The Telecommunications Bill, 2023 and the perils of executive law-making: Will the Supreme Court put a halt to excessive delegation?

A series of recently passed legislations with serious implications indicate a worrisome pattern: delegation of essential legislative function in favour of the executive by way of rule-making powers.

At the outset, this post is not intended to be an exhaustive commentary on the provisions of the Telecommunications Bill, 2023; instead, I aim to highlight- by discussing certain provisions of the Bill and two other legislations which have recently been cleared by the Parliament-the growing tendency of our Parliamentarians to consign ‘law-making’ (or to put it simply, the responsibility of making legislative policy) to the Executive.

The Telecom Bill: Open-ended provisions

Without commenting on the circumstances in which it was passed by the Parliament, a very cursory look at the Bill suggests that it is a tale of broad provisions and uncanalised power. Once Section 3 of the Bill is notified post Presidential assent, the Central Government (which term has not been defined to mean any particular Department or Authority of the Union Government) shall, in its own wisdom and without any statutory policy guiding such discretion, provide for the terms and conditions of authorisation for establishment and operation of any kind of telecommunication services.

Once again, the definition of ‘message’, ‘telecommunication’ and ‘telecommunication equipment’ in the Bill is broad enough to include within its ambit even internet services. In view of such uncertainty, the Bill may as well have an effect of making the Central Government an unquestionable overlord of online communication, which rings true the well-articulated apprehensions of mass surveillance and threat to individual privacy.

But it is the other, more damning provisions of the Bill- bestowing upon the Central Government unbridled powers to carry out invasive activities- which are of primary concern. The overbroad language of Section 20(2) (a) allows the Government to intercept any message (which may include messages sent on WhatsApp, Signal etc.) without any accountability. This power is not subject to any statutory standard and allows the Government excessive room for manoeuvre- phrases such as ‘public emergency’, ‘public order’, ‘defence and security of the State’ and ‘for preventing incitement to the commission of any offence’ have no specific import; in the absence of legislative boundaries within which interception ought to be done, administrative abuse becomes a real possibility.

Likewise, the power to direct suspension of telecommunication services is not guided by any legislative principle whatsoever; if the phrase ‘telecommunication services’ is to include internet services, it would legitimise the power of the State to impose internet suspension without any statutory limitation. To top it at all, Section 57 of the Bill empowers the Central Government to make alterations to even the ‘offences’ under the Bill- something which unequivocally falls in the domain of the legislature and not the executive.

It is imperative to note that all of this power has been entrusted to the Central Government, and not to any specialised agency or regulatory authority acting under the aegis of the Central Government. There is no mechanism envisaged under the Bill which clarifies the manner and procedure in which the Central Government is going to implement its provisions. Almost everything essential to the Bill has been left to the Central Government, when the extant law unequivocally provides that delegated legislation can only smoothen implementation of a legislation, and not act in its substitution.

One may wonder that by reserving so much power unto the Central Government, the Bill has created a one of a kind exception. However, from a scrutiny of couple other legislations passed recently, a disturbing trend emerges.

A Disturbing Pattern

The Post Office Bill, 2023 is another legislation passed by the Parliament in its latest winter session. Similar strands of excessive delegation can be seen in its provisions as well. Unlike its predecessor, the Indian Post Office Act, 1898, the Post Office Bill does not specify the services to be performed by the Department of Posts and leaves such service to the discretion of the Central Government. This recurrent reluctance in filling a legislation with its most crucial components betrays a general attitude of lethargy in law-making.

The real problem with the Bill, however, lies elsewhere: Quite like Section 20 of the Telecom Bill, Section 9 of the Post Office Bill empowers the Central Government to intercept, open or detain any item in the course of transmission, if it finds it expedient to do so for reasons of, among other things, ‘emergency’. There is no literature or jurisprudence to define the contours of this term; in fact, it does not even figure in the reasonable restrictions envisaged under the Constitution of India. A real threat of administrative abuse quite clearly emerges.

The most troubling legislation of the recent past which suffers from the vice of excessive delegation is the Criminal Procedure (Identification) Act of 2022. The Act, which replaced the Identification of Prisoners Act of 1920, mandates collection of physical and biological samples as well as behavioural attributes (collectively defined as ‘measurements’ under the Act) of all convicts (irrespective of the gravity of the offence and the quantum of punishment) and certain other class of individuals.

The Act further empowers the NCRB (which is not a statutory body) to collect, store and destroy ‘measurements’ without prescribing the manner of such collection, storage or destruction. The real shocker, however, was reserved for the Rules framed under the Act: under the Rules, prescription of the manner of collection, storage, dissemination and destruction of ‘measurements’ was further sub-delegated to the NCRB!

As pointed out by Abhinav Sekhri on his blog, by letting the NCRB prescribe and follow its own standards with respect to implementation of the Act without any statutory or independent oversight in place, the Rules simply allow the NCRB to ‘act as judge, jury, and executioner’. It must be kept in mind that this is a legislation which directly interferes with bodily integrity and autonomy and with its loosely drafted language, potentially impacts each and every citizen of the country.

One common thread which runs through all the three legislations is that they replace colonial enactments. As such, the members and supporters of the ruling party hail these new Bills as acts of ‘decolonisation’. The uncomfortable truth, however, is that not only do these legislations retain all the draconian elements of their colonial counterparts, they also add a few regressions of their own.

Delegated Legislation: Legal Position in India

In so far as India is concerned, the conventional constitutional wisdom on giving content to laws has more or less been consistent: In December 1959, a Constitution Bench of the Supreme Court ruled that Parliamentary law should supply proper guidance to the administrative authority- there ought to be some criteria, standards or principles embedded in the legislation to provide a clear operational framework to the executive.

In 1968, another 7-Judge Bench of the Supreme Court categorically held that essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the legislature. The Bench further emphasised that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation.

It would therefore appear that the Telecom Bill (as well as the relevant provisions of the Post Office Bill and the Criminal Procedure (Identification) Act) should not pass muster as prescribed in the aforesaid tests on delegated legislation. However, in January this year, a Constitution Bench of the Supreme Court added a new dimension to the delegated legislation jurisprudence, which might as well come to the rescue of these new legislations.

The Demonetisation Verdict

While dealing with the question of validity of the Central Government’s 2016 Demonetisation Scheme, the Constitution Bench was required to decide whether Section 26(2) of the RBI Act, 1934 (which empowers the Central Government to demonetise any series of bank notes of any denomination, on recommendations of the RBI) vests uncanalised, unguided and arbitrary powers in the Central Government.

A reading of the Majority verdict reveals the Court’s tentativeness to deal with this issue: while correctly pointing out that the RBI recommendation acts as an inbuilt safeguard with respect to the Centre’s decision making, the Majority made a rather peculiar observation:

One another aspect that needs to be taken into consideration is the nature of the body to which the delegation is to be made. In the present case, the delegation is made to the Central Government and not to any ordinary body.

The Bench observed that since in a representative democracy the Executive is periodically elected by the people, the reasonableness of the actions of the Executive is best decided by a ‘democratic method’, and such ‘democratic method’ would ensure its ouster at the hands of the electorate if it were to ‘act unreasonably’. Such logic, if regularly employed, would render the device of judicial review otiose. The very point of judicial review is to keep the legislature and the elected government in check and to put a halt on its constitutional excesses; if elections were to be the ultimate measure of constitutionality, the Parliament, and not the Judiciary, would be the ultimate custodian of the Constitution.

The Majority further ruled that (i) a great amount of latitude has to be given in matters of delegated legislation; (ii) the Parliament and the State Legislatures are not bodies of expert or specialists; and (iii) technical and situational intricacies should be left to better equipped full time expert executive bodies and specialist public servants.

Needless to mention, in view of the plain language of Section 26(2), the Majority was not even required to undertake an exposition on what constitutes a valid delegation. This post, however, is not a critique of the verdict on its merits. Suffice it to say that the Demonetisation verdict provides enough ammunition to the Central Government to defend these array of legislations before a constitutional court. Whether its arguments will be accepted- given that the act of excessive delegation in these cases is much more egregious and there is no statutory prescription of recommendation/guidance by specialised, autonomous bodies-remains to be seen.

Only one thing is certain from the aforesaid analysis: if this tendency to outsource essential legislative function is not nipped in the bud, Indian polity may not require a Parliament in the near future.