By Saurav Das, School of Law, Christ University.

We must thank the telecom providers where it’s due. India has developed and on the tip of its boom due to its economy, people, education above all a good communication. Use of internet has always been a priority and this priority is greatly fulfilled by the telecom providers who operate in India and give us this service. The internet service providers have, given what the people of India needed. We are the world’s 10th largest economy1 and this statement comes true because there was a backing by the internet service providers at all times we needed it.

But, right now few telecom companies like Bharti Airtel and Vodafone India have come up with ‘No net neutrality’ and is pressurising Telecom Regulatory Authority of India (TRAI) for the same. This new concept of no net neutrality has put thinking caps on TRAI, to decide whether India will like it or not. But, in India, the concept of no net neutrality can be a menace. Consequently, if we follow the footsteps of what Airtel and Vodafone want to do then we will be denied the right to access the internet indirectly and the democratization of Internet will be curbed to only a few sections of the society. Being a developing country it is much needed that we have an equal and a free access to the pages we want to open and do not pay and extra charge every time we want to open a site and this will not be possible in a world Airtel and Vodafone propose.

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In short, a situation of no net neutrality can be explained simply, say, hypothetically, supposing a person wants to buy a pen and he has two sellers, say Flipkart and Amazon, and Flipkart has already made a deal with Airtel to give high speed access to their customers. In this case, Airtel will ask the customers of Airtel who want to access Flipkart service to pay extra for the Flipkart service else, if not paid, the service will be made slow. Consequently, the buyer, or a person who wants a service of Flipkart, will have to pay twice, one for the data pack that he will use to access the internet, and secondly, the Flipkart pack, which will be used to access Flipkart at a high speed. Now, if the buyer of the pen has not brought the Flipkart high speed pack, and online he sees that, the same pen costs quiet less in Amazon than Flipkart, still he will be forced to buy from Flipkart because Amazon will take infinite amount of time to open, and Flipkart can be accessed fast (if the buyer has the Flipkart Pack) as it already made a deal with Airtel for a faster internet service.

In the Consultation paper of TRAI where it has been defined specifically as what the internet neutrality is, they have used the term OTT2. As per the TRAI authorities OTT services are the services like, Whats App, Facebook, Orkut etc., which makes huge money by using the services provided by the internet service providers. The internet service providers only main contention is that, whatever the revenue the ISPs earn is through selling the 2G and the 3G packs, and out of which most of the money is spent on maintaining the data servers all over India and world, and at the end they are left with very left amount of profit, whereas the OTT services that give their services to the people using the ISP’s network earn in billions every year, but at this agreement we cannot take away the rights of internet access equally from the people of this country.

No Internet Neutrality, is constitutionally invalid, because it will curb the right to equality which is a fundamental right and the use of internet equally. Fundamental rights can be exercised on government bodies3 but when a private body does a public function it may come under the ambit of Article 124 of the Indian Constitution. Secondly, having a slow internet is like having no internet at all. Internet has been a pathway to speak out grievances. The technology has advanced so much that now days we can sign public petition raised by various organisations. Even writing a blog, can make a huge impact on the future of a country. If the service providers curtail this basic exercise of writing or speaking up by providing no internet at all then I believe our freedom of free speech5 is even violated.

Apart from constitutional there are other ill effect of the same which we have to consider from an economic point of view too. If we imbibe no net neutrality, there will be anarchy and a company as a start-up will face stiff competition against all odds. Being a start-up it will not have enough amount of capital to deal with the service providers like other OTT services. Hence, it may have to close down.

Overviewing this, traffic prioritization or simple no internet neutrality, is not meant for India and a lot of countries have already made laws for net neutrality like USA and Argentina and hence, if we want to progress in that path as a developing country we need to have a proper legislation on internet neutrality. In India as per reports 39% of the Indians are illiterate6 and if we improvise this law now, then it may have a negative implication on the education system of India, as internet would become costly and pupils who hardly can effort internet for their education purposes will find it difficult to sustain their studies without internet. Both developed and developing countries like the U.S.A, Argentina, the developed and developing countries like the US, Netherlands, Chile and Brazil have already adopted the provision on net neutrality. If we want to develop in the same, we need to follow what the other countries have done. By implementing internet traffic prioritization, internet will not reach to the people and the whole objective of having an internet service i.e. to spread information and knowledge at hand, which is fast and reliable will be defeated.

1 Prableen Bajpai, ‘World’s Top 10 Economies, also available at http://www.investopedia.com/articles/investing/022415/worlds-top-10-economies.asp, last seen on 8 August 2015

2 OTT services include services like Flipkart, WhatsApp, Amazon.com, etc.

3 Article 12, The Constitution of India

4 Unni Krishnan vs. State of Andhra Pradesh 1993 SCR (1) 594

5 Article 19(1)(a), The Constitution of India