised entities and assignees; procurement of equipment and services only from trusted sources; the suspension, removal or prohibition of specified equipment and services from countries or persons notified; and taking over the control and management of, or suspending, or entrusting to a Central Government authority the management of, any telecommunication service or network. The trusted sources head is the statutory home of the procurement screening regime that had earlier been run through licence conditions and executive directions, and section 42(4) makes wilful contravention of a section 21 notification punishable with imprisonment of up to three years or a fine of up to two crore rupees or both, together with a power in the Central Government to suspend or terminate the offender’s telecommunication service.

Section 22 addresses the protection of networks. The Central Government may by rules provide measures to protect and ensure the cyber security of telecommunication networks and services, and the measures may include the collection, analysis and dissemination of traffic data generated, transmitted, received or stored in networks, with traffic data defined to include data relating to the type, routing, duration or time of a telecommunication. Section 22(3) creates the category of Critical Telecommunication Infrastructure: the Central Government may by notification declare any telecommunication network, or part of one, to be such infrastructure where its disruption would have a debilitating impact on national security, the economy, public health or safety, and may by rules prescribe the standards, security practices, upgradation requirements and procedures for it. Section 23 adds a smaller and older fashioned power, the power to direct an authorised entity, where it appears necessary or expedient in the public interest, to transmit specific messages in its services or network in a specified manner. Section 44, in the offences chapter, obliges an authorised entity or assignee to furnish information, documents or records to a specially authorised officer where the Central Government is satisfied that they are necessary in relation to pending or apprehended civil or criminal proceedings.

The standards power has a working history that explains its placement at the head of the chapter. Conformity assessment of telecommunication equipment had been administered before the Act through the mandatory testing and certification regime run by the Telecommunication Engineering Centre under the authority of the licensing framework, under which specified equipment had to be tested and certified against essential requirements before it could be sold or connected; section 19 gives that administrative practice a statutory root, and extends it expressly to identifiers, to services in consonance with the regulator’s regulations, and to the security heads. The jammer prohibition in section 48, with its mirror offence in section 42(3), closes a gap that practice had exposed: equipment that blocks telecommunication had circulated for use in premises ranging from examination halls to places of worship, and unauthorised jamming interferes with lawful services and with emergency communication, so the Act reserves the use of blocking equipment to those the Central Government permits, a reservation whose principal authorised applications are in the security and custodial sphere.

A Union subject worked by State hands

The constitutional seat of the Act is Entry 31 of the Union List in the Seventh Schedule, which assigns to Parliament the subject of posts and telegraphs, telephones, wireless, broadcasting and other like forms of communication. No State legislature can enact a competing telecommunication code, and the Act is a Union statute from its first section to its last. Yet the working of the Act is distributed across both levels of the federation to a degree that its Union character conceals, and a reader who notices the distribution understands the statute better. State Governments are among the public entities that grant right of way over the property vested in them and in their local authorities, and the District Magistrate who decides right of way disputes is a State officer. State Governments are also, under section 20, authorities competent in their own right to take temporary possession of services and networks and to order interception, detention, disclosure and suspension within their sphere, and the Home Secretary of a State is a competent authority under the Interception Rules 2024, subject to the review architecture those rules prescribe. The result is a deliberate replication of the 1885 settlement, under which the emergency powers were always shared between the Centre and the provinces while the licensing power was unitary: the Union owns the network’s legal existence, and the States hold, jointly with the Union, the powers of interruption.

That distribution has one consequence worth drawing out, because it explains the shape of litigation in this field. Challenges to suspension orders are challenges to State or Union executive action tested against Part III of the Constitution, and they proceed in the High Courts and the Supreme Court as fundamental rights litigation, not as disputes under the Act’s own machinery; the adjudication chapter has nothing to say about them, and the tribunal has no jurisdiction over them. The Act’s internal enforcement system, examined in the next section, is for the regulated industry. Its external discipline, for the powers that touch the citizen, remains constitutional adjudication after the event, which is one more way of stating the article’s central finding about where the safeguards live.

The user inside the new statute

A replacement statute for a network used by hundreds of millions of people is also, whether its drafters emphasise the point or not, a consumer statute, and Chapter VII is where the 2023 Act speaks to the person holding the handset. Section 28(1) defines a specified message: any message offering, advertising or promoting goods, services, an interest in property, a business opportunity, an employment opportunity or an investment opportunity, whether or not the thing offered is real and whether or not it is lawful to acquire it. The definition is drafted to catch the fraudulent promotion as firmly as the genuine advertisement, which is the correct response to a spam economy in which the damaging messages are the false ones. Section 28(2) empowers the Central Government to provide by rules, in consonance with regulations notified by the Telecom Regulatory Authority of India, for measures including the requirement of prior consent of users for receiving certain specified messages or classes of them; the preparation and maintenance of one or more registers, to be called the Do Not Disturb register, to ensure that users do not receive specified messages without prior consent; and a mechanism to enable users to report malware and specified messages received in contravention. Section 28(3) requires every authorised entity providing services to establish an online mechanism for users to register grievances and obtain redressal, in the manner prescribed. Section 30 empowers online dispute resolution mechanisms for disputes between users and authorised entities, obliges authorised entities to participate, and expressly preserves, in section 30(3), the rights of consumers under the Consumer Protection Act 2019, Act 35 of 2019.

The migration of this material into the Act is a genuine, if modest, change of legal location. Control of unsolicited commercial communication had rested on regulations made by the regulator under the Telecom Regulatory Authority of India Act 1997, principally the Telecom Commercial Communications Customer Preference Regulations of 2018, an instrument whose enforcement route ran through the licensee and the licence. Those regulations had already built the working machinery that section 28 authorises in statutory terms: a preference register on which a subscriber could record choices about promotional communication, enrolment through the number 1909 and through provider applications, registration of telemarketers and of message headers and templates, and scrubbing of commercial messages against the register before delivery, with distributed ledger technology adopted to make the scrubbing auditable. The section builds on that settlement rather than displacing it, which is why it directs that the rules be made in consonance with the regulator’s regulations: the Act supplies the statutory authority and the penalty route, and the regulator’s machinery supplies the detail. By writing the consent principle, the register and the reporting mechanism into primary legislation, and by attaching consequences through the Third Schedule, the Act gives the anti spam framework a statutory footing it did not previously have, while leaving the detail, properly, to rules and to the regulator’s regulations with which the rules must be in consonance. The limits should be stated plainly. Section 28 is an enabling provision: it empowers rules rather than itself conferring an enforceable individual right to be free of spam, and a user whose register entry is ignored will in practice proceed through the complaint mechanism and the contravention route rather than by suing on the section.

What changes for an ordinary mobile user under the new statute?

Three things. Promotional messaging enters the Act itself: prior consent for specified messages, a Do Not Disturb register, and a route for reporting malware and unlawful promotions, with penalties under the Third Schedule. Providers must run an online grievance mechanism. And anyone taking a connection may be identified through the biometric based identification prescribed under section 3(7).

Section 29 states the other side of the relationship, the duty of users. No user shall furnish false particulars, suppress material information or impersonate another person while establishing identity for availing telecommunication services, and no user shall fail to share information required under the Act. Breach of the user duties is a contravention within the residuary entry of the Third Schedule, attracting a civil penalty rather than a prosecution, a calibration that suits identity offences at the retail level, although the more serious end of the same conduct, obtaining subscriber identity modules or telecommunication identifiers by fraud, cheating or personation, is a criminal offence under section 42(3).

The dispute provisions complete the user’s position, and their design contains a quiet choice worth noticing. Section 30’s online dispute resolution mechanism is a channel the Central Government may establish or approve, in which authorised entities must participate on prescribed terms; it is built for the high volume, low value disputes that characterise consumer telecommunication, billing errors, failed recharges, wrongful disconnection, porting failures, which no court system can process economically. Alongside it, section 30(3) preserves the consumer’s rights under the Consumer Protection Act 2019 in full, so that a user with a grievance of substance retains the consumer commissions and their powers of compensation, and the two tracks coexist without an election being forced at the threshold. The user of the old regime, whose complaint ran through the provider’s appellate structure under the regulator’s grievance regulations and then, with difficulty, to forums of general jurisdiction, is given under the new Act a statutory grievance mechanism at the provider, an approved dispute channel above it, and an untouched consumer statute beside both. That is a modest architecture, but it is the first time the user’s remedial position has been stated in the sector’s principal statute at all.

The biometric provision, section 3(7), requires any authorised entity providing such telecommunication services as are notified to identify the person to whom it provides services through the use of any verifiable biometric based identification as may be prescribed. Two precisions matter. The provision is a duty cast on the authorised entity, not on the applicant, and it operates for services notified by the Central Government, with the form of biometric identification left to prescription. And the practice it authorises was not new when enacted: biometric based electronic know your customer verification, principally through Aadhaar, had been the standard onboarding route under the licensing regime, was interrupted by the Supreme Court’s holding in the Aadhaar judgment that the Department’s Aadhaar based verification circular lacked statutory backing and that mandatory Aadhaar authentication by private bodies under section 57 of the Aadhaar Act could not stand, and acquires in section 3(7) the express statutory footing whose absence the Court had identified. Whether a prescribed biometric regime satisfies the proportionality standard, legality, necessity, proportionality and procedural safeguards, is a question that will be answered against the rules when made and the uses to which the verification is put, and the pillar article for that standard is the Puttaswamy article already linked in this series.

The Digital Bharat Nidhi and the regulatory sandbox

Chapter V performs a renaming that is also a widening. Section 24(1) provides that the Universal Service Obligation Fund created under the Indian Telegraph Act 1885 shall, from the appointed day, be the Digital Bharat Nidhi, under the control of the Central Government. Section 24(2) credits to the fund the sums attributable to it that are paid under an authorisation, section 24(3) provides that the balance shall not lapse at the end of the financial year, and section 24(4) deems amounts payable under pre commencement licences towards universal service obligation to be amounts payable towards the new fund. Section 25 states the money route and the objects. The sums are first credited to the Consolidated Fund of India, and the Central Government may, where Parliament has made an appropriation by law, credit the proceeds to the fund for use exclusively on four objects: supporting universal service through promoting access to and delivery of telecommunication services in underserved rural, remote and urban areas; supporting research and development of telecommunication services, technologies and products; supporting pilot projects, consultancy assistance and advisory support towards the provision of such access; and supporting the introduction of telecommunication services, technologies and products. Section 26 leaves administration to prescription.

The widening is the point. The old fund was a universal service fund in a strict sense: a levy on operators, pooled to subsidise the extension of services to places the market would not reach unaided, and criticised over its life for accumulation alongside underspending against its objects. The fund had itself been a statutory creation of the amendment era: the Universal Service Obligation Fund was given statutory status by an amendment of the Telegraph Act in 2003, financed by a universal service levy charged as a percentage, set at five per cent, of the adjusted gross revenue of licensees, and its best known deployment was the national rural broadband programme that set out to connect the country’s gram panchayats with optical fibre in phases. That record is the inheritance the Digital Bharat Nidhi takes over: a substantial collected balance, a delivery programme of real scale and uneven pace, and a standing argument about whether a levy raised for rural connectivity should wait for rural projects or be released to wider technology purposes. The renamed fund keeps the universal service object first in the list and adds research and development, pilot projects and the introduction of new technologies and products, which converts a network subsidy instrument into something closer to a sector development fund. Whether that breadth is a virtue depends on the weight given to two competing readings. On one, the levy is paid by the sector and may rationally be spent on the sector’s research base and on proving new services in hard territory. On the other, a levy justified by universal service loses its discipline if it becomes a general technology fund administered by the same department that regulates the contributors. The Act does not resolve that tension; the appropriation route in section 25, which requires Parliament to appropriate before money moves to the fund, is the control Parliament retained.

Section 27, the whole of Chapter VI, creates the regulatory sandbox. The Central Government may, for the purpose of encouraging and facilitating innovation and technological development in telecommunication, create one or more regulatory sandboxes in the manner and for the duration prescribed. A regulatory sandbox is defined as a live testing environment in which new products, services, processes and business models may be deployed on a limited set of users for a specified period with certain relaxations from the provisions of the Act. The sandbox device, borrowed from financial regulation, fits a statute whose operative detail sits in rules: it permits the department to learn what a new service does before deciding how the authorisation and standards framework should treat it, and its inclusion in the First Schedule’s testing entry ties the spectrum chapter to the same experimental logic.

The fund’s operating model, inherited from the universal service regime, is worth a paragraph because it determines what the widened objects will mean in practice. Under the old fund, money did not move as departmental expenditure: an administrator invited bids for identified projects, awarded support to the bidder seeking the lowest subsidy, and disbursed against verified rollout, a design intended to buy the maximum network extension for each rupee of levy. Section 26 leaves the administration of the Digital Bharat Nidhi to prescription, so the Act does not itself decide whether the research, pilot and product introduction objects will be run through the same competitive machinery, through grants to public research institutions, or through programme partnerships; what it decides is the list of permissible objects and the appropriation discipline. A reader assessing the widening should therefore look past the list to the rules that follow it: a fund that tenders its universal service projects competitively and funds its research object by peer reviewed grant is a different institution from one that spends both through departmental schemes, and section 25 is equally consistent with either.

Adjudication, civil penalties and offences

The enforcement design of the Act is a deliberate two track settlement, and understanding it explains much of the statute’s practical character. Regulatory defaults by authorised entities and assignees are handled as civil contraventions before an administrative adjudicator, with money penalties graded by seriousness and a compliance ladder that stops well short of licence cancellation. A defined set of acts that the Act treats as attacks on the network or as frauds upon it, unauthorised provision of services, unlawful interception, unauthorised access, damage to critical infrastructure, identifier fraud and jammer offences among them, are crimes tried by criminal courts. The general information in this article is a description of the statute’s scheme; it is not advice on any individual matter, and a person facing a notice or a prosecution under the Act needs advice on the facts of that case, because limitation periods and appeal windows under the Act are short and unforgiving.

Chapter VIII builds the civil track. Section 32 governs breach of the terms and conditions of an authorisation or an assignment. The Adjudicating Officer, after inquiry, may direct the entity to do or abstain from doing any act to prevent the breach or secure compliance, may impose civil penalties as specified in the Second Schedule, and may make recommendations to the Central Government regarding suspension, revocation or curtailment of the authorisation or assignment, which the Central Government may then carry out, with power to reverse the step if the substantial violation is remedied to its satisfaction. The Second Schedule grades the penalties by categorisation: a severe breach attracts a civil penalty of up to five crore rupees; a major breach up to one crore rupees; a moderate breach up to ten lakh rupees; a minor breach up to one lakh rupees; and a non severe breach attracts a written warning. Section 32(3) disciplines the assessment with a list of factors the officer must weigh: the nature, gravity and duration of the contravention; the number of persons affected and the level of harm; whether the contravention was intentional or negligent; repetition; mitigation, including a voluntary undertaking; the revenue loss caused to the Central Government; aggravating factors such as disproportionate gain; and mitigating factors such as timely rectification. Section 33 governs contraventions of the Act specified in the Third Schedule, which the Adjudicating Officer inquires into on complaint or of his own motion, imposing the civil penalty stated in that schedule; abetment, attempt and conspiracy are treated as the contravention itself. The Third Schedule’s own entries include possessing radio equipment without an authorisation or exemption and using subscriber identity modules beyond the notified number, at up to fifty thousand rupees for a first offence and up to two lakh rupees for each subsequent instance; using a service or network known to lack the required authorisation, at up to ten lakh rupees; contravention of section 28, the user protection provision, on the same fifty thousand and two lakh pattern, with suspension of telecommunication service available as an alternative or addition; and a residuary entry for any contravention of the Act, its rules or the terms of an authorisation or assignment for which no other penalty is provided, at up to twenty-five thousand rupees for a first offence and, for a second or subsequent offence, up to fifty thousand rupees for every day the contravention continues.

Section 34 introduces the voluntary undertaking, the most modern device in the chapter. An authorised entity or assignee that has committed a section 32 breach or a residuary Third Schedule contravention may, before any notice or initiation of process, submit a voluntary undertaking to the Adjudicating Officer disclosing the contravention and the mitigation measures taken or proposed; acceptance bars proceedings. An undertaking offered after notice, during the hearing, is treated as mitigation in the penalty assessment. Undertakings may commit the entity to a specified action, to refraining from a specified action, and to publicising the undertaking, and non compliance reopens the penalty process after a hearing. Sections 35 and 36 create the two tiers. The Adjudicating Officer is an officer of the Central Government not below the rank of Joint Secretary, appointed by order published in the Gazette. Appeal lies to a Designated Appeals Committee, whose members are officers not below the rank of Additional Secretary, and must be filed within thirty days of receipt of the order. Section 37 provides that the functioning of both tiers shall as far as possible be digital by design, functioning as digital offices, and gives them the powers of a civil court, with proceedings deemed judicial proceedings. Section 38 makes their orders executable as decrees of a civil court. The appeal routes then divide by subject: under section 39, a person aggrieved by an order of the Designated Appeals Committee on a section 32 matter, or by a Central Government order suspending, curtailing or revoking an authorisation or assignment, may appeal to the Telecom Disputes Settlement and Appellate Tribunal within thirty days; under section 40, a person aggrieved by a committee order on a section 33 matter appeals to the civil court having jurisdiction; and section 41 bars the jurisdiction of civil courts over matters the chapter assigns to its own authorities. The design is an adjudication pyramid inside the executive for regulatory breaches, with the tribunal, which the regulator’s statute created and which the article on the Telecom Regulatory Authority of India Act examines as an institution, placed at its apex for the authorisation questions that matter most to operators.

Chapter IX states the criminal track in a single long section. Section 42(1) makes it an offence, punishable with imprisonment of up to three years or a fine of up to two crore rupees or both, to provide telecommunication services or establish a telecommunication network without the authorisation required by section 3(1), or to cause damage to critical telecommunication infrastructure. Section 42(2) applies the same punishment to a person who, directly, indirectly or through personation, gains or attempts to gain unauthorised access to a telecommunication network or to the data of an authorised entity, transfers such data, or intercepts a message unlawfully; the Explanation records that data of an authorised entity includes call data records, internet protocol data records, traffic data and subscriber data records. Section 42(3) punishes a cluster of equipment and identifier offences with imprisonment of up to three years or a fine of up to fifty lakh rupees or both: possessing or using equipment that blocks telecommunication without permission; using telecommunication identifiers not allotted or permitted; tampering with telecommunication identifiers; possessing radio equipment without authorisation that can accommodate more subscriber identity modules than the specified number; obtaining subscriber identity modules or other identifiers through fraud, cheating or personation; and wilfully possessing radio equipment knowing that it uses unauthorised or tampered identifiers. Section 42(4), already noticed, punishes wilful contravention of a section 21 national security notification at up to three years or two crore rupees, with service suspension or termination in addition. Section 42(5) makes damage to a telecommunication network other than critical infrastructure compensable, with a fine of up to fifty lakh rupees. Abetment, attempt and conspiracy are punishable as the offence itself. Section 42(7) makes every offence under the section cognizable and non bailable, and section 42(8) provides that no court inferior to a Chief Metropolitan Magistrate or a Chief Judicial Magistrate of the first class shall try an offence under the Act. Section 43 empowers an authorised officer to search premises, vehicles, vessels and aircraft where he has reason to believe an unauthorised network or equipment connected with a section 42 offence is kept, and to take possession of it. Section 48 prohibits the possession or use of equipment that blocks telecommunication unless permitted by the Central Government or an authorised authority, and section 50 applies the Act to offences and contraventions committed outside India where the act involves a telecommunication service provided in India or equipment or a network located in India.

The penal settlement, taken whole, is a recalibration rather than an escalation. The old regime’s characteristic sanction for regulatory default was contractual and existential, suspension or termination of a licence, supplemented by financial disincentives calculated as percentages of revenue, a combination that made enforcement both slow and disproportionate for small defaults. The new Act reserves imprisonment for conduct that is unauthorised entry, intrusion, interception, fraud or damage, puts a graded tariff on regulatory breach with a published ladder from written warning to five crore rupees, and builds an undertaking mechanism that rewards self disclosure. The criticisms that survive that description are about who adjudicates: the first two tiers are officers of the same government that grants the authorisation and frames the rules, and although the tribunal tier for section 32 matters introduces an independent forum, the section 33 track ends in a civil court only after passing through the same two departmental tiers.

The voluntary undertaking deserves a comparative note, because it places the Act inside a wider movement in Indian regulatory design. Settlement and commitment mechanisms of the same family appear in the securities regulator’s settlement proceedings and in the commitments and settlements introduced into competition law by the amendment of 2023, and their shared logic is that a regulator with limited adjudicatory capacity obtains compliance, remediation and publicity faster by bargain than by contested order, while the regulated entity purchases certainty and the avoidance of a penalty record. Section 34 is a careful member of the family: it distinguishes the pre notice undertaking, which bars proceedings altogether, from the mid inquiry undertaking, which earns mitigation; it permits the undertaking to be publicised, which preserves a measure of deterrence and of market information; and it keeps the penalty jurisdiction alive for non compliance, so that the bargain is enforceable against the party that offered it. Read with section 37’s instruction that the adjudication tiers function as digital offices, and with section 53’s statement that the implementation of the Act shall be digital by design, the chapter shows the drafters attempting something the licence regime never had: an enforcement process whose default mode is a filed document, a reasoned order and a published outcome, rather than a correspondence file moving between a department and a licensee over years.

The judicial inheritance the Act takes over

A replacement statute does not start with a clean judicial slate, and this Act’s savings design is written to manage a large inherited docket of doctrine. Three bodies of case law will govern the new Act’s working life from its first day, and a pillar account should name them distinctly. The first is the resource jurisprudence: the judgment of 2012 quashing the first come first served licences and the Constitution Bench’s reference opinion of the same year, which together supply the standard against which any assignment under section 4, and any addition to the First Schedule under section 4(5) or section 57, will be tested for arbitrariness. The second is the privacy and procedure jurisprudence: the guidelines of 1997 in the telephone tapping case, the proportionality standard of the nine judge privacy bench of 2017, and the suspension doctrine of 2020, which between them supply the entire operative discipline of section 20, since the Act supplies almost none of it internally. The third is the licence interpretation jurisprudence of the tribunal and the Supreme Court under the old regime, of which the largest single episode was the litigation over the definition of adjusted gross revenue, the base on which licence fees were charged: the Supreme Court’s judgment of October 2019, accepting the Department’s contention that the definition covered revenue beyond telecommunication activity, fixed liabilities of a scale that reshaped the industry’s structure, and demonstrated how much can turn on a definition buried in a licence document. The migration of operative terms from licence documents into rules under a statute is, in part, a response to that experience: a definition in subordinate legislation is at least a public, uniform and judicially reviewable text.

The savings provisions determine how much of the inherited litigation crosses over. Section 60(2) deems anything done under the repealed provisions, including grants and pending proceedings, to have been done under the new Act, and section 3(6) keeps the instruments themselves alive on their terms for their validity or for five years; the combined effect is that disputes about licence era conduct continue to be governed by the instruments and law under which the conduct occurred, while conduct after migration is governed by the Act and its rules. A specialist should note the consequence for limitation and forum: a revenue demand raised under a licence for a past period does not become a Chapter VIII contravention by being restated after commencement, and the tribunal’s jurisdiction over licence disputes, exercised under the regulator’s statute, continues for the saved proceedings. The Act’s adjudication chapter is prospective machinery for a prospective regime, and the transition provisions are drafted precisely to prevent the two systems from collapsing into one another.

Working the Act: three readers, three routes

The brief for this pillar names three reader payloads, and the Act reads differently in each pair of hands. The operator and compliance reader works from the front of the statute backwards: the questions are whether the entity’s activities fall within section 3(1), which of its legacy instruments section 3(6) preserves and for how long, whether migration to the corresponding authorisation improves its position on fees, tenure or conditions, what spectrum it holds under section 4(8) or section 4(9) and when the administrative assignments among them expire, and which of its defaults would be graded severe, major, moderate or minor on the Second Schedule’s scale. For that reader the practical centre of the Act is not any single section but the interaction of the transition clock with the commencement clock: migration is an option with a horizon, the spectrum chapter awaits its appointed day, and the adjudication chapter likewise, so that compliance planning under the Act is planning under two overlapping regimes whose boundary moves by notification.

The user reader works from Chapter VII and from two provisions elsewhere: the grievance mechanism that section 28(3) obliges every provider to maintain online, the dispute resolution mechanism of section 30 with the consumer’s rights under the Consumer Protection Act 2019 expressly preserved, the Do Not Disturb register and consent architecture of section 28, the identity duties of section 29 that the user must not breach when taking or using a connection, and, at one remove, the knowledge that the service itself may lawfully be suspended or its messages intercepted under section 20 in circumstances the user will not be told about. For that reader the Act’s honest summary is that it improves the machinery of complaint and the statutory footing of spam control, regularises the biometric identification already encountered at the point of sale, and leaves the user’s position against the State exactly where the repealed statute left it.

The researcher and advocate reader works from the continuity finding and the delegation map. The usable research questions the Act generates are all, at bottom, questions about where law is located: which operative propositions stand in the sixty-two sections, which in the three schedules, which in rules already made, which in rules awaited, which in notifications appointing days, and which in judgments that predate the Act and survive it through the savings. The advocate’s version of the same map identifies the points of legal leverage: a challenge to an assignment method under the resource jurisprudence; a challenge to a suspension or to the rules under section 20 under the proportionality standard; a challenge to a First Schedule amendment that extends administrative assignment to a use where auction is feasible, tested against the reference opinion of 2012; and, in the adjudication chapter, the Article 14 and natural justice questions raised by departmental officers adjudicating defaults under their own government’s authorisations, mitigated by the tribunal tier for section 32 matters and unmitigated, except by the civil court route after two departmental tiers, for section 33 matters. None of those questions is answered by the Act’s text, and the pillar does its work by making the map on which they will be argued legible.

Commencement, repeal and the long transition

No accurate account of this Act can say, without qualification, that it is in force, and the commencement provision is where careful writing earns its keep. Section 1(3) provides that the Act comes into force on such date as the Central Government may by notification in the Official Gazette appoint, that different dates may be appointed for different provisions, and that references to commencement are to be read accordingly. The appointed days have arrived in stages. By notification S.O. 2408(E) issued in June 2024, sections 1, 2, 10 to 30, 42 to 44, 46, 47, 50 to 58, 61 and 62 were brought into force on 26 June 2024: that tranche contains the definitions, the whole right of way chapter, the standards and security chapter including section 20, the Digital Bharat Nidhi, the sandbox, the user protection chapter, the offences, extraterritorial application, the rule making and schedule amending powers, and the two closing savings provisions. A second notification, S.O. 2623(E), brought sections 6, 7 and 8, section 48 and clause (b) of section 59 into force on 5 July 2024, covering technologically neutral use, optimal utilisation, monitoring and enforcement, the jammer prohibition and one of the amendments to the regulator’s statute. A third notification, S.O. 3368(E), brought sub-sections (1) and (6) of section 3 into force on 23 June 2026, which is to say the authorisation requirement itself and the transition provision for existing licences. The remaining provisions, including the balance of section 3, the assignment of spectrum under section 4, refarming under section 5, the adjudication chapter in sections 31 to 41, and the repeal provision in section 60, take effect on appointed days still to be notified, and a reader relying on any single provision must check its commencement position before acting on it.

Chapter XI then performs the repeal with a draftsman’s care for consequences. Section 60(1) repeals the Indian Telegraph Act 1885, Act 13 of 1885, and the Indian Wireless Telegraphy Act 1933, Act 17 of 1933. Section 60(2) saves the past: anything done or any action taken, including any grant of licence, registration or assignment, and any order or proceeding pending or ongoing under the repealed provisions, is deemed to have been done or taken under this Act, and the Act has effect in relation to it. Section 60(3) carves out one survival: Part III of the Telegraph Act, the right of way part, continues to apply to the laying of transmission lines under section 164 of the Electricity Act 2003, Act 36 of 2003, as if the Telegraph Act had not been repealed, until that section of the Electricity Act is amended. Section 61 keeps the subordinate past alive: rules and orders made under either repealed statute, so far as they relate to matters for which the new Act makes provision and are not inconsistent with it, are deemed to have been made under this Act and continue in force unless and until superseded by rules made under it. It is section 61 that explains how the Interception Rules 2024 could supersede Rules 419 and 419A while other instruments of the old regime, including the right of way rules and the suspension rules, continue to operate inside the new framework until replaced. Section 62 validates executive action taken before the appointed day in the belief or purported belief that it was taken under the old statutes, in relation to spectrum assignment, services, networks and infrastructure, and indemnifies the actors against suit on the ground that the action was not in accordance with law. The Telegraph Wires (Unlawful Possession) Act 1950 is not repealed by the Act at all, and the offence of unlawful possession of telegraph wires continues under its own statute, a reminder that a consolidation exercise repeals the Acts it names and no others.

Two consequences follow from the phased design and deserve emphasis. The first is that the sector is governed, for a transitional period of years rather than months, by a double framework: parts of the new Act in force, parts awaiting notification, old licences running on saved terms, old rules continuing under section 61, and the repeals themselves awaiting the commencement of the very section that enacts them. Within that double framework sit anomalies that a careful practitioner must hold in view. The offences in Chapter IX have been in force since 26 June 2024, while the adjudication chapter that supplies the Act’s civil enforcement stood uncommenced long after, and the authorisation requirement on which the principal offence in section 42(1) depends commenced only in June 2026; for the interval, regulatory defaults continued to be handled through the saved licence conditions and the department’s existing enforcement practice, and the criminal provisions operated against the background of the old permissions they presuppose. The second consequence is that the unfinished state of the statute is itself a policy instrument. Commencement by notification lets the executive sequence the authorisation migration, the spectrum provisions and the adjudication machinery against the readiness of rules and institutions, at the price of leaving Parliament’s enacted text partially dormant at the executive’s discretion. Section 58’s power to remove difficulties, exercisable by order for three years from commencement, and section 57’s power to amend the schedules by notification, complete a drafting pattern in which the statute is best understood as a framework whose activation is deliberately gradual.

The question the Act does not answer: internet calling and messaging

The most searched question about the Act is whether it covers internet based calling and messaging services, the applications through which a large share of Indian voice and text communication travels, and the Act’s honest answer is that its text does not say. The definitions are wide on their face. Telecommunication is the transmission, emission or reception of any messages by wire, radio, optical or other electromagnetic systems. A message is any sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication. A telecommunication service is any service for telecommunication. An application that transmits text, image, sound and video between users over electromagnetic systems provides, on a literal reading of those three definitions, a service for the transmission of messages, and nothing in section 2 or section 3 excludes it by name. The 2022 draft had proposed to resolve the matter expressly by including such services within the defined term; the enacted text dropped the express inclusion and enacted no express exclusion in its place.

Against the literal width of the definitions stands the stated position of the Government. Ministers have stated, in Parliament and in public, that internet based communication services are not covered by the Act and are not being brought within its authorisation regime, and that such services remain within the framework administered by the Ministry of Electronics and Information Technology under the Information Technology Act 2000. During the passage of the Bill the Communications Minister declined to give the categorical answer opposition members sought, and later ministerial statements supplied it: the Act, on the Government’s account, is about carriers and networks, not about the applications that run on them. The regulatory system had, in parallel, been examining the question through its own channel: the Telecom Regulatory Authority of India issued a consultation paper in July 2023, on a reference from the Department of Telecommunications, addressing a regulatory mechanism for over the top communication services and the possibility of selectively banning such services in the interest of public order, and the responses divided on the same lines as the parliamentary argument, with carrier interests seeking equivalent obligations and platform and civil society interests resisting the assimilation of applications to carriers. That consultation belongs to the regulator’s advisory function, and its existence underlines the point that the question of where communication applications sit is being worked out across several instruments at once, of which the Act is only one.

The concerns recorded against that settlement come from two directions that rarely agree. The Cellular Operators Association of India has long argued, under the banner of same service same rules, that communication services delivered over the internet perform the identical function as carrier voice and messaging, compete for the same user, and should bear equivalent regulatory obligations including authorisation; on this view the Government’s statement leaves an asymmetry in place by reassurance rather than by law. Civil society organisations, including the Internet Freedom Foundation, have argued from the opposite end that the definitions as enacted are wide enough to admit the inclusion the Government disclaims, that a stated position in a speech or an answer in Parliament is not a statutory exclusion, and that a future prescription of authorisation terms for a class of services could be made by rules without any return to Parliament, so that the security of the exclusion is only as durable as the policy of the government of the day. Both observations are correct about the instrument each examines: the Government’s position is clear as a statement of intent, and the text does not enact it. This article does not resolve the question, because the materials do not resolve it. The durable summary is that the definitions are capable of bearing the wider reading, the Government has stated that the wider reading is not its policy, and the difference between the two is the space in which the argument will continue.

What the replacement achieved, and what it declined to do

The verdict follows from the structure of the preceding sections, and it is the claim with which this article opened, tested against the text. This Act is one of a family of replacement statutes through which Indian law has been recodified in the present period, and the comparison with the criminal codes, drawn in the comparison of the Indian Penal Code and the Bharatiya Nyaya Sanhita, is instructive because the pattern is the same in both: a colonial statute of general application is replaced by a modern consolidation that renames institutions, restructures procedure and carries forward, with remarkable fidelity, the provisions that allocate power between the State and the person. Here the pattern is visible in a single section. Section 20 preserves the emergency and interception settlement of 1885 in substance, down to the press proviso, while sections 3, 4 and 10 to 18 reconstruct the law of entry, spectrum and land.

Measured as an industry statute, the Act is a substantial achievement of design. It converts a privilege and licence regime into a statutory authorisation; it writes the auction default and the administrative exception list into primary legislation, ending the practice of deciding the method of spectrum alienation case by case; it gives network builders a right of way code with timelines, capped charges, recorded reasons and protection against coercive sealing; it brings spam control into the statute book; it replaces an existential licensing sanction with graded civil penalties, an undertaking mechanism and adjudication tiers with fixed appeal windows; and it does all of this with transition provisions that keep every existing licence alive on known terms. Measured as a civil liberties statute, it is an act of conservation. The interception power kept its nineteenth century shape; the safeguards remained in rules; the suspension power was stated without placing the publication and proportionality conditions the Supreme Court had articulated in 2020 onto the face of the Act; and the definitions were left wide enough to keep the internet services question open while the Government’s answer to it rests on statements. Both measurements are true of the same sixty-two sections, which is why the Act will be cited with equal confidence by the operator planning a network and by the advocate challenging an interception order.

For the reader placing this statute in the wider field, the Act is the carriage layer of Indian technology law, sitting beneath the content and intermediary regime of the information technology statute and beside the data protection statute, and the map of that field as a whole is drawn in the complete guide to technology law in India, to which this pillar is the companion for the network layer. The articles that follow in this cluster take up the institutions and the judgments: the regulator’s statute and tribunal, amended at the edges by section 59 of this Act, belong to the next article, and the privacy jurisprudence that disciplines section 20 belongs to the Puttaswamy article already cited. The pillar’s work is done if the reader can do the thing the One Test demands: open the Act at any provision and say whether it is new law, modernised law, or the law of 1885 wearing modern dress, and be right.

A statute of this design is finished in its rules, and the specialist’s watch list follows from the delegation map this article has drawn. The authorisation rules under section 3 will decide whether entry reads as registration or as negotiation; the assignment terms under section 4(3) will decide what administrative assignment costs and for how long; the procedure rules under section 20 will decide whether the safeguards architecture settled in 2024 is tightened, loosened or left to replicate its predecessor; the administration rules under section 26 will show whether the Digital Bharat Nidhi’s widened objects are used or merely available; and the commencement notifications still to come, for the spectrum chapter, the adjudication chapter and the repeal itself, will decide when the double framework described in this article finally resolves into a single one. Judged by its text, the Act deserves the verdict given above. Judged by its completions, it will deserve a second one, and the materials for that verdict will be found in the Gazette rather than in the statute book.

Frequently Asked Questions

Q: What did the Telecommunications Act 2023 replace?

The Act replaces the Indian Telegraph Act 1885, Act 13 of 1885, and the Indian Wireless Telegraphy Act 1933, Act 17 of 1933, which section 60 repeals. The Telegraph Act had governed the sector on the strength of its definition of telegraph, wide enough to cover telephones, mobile networks, broadband and satellite links, and on the exclusive privilege of the Central Government under its section 4, granted out as licences. The Telecom Regulatory Authority of India Act 1997 is not repealed; section 59 of the new Act amends it, and the Telegraph Wires (Unlawful Possession) Act 1950 is untouched. Because commencement is phased, the repeal takes effect on the appointed day for section 60.

Q: How does authorisation differ from licensing?

Under the Telegraph Act 1885, the starting point was the exclusive privilege of the Central Government to establish, maintain and work telegraphs, and a licence was a grant carved out of that privilege, embodied in a long individual licence agreement whose conditions were the operative law of the sector. Under section 3 of the Telecommunications Act 2023, the starting point is a statutory requirement addressed to everyone: providing services, operating a network or possessing radio equipment requires an authorisation, whose terms, conditions and fees are prescribed by rules made for classes of activity. Breach of an authorisation is handled as a civil contravention before an Adjudicating Officer with graded penalties, rather than as a contractual default under a concession.

Q: How is spectrum assigned under the new telecom law?

Section 4(4) makes auction the statutory default: the Central Government shall assign spectrum for telecommunication through auction, except for the entries listed in the First Schedule, which are assigned by administrative process, meaning assignment without an auction. The First Schedule covers, among other entries, national security and defence, law enforcement, disaster management, transport safety, public broadcasting, community radio, inflight and maritime connectivity, specified satellite based services, and the two public sector operators. Spectrum assigned by auction before commencement continues on its original terms, and spectrum assigned administratively continues for five years from the appointed day or until its expiry, whichever is earlier. The Central Government may amend the First Schedule by notification laid before Parliament.

Q: What interception and suspension powers does the telecom Act give?

Section 20(2) empowers the Central Government, a State Government or a specially authorised officer, on the occurrence of a public emergency or in the interest of public safety, and in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order or preventing incitement to an offence, to direct that messages be not transmitted, be intercepted or detained, or be disclosed in intelligible format to the named officer, or that a telecommunication service be suspended. Reasons must be recorded in writing, and the procedure and safeguards are those prescribed by rules, principally the Interception Rules of 2024. The power reproduces section 5(2) of the Telegraph Act 1885 in substance.

Q: Does the telecom Act cover internet calling and messaging services?

The Act does not say so in terms, and it does not exclude them in terms either. The definitions are wide: telecommunication covers the transmission of any messages by wire, radio, optical or other electromagnetic systems, a message includes text, sound, video and data streams, and a telecommunication service is any service for telecommunication, language capable on a literal reading of covering applications that carry calls and messages over the internet. The Government has stated that such services are not covered and remain within the information technology framework. Industry bodies argue the functions are identical to carrier services, while civil society organisations note that the exclusion rests on statements rather than on any provision of the Act.

Q: What protections does the Act give users against spam?

Section 28 defines a specified message as one offering, advertising or promoting goods, services, an interest in property, a business opportunity, an employment opportunity or an investment opportunity, real or not, lawful or not. The Central Government may by rules, in consonance with the regulator’s regulations, require the prior consent of users for receiving specified messages, maintain one or more registers to be called the Do Not Disturb register so that users do not receive such messages without prior consent, and create a mechanism for users to report malware and specified messages received in contravention. Section 28(3) also requires every authorised entity to run an online grievance mechanism, and a contravention of section 28 attracts civil penalties under the Third Schedule.

Q: What is the right of way regime?

Chapter III is a self-contained code for placing networks on land. On public property, section 11 requires the owning public entity to grant permission expeditiously and within prescribed timelines, for administrative expenses and compensation capped as prescribed, and any rejection must rest on reasonable grounds recorded in writing. On private property, section 12 proceeds by agreement for mutually agreed consideration, but section 12(6) lets the Central Government direct that right of way be permitted where the owner fails to provide it and public interest requires it. Grants must be non discriminatory and, as far as practicable, non exclusive under section 13, and disputes go to the District Magistrate, with compensation disputes to the District Judge, under section 18.

Q: What happens to a telecom network during a public emergency?

Section 20(1) empowers the Central Government, a State Government or a specially authorised officer, on the occurrence of a public emergency, including disaster management, or in the interest of public safety, to take temporary possession of any telecommunication service or telecommunication network from an authorised entity, by notification. The same provision allows a mechanism to ensure that messages of users or groups of users authorised for response and recovery during the emergency are routed on a priority basis. Section 21 adds a further power, in the interest of national security, friendly relations with foreign States or in the event of war, to take over the control and management of services or networks. Possession under section 20(1) is temporary and is exercised for the duration and in the manner prescribed.

Q: When did the Telecommunications Act 2023 come into force?

In stages, under section 1(3), which lets the Central Government appoint different dates for different provisions. Sections 1, 2, 10 to 30, 42 to 44, 46, 47, 50 to 58, 61 and 62 came into force on 26 June 2024, bringing in the definitions, right of way, section 20, the Digital Bharat Nidhi, user protection and the offences. Sections 6, 7, 8, 48 and clause (b) of section 59 followed on 5 July 2024. Sub-sections (1) and (6) of section 3, containing the authorisation requirement and the licence transition, came into force on 23 June 2026. Other provisions, including spectrum assignment under section 4, the adjudication chapter and the repeal provision in section 60, take effect on appointed days still to be notified.

Q: What happens to licences granted under the Telegraph Act?

They continue. Section 3(6) provides that a licence, registration or permission granted before the appointed day under the Telegraph Act 1885 or the Wireless Telegraphy Act 1933 continues in force. Where the instrument has a definite validity period, the holder may operate to expiry on its own terms, or migrate to the terms of the corresponding authorisation as prescribed. Where no definite validity period is given, the holder may continue on the existing terms for five years from the appointed day, or migrate. Section 60(2) adds a general saving: anything done or action taken under the repealed provisions, including grants of licence, registration or assignment and pending proceedings, is deemed done or taken under the new Act.

Q: Does the Act require biometric identification for a telecom connection?

Section 3(7) requires an authorised entity providing such telecommunication services as are notified by the Central Government to identify the person to whom it provides the services through the use of any verifiable biometric based identification as may be prescribed. The duty is cast on the provider, not the customer, it applies to notified services, and the particular form of biometric identification is left to rules. Biometric electronic verification had been standard practice under the licensing regime until the Supreme Court’s Aadhaar judgment exposed the absence of a statutory foundation for it, and section 3(7) supplies that foundation in express terms, leaving the design of the prescribed method to be tested against the proportionality standard for privacy intrusions.

Q: What is the Digital Bharat Nidhi?

It is the renamed and widened universal service fund. Section 24(1) provides that the Universal Service Obligation Fund created under the Telegraph Act 1885 shall, from the appointed day, be the Digital Bharat Nidhi, under the control of the Central Government, and its balance does not lapse at the end of a financial year. Sums are routed through the Consolidated Fund of India and credited to the fund where Parliament has appropriated for the purpose. Section 25 confines spending to four objects: promoting access to and delivery of services in underserved rural, remote and urban areas; research and development of services, technologies and products; pilot projects and related support; and the introduction of new services, technologies and products.

Q: What is a regulatory sandbox under the Telecommunications Act?

Section 27 empowers the Central Government to create one or more regulatory sandboxes to encourage and facilitate innovation and technological development in telecommunication, in the manner and for the duration prescribed. The Act defines a regulatory sandbox as a live testing environment in which new products, services, processes and business models may be deployed on a limited set of users for a specified period of time with certain relaxations from the provisions of the Act. The device lets a new service be tested under supervision before the authorisation and standards framework is settled for it, and the First Schedule supports it by including testing, trial, experimental and demonstration purposes among the entries for administrative assignment of spectrum.

Q: What is the penalty for providing telecom services without authorisation?

It is a criminal offence, not merely a civil contravention. Section 42(1) provides that whoever provides telecommunication services or establishes a telecommunication network without the authorisation required by section 3(1), or causes damage to critical telecommunication infrastructure, shall be punishable with imprisonment for a term which may extend to three years, or with a fine which may extend to two crore rupees, or with both. Like every offence under section 42, it is cognizable and non bailable, and it may be tried only by a court not inferior to a Chief Metropolitan Magistrate or a Chief Judicial Magistrate of the first class. Unlawful interception and unauthorised access to a network or to an authorised entity’s data carry the same punishment under section 42(2).

Q: Who adjudicates a breach of authorisation conditions, and where can the order be appealed?

An Adjudicating Officer appointed under section 35, who must be an officer of the Central Government not below the rank of Joint Secretary, inquires into a breach of the terms and conditions of an authorisation or assignment under section 32. The officer may issue directions, impose civil penalties under the Second Schedule, which runs from a written warning for a non severe breach to five crore rupees for a severe one, and recommend suspension, revocation or curtailment to the Central Government. Appeal lies within thirty days to a Designated Appeals Committee of officers not below Additional Secretary rank, and from there, on section 32 matters, to the Telecom Disputes Settlement and Appellate Tribunal within thirty days. Appeals on section 33 contraventions go from the committee to the civil court.

Q: What duties does the Telecommunications Act impose on users?

Section 29 addresses the person at the handset. No user shall furnish any false particulars, suppress any material information, or impersonate another person while establishing identity for availing telecommunication services, and no user shall fail to share information as required under the Act. A breach is a contravention within the residuary entry of the Third Schedule, attracting a civil penalty of up to twenty-five thousand rupees for a first offence and up to fifty thousand rupees for every day of a continuing subsequent offence. The graver end of the same conduct is dealt with criminally: obtaining subscriber identity modules or other telecommunication identifiers through fraud, cheating or personation is an offence under section 42(3), punishable with up to three years imprisonment or a fine of up to fifty lakh rupees.

Q: What can the Central Government do if assigned spectrum is left unused?

Section 7 deals with optimal utilisation. The Central Government may assign a part of spectrum already assigned to one entity, the primary assignee, to one or more additional entities as secondary assignees, where the secondary assignment does not cause harmful interference with the primary assignee’s use. If the Government determines, after giving the assignee a reasonable opportunity of being heard, that assigned spectrum has remained unutilised for insufficient reasons for the prescribed period, it may terminate the assignment in whole or in part, or prescribe further terms and conditions relating to spectrum utilisation. Section 5 adds the instruments of refarming, which repurposes a frequency range for a different use, and harmonisation, which rearranges a frequency range, both available to enable more efficient use of spectrum.

Q: Can spectrum be shared, traded or leased under the new Act?

Yes, under section 8(2). The Central Government may permit the sharing, trading, leasing and surrender of assigned spectrum, subject to the terms and conditions, including applicable fees or charges, as may be prescribed. Section 8(1) provides for a monitoring and enforcement mechanism, established by notification, to ensure adherence to the terms and conditions of spectrum utilisation and to enable interference free use of assigned spectrum. Sharing and trading convert an assignment from a fixed endowment into a transferable working asset, which is one of the ways the Act tries to keep scarce frequencies in productive use between auctions; the detail of who may transact, in which bands and at what charge, is left to the rules rather than settled by the section.

Q: What is Critical Telecommunication Infrastructure under the Act?

Section 22(3) empowers the Central Government, by notification in the Official Gazette, to declare any telecommunication network, or part of a network, to be Critical Telecommunication Infrastructure where its disruption would have a debilitating impact on national security, the economy, public health or safety. Under section 22(4) the Government may by rules prescribe the standards, security practices, upgradation requirements and procedures for such infrastructure, and section 22 more generally empowers rules for the cyber security of networks and services, including measures for the collection, analysis and dissemination of traffic data. The category carries penal weight: causing damage to critical telecommunication infrastructure is an offence under section 42(1), punishable with imprisonment of up to three years or a fine of up to two crore rupees or both.

Q: What happens to the rules made under the Telegraph Act?

They continue, under section 61. All rules and orders made under the Indian Telegraph Act 1885 or the Indian Wireless Telegraphy Act 1933, so far as they relate to matters for which the new Act makes provision and are not inconsistent with it, are deemed to have been made under the new Act and continue in force unless and until they are superseded by rules made under it. That saving is the bridge on which much of the working regime crosses over: subordinate instruments of the old order, such as the right of way rules and the suspension rules, operate inside the new framework until replaced, while others have already been superseded, as Rules 419 and 419A of the Indian Telegraph Rules 1951 were superseded by the Interception Rules of 2024.