Net Neutrality fulfils constitutional promises

TRAI’s recommendations on Net neutrality provide hope that modern technologies can refresh constitutional doctrine and also deepen participatory democracy.

From Ai Ai Weiwei stacked cycle exhibit. Photo © Ryan Davey

Telecom policy rarely captures the popular imagination. While many may have immediate concerns on the nuisance of unsolicited telemarketing, worries of over-billing or even allegations of corruption in the reward of licenses, they rarely take an active interest and become stakeholders in the development of a regulation.

Debates around network neutrality have breached this barrier. The willing embrace of Net neutrality by many, including the Telecom Regulatory Authority of India (TRAI), is not only a function of mass rhetoric and intelligent campaigning but of the concept of Net neutrality itself taking forward values of Indian constitutionalism.

Freeing it up

Put simply, Net neutrality creates rules of the road for a free and open Internet. It requires that barriers should not be created by telecom and Internet service providers for user choice by limiting their power to discriminate between content providers and different classes of content. Through binding rules and regulations, the power of access providers to selectively price or create technical imbalances is corrected. Such an argument immediately appeals to our sense of fairness, for it based on maintaining a level of equality in the use of a common resource. This finds express acknowledgement in the precedent of the Supreme Court where it has stated that the power to license spectrum and telegraphs is held by the government as a trustee of public interest.

In one of the more recent judgments which arose from a presidential reference on the allocation of natural resources, the Supreme Court observed that:

“as natural resources are public goods, the doctrine of equality, which emerges from concepts of justice and fairness, must guide the state in determining the actual mechanism for distribution of material resources.”

Taking this forward, the TRAI in its recommendations on Net neutrality has suggested amendments to the various classes of telecom and Internet licences to have an express recognition of a non-discriminatory principle for Internet content. Such recommendations set a broad rule with tailored exceptions that are conditioned on touchstones of reasonableness.

Beyond equality and reasonableness, which may seem evocative though fuzzy principles, a more tangible appreciation of Net neutrality is immediately felt on our liberty. The Internet today affords millions of Indians with an immediate audience without the traditional costs of distribution. Tinkering with its character, or carving it up in slices as would happen in the absence of Net neutrality, would fragment its community and the diversity of choice offered by it. This would impact both the right to speak and the ability to receive knowledge, hence impacting our right to freedom of speech and expression.

Again, such realisation is found in the Differential Pricing Regulation issued on February 8, 2016, which prevented telecom companies from pricing access to Internet websites and content differently. In the explanatory memorandum to this regulation, the TRAI states,

“As observed by the Supreme Court, in the Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, (1995) 2 SCC 161, para 201(3)(b) allowing citizens the benefit of plurality of views and a range of opinions on all public issues is an essential component of the right to free speech. This includes the right to express oneself as well as the right to receive information as observed by the Supreme Court in the Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, (1985) 1 SCC 641 case.”

Constitutional guarantees

The concepts of equality, reasonableness and liberty which underpin the social contract which gives rise to the Indian Constitution are not mere black letters of the law. They are more than mere limitations on state power in favour of individuals. By themselves, they are at their very best when they are put into motion by positive actions by regulators and governments. To achieve these objectives, there is a necessity to popularise the constitutional doctrine in ways and methods which seem immediate and cater to the daily problems of the modern world. The debates around Net neutrality in India have shown how a stand-up comedy video can spark a spontaneous campaign, spur more than a million people to send e-mails to a telecom regulation consultation when the stakes are clearly explained and there is a broad coalition of civil society voices.

The Net neutrality campaign has not been without criticism and growing public disappointment. While such sentiments may arise from legitimate concerns, they are disproportionate to the greater benefit of raising public debate. To restrict any public policy measure, especially something as important as Net neutrality, to a restricted group of experts without a chance of public engagement betrays elitism. Further, the repeated rounds of public consultation which have brought on some amount of fatigue are due to the inherent complexity of the regulatory exercise. This also provides us a lesson that the enjoyment of Net neutrality will require constant, hard work — no victories are permanent. But for a moment we can pause to celebrate how the TRAI’s recommendations on Net neutrality provide hope that modern technologies can refresh constitutional doctrine and also deepen participatory democracy.

An edited version of this article was published in The Hindu (link).

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