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[Editors Note : A must read piece by Rahul Matthan partner at Trilegal and author of Privacy 3.0 . See how the backdoor regulation by GoI is likely to curb IoT]
There is a principle in law which states that you cannot do indirectly that which you are prohibited from doing directly. The government, it appears, is exempt from its application
The Indian Telegraph Act of 1885 confers on the government the exclusive privilege of establishing, maintaining and working telegraphs in the country. Even though the dictionary meaning of the term “telegraph” signifies a technology that transmits messages over electric wires, many years of judicial precedent have extended the meaning of the term to cover all kinds of modern technologies. As a result, anyone who operates anything even remotely approaching a telecom service can only do so under a licence—and the regulator is constantly attempting to broaden the scope of its authority to try and bring more business models within its ambit.
Because of the way the statute has been framed, the government regulates entities that operate the infrastructure of communication—those who “establish, maintain and work” the “telegraphs”. It does not regulate the rest of us who merely use the telecom infrastructure to communicate. This is why we can freely procure telephones and internet communication devices, while the service providers who connect our phones to each other have to first obtain a licence from the government.
The regulator is thus leveraging its authority over access providers to compel manufacturers, who are otherwise outside its direct sphere of influence, to comply with its directives.
This provides some insight into how the regulator intends to extend its authority into areas that are beyond its statutory authority to regulate. By exercising its authority over licensed operators, the regulator is threatening to cut off the oxygen that all manufacturers and over-the-top operators need to function, compelling them to comply if they want to continue to access the Indian market.
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