Curbing Fraudulent Communications: A Glance At Recent Private Member's Bill

“Jamtara - Sabka Number Ayega”, a Netflix India Original series, is a witty dramatisation of the state of affairs in relation to phishing and fraudulent communications. Hardly anyone in India can say that they have never received a fraudulent call or a message. In spite of robust awareness campaigns run by banks, NPCI, etc. many vulnerable have fallen prey to such schemes. OkWith the dawn of GenAI, voice cloning has added to the menace.

Currently, though there are a few disparate provisions under existing laws which cover some aspects of fraudulent communications[1], what continues to be missing is a contemporary legal framework which calls out this menace as an offence to specifically deter and penalise such communications. An interesting recent Private Member Bill (“PMB”), titled ‘The Prevention of Fraudulent Calls Bill, 2024’ [2] captures the essence of a potential way forward (the “Bill”). This was introduced in the Rajya Sabha during the 2024 Budget Session by Dr. Fauzia Khan, a Nationalist Congress Party representative.

What are Private Member Bills?

For the non-versed, in parliamentary parlance, a Member of Parliament who is not a minister is referred to as a “private member”. An MP can introduce bills which are conceptualised and drafted by them— as a PMB, allowing them to be active legislators, in addition to speaking and voting on government bills. Given the usual lack of bipartisan politics in India, PMBs have been rarely discussed let alone passed to become law. Since 1952, only 14 PMBs have become law with the last one being enacted in 1970. 729 PMBs were introduced in the current 17th Lok Sabha, however, just 2 were discussed – a dismal 0.27%. During the same period, 705 PMBs were introduced in the Rajya Sabha, but only 14 were discussed – just 2%. The highest number of PMBs enacted into law in a year (six) was in 1956 during the tenure of PM Jawaharlal Nehru. PMBs, though lack the numerical strength to become laws, are usually seen as an important way of flagging an issue of public importance.

The Prevention of Fraudulent Calls Bill 2024

The Bill cites a McAfee research report to underscore the menace of fraudulent communications, especially the emerging threat of AI-generated voice cloning, and proposes three sets of intertwined amendments to the TRAI Act 1997, the IT Act 2000 and the upcoming Bhartiya Nyay Sanhita 2023 to tackle the same.

The Bill rightly highlights the need to prescribe regulations for (a) identifying and blocking fraudulent numbers; (b) establishing a robust system for the registration and verification of telemarketers; (c) procedures for effective investigation and prosecution of accused persons and (d) promotion of public awareness campaigns on recognising and reporting fraudulent calls.

Further, the Bill rightly provides a wide and medium-agnostic definition for “fraudulent calls” which may serve as a good starting point for the government to consider. Future laws on fraudulent communications must indeed cover all mediums - ranging from traditional phone calls to emails, instant messages, etc. which intend to defraud, deceive, or mislead. As a step in the right direction, recently the central government launched a dedicated ‘Chakshu’ portal for reporting fraudulent communications [3].

The Bill also proposes to insert a new section 66AA in the IT Act 2000 to create a specific offence for fraudulent calls and related activities and also for the forfeiture of equipment/assets used in the commission of the offence, while introducing fines and imprisonment under the BNS 2023.

Before being (rightly) struck down by the Supreme Court as unconstitutional [4],  section 66A of the IT Act 2000 penalised ‘offensive messages’ (including spam messages) sent through a computer resource or a communication device [5].

Such was the disproportionate width of section 66A that not only did it not address the specific characteristics of spam messages (unsolicited and sent in bulk), it also severely impacted the freedom of speech & expression. The section 66AA proposed by the Bill learns from this to focus on the specific characteristics of fraudulent communications, i.e. unsolicited and intending to defraud the recipient.

Though certain intermediary due diligence obligations under the IT Rules, 2021, cover aspects of fraudulent communications, they are aimed at the platform and not at the perpetrator. While the BNS 2023 covers existing penal offences like cheating and criminal intimidation, etc. it is important to expressly call out an offence of the nature of fraudulent communications to serve as a deterrent.

Way Ahead

The need of the hour is certainly to have special provisions brought in to address fraudulent communications. Since TRAI’s powers in relation to OTT communications are debatable, addressing through amendments in the TRAI Act would not cover all mediums of such communications.

MeitY’s jurisdiction and the IT Act 2000 would be suitable to cover the OTT communication space. Harmonious provisions to the TRAI Act, IT Act 2000 (or the future Digital India Act) and the new penal code, BNS 2023, need to be brought in to address this menace holistically.

Authored By:

Ranjana Adhikari (Partner), Naqeeb Ahmed Kazia (Partner) & Shashi Shekhar Misra (Associate) with the Technology, Media and Telecom practice group at INDUSLAW

[1] For instance, under the Information Technology Act, 2000 there is a specific section which deals with cheating by personation through a communication device.  Similarly, under the Indian Penal Code, 1860, sections 415-420 deal with cheating, including cheating by personation and dishonestly inducing delivery of property.

[2] Bill No. XIV of 2024, introduced on 2 February 2024. Currently, ‘Pending’.

[3] “Chakshu” - Report Suspected Fraud Communication

[4] Struck down by the Supreme Court on 24 March 2015 in Shreya Singhal vs. Union of India [AIR 2015 SC 1523]. Repealed from the IT Act 2000 through the Jan Vishwas (Amendment of Provisions) Act 2023

[5] Section 66A. Punishment for sending offensive messages through communication service, etc.