Pavan Duggal, Advocate, Supreme Court of India Head, Pavan Duggal Associates, Advocates President, Cyberlaws.net

India, the biggest democracy in the world, is intrinsically being recognized for its thought leadership in the information technology space.

Sometime back, India had shown the courage to say an emphatic no to data colonization. India emphatically had stood up for the right to access the Internet without any conditionality as part of its policy making. The Telecom Regulatory Authority of India (TRAI) had categorically rejected the demands from some Internet players to provide for conditional Internet access to those Indians who had not yet come online. Since then, lot of water has flown down the bridge. The Supreme Court of India in the case of Justice K S Puttaswamy (Retd.) and Anr. versus Union of India has categorically held that person’s fundamental right to life under Article 21 of the Constitution of India includes right to privacy.

Today people’s lives are dependent on the Internet. People today have a fundamental right to access the Internet. I personally believe that the right to access the Internet is part of the fundamental right to life under Article 21 of the Constitution of India and is sacrosanct in nature and can only be curtailed, in accordance with the procedure established by law. This intrinsically means that net neutrality provisions have to be incorporated as an integral part of its legal policy making process.

The entire issue of net neutrality has certainly become very important. Net neutrality is a principle that is dedicated to making the Internet a neutral platform for the proliferation of all kinds of services offered by all stakeholders.

In this context, it thus becomes interesting to note the recent recommendations of the TRAI concerning net neutrality. In this path-breaking step, the recommendations of the TRAI have stood up for net neutrality. The TRAI has recommended that no person should be discriminated against on any ground to access the Internet. These recommendations, if accepted by the Government, categorically close the doors for service providers to discriminate against their customers based on various commercial and other vectors. In our country, where users invariably have a lot of challenges in terms of getting promised Internet speed and at a time when there is no effective mechanism for providing redress for affected consumers, and given the lack of effective mechanisms available to affected consumers who are affected by varying Internet speeds, these recommendations come as a breath of fresh air. These recommendations pave the way for the evolution of India as a digital superpower and also a knowledge economy in the coming times.

When one looks at the existing laws in India, one finds that the issue of net neutrality has not been mentioned in the existing laws of India. India has in place its mother legislation on Cyberspace issues in the form of the Information Technology Act, 2000. The Information Technology Act, 2000 has been sought to be supplemented by means of various rules and regulations which the Government of India has promulgated from time to time. Neither the Information Technology Act, 2000 nor any rules and regulations made thereunder, have any reference to net neutrality.

The onus is now on the government as to how it treats and tackles with various recommendations of TRAI in this regard. Further, stakeholders would need to be encouraged to take holistic perspectives on these issues. In the long run, having effective nondiscrimination in Internet access services could potentially pave the way for a much bigger and stronger digital data ecosystem and further help in establishing India’s thought leadership in cyberspace issues.

It will be interesting to see how the government responds to these recommendations and how the industry follows up on the proposed policies to be framed on the basis of these recommendations. Clearly, these are interesting times and it will be interesting to watch the developments in this space as time passes by.


 

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