What’s Wrong with the Bill?
Penalties:
The maximum penalties provided under the Act in various sections range
from Rs 5 Crores to Rs 50 crores. Even though they represent only the upper
limit of the penalties, they serve as an indication of the likely level
of punishment for any violation. If the amount is too small, it may encourage
the violators to take chance. If the penalties are stiff they could serve
the purpose of being a deterrent against violation. However they place
too large a discretion in the hands of the Adjudicating Officer and can
be misused. The indicated levels of penalties could be a source of
corruption in the dispensation of justice. It must be remembered that in
respect of the Convergence law, the offender can be a multi national with
Billions of dollars of assets or a neighborhood cable operator or an individual.
The damages caused and the required penalty for a similar offence
may therefore may vary from a few millions of dollars to a few hundred
rupees. However under Sec 41 (e) the adjudicating officer could use his
discretion to impose any penalty higher than what is reasonable.
It is therefore suggested that all reference to
any rupee value of the penalties in Chapter X are removed and replaced
with “Such penalties as may be considered reasonable with reference to
the circumstances of the case”.
A similar argument can be extended to the suggested fines and maximum
term of imprisonment suggested under Chapter XV. Even though the indication
of the maximum levels of punishments is in the interest of the public,
at the levels of punishments used they can only act detrimental to the
interest of the public.
A new trend in legislation may therefore be started
by introducing one limiting clause for the entire Chapter XV
stating that-
“Any fine imposed under the Act would not exceed
Rs 1 Crore and any imprisonment ordered would not exceed 5 Years."
Violations:
Sec 67: states that “Whoever attempts to commit or
abets commission of an offence under Chapters XIV and XV will be deemed
to have committed the offence”. This is a dangerous provision and can be
misapplied by the Police to harass innocent individuals. This totally removes
the concept of “Need for a Guilty Mind” for any offence and will bring
all erroneous and unintentional violations under punishable offences. One
simple example could be a “Wrong tuning of a Radio equipment to a frequency
other than the intended frequency”.
This section (67) should therefore be deleted.
Alternatively,
It may be replaced if necessary by a provision which may state
“Whoever willfully attempts to commit or abets
the Commission of any offence, under the Act shall be punishable with such
punishment as may be deemed reasonable under the circumstances of the case
and any such punishment shall not exceed half of the maximum punishment
that could have been levied if the offence had been committed willfully”.
Sec 36 This section includes “ Any person who accepts delivery of content”
sent by an unauthorized operator as an offender liable for fines upto Rs
10 crores. Since this could include such innocent persons as those who
may be using the Internet for telephony or Voice e-mail or a video conferencing,
it can be abused to the detriment of the man on the street.
The clause may also include an accidental delivery of a voice mail not
being an organized distribution of such services.
The clause may therefore be restricted to
“Whoever consistently delivers any content for
transmission …”
Tariff:
Under the powers of the Commission as per clause 20 (2) (iii), the commission
can fix the tariff for various services. In as much as these services are
of commercial nature, there should be no interference in the activities
of the private operator. He Commission can however use its discretion to
provide more licenses if any operator is overcharging the consumers or
retain the powers to interfere only when the operator is charging a “usurious”
rate for the services.
If the pricing of the services are to be determined by the Commission,
financial closures for projects cannot be achieved without the clearance
of the price structure. It will also be difficult for the operators to
introduce new services in tune with the market demand without the delays
that would accompany the prior clearance of the product pricing.
The Clause 20 (2) (iii) may therefore be deleted.
Section 21: Under section 21, the Commission can regulate the
content of programmes for various purposes such as “in the interest of
the sovereignty and integrity of the nation” . This section can be abused
and used for “Censorship” of the media. This is the most contentious clause
in the opinion of the media owners.
In order to provide a mechanism for checking abuse of this provision,
an additional “Citizen’s Programme Code Committee”
should be formed which can hear appeals from the aggrieved persons and
provide its views.
If the decision of the committee is not acceptable, the aggrieved parties
can resort to the legal remedy available through the Appellate tribunal.
This will provide for a Citizen’s group to sit in judgment of subjective
issues such as “Indian Culture”,”Allowable degree of Violence”,”Decency
in portrayal of Women” etc for which legal remedies are not always the
right answer.
Overlapping:
Provisions of Section 63 and Section 66 (a) overlap with corresponding
provisions in Information technology Act and provide for different penalties/punishments.
This is an unnecessary confusion.
Additionally, the scope of the entire Communication convergence
Bill hinges on the definition of the word "Communication”as per Clause
2 (6) in Chapter I. A logical extension of this means that many services
that fall under the Internet area will also fall under the Communication
Convergence bill. The Bill however doesnot specifically include Internet
related services under the description of various services in appendix
II and elsewhere in the Bill. This could lead to problems in jurisdiction
between the two Acts.
It is suggested that a clause to the effect
“ This act will not apply wherever any offence
comes under the provisions of the Information Technology Act”
(or This Act alone will prevail wherever any
offence comes under the provisions of the Information Technology Act)
Representation
Under Section 50 it is stated that an appellant before the Tribunal
can appear himself or authorize one or more Chartered Accountant, Company
Secretary, Cost Accountant or a Legal Practitioner and proceeds to define
them. This restriction of representation to certain categories of
professionals only is unnecessary and discriminatory.
It is suggested that the appellant can authorize
one or more persons of his choice to represent him without the need for
such a person to be a Chartered Accountant etc. In such a case a Telecom
Consultant can also represent the appellant.
Consumer Equipments:
Under Section 5 of the Bill, a license would be required for any “Wireless
equipment”.
In order to avoid confusion, the consumer equipments
such as Mobile phones, Cordless telephones, Radio sets, Television sets,
infra-red remote operating devices etc should be specifically exempted.
Consumer Interest:
Even though the objectives of the Bill provide that the Commission
is duty bound to take care of consumer interest also, there is no evidence
of how this can be achieved. It must also be accepted that “Consumer Interest”,"
Business Interest” and “National Interest” will be conflicting in many
areas and the Commission will be subjected to pressures from different
sides. The national interest will be taken care by the Government
and the Business interests will be taken care by the “Public Relation Managers”.
The Consumer will have to however organize himself through voluntary organizations.
The Bill can atleast take note of the need for such organizations and if
possible provide some support.
It is suggested that 25 % of the funds collected
in the above fund would be transferred to a “Consumer Protection Fund”
and used to support activities of registered Consumer Organisations dedicated
to the objective of representing consumers affected by the Convergence
Bill when enacted.
Naavi
February 28, 2001
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