Indian Telegraph Act, 1885
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:
- 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.
- A copy of the order has to be sent to the review committee within one week of issuance of such order.
- The authority which issues the order should also record the following information:
- the intercepted communications;
- the extent to which the material is disclosed;
- the number of persons and their identity to whom any of the material is disclosed;
- the extent to which the material is copied; and
- the number of copies made of any of the materials.
- The intercepted material can be used only for purposes mentioned under the wire-tapping clause.
- 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:
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,
||Fine which may extend to fifty rupees
|S.22: Opposing establishment of telegraphs on railway land||If a Railway Company, or
||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
||Fine which may extend to Rs. 500.|
|S.24: Unlawfully attempting to learn contents of messages||If any person
||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
||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,
||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:
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
||Imprisonment for a term which may extend to 3 years, or with fine, or with both.|
If any telegraph officer, or
|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, -
||Fine which may extend to Rs. 50|
|S.30: Retaining a message delivered by mistake||If any person
||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.
.(1997) 1 SCC 318
.Section 5(2), Indian Telegraph Act.
.Section 3(4), Telegraph Act, 1885 – “telegraph line” means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same.
.Section 3(6), Telegraph Act.