Constitutional Aspects of Telecommunications

Introduction:

“Mr. Watson come here, I want you.”

Alexander Graham Bell

This was the first historical wordings on the telephone by Alexander Graham Bell to Watson.

India is a heavily controlled telecom market with telecom service providers being needed to obtain a licence in order to provide services. Telecom services have played and have a major role worldwide for the socio-economic development of a nation. The rapid growth of telecommunication infrastructure, in the modern years, has been involved in connecting India, bridging the rural-urban divide and expediating Socio-Economic development of the country. 

Evolution of Telecommunication Laws

Telecommunication in the real sense means moving of information between two remote points in space. The accepted meaning of telecom always includes electrical signals and at present people eliminate postal or any other sensitive telecommunication modes from its meaning.¹(Ms Anhita Tiwari, Dr Manish Yadav, April-June,2017)

The telecom sector in India exist for more than one hundred and sixty-five years old and till 1950 postal means were the only mode of communication in India. In 1950 for the first time in India, the electric telegraph was initiated allying Calcutta (Kolkata) and Diamond Harbor. And it was extended for the utilization of the British East India Company in 1851 and eventually the electric telegraph wires were accepted throughout India. In 1854 a different department was unbolted for the public. Over the years, telephonic services joined with the postal systems in 1883. The Indian Telegraph Act, 1885 is one of the primitive Legislations which is present in India till now and the Act is to modify the law relating to telegraphs in India. In the following years after the independence all foreign telecommunication companies were publicly owned so as to frame the PTT i.e, Posts, Telephone and Telegraph. The Ministry of Communication administered the PTT which was a government body. Up to 1984, the private sector was only used for production and the Indian telecom sector was fully under the ownership of the government. The telecom sector in India keeps going for more than one hundred and sixty-five years. Till 1950 the only mode of communication in India were the postal means. A sovereign body- Centre for Development of Telematics (C- DOT) was organised by the government in order to make a specific effort towards the extension of research and development in the telecom sector. C-DOT was set up in 1984. It was framed for the growth and expansion of the state of the art telecommunication technology to encounter the growing need of the Indian telecommunication network. Only after the government detached the postal and the telephonic services by framing up the Department of Posts and Department of Telecommunication (DoT), the entire evolution of the telecom sector began. The Indian Wireless Telegraph Act, 1933 was enacted the authority of wireless telegraphy instrument and only in correspondence with a license provided by the telecom authority, the possession of wireless telegraphy instrument by a person was permitted. It also imposed penalties if any wireless telegraphy instrument was held without a valid license.

For the private investment of the telecom sector by the government, the 1990s was an age uncovering of government. The Telecom Regulatory Authority of India (TRAI) was framed in 1995 and this diminished the intrusion of the government in deciding tariffs and policymaking. The Government of India commodified the operational wing of DoT in the year 2000 and altered it with the name Department of Telecom as Bharat Sanchar Nigam Limited (BSNL), it was an accentuate change that occurred. Many private operators mainly foreign investors victoriously set foot in the high potential Indian telecom market for over the past 10 years.²(Shreya Mazumdar, 2000)

Constitutional Aspect of Telecommunication

The constitution is the cornerstone of all laws in India, to proceed with the constitutional test, the law must be within the frame of fundamental rights. All the telegraphs laws and the laws passed by ministry should fall in with or follow the fundamental rights given under the constitution. Among these constitutional provisions or laws, concerning telecommunication freedom of speech is one of the most major ones.

The monopoly of the state in the case of electronic media itself is a violation of free speech and expression. As per Section 38 of TRAI Act that it shall be in the statutory provisions of the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933 and in particular nothing in the Act shall affect any jurisdiction, powers, and functions required to be exercised or performed by the Telegraph Authority in relation to any area falling within the jurisdiction of such Authority.

Freedom of Speech and Expression and the Media

Normally, the Regulatory systems are classified into two kinds-:

1. Social 
2. Economic. 

Constitutional regulations are of three kinds:-

1. Social
2. Political
3. Economic

The basis of legislative regulation is to maintain and secure justice. The two most important parts in connection to regulations are the Constitution of India Part III Fundamental Rights and Part IV the Directive Principles. Every legislative regulatory system in India shall match up to fundamental rights. And every law against the fundamental rights is not valid and null to the scope of such inconsistency. At the same time, all the legislative regulations must be to protect the Fundamental Rights. The types of Fundamental Rights pertinent to the electronic media regulations are the right to equality, 231 right to freedom right against exploitation, cultural and educational rights 233 and rights for constitutional remedies.

Article 19(2) gives freedom of speech and can inflict a restriction. That means this Article also gives specified grounds and can inflict a reduction or curtailment on reasonable grounds, when it comes to the sovereignty of the state, the unity of the state and for the public order. Such curtailments or restrictions can also be inflicted through electronic media. Constitutional protection is provided to a natural person but no such protection is been provided to the corporation in this case. The right to take part in or engage in broadcasting through television cinema is also contemplated as part of the freedom secured by Article 19(1).³( Mohammad Zahid.)

Legal Structure of Telecommunication

‘Telecommunications’ is dealt under the judicial capacity of the Union and not the states. Therefore, the legal structure ruling the telecommunications sector is within the jurisdiction of the Union Government and the Parliament.

The legal structure governing the telecommunications sector in India falls under:-

1. The Indian Telegraph Act 1885, and its rules dealt under.

2. The Wireless Telegraphy Act 1933 ,and its rules dealt under.

3. The Telegraph Wires (unlawful Possession) Act 1950, and its rules dealt under.

4. The Cable Television Network (Regulation) Act 1996, and its rules dealt under.

5. The Telecom Regulatory Authority of India Act 1997, and its rules dealt under.⁴(Ms Anhita Tiwari, Dr Manish Yadav, April-June,2017)

International comparison

The International Telecommunication Union is a unique agency of the United Nations which is in charge of all matters in connection to information and communication technologies. The International Telecommunication Union was set up and accepted since 1865 as the International Telegraph Union. It is one of the ancient international organizations in existence or in operation. In comparison or by analysis to the international sphere, the Indian telecommunication is still lacking. Better infrastructure and development is required for a better and smooth experience.⁵( International Telecommunication Union, Wikipedia)

Landmark Case Laws

• In the case of Odyssey communications⁶ the Supreme Court held that a citizen’s right to exhibit films on television is alike to the right of a citizen to spread his views through any other mode of media like newspapers and other advertisements in magazines etc.

• In the case of Indira Jaisingh v. Union of India⁷, the Bombay High Court had expressed that,  the right of freedom of speech and expression has contemplated by the Indian courts as comprising of freedom of the press. The right equally includes other modes of media. A citizen cannot enjoy the freedom of speech and expression if he is not allowed to make his views freely through the mode of a media even when he is asked to use those media. Telecommunications’ is dealt under the legislative competence of the Union and not the states. Therefore, the legal framework ruling the telecommunications sector is within the jurisdiction of the Union Government and the Parliament and the legal framework ruling the telecommunications sector.⁸(Mohammad Zahid.)

Conclusion

Hence, telecommunication lay within itself a wide variety of services under one sector. Telecommunication service refers to any narration which is made accessible to users through any transmission or reception and comprises of electronic mail, cellular mobile, data and telephonic services among other objects. Most of the telecom regulation includes programmes to open the market to competition or compact with the deficiency of competition. The telecommunication sector is capital intensive and the charge for setting its infrastructure is therefore very high. The laws governing aspects of the telecommunication is very dominant. Also, the constitutional effect on the telecommunication, which allures fundamental rights is dominant. Telecommunication sector has vastly developed in the past years at an unparalleled pace which has been made possible due to infrastructure growth and supplying access to more people. Even though the telecommunication infrastructure in our country is up to parity, steps must be taken for its improvement.

References:

1. Ms. Anhita Tiwari, Dr. Manish Yadav. (April-June,2017). “LAW RELATING TO TELECOMMUNICATION LAWS IN INDIA: AN OVERVIEW.” Bharati Law Review,  Page 40
2. Shreya Mazumdar. (2000). “Telecommunication laws in India and its drawbacks .” http://www.legalservicesindia.com/article/1670/Telecommunication-laws-in-India-and-its-drawbacks.html. www.legalserviceindia.com.
3. Mohammad Zahid. ” Constitutional Aspects of Telecommunication .” https://judicateme.com/constitutional-aspects-of-telecommunications/. www.judicateme.com.
4. Ms. Anhita Tiwari, Dr. Manish Yadav. (April-June,2017). “LAW RELATING TO TELECOMMUNICATION LAWS IN INDIA: AN OVERVIEW.” Bharati Law Review, Page No 37,38
5. https://en.m.wikipedia.org/wiki/International_Telecommunication_Union
6. 1988 AIR 1642, 1988 SCR Supl. (1) 486
7. AIR 1989 BOMBAY 29
8. Mohammad Zahid. ” Constitutional Aspects of Telecommunication .” https://judicateme.com/constitutional-aspects-of-telecommunications/. www.judicateme.com.