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Violation of Net Neutrality in India: analyzing the mistaken nemesis of the free speech

Arun Bhadauria, Student, Gujarat National Law University, Gandhinagar

ABSTRACT

The agencies like Nasscom and various campaigns, driving the vox populi in India, have shaped a perception that violation of net neutrality unavoidably infringes the right to free speech. Using the examples of net neutrality (violations), the present paper argues that this approach is fallacious.  The intricate relation between the two would have to be understood in light of the dimensions of free speech being explained by the Supreme Court in earlier judgments, experiences on net neutrality, and long term perspectives.

The paper explains that the private network providers could be absorbed within the framework of Article 12, allowing a judicial interface between the right to free speech and net neutrality at the pre-neutrality regulation stage, much alike the post-regulation stage. Then, the paper proceeds to argue that traffic shaping unlike traffic throttling violates net neutrality but not freedom of speech for the justifiability of community welfare. While zero-internet applications might violate the right indirectly, no indirect violation, virtually or judicially, attracts constitutional liability. In fact, zero- rating services coincide with the right of free speech by diversifying the internet as a medium of speech. Lastly, using the investment theory, the paper postulates that the net neutrality law, on the other hand, would create a chilling effect on free speech by harming prospective innovations

INTRODUCTION

 The internet has swiftly ushered to establish itself as an open and effective medium of democracy and free speech, unknown of boundaries. Since its birth, most network providers have treated internet openly and fairly, owing to which it has largely been deregulated in most countries. The concept of an open internet popularly understood as an extension of a pre-American British law concept of common carriage[i] is a sine qua non for the meaningful exercise of the freedom of speech. But does freedom of speech online always yearn for an incumbency upon network neutrality, especially in India, as suggested by the advocates[ii] of net neutrality?

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The proponents of net neutrality signify it as synonym for ‘chaste internet’; on the other end, its violation has largely been vilified as a non acceptable disruption. Since the technical perspectives of net neutrality have adequately been discussed by the different scholars and activists, this paper draws the essence from those claims to analyze the interface between net neutrality and the right to freedom of speech as guaranteed under Article 19(1)(a) of the  Constitution.

The essay proceeds in three parts. Firstly, it draws the relationship between net neutrality and the right to free speech, and analyzes the significance of the same. Secondly, it explains that in all in two ways there could be a face-off between net neutrality and the right to freedom of speech. At pre-policy stage, when the actions of private network providers are challenged; and post net neutrality law enforcement, when the policy/law itself is challenged. Lastly, with the help of various theories and practices, such as ‘end-to-end-principle’, ‘traffic management’, ‘zero-rating internet and price differentiation’, ‘broadband network investment theory’, and other relative economic and judicial propositions, this paper would setup the analysis that violation of net neutrality not always leads to violate Article 19(1)(a), and the case is contradictory, albeit in disguise.

1.      What is net neutrality?

Coined by professor Tim Wu, “net neutrality” or “internet neutrality” is a principle that, ‘Internet service providers should treat all data on the internet equally, not discriminating or charging differentially by user, content, site, platform, application, or mode of communication.’[iii] In short, internet as a platform ought to move all the contents evenly with no discrimination whatsoever. The issue has been mooted across various jurisdiction including USA and no more foreign to us. Telecom Regulatory Authority of India (TRAI) had recently released its consultation paper on the regulatory framework for ‘Over-the-top (OTT) services’;[iv] and not more than a month before a report by the Department of Telecom (DoT) has urged the Government to adopt net neutrality as a strong policy initiative.[v]

 Lawrence Lessig and Robert McChesney, the proponents for the neutral net, argue it (network neutrality) to be a synonym for the open and free internet.[vi] Nonetheless, exploring an interface between freedom of speech and net neutrality in the Indian context might disappoint pro-net neutrality claims.

1.1 Net Neutrality and Free Speech: Relation and its Importance

It cannot be underemphasized that the liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.[vii] And, the Internet offers extraordinary opportunities for speakers to make their thoughts available to a world-wide audience far more easily than has ever been possible before.[viii] Therefore, everyone should have the right to access, share, create and distribute information on the Internet in a fair manner, consistent with the rights of authors and creators as established in law;[ix] for it (internet access) is a human right[x]. Now that to protect the privilege of free speech, it is essential to analyze its relation with net neutrality- a phenomenon which has the tendency to affect it both the ways.

The absolutist notion of online free speech accepted by many U.S. exponents has overwhelmingly been tried to be hauled to India where approximately eighty-five percent of the population live in a silhouette of the digital divide. Hence, it is essential to understand that India has its own issues, such as, low internet availability, network investment, bandwidth consumption, future demand for internet; all of which have a cardinal role in outplaying the public sentiments over the debate.

2. Could there be a Face-off between Article 19(1)(a) and Net Neutrality at the Pre-Policy stage?

It is a settled mandate of law that the fundamental rights are enforceable by a private entity against a state action, instead rather by a private entity against a private entity. Therefore, the party against which the violation of the fundamental right is challenged, must, essentially be within the definition of ‘state’ under Article 12. For example, a newspaper may challenge the union government’s policy for the violation of its right of free speech.

Now, Article 12 reads  as “unless the context otherwise requires, the’ state’ includes the government and parliament of India and the government and the legislature of the each of the states and all local or other authorities within the territory of India or under the control of the government of India”. The provision shows a great translucency save of the expression ‘other authorities within the territory of India or under the control of the government of India’. And at several occasions the expression had remained an issue for a judicial interpretation. Though discussing its history and evolution is beyond the scope of this paper, it is indispensable to highlight some of the leading cases in brief so as to prepare a plinth for the later part of this essay.

In R.D. Shetty v. International Airport Authority[xi], the ‘instrumentality test’ was propounded by the Apex Court for deciding whether the concerned body is within the ambit of ‘other authorities’. In Ajay Hasia[xii] case this test was reiterated again by the Apex Court. In short, they are:[xiii] 1) When Entire share capital is held by Government; 2) The financial assistance of the State is so as to meet almost entire expenditure of the corporation; 3) State conferred monopoly status to the corporation 4) Deep and pervasive State control on the corporation 5) Functions of the corporation are of public importance and closely related to governmental functions. In the line of these tests, the questions that require appraisal are: A) whether India has any policy regulation governing net neutrality that could be termed as the ‘law[xiv]’ passed by the ‘state’? B) if not, can actions of the internet service providers (INPs), violating net neutrality, be qualified as the actions taken by a state authority?

As of now, there is no law governing net neutrality. The Telecom Regulatory Authority of India (TRAI) recently had released its consultation paper on the regulatory framework for ‘Over-the-top (OTT) services’.[xv]  However, the papers were not in the form of any regulation, order, or specifically within the definition of law as enunciated in Article 13(3). Therefore, we term the present period as ‘the ‘pre-policy stage’ where only private action is challengeable. Though at the first glance, the network providers (INPs) save MTNL and BSNL (which are state run telecom operators or INPs, and hence the state instrumentalies) do not fit, majorly, in the tests laid down in the Ajay Hasia case to be a ‘state authority’ for they are private bodies. Yet one principle that attracts ostensibly here is of ‘functions closely related to the government authority’- i.e. whether the functions performed by the INPs are of public importance and closely related to that of government?

As per World Bank, In India more than 15% (approx. 300 million) of the population relies on the internet usage for trade, finance, as a medium of speech, etc., only behind China and USA.[xvi] On various occasions the current government has expressed a special emphasis for the initiatives such as M-governance and E-governance.[xvii]  May it be business, medical, education, or any other sector, the importance of internet at a public juncture could not be undermined. Having said this, it is unimaginable for the internet to be available without INPs operating as a platform. The equation could further be understood with the aid of the Apex Court judgment in Unni krishnan case.

 Casing the private body as ‘state’ for performing the public function of education, the Apex Court in Unni Krishnan case observed that, “The private educational institutions merely supplement the effort of the State in educating the people… It is an activity supplemental to the principal activity carried on by the State. What applies to the main activity applies equally to supplemental activity….it cannot confer immunity upon its affiliates.”[xviii]  Therefore, it is unambiguous that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution.[xix] The importance of the internet cannot be valued a needle less than the education as a community service. In the 21st century, as a representative of the welfare state, availing internet to the maximum citizens undoubtedly has become one of the preliminary aim of the government (In fact, the current prime minister dreams of the internet reaching every corner of India). It is not, however, possible for the government in a vast nation to avail this service on its own across the regions. And hence it gets necessary for the state to seek the assistance of private players in nearing various ‘E-objectives’ under its own supervision. On these premises, it could be assumed that the private INPs perform supplemental role in achieving state’s objectives, and therefore, qualify the test of ‘state instrumentality’.  Consequently, one could not reasonably exclude the possibility of the higher judiciary addressing the petition relating to the faceoff between net neutrality and Article 19(1)(a) at the pre-policy stage.

Now, considering the other possibility when the government passes the net neutrality regime, it could either be pro-net neutral or anti-net neutral. While in the popular opinion the pro-net neutral laws would favour the right to speech, the anti-net neutral laws would violate it. The next segment proceeds to argue the highlighting aspect of this essay that against the popular opinion, the non-neutral internet policy is in better favour of Article 19(1)(a) than the reverse.

  1. The effect of NET NEUTRALITY on FREDDOM OF SPEECH:

3.1. End to End principle: does it achieve the end of free speech?

As advocated by Lessig and McChasney, End-to-end principle connotes that the internet network should work merely as a dumb network treating all like Internet content alike and moving them at the same speed.[xx] Hence, it completely neutralizes any role whatsoever played by the INPs including ‘managing the bandwidth trafficking’ and ‘availing zero network services’ Needless to say that discrimination such as blocking any website or unnecessary bandwidth throttling abstains the user from accessing or knowing any information. And, right to know and right to information have been explicitly made a part of the right to freedom of speech in SP Gupta case.[xxi] However, as the author understands, blocking is the sub-category of ‘platform-neutrality’, a concept that enunciates that INPs should not block or dilute the content on a website. Hence, it would not be correct to place the practices like ‘traffic shaping’ and ‘zero-rating’ at an equal pedestal to that of ‘blocking’.

3.1. A) Traffic shaping: neutral is no better

There is a subtle but fine distinction between managing the bandwidth traffic and unnecessary throttling the traffic. For example, if a network provider slows the access to a blog written by a student in lieu of excelling fast lane to an advertisement website for the monetary gains, the case certainly violates the right to free speech. On the other hand, several occasions essentially requires managing traffic for certain sectors that might require the usage of bandwidth intensive applications. For instance, there could not be any justifiability of moving a doctor’s VOIP call (using Skype or similar service) for seeking surgical assistance from other doctor or accessing other online medical need, and downloading of porn by a person using torrent the next house. In fact, a study from Japan[xxii] proved that the meager quality images generally confine the medical usage of the internet, on contrary that a very high-speed devoted link could make real-time surgical collaboration successful. In the essence, certain situations or sectors that touch the public welfare aspects such as health, education etc. might demand intense use of bandwidth, and have to be bestowed the preferential treatment over the other usages such as related with entertainment.

In this context, it is pertinent to note the Apex Court’s decision in Maneka Gandhi v. UOI[xxiii] that, “The right to freedom of speech is not absolute but is subject to reasonable restrictions provided for in the Constitution itself. The scheme of the Article, thus it while conferring Fundamental Rights on the citizens is to see that such exercise does not affect the rights of other persons or affect the society in general.” Therefore, traffic management could be justified if done eyeing urgency or welfare related aspects like health or education. This certainly is the violation of net neutrality and not possible following the ‘end-to-end’ principle. Here it would not be wrong to infer that there is an abridgment of ‘freedom of speech’, but not the abridgment of the ‘right to freedom of speech’. As one could see, the former has no constitutional protection.

Another question that ascends post above argument is how to differentiate between an honest bandwidth trafficking and traffic throttling, or is it even possible to distinguish the two? The paper of International Telecommunication Union on Traffic engineering[xxiv] suggests various methods for managing the online traffic. According to the Author, the two most suitable of these methods- Service protection method[xxv] and Packet level traffic method[xxvi] may be adopted for the purpose. A pragmatic and clinical approach to these promising systems through a regulatory mechanism would place the necessary links at higher priority than the non-relevant ones during peak hours without involving any derogation of the right of freedom of speech.

After differentiating traffic throttling with traffic management, which often are confused with one another, it is uncontested that practice of traffic throttling is unacceptable and indubitably violates Article 19(1)(a). However, there is no urgent sense of need for regulating it with any regulatory framework as it could be best regulated by the market forces. Proponents of the net neutrality[xxvii] argue that INPs have the tendency to shape the traffic or prioritized the service as per their uncontrollable wishes. This again is an irrelevant proposition in relation to India. Unlike USA,[xxviii] in India telecom or internet network service sector is not monopolistic in nature, instead rather a competitive and open market[xxix] that is driven by the force of consumer demand. The nature of internet network market puts an onus on an INP to look after needs of consumers so they don’t part their way with another service provider given the wide choices available. Airtel’s experience justifies this evaluation, as the company had to drop its plan of charging the VOIP calls separately within no time after the public uproar.

3.1 B) Zero internet, prioritized treatment and price differentiating

More than other sub-categories of net neutrality, ‘zero-rating’ or ‘toll free internet’ has become a neuralgic inclusion in this topical debate. ‘zero-internet’ is nothing but an INP joining hands with an OTP to allow access to the latter’s content without any data package. Proponents of net neutrality oppose this scheme for the alleged violation of freedom of speech owing to two reasons– a) because it allegedly discriminates two medium of speech, charging one and not the other. For example, Aircel provides toll free access to Wikipedia and charges other mediums of information as usual. b) It restricts the entry of potential service providers, who due to incapacity of paying INPs might not enter the market or fail to survive on entry, and therefore confines the mediums that may be utilized to express the online speech. While zero-rating services undoubtedly violate net neutrality, it might not be correct to undermine its importance by abusing it for the infringement of right to speech before expanding a thought behind its aim and object.

 These schemes are generally operated by respective INPs in developing countries with very basic features. For example, Reliance provides free access to Facebook limited only to messaging, excluding the other usages of the website. Aim of the INPs behind these schemes is to first provide free access to the basic features of a website and then to invite a customer to get a paid data package for using the website in full mode. ‘zero-rating’ schemes do not involve blocking or restricting any information, it is merely a practice of prioritizing the content of one or more website over the other by moving its/there content freely. The scheme certainly benefits both the OTPs as well as INPs for their profit motives, but does it adversely affect the consumers?

 Liberty may be taken to say that in many cities and all most all villages the digital segregation is at crest. It is impossible in these places for the people to think about internet and its benefits given considerably high cost of the service. Moreover, amongst the internet users, 50% of India’s market is still dominated by the users consuming the internet on a per 10kb usage.[xxx] In such a situation characterizing the ‘zero internet’ against free speech could seldom be a just notion in view of the Apex Court’s observation that “Though the prices of newspapers appear to be on the low side it is a fact that even so many people find it difficult to pay that small price”.[xxxi] The Supreme Court in the previous landmark announcements[xxxii] has more accurately highlighted a societal aspect of the right that the freedom of speech also includes ‘freedom of circulation’ and ‘receiving information at reasonable price’. If these of these views of the Supreme Court are to be regarded, when an INP provides free access to certain content or information freely, it endorses the prospectus of free speech by appealing the people to use internet, and thereby the increasing its transmission as a medium. The experience of Chile, the first country to adopt the net neutrality laws, explicates how the haste of withdrawing the ‘zero-internet’ has nearly killed online speech in the country. A survey conducted by OECD post net neutrality regime suggests that post net neutrality regime, Chile has 130 mobile subscribers per 100 inhabitants out of which only 24.8 are standard broadband mobile subscribers. In short, after the net neutrality regulation the use of mobile internet reduced to 1/6th of the subscribers.[xxxiii]

The World Web Foundation has suggested ‘Public Wifi Access Points’ to the telecom ministry of India as a replacement for ‘zero internets’. The proposal is to fix the suggested facility around hospitals, libraries, schools, public parks and other similar public places.[xxxiv] The choice is superior but dismal as it in ignorance to the picture of digital divide which makes the goal unrealistic even for the capital territory of Delhi spare India. Conceiving, for a moment, the possibility of public wifi across few regions, the effort would do nothing less than further harming the existence of internet by preying it to free riders,[xxxv] given the limited and emerging state of technology.

Despite of the above argument, assume that ‘zero-rating’ internet or paid prioritization discriminates two medium of speech for cost or speed differentiation and hence violates the free speech. Following the interpretation, DTH operators violates the free speech by providing certain TV channels free as a part of their deal with those channels, or by charging different (high) price for certain channels. For example, while inclusively keeping Hindi news channel in the minimum paid package, DTH operators charge English news channel discretely for more sum. Similarly, Google book store and Amazon Kindle application also endorses prejudice against hard copy sellers and other platform such as Windows by extending free online e-books   exclusively for Android users. Ought they not to be sued for violating Article 19(1)(g)? No, because the presumption of constitutionality is strong and as laid down by the Apex Court in the leading case laws[xxxvi], there must be a direct violation or deprivation of the fundamental rights, for indirect violation does not attract the enforceability of the part III of the Constitution. Such relative discrimination amongst specific mediums of speech, however, cannot usually be considered as an expressive and direct violation of Article 19(1)(a).

Another apprehension by the pro-net neutralists is that the zero internet deals between certain network providers and service providers may impede the entry of new internet apps and threaten the survival of the existing ones who could not be a part of these deals given their financial limitations.[xxxvii] This situation would limit the mediums of speech and thus attracts the violation of Article 19(1)(a) and Article 19(1)(g). This cynical notion, though seemingly realistic, is a mere apprehension. The Author asserts the proposition that an arrangement between two established players in any market does not play restrict the entry of a prospective player but only makes it difficult. The difficulty though could be answered back through innovation, uniqueness, strategy and strategy.

The averred proposition relies on two presumptions- Firstly, a certain zero-internet avails only few basic features of the offered application(s) that cannot possibly match the full treats of the paid applications. Users have to bear the opportunity cost of using free internet by sacrificing various added benefits which they would have got on using data packages.  Secondly, if a paid application extends a service which has even partially unseen and innovative features, then that application could override the subscription of zero-internet counterpart(s). Recent success of the Indian application Hike Messenger (Hike is not a part of zero-internet owing to its policy) over Facebook and Whatsapp post launching of internet.org (reliance offering free access to whatsapp and Facebook) verifies the proposition. Hike Messenger, in mid 2014, with 20million users topped the app chart on Google Play store and iOS Appstore and ranked among the top 4 applications on Android and Windows across the India, roughly adding 3,00,000 users a day.[xxxviii] There are several unique features such as sharing of files up to 100 MB, support of various Indian languages, hiding last seen data and password secured message, which made it achieve the top feat without clouting any deal the network providers.[xxxix] Yet another messenger app Telegram, launched in mid 2013, is fixing its feet strongly amongst the user with 50 million monthly active users in merely 16 months of its launch as compare to 10 million of Whatsapp during the same duration in late 2010.[xl] Telegram concentrates on furnishing intensive business services which are impossible to get on Facebook or Whatsapp, and hence is heading on for a close competition against the toll free messaging.

The TRAI’s consultation paper on ‘differential pricing for data services’ too agrees that the zero-rating platforms do not restrict the entry of new websites but may make the entry through the pipes of the TSPs more difficult.[xli] However, as clarified earlier, only direct violation of the fundamental rights could be held liable and mere difficulty does not qualify as an absolute restriction. In the landmark case of Ram Jawaya Kapoor v. State of Punjab[xlii], the Apex Court held that where the petitioners’ text books were ousted from the government recognition following the nationalization of text books, there is no violation of Article 19(1)(g), since it does not affect their right to print and publish books. Similarly, the zero-internet platforms do not restrict the new players from entering the market and compete though they might make the competition tough. Consequently, the possibility of innovation and versatility in the mediums of speech is far higher than some of these potential mediums getting paralyzed.

3.2 Broadband network investment: enhancing innovation and protecting the freedom of speech

Recently R.Chandrashekhar, President Nasscom, argued that the violation of net neutrality is strictly against the right to freedom of speech. “Charging of the same data from both end consumer as well as platform provider is something that is not desirable.” He said.[xliii] However, he fails to substantiate his argument as he does not explain as to how charging the OTP service providers by the INPs could go against right to freedom of speech. This segment takes the opportunity to explain the situation, which unfortunately does not support Mr. Chandrasekhar’s argument.

Providentially, Gary Becker had explained the broadband network investment and internet growth theory,[xliv] which has yet not been convincingly countered by the advocates of net neutrality. In view of which, if ‘X’ INP join hands with ‘Y’ OTP service provider, and enter into a revenue share agreement, it will readily invest that access revenue in creating new broadband network for that OTP service so as to increase the bandwidth capacity for it, and hence providing faster access. For example, YouTube signed a deal with Verizon wireless to build bandwidth network for it in the exchange of a revenue share out of the former’s profit. Encouraging network providers to invest, these pacts shall raise the bandwidth capacity in all so as to meet up the growing demand of internet.

These agreements are not only desirable but indispensable to reach the growing need for internet. he Bret Samson terming it as ‘exaflood’ accurately explains the situation that “explosion of innovation” at the “applications and content layer” was not feasible without tens of billions of dollars of optics, chips and disks deployed around the world. Each year the original content on the world’s radio, cable and broadcast television channels adds up to about 75 petabytes of data — or, 10 to the 15th power.[xlv] Particularly in India, there has been exponential growth in internet usage through wireless networks driven by 3G traffic. The data usage grew by 74% and 3G usage was up by 114% at end of 2014, compared to 2013.[xlvi] In the current scenario, OTP services freely ride at the investment of network providers-i.e. as explained, broadband networks are deployed by INPs, due to which OTP services could make their content available to the netizens. However, OTP services are under no obligation to share the revenue they concoct from their content usage except when there is a deal to that effect, shifting entire cost burden on network providers. So, if the neutral laws outlaw such deals, what would be the incentive for the INPs to create new broadband network? Why they would make such investment, being aware of the impossibility of the profit?

How the revenue sharing could add to the prospectus of economical internet could be explained through the analogical reasoning from the Supreme Court’s observation in MTNL v. Tata Press,[xlvii] and Indian Express V.UOI[xlviii] where the Supreme Court has dubbed advertisements as a ‘bloodline’ of newspapers. The Court’s reasoning was on the premises that usually commercial advertisements generate 70-80% of newspapers’ revenue and that without advertisements it wouldn’t be possible for the newspapers to supply their content at a reasonable price.  Wouldn’t revenue shares from the OTP services by the network providers stand in same line as the advertisements stand for the newspapers? The author affirms, for the common factor is the source of revenue for availing the information at a reasonable price. Undoubtedly the right of the citizens to receive and express information and opinions respectively would be of little value if exercisable at an exorbitant price.

 According to a the State of the Internet Report released by cloud computing services and content delivery network Akamai, the average Internet speed in India is just 2 Mbps, compared to the global average of 4.6 Mbps[xlix] In India where such revenue share deals are rare, there is a need to encourage the same for better to generate better bandwidth capacity to address the current and future internet traffic. Unfortunately, net neutrality laws would exclude all such prospectus. If this happens, how would India be in position to address the unprecedented flood of increasing internet traffic through its frozen network capacity? How prime minister’s dream of E-India would be realized? How projects like 4G would be a reality for the huge population? The truth is that the net neutrality regime will do nothing less than placing hurdles before the exponential growth in the internet demand, making internet expensive than ever, and expressing one’s speech unreasonably heavy.

CONCLUSION

So far the paper argued how the popular opinion that the violation of net neutrality infringes the right of freedom of speech is not absolutely correct. Equations are more complex than they seem to be. The concept has to be understood from the experiences instead of apprehensions, reality instead of disguise, and long term perspectives instead of hastiness. The government has to understand the Indian context of net neutrality, rather than being driven by American or European experiences. An essential shift that diverges the effect of net neutrality on online speech in India from USA is of broadband market nature that excludes the domination by any‘ Comcast’. Therefore, net neutrality laws here may not favour the freedom of speech; instead it could belittle or violate the right by making it difficult to manage the bandwidth requirement, unintentionally limiting the internet access, and inflating the cost of usage.

The contours of the Article 19(1)(a) of the Constitution are wide and deep, and hence nothing would be better than the judiciary, as the guardian of the fundamental rights and the Constitution, tests the net neutrality on the true measurements of freedom of speech, rather than DoT or Nasscom judging the face-off between the two. Nonetheless, the way DoT report had showed an inclination towards the popular opinion on net neutrality, there may be a long wait for the judiciary concluding the matter in the best favour of the citizens and their inalienable suffrage.

 

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[i] Common carriage is an ancient legal concept, where a village’s only inn, wharf or medicine practitioner was needed to serve all customers at par for a reasonable price. The concept latter developed to include public service providers like telecom operators. See, for more understanding on present relevance of common carriage, Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecomm. Pol’y, 426, 436-37 (1994).

[ii]  Internationally, most weighted and interesting advocacy of the net neutrality appears from Tim Wu, Lessig and McChesney. In India organizations like Nasscom and Article 19, and websites like Net Neutrality India have been active in criticizing violation of net neutrality.

[iii]  Tim Wu, Network Neutrality, Broad band discrimination, 18 Journal On Telecom And High Tech Law 152, 156 (2014), available: www.jthtl.org/content/articles/V2I1/JTHTLv2i1_Wu.PDF., last seen on 24/7/15

[iv] Consultation Paper was widely criticized for casting a general perspective, rather than affirming either position on the issue. See, Consultation paper on Regulatory Framework for Over-the-Top services, Telecom Regulatory Authority of India, available at: https://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf., last seen on 24/7/15.

[v]Anandita Singh Mankotia, Net Neutrality: Department of Telecom pushes for disallowing telecom companies’ zero rating plans in its report, The Economic Times (10/5/15), available  at:https://economictimes.indiatimes.com/industry/telecom/net-neutrality-department-of-telecom-pushes-for-disallowing-telecom-companies-zero-rating-plans-in-its-report/articleshow/47873783.cms, last seen on:25/7/15.

[vi] Lawrence Lessig, Robert McChesney, No Tolls on The Internet, The Washington Post (28/4/15), available at:   https://www.washingtonpost.com/wp-dyn/content/article/2006/06/07/AR2006060702108.html., last seen on: 25/7.15.

[vii] Shreya singhal v. UOI, WRIT PETITION (CRIMINAL) NO.167 OF 2012

[viii]  William Fisher, Freedom of Expression on the Internet, Berkham Center for Internet  Society, available at: https://cyber.law.harvard.edu/ilaw/Speech/, 18/7/15.

[ix] NETmundial Internet governance Principle, NETmundial Initiative, available at:  https://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf, last seen on 27/8/15.

[x] Report of the Special Rapporteur on Key Trends and Challenges to the Right of All Individuals to Seek,Receive and Impart Information and Ideas of All Kinds through the Internet, 2011, UN General Assembly Doc.A/HRC/17/27, 7, (11/5/11),  available at: https://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/Annual.aspx., last seen on: 28/5/15.

[xi] 1979 AIR 1628.

[xii] 1981 AIR  487.

[xiii] Ibid.

[xiv] ‘Law’ as defined in Article 13(3) of The Constitution of India.

[xv] Supra 4.

[xvi]Internet users (per 100 people), The World Bank (7/1/15), available at: https://data.worldbank.org/indicator/IT.NET.USER.P2, last seen on 29/8/15.

[xvii]Modi stresses need for mobile governance, The Hindu (3/3/15), available at https://www.thehindu.com/news/national/modi-stresses-need-for-mobile-governance/article6838050.ec, last seen on 9/9/15.

[xviii] 1993 SCR  (1) 594

[xix] See Zee Telefilms Ltd. & Anr vs Union Of India & Ors on 2 February, 2005, Writ Petition (civil)  541 of 2004

[xx] Supra 2.

[xxi] 1978 SCR  (2) 621.

[xxii] 84 Shimizu, et al. 2005.

[xxiii] AIR 1982 SC 149.

[xxiv] For detail discussion on the methods of traffic management, Refer,  Manuel Altamirano, Overview of ITU Recommendations on Traffic Engineering, The ITU Papers, 8 (2014), available at: https://www.cs.ucy.ac.cy/networksgroup/resources/Overview_ITU_paper.pdf, laast seen on 13/9/15.

[xxv] This method manages the rank of service to ensure stability in networks with non-hierarchical routing arrangement by constraining overflow traffic to an alternate route that is shared with first-choice traffic.

[xxvi] It assures that the cost-efficient rank of service distinction is made between services with varied packet-level QoS requirements.

[xxvii]  See, Tim Wu, Why You Should Care About Network Neutrality, Slate (16/8/06), available at:

https://www.slate.com/articles/technology/technology/2006/05/why_you_should_care_about_network_neutrality.htmlast seen on 16/11/15.

[xxviii] Post its deal with Time Warner Cable, Comcast has increased its monopoly in the broadband market to an unquantifiable level. See, for detail discussion, Peter Kafka, if We Want Better Broadband We Need Much More (13/4/15), available at: https://recode.net/2015/04/23/blocking-comcast-is-a-start-but-if-we-want-better-broadband-we-need-much-more/, last seen on 18/9/15.

[xxix] Unlike U.S.A., In India, there are in all around 43 broadband service providers, with 11 major players. There is a minimal difference in the consumer share between companies like Idea, Airtel and Vodafone. MTNL and BSNL too are playing competitively in Mumbai and Delhi.

[xxx]A survey by Hike suggests that 50% of India’s mobile Internet market is still dominated by Sachet Packs & users consuming the Internet on a per 10 KB basis, See Techradar, available at: https://www.in.techradar.com/news/Hike-messenger-speaks-in-favor-of-Net-Neutrality/articleshow/46933723.cms., last seen on 1/10/15.

[xxxi] 962 AIR 305, 1962 SCR (3) 842

[xxxii] Romesh Thappar v. State of Madras1950 SCR 594, Sakal Papers (P) Ltd., and, And Others vs The Union Of India on 25 September, 1961, 1962 AIR 305.

[xxxiii] Fred Campbell, Chilean in Chains: Net Neutrality Does Not Mean Internet Freedom, The Technology Liberation Front (18/3/15), available at: https://techliberation.com/2013/03/26/chilean-in-chains-net-neutrality-does-not-mean-internet-freedom/, last seen on: 15/10/15.

[xxxiv] Net Neutrality in India: A submission to the Department of Telecommunications, Ministry of Communications and Information Technology, (1/5/15), available at: https://webfoundation.org/wp-content/uploads/2015/05/Net-Neutrality-India-Submission-to-DoT.pdf., last seen on: 16/10/15.

[xxxv] For economists, free rider problem arise when those who pay for resources or services are different from those who get benefitted. The problem persists with common property or non-excludable goods.  The extent to which the problem may be related with internet could not be specified due to lack of studies in the area; however, the possibility of relation between public wifi and free riding cannot certainly be excluded.

[xxxvi] Sakal papers Ltd. v. UOI, and, Recently in Souresh Kumar Koushal and Anrs. v. NAZ Foundation and others.

[xxxvii] Net Neutrality DoT Committee Report (1/5/15) 45, available on: https://www.dot.gov.in/sites/default/files/u10/Net_Neutrality_Committee_report%20(1).pdf, 20/10/15.

[xxxviii] Hike Beats WhatsApp To Become #1 Free Mobile App in India, Reports 300K Downloads/Day, Trak.in (17/7/15), available at: https://trak.in/tags/business/2014/07/17/hike-tops-india-beats-whatsapp/, last seen on 12/12/15.

[xxxix] Available at: https://get.hike.in/features.htm and https://gadgets.ndtv.com/apps/reviews/hike-messenger-app-review-331169, last seen on 12/12/15.

[xl] Why Telegram has become the hottest messaging app in the world, The Verge (25/2/14), available on:

 https://www.theverge.com/2014/2/25/5445864/telegram-messenger-hottest-app-in-the-world, last seen on 12/12/15.

[xli]Consultation Paper on Differential Pricing for Data Services, TRAI (9/12/15), available at: https://www.trai.gov.in/WriteReadData/WhatsNew/Documents/CP-Differential-Pricing-09122015.pdf, last seen on 18/12/15.

[xlii]  AIR 1955 SC 549

[xliii] Net Neutrality Violation against Freedom of Speech, says Nasscom, Dna India (14/4/15), available at: https://www.dnaindia.com/scitech/report-net-neutrality-violation-against-freedom-of-speech-says-nasscom-2079840, last seen on:18/12/15.

[xliv] Gary S. Becker, Dennis W. Carlton, Net Neutrality and Consumer Welfare, 16 Journal of Competition Law & Economics 121, 133 (1999), available at: https://en.wikipedia.org/wiki/Net_neutrality#cite_note-faculty.chicagobooth.edu-127., last seen on 12/12/15.

[xlv]Bret Swanson, “The Coming Exaflood., Wall Street Journal (18/2/15), available at:  https://www.wsj.com/articles/SB116925820512582318., last seen on: 16/12/15.

[xlvi]Internet traffic in India grew 74% in 2014, the times of India (10/1/15), available on: timesofindia.indiatimes.com/tech/tech-news/Internet-traffic-in-India-grew-74-in-2014/articleshow/46287859.cms,  last seen on 16/12/15.

[xlvii] 1995 AIR 2438.

[xlviii] 1985 SCC (1)641.

[xlix]  Broadband speeds: Akamai study shows India at bottom of pile in Asia,The Indian Express (18/3/2014), available at:https://indianexpress.com/article/technology/technology-others/india-has-among-slowest-broadand-in-asia/, last seen on: 12/12/15.

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