The Indian Wireless Telegraphy Act, 1933

The main objective of the Indian Wireless Telegraphy Act, 1933 is ‘to regulate the possession of wireless telegraphy apparatus’. One of the major sources of revenue for the Indian State Broadcasting Service was revenue from the licence fee from working of wireless apparatus under the Indian Telegraph Act, 1885.

The Indian State Broadcasting Service was losing revenue due to lack of legislation for prosecuting persons using unlicensed wireless apparatus as it was difficult to trace them at the first place and then prove that such instrument has been installed, worked and maintained without licence. Therefore, the current legislation was proposed, in order to prohibit possession of wireless telegraphy apparatus without licence.

Presently the Act is used to prosecute cases, related to illegal possession and transmission via satellite phones. Any person who wishes to use satellite phones for communication purposes has to get licence from the Department of Telecommunications. Recently foreign tourists were charged under this Act for illegal possession of satellite phones.[*]

The extent of the Act, definitions and key concepts are covered under sections 1 and 2 of the Act. Section 3 prohibits any person from possessing a ‘wireless telegraphy apparatus’ without a licence. Under section 2(2) of the Act, ‘wireless telegraphy apparatus’ is defined as:

"any apparatus, appliance, instrument or material used or capable of use in wireless communication, and includes any article determined by rule made under section 10 to be wireless telegraphy apparatus, but does not include any such apparatus, appliance, instrument or material commonly used for other electrical purposes, unless it has been specially designed or adapted for wireless communication or forms part of some apparatus, appliance, instrument or material specially so designed or adapted, nor any article determined by rule made under section 10 not to be wireless telegraphy apparatus."

The key ingredients of the definition are:

• The definition covers all types of apparatus, appliance, instrument or material which can be used or utilized for the purpose of wireless communication.
• It also covers all articles which are determined to be a wireless apparatus according to the rules made by the government.
• The definition excludes any apparatus, appliance, and instrument or materials which are generally used for other electrical purposes. However, if such devices are designed or modified for wireless communication or is used as a part of such wireless communication device.
• It also excludes articles determined by the government not to be wireless apparatus. The government may make rules to that effect.

The Central Government under section 4 has the power to make rules to exempt persons from the provision of the Act. Such exemption given by the Central Government may be a general exemption or based on certain conditions. It may exempt certain persons from the application of the Act, for certain wireless telegraphy apparatus only.

Under section 5, the telegraph authority constituted under the Indian Telegraph Act, 1885 shall be the competent authority to issue licences under this Act.

Section 6 deals with offences and penalties under the Act.

In the context of evidentiary value, the court might presume that a person is in possession of a wireless telegraphy apparatus under the circumstances that such apparatus is under his ostensible charge or it is present in a place or premise over which he as effective control.

In a trial of an offence under section 6, if the accused is convicted then the court shall also decide whether the apparatus used or involved in the offence should be confiscated. If the court decides in favour of confiscation then it must also pass an order of confiscation.

Under section 7 the Act, gives power to any officer specially empowered by the Central Government to search any building, vessel or place if he has reason to believe that there is any wireless telegraphy apparatus which has been used to commit offence under section 6 of the Act, is kept or concealed. The office also has the power to confiscate the apparatus.

Under section 8, all wireless telegraphy apparatus which has been confiscated by the Central Government under section 6(3) shall be considered as the property of the Central Government. All wireless telegraphy apparatus which does not have any ostensible owner shall also belong to the Central Government.

Section 9 was repealed by the India Wireless Telegraphy (Amendment) Act, 1940.

Section 10 gives power to the Central Government to make rules through notification in the official gazette with respect to give effect to provisions under the Act. The Act lays down few general subjects on which the Central Government has the power to make rules under the Act. They are:

• Rules to determine whether any article or class of article shall fall within the definition of ‘wireless telegraphy apparatus’ under the Act.

• Rules regarding licences. (manner, conditions, issue, renewal, suspension and cancellation of licence).

• Eligibility for the purpose of being exempted from the application of this Act (Sec.4).

• Maintenance of records as to sale, acquisition of wireless telegraphy apparatus by dealers.

• Conditions with respect to sale of wireless telegraphy apparatus by dealer and manufactures of such apparatus.

The Central Government may impose a fine of upto hundred rupees in the case of breach of such rules.

Section 11 expressly mentions that no provision under the Act shall authorise any person to do any act which is prohibited under the India Telegraph Act, 1885. It also mentions that any licence under the Act shall not authorise any act in contravention of the Indian Telegraph Act, 1885.

[*].Rajeev Dikshit, DoT nod for use of satellite phones a must, The Times of Inda Jun 27, 2012 available at http://articles.timesofindia.indiatimes.com/2012-06-27/varanasi/32440227_1_satellite-phone-thuraya-dot-nod