India’s Legal Landscape – What has been brewing up?

The Government of India is in the process of making slew of changes and bringing into force new laws, which will change the way business is done in the country. A lot has been brewing up, but we don’t know yet what will come first and how it will shape the legal landscape in India. 

In this article, we will briefly discuss key developments. 

New Criminal Laws

The President of India gave an accent to three new bills to replace three existing laws for overhauling the criminal judicial system in the country amid opposition. The focus will be on protecting the rights of the citizens in a time bound manner. The intent will be to render justice and not to punish. The impetus has been made on embracing the changes necessitated by technological advancements over the years and dealing with present day challenges. 

The law intends to cover a broader range of offences, starting from petty crimes to terrorism, and specifically include within its purview offences like mob lynching, hate crimes and organised crime. The rigours of sedition are here to stay in the form of offence of acts against sovereignty, unity and integrity of India, for which the punishment has been enhanced from three years to seven years. 

India has seen so many fugitives fleeing the country and evading trial. Therefore, the new law for the first time provides for trial in absentia which means continuation of trial without the presence of the accused in certain cases, and also provides for confiscation of the properties. 

The criminal judicial system has been constantly criticised over the years for low rates of punishments, huge pendency of the cases and prolonged delay in the proceedings. One can understand that if police took years to understand that Section 66A of the Information Technology Act has been struck down by the Supreme Court and no FIRs should be registered based on the said section, this paradigm shift and transition into new criminal laws will have numerous implementation challenges and will be a humongous task.

Digital Personal Data Protection Act, 2023

The Government of India is yet to implement the recently enacted first comprehensive data protection law, namely the Digital Personal Data Protection Act. It is likely that it will be implemented in a phased manner to allow businesses to embrace the change. It not only covers digital data but also covers data collected in non-digitized form but later digitised. 

It provides for consent driven data processing by businesses. The provisions are designed like a ball (data) with an elastic string (consent) in the hands of individuals to control data during its entire life cycle. The law attempts to protect data while allowing the businesses to function and use digital data for legitimate purposes, while emphasising on effective redressal mechanism. While impetus has been made to keep the law simple to ensure ease of doing business in India, the notice to the data subjects/individuals will have to clarify many questions like what data is being collected, for what purpose, where and with whom will it be shared, how individuals may exercise their rights, etc. 

Unlike the existing regime, the law talks about duties of individuals, considering that data fiduciaries will have onerous obligations and compliance burden and they will continue to be liable for acts of data processors even after delegation of certain obligations as permitted under law. It will permit cross-border data sharing except with countries falling in the negative list to be notified by the Government. The restrictions imposed by the Reserve Bank of India will continue to apply. 

The implementation will completely overhaul the regulatory regime governing use of personal data in India and repeal corresponding provisions of the Information Technology Act, 2000 and relevant rules issued thereunder. 

Telecommunications Act, 2023

The President of India gave assent to the Telecommunication Act on 24 December 2023, but the Act is yet to be implemented to put in place a consolidated legislation and replace the existing Indian Telegraph Act, 1885, Indian Wireless Telegraph Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950. 

The Act seeks to amend and consolidate law relating to development, expansion and operation of telecommunication services and telecommunication networks, assignment of spectrum, and for matters connected therewith or incidental thereto. Once enacted, it will apply to the whole of India and to any offence committed or contravention made outside India by any person as provided in the Act. 

Under the new law, national security has been given paramount importance, for which the Central Government will be entitled to take control of the telecom services. 

Although the definitions under Act are wide, but it has been clarified that the Act will not cover over top (OTT) Platforms, which will continue to be governed by Information Technology Act, 2000 and rules issued thereunder having provisions for code for contents, age-based self-classification, redressal of grievances, etc. 

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