NET NEUTRALITY: THE BATTLE BETWEEN EFFICIENCY AND FAIRNESS IN

MARKETS

Historical precedents suggest that the basic issues underlying the debate about network neutrality
dealing with the balance between efficiency and fairness in markets will never be resolved. Should
net neutrality dominate, attention would likely turn to other parts of the economy that might be
perceived as choke points for economic activities, such as net search. Traditionally, the balance
between efficiency and fairness that was struck by policy makers depended heavily on cost
considerations. When a service was expensive to provide, fairness was deemphasized. In the
current discussion

I.

INTRODUCTION

How we access the Internet and various applications in the future is now under question. The
debate raging across the country now and being watched across the world keenly is on the issue of
net neutrality.
Net neutrality is the principle that Internet service providers and governments should treat all data
on the internet equally, not discriminating or charging differentially by user, content, site platform,
application, type of attached equipment, or mode of communication. Neutrality proponents claim
that telecom companies seek to impose a tiered service model in order to control the pipeline and
thereby remove competition, create scarcity, and oblige subscribers to buy their otherwise
uncompetitive services. Many believe net neutrality to be primarily important as a preservation of
current freedoms. Through this paper we would talsory to draw parallels with the Indian
Constitution and verify the legality of such laws.
Proponents of the principle of net neutrality hold that all traffic on the internet should be treated
equally or in other words, service providers such as Airtel should allow access to all content
without favoring any particular product or website. The net neutrality debate becomes even more
relevant in case of INDIA where the penetration of smart phones is increasing and efforts are on to
bring more people to the Internet, through the digital India campaign that is being propagated by
our Prime Minister.

II.

THE CONSTITUTIONAL PERSPECTIVE ON NET NEUTRALITY

The open, democratic nature of the Internet has kept information and content accessible by the user
largely unrestricted. There is a view that diluting neutrality of the Open Internet may
compromise the independence and diversity of information. Currently there are no laws governing
net neutrality. In the absence of either a legislation or regulation, I would like to analyze net
neutrality within a constitutional framework- in particular, within the framework of 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.
According to article 12, there is no way to argue that ISPs are under the pervasive financial,
functional and administrative domination or control of the state. In light of the case Pradeep
Kumar Biswas v. Indian Institute of Chemical Biology it is obviously difficult to hold the direct
application of the Constitution to private entities. However, performing what are quintessentially
public duties attract certain obligations that circumscribe the otherwise free action of private
entities.In the context of net neutrality , it is clear that privately owned ISPs do not meet the
exacting standards of Article 12. Nonetheless, we also found that the Indian Supreme Court has
held private entities, which do not fall within the contours of article 12, therefore, if we are to
impose obligations of net neutrality upon private ISPs, a similar argument must be found.
In the light of the above discussion we find that public law and constitutional obligations can be
imposed upon private parties when they discharge public functions. Second, that the Internet has
replaced the park, the street and the public square as the quintessential forum for the circulation of
speech. ISPs, in their role as gatekeepers, now play the role that government once did in
controlling and keeping open these avenues of expression. Consequently, they can be subjected to

public law free speech obligations. Lastly, the constitutional conception of free speech in India,
that the court has gradually evolved over many years, is a social democratic one, that requires the
keeping open of a free and inclusive public sphere.
A combination of these arguments provides us with an arguable case for imposing obligations of
net neutrality upon ISPs, even in the absence of a statutory or regulatory obligations, grounded
within the Constitutional guarantee of freedom of speech and expression.

III.

CONCLUSION

Currently, there are no laws enforcing net neutrality in India. Although TRAI guidelines for the
Unified Access Service License promote net neutrality, it does not enforce it. The Information Act
2000 also does not prohibit companies from throttling their service in accordance with their
business interests.
The violation of net neutrality will mean telecom companies could now be in a position to ensure
some sites are served faster than others. It could also mean it becomes costlier to use certain
applications. Most importantly, it could endanger the very feature of the Internet that has over the
years made it possible for countless start-ups to dream and act big. So by rejecting net neutrality,
which will enable telecoms to play the gatekeeper to a vulnerable resource, we will be shutting the
door on the entrepreneurial aspirations of millions. Thats because the only way for them to
compete with the big moneyed internet players would be to match their spending to make the
internet work for them. The absence of net neutrality will definitely benefit the telecoms while at
the same time harming the market by unleashing monopolistic tendencies.