Difference between revisions of "Overview of Indian telegraph Act, 1885"
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The Indian Telegraph Act, 1885 is the main legislation dealing with the establishment, maintenance and working of telegraphs in the country. The expression "telegraph" has been given a very wide connotation under the Act. Section 3 of the Act defines it to include any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing images, and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or hertzian waves, galvanic, electric or magnetic means. As per this definition, a telephone, a video and a television falls within the definition of telegraph. The mobile cell phones, which have revolutionized the whole communication system, are also covered by the term telephones. Under the Act, the telephones have been classified into different categories for the purpose of allotment of connections and separate procedures have to be followed for the allotment of telephones in each category. Besides allotment of telephone connections, the Act makes provisions about disconnection of telephones in certain cases, compensation for illegal disconnection, deficiency in service and other related matters. The main object of the Telegraph Act was to give power to the Government to install telegraph lines on private as well as public property. The Telegraph Act since then gone through numerous amendments in order to accommodate new communication technologies. This is evident from the current definition of ‘telegraph’ under Telegraph Act. It defines ‘telegraph’ as:“ "any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.
Explanation - "Radio waves" or "Hertzian waves" means electro-magnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide." Framework of the Act The Indian Telegraph Act, 1885 (Telegraph Act) contains six parts. Part I deals with definitions of key words used in the Telegraph Act. Part II grants government the exclusive privilege with respect to telegraph. Part II also gives power to the issue licence to private operators to offer telegraph services. Part IIA was inserted in the Telegraph Act by the Indian Telegraph (Amendment) Act, 2003. It deals with setting up of the Universal Service Obligation Fund (USOF) for the purpose of meeting universal service obligation. (For further details see the Module on USOF). Part III deals with procedures and guidelines to be followed; for installing and maintaining communication equipments. It also lays down guidelines for setting up communication devices in private property and also the procedure for resolution of any dispute which may arise between the service provider and the owner of the private property. Part IV lays down the offences and penalties with respect to unauthorized use of communication or telegraph services. Part V deals with other supplementary provisions.
Exclusive Privilege of the Government with respect to Telegraphs
Section 4 of the Act deals with exclusive privilege of the government to establish, maintain and use telegraphs. It also provides for the government to grant licence to establish, maintain or work a telegraph. The government may grant such licence on certain conditions and for a licence fee. Section 5 of the Telegraph Act is commonly known as the wire-tapping clause. It gives power to the government to take possession of any licensed telegraphs in case of a public emergency or in the interest of public safety. It can also order interception of communication in the interests of the sovereignty and integrity of India, the security of the state, friendly relation with foreign states or public order or for preventing incitement to the commission of an offence. However, the government has to follow the procedure established by law for issuing such order. The procedures and guidelines for lawful interception was laid down in the case of People’s Union for Civil Liberties v. Union of India. In this case the Supreme Court of India ruled that telephone tapping is a serious invasion upon an individual’s privacy. However, lawful interception can be carried out under certain circumstances mentioned in the wiretapping provision. This kind of law interception has to be carried in conformity with certain guidelines which will act as a check on indiscriminate wire-tapping by the law enforcement agencies. It also directed the government to make rules and procedures for carrying out lawful interception of communication. In addition to that it also laid down the basic guidelines for such interception. The main guidelines are: 1. An order for law interception can only be made by the Home Secretary to the Government of India and home secretaries of state governments. In urgent situations the power may be delegated to an officer of the Home Department of Government of India and state governments and such officer should not be below the rank of joint secretary. 2. A copy of the order has to be sent to the review committee within one week of issuance of such order. 3. The authority which issues the order should also record the following information: o the intercepted communications; o the extent to which the material is disclosed; o the number of persons and their identity to whom any of the material is disclosed; o the extent to which the material is copied; and o the number of copies made of any of the materials. 4. The intercepted material can be used only for purposes mentioned under the wire-tapping clause. 5. The interception will be valid for two month unless it is renewed. However, the total period of interception should not exceed six months. The government also has the power to notify rates for transmission of messages to countries outside India. While notifying such rates the government must take into consideration: (i) the rates which are applicable at the time; (ii) foreign exchange rates at the time; (iii) rates applicable for transmission of message with India, at the time and (iv) such other circumstance that the Central Government may think fit to be considered. Section 7 of the Telegraph Act vests with the government the power to make rules for the conduct of telegraphs. The government has the power to make rule with regard to following issues: • Rates and other conditions and restrictions subject to which messages will be transmitted within India. • Precautions to be taken to prevent improper interception or disclosure of message • Conduct regarding telegram • Conduct and charges regarding use of telegraph lines. Central Government may impose fine if there is any breach of rules made by it under the Telegraph Act. It may also impose fine upon licensees’ if they are found to be in violation of the rules laid down by the Central Government under the Telegraph Act. The Central Government may also revoke any licence granted under the Telegraph Act, in case of breach of any condition or default of payment with respect to the licence. Section 9 deals with government liability with respect to loss or damage. The government does not take any responsibility for any loss or damage caused by telegraph officer fails in performing his duties. However, such telegraph officer can be held liable if acts negligently, maliciously or fraudulently. Universal Service Obligation Fund (USOF) USOF is established under Section 9A of the Act. The USOF is under the control of the Central Government under the Act. Section 9D deals with administration and utilisation of such funds. (For further details please refer to the module on USOF). Power of the Government to place telegraph lines and posts
The telegraph authority has to follow certain procedure for taking possession of land for installing and maintaining telegraph line and posts. The telegraph authority# under section 10 of the Telegraph Act has the power to place, maintain telegraph line on or under or over any immovable property. The telegraph authority has limited powers with respect to installation of telegraph lines and posts. It can only take possession of land for the purpose of installing and maintaining telegraph lines and posts. The telegraph authority will only have the right to use the property for purposes specific to installation and maintenance of telegraph poles and lines. The telegraph authority while installing communication equipment should try to do minimum damage to the property. It will be liable to pay adequate compensation to all the persons who have a stake in such property. The Telegraph Act also gives power to the telegraph authority to enter on property for the purpose of repairing or removing telegraph lines or posts. Sections 12-15 are the procedure applicable to take possession of property vested in or under the control of or management of local authorities. The telegraph authority has to take permission and pay any expenses for setting up communication equipment on property under the control of a local authority. The local authority may also ask the telegraph authority to remove any telegraph lines or post if it finds it necessary to do so. Any dispute between telegraph authority and local authority will be decided by an officer appointed by the Central Government. Sections 16 and 17 are applicable to property other any property owned, controlled or managed by any local authority. Sections 18, 19, 19A and 19B are applicable to all kinds of property. Section 18 deals with procedure for removing trees which are interrupting telegraphic communication. Section 19 deals with lines and posts before the passing of this Act. Section 19A states that any person who has legal right over the property where communication equipment is install in accordance with the procedure under this Act has to give notice to the telegraph authority in writing, if such persons act is likely to interfere with telegraph communication or damage telegraph equipment. Section 19B allows the Central Government to confer certain powers of the telegraph authority upon the licensee. Part IV: Penalties
Sections 20 to 32 deal with offences and penalties under the Telegraph Offence Ingredients of the Offence Penalty/Fine S.20: Establishing, maintaining or working unauthorised telegraph any person: • establishes, maintains or works a telegraph • within India • without proper licence or authorization from the government In case of wireless telegraph: Imprisonment which may extend to 3 years, or with fine, or with both Any other case: Fine which may extend up to Rs. 1000 Offences under this section with respect to wireless telegraph is bailable and non-cognizable S.20A: Breach of condition of licence If a licensee is held to be in breach of any condition contained in license. Fine which may extend to Rs. 1000. Further fine of Rs. 500 per week for the duration the licensee is in violation of the licence conditions. S.21: Using unauthorized telegraph If any person, • knowing or having reason to believe that • a telegraph has been established or is maintained or worked in contravention of this Act, • transmits or receives any message by such telegraph, • or performs any service incidental thereto, or • delivers any message for transmission by such telegraph or • accepts delivery of any message sent thereby Fine which may extend to fifty rupees S.22: Opposing establishment of telegraphs on railway land If a Railway Company, or • an officer of a Railway Company, • neglects or refuses to comply • with the provision which gives power to the Central Government to establish telegraph on land of Railway Company Fine which may extend to Rs. 1000 for every day during which the neglect or refusal continues. S.23: Intrusion into signal-room, trespass in telegraph office or obstruction If any person • without permission of -competent authority, enters the signal-room of a telegraph office of the government, or of a person licensed under this Act, or • enters a fenced enclosure round such a telegraph office in contravention of any rule or notice not to do so, or • refuses to quit such room or enclosure on being requested to do so by any officer or servant employed therein, or • wilfully obstructs or impedes any such officer or servant in the performance of his duty, Fine which may extend to Rs. 500. S.24: Unlawfully attempting to learn contents of messages If any person • does any of the acts mentioned in section 23 • with the intention of unlawfully learning • the contents of any message, or • of committing any offence punishable under this Act Imprisonment for a term which may extend to 1 year in addition to the fine with which he is punishable under section 23 i.e. fine upto Rs. 500 S. 25: Intentionally damaging or tampering with telegraphs If any person intending • to prevent or obstruct the transmission or delivery of any message, or • to intercept or to acquaint himself with the contents of any message, or • to commit mischief, • damages, removes, tampers with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in or about any telegraph or in the working thereof, Imprisonment for a term which may extend to 3 years, or with fine or with both. S.25A: Injury to or interference with a telegraph line or post. If, in any case not provided for by section 25, • any person deals with any property and • thereby wilfully or negligently • damages any telegraph line or post • duly placed on such property in accordance with the provisions of this Act Exception: the provisions of this section shall not apply where such damage or interruption is caused by a person dealing with any property in the legal exercise of a right if he has complied with the provisions of section 19A (1).] Expenses (if any) as may be incurred in making good such damage, and shall also, if the telegraphic communication is by reason of the damage so caused interrupted, be punishable with a fine which may extend to Rs. 1000. S.26: Telegraph officer or other making away with or altering , or unlawfully intercepting or disclosing, messages, or divulging purport of signals If any telegraph officer, or any person, who is not a telegraph officer but has official duties at any telegraph office: • willfully, conceals, makes away with or alters any message which he has received for transmission or delivery, or • willfully, and otherwise than in obedience to an order of the Central Government or of a State Government, or of an officer specially authorized [by the Central or a State Government] to make the order, omits to transmit, or intercepts or detains, any message or any part thereof, or • discloses the contents or any part the contents of any message, to any person not entitled to receive the same, or • divulges the purport of any telegraphic signal to any person not entitled to become acquainted with the same, Except in pursuance of his official duty or in obedience to the direction of a competent Court does such an act. Imprisonment for a term which may extend to three years, or with fine, or with both. S.27: Telegraph officer fraudulently sending messages without payment. If any telegraph officer • transmits by telegraph any message • on which the charge prescribed by the Central Government, or • by a person licensed under this Act, as the case may be, • has not been paid, intending thereby • to defraud the Central Government, or that person. Imprisonment for a term which may extend to 3 years, or with fine, or with both. S.28: Misconduct If any telegraph officer, or • any person not being a telegraph officer • but having official duties connected with • any office which is used as a telegraph office • is guilty of any act of drunkenness, carelessness of other misconduct • whereby the correct transmission or the delivery of any message • is impeded or delayed or • if telegraph officer loiters or delays in the transmission or • delivery of any message. Imprisonment for a term which may extend to 3 months, or with fine which may extend to Rs. 1000, or with both S.29A: Penalty If any person, without due authority, - • makes or issues any fake or forged document which is believed to be issued by, or under the authority of, the Director-General of [Posts and Telegraphs], or • forged or fake stamp or mark of any Telegraph Office under the Director General of [Posts and Telegraph] Fine which may extend to Rs. 50 S.30: Retaining a message delivered by mistake If any person • fraudulently retains, or • conceals • removes • holds without any reason any message • which ought to have been delivered to some other person, or, • being required by a telegraph officer to deliver up any such message, • neglects of refuses to do so Imprisonment for a term which may extend to 2 years, or with fine, or with both. Section 31 deals with bribery and section 32 states that, “whoever attempts to commit any offence punishable under this Act shall be punished with the punishment herein provided for the offence. Part V: Supplementary Provisions
Section 33 deals with the power of the State Government to employ additional police force in place where mischief to telegraph is repeatedly committed.