Net Neutrality, Free Speech and the Indian Constitution - I

Let us take, for the purposes of this post, the following definition:

“The idea that all Internet traffic should be treated equally is known as network neutrality. In other words, no matter who uploads or downloads data, or what kind of data is involved, networks should treat all of those packets in the same manner.”

In other words, put simply, net neutrality in its broadest form requires the extant gatekeepers of the internet – such as, for instance, broadband companies – to accord a form of equal and non-discriminatory treatment to all those who want to access the internet. Examples of possible discrimination – as the quote above illustrates – include, for instance, blocking content or providing differential internet speed (perhaps on the basis of a tiered system of payment for access).

Net neutrality has its proponents and opponents, and I do not have space here to address that dispute. In its broadest and absolutist form, net neutrality is highly controversial (including arguments that existing status quo is not neutral in any genuine sense). I take as given, however, that some form of net neutrality is both an important and a desirable goal. In particular, intentional manipulation of information that is available to internet users – especially for political purposes – is, I assume, an undesirable outcome, as are anti-competitive practices, as well as price-discrimination for the most basic access to the internet (this brief article in the Times of India provides a decent, basic primer on the stakes involved).

An example of net neutrality in practice is the American Federal Communications Commission’s Open Internet Order of 2010, which was the subject of litigation in the recently concluded Verizon v. FCC. The Open Internet order imposed obligations of transparency, no blocking, and no unreasonable discrimination, upon internet service providers. The second and third requirements were vacated by a United States Court of Appeals. The rationale for the Court’s decision was that ISPs could not be equated, in law, to “common carriers”. A common carrier is an entity that offers to transport persons and/or goods in exchange for a fee (for example, shipping companies, or bus companies). A common carrier is licensed to be one, and often, one of the conditions for license is an obligation not to discriminate. That is, the common carrier cannot refuse to carry an individual who is willing and able to pay the requisite fees, in the absence of a compelling reason (for example, if the individual wishes the carrier to transport contraband). Proponents of net neutrality have long called for treating ISPs as common carriers, a proposition – as observed above – was rejected by the Court.

With this background, let us turn to India. In India, internet service providers are both state-owned (BSNL and MTNL), and privately-owned (Airtel, Spectranet, Reliance, Sify etc). Unlike many other countries, however, India has no network-neutrality laws. As this informative article observes:

“The Telecom Regulatory Authority of India (TRAI), in its guidelines for issuing licences for providing Unified Access Service, promotes the principle of non-discrimination but does not enforce it… the Information Technology Act does not provide regulatory provisions relating to Internet access, and does not expressly prohibit an ISP from controlling the Internet to suit their business interests.”

In the absence of either legislation or regulation, there are two options. One, of course, is to invoke the rule of common carriers as a common law rule in court, should an ISP violate the principles of net neutrality. In this post (and the next), however, I would like to analyze net neutrality within a constitutional framework – in particular, within the framework of the constitutional guarantee of freedom of speech and expression.

In order to do so, two questions become important, and I shall address them in turn. First, given that most of the ISPs are privately owned, how does the Constitution even come into the picture? Our fundamental rights are enforceable vertically, that is, between individuals and the State, and not horizontally – that is, between two individuals, or two private parties. Where the Constitution intends to depart from this principle (for instance, Article 15(2)), it specifically and expressly states so. As far as Article 19 and the fundamental freedoms are concerned, however, it is clear that they do not admit of horizontal application.

Yet what, precisely, are we to understand by the term “State”? Consider Article 12:

“In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of 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 key question is what, precisely, falls within the meaning of “other authorities”. The paradigmatic example – and this is something Ambedkar had in mind, as is evidenced by the Constituent Assembly Debates – is the statutory corporation – i.e., a company established under a statute. There are, however, more difficult cases, for instance, public-private partnerships of varying types. For the last fifty years, the Supreme Court has struggled with the issue of defining “other authorities” for the purposes of Part III of the Constitution, with the pendulum swinging wildly at times. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, a 2002 judgment by a Constitution bench, the Court settled upon the following definition:

“The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.”

Very obviously, this dooms the ISP argument. There is no way to argue that ISPs are under the pervasive financial, functional and administrative domination or control of the State. If we step back for a moment, though, the Pradeep Kumar Biswas test seems to be radically under-inclusive. Consider the following hypothetical: tomorrow, the government decides to privatize the nation’s water supply to private company X. Company X is the sole distributor of water in the country. On gaining control, it decides to cut off the water supply to all households populated by members of a certain religion. There seems something deeply wrong in the argument that there is no remedy under discrimination law against the conduct of the company.

The argument could take two forms. One could argue that there is a certain minimum baseline of State functions (ensuring reasonable access to public utilities, overall maintenance of communications, defence and so on). The baseline may vary depending on your personal political philosophy (education? Health? Infrastructure?), but within the baseline, as established, if a private entity performs a State function, it is assimilated to the State. One could also argue, however, that even if Part III isn’t directly applicable, certain functions are of a public nature, and attract public law obligations that are identical in content to fundamental rights obligations under Part III, although their source is not Part III.

To unpack this idea, consider Justice Mohan’s concurring opinion in Unnikrishnan v. State of Andhra Pradesh, a case that involved the constitutionality of high capitation fees charged by private educational institutions. One of the arguments raised against the educational institutions turned upon the applicability of Article 14’s guarantee of equality. The bench avoided the issue of whether Article 14 directly applied to private educational institutions by framing the issue as a question of the constitutionality of the legislation that regulated capitation fees. Justice Mohan, however, observed:

“What is the nature of functions discharged by these institutions? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires… [it to] act fairly. In such a case, it will be subject to Article 14.”

In light of Pradeep Kumar Biswas, it is obviously difficult to hold the direct application of the Constitution to private entities. We can take Justice Mohan, however, to be making a slightly different point: performing what are quintessentially public duties attract certain obligations that circumscribe the otherwise free action of private entities. The nature of the obligation itself depends upon the nature of the public act. Education, it would seem, is an activity that is characterized by open and non-discriminatory access. Consequently, even private educational institutions are required to abide by the norms of fairness articulated by Article 14, even though they may not, as a matter of constitutional law, be held in violation of the Article 14 that is found in the constitutional text. Again, the content of the obligation is the same, but its source (the constitutional text, as opposed to norms of public law) is different.

We have therefore established that in certain cases, it is possible to subject private entities performing public functions to constitutional norms without bringing them under Article 12’s definition of the State, and without the need for an enacted statute, or a set of regulations. In the next post, we shall explore in greater detail what this means, and how it might be relevant to ISPs and net neutrality.

Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and presently an LLM student at the Yale Law School. He blogs about the Indian Constitution at http://indconlawphil.wordpress.com. Here at CIS, he will be blogging on issues of online freedom of speech and expression.