Concerns related to net neutrality The terms of access to media and communications infrastructure are a crucial element in the exercise of freedom of speech and expression. However, fundamental rights are applicable against the state, but media and communications infrastructure is often privately owned. To what extent, then, can the state justify infrastructure regulation? Matters of infrastructure regulation were agitated under the protection of freedoms under Article 19 of the Constitution as far back as 1962, in the case of Sakal Papers (P) Ltd. & Oth. v. Union of India.131 In this case, the editor of a newspaper and its readers challenged the validity of the Newspaper (Price and Page) Act, 1956, which empowered the central government to fix prices of newspapers according to the number of pages and allocation of space for advertising. One of the questions before the court was whether the regulation of prices of newspapers by the government was an infringement on the right to freedom of speech and expression of the press. The court ruled that the legislation affected the right to freedom of the press, which forms part of Article 19(1)(a). Regulation of advertising space, and its indirect impact on circulation, was found to be an infringement on the right to freedom of speech and expression. In the context of the internet, the Telecom Regulatory Authority of India (TRAI) consultation on discriminatory pricing of data services brought in sharp focus the question of whether or not, and to what extent, to regulate service offerings of telecom service providers in the larger public interest. This consultation happened against the background of the emergence of “zero-rated” internet plans in India – such as telecom operator Bharti Airtel Ltd.’s Zero plan and Facebook’s Internet.org-turnedFree Basics. Network operators on their own, or in partnership with internet companies, were offering data plans which would provide selective access to the internet for a lower price or for free. One of the issues before the authority was: what principles should guide the decision to regulate such plans (or to abstain from regulating)? Or in other words, what are the first principles towards which any policy on differential pricing should be aimed? TRAI noted that the consultation was initiated because two key principles of tariff regulation were being affected: non-discrimination and transparency.132 Many additional considerations were 131 1962 AIR 305. 132 Telecom Regulatory Authority of India. (2016, 08 February). Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 (2 of 2016). www.trai.gov.in/sites/default/files/Regulation_ Data_Service.pdf. Para 2 of Explanatory Memorandum. forwarded in the comments made by stakeholders, including innovation, competition, non-discriminatory access to users and, crucially in the context of this report, the right to freedom of speech and expression. The consultation paper acknowledged this: Several responses have drawn a critical link between the internet and its role in preserving the constitutional guarantees of right to free speech and expression under Article 19(1)(a) of the Constitution. 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) Put. Ltd. v. Union of India, (1985) 1 SCC 641 (para 68) case. Both of these components viz., right to express oneself as well as the right to receive information are critical elements in the use of the internet. The Authority is of the view that use of internet should be in such a manner that it advances the free speech rights of the citizens, by ensuring plurality and diversity of views, opinions, and ideas.133 Arguments in favour of zero-rating included that there was no stopping a customer to avail of the full internet by paying for data; that platforms (at least in the case of Free Basics) would be open to any app, content or service; that such regulating is paternalistic; and that disallowing zero-rating would kill business models and affect the freedom of these companies to conduct trade, etc. Following several rounds of public consultations, TRAI passed a regulation in February 2016 that prohibited discriminatory pricing of data services on the basis of content.134 Given the value that the public internet has provided for economic, social, political and cultural ends, allowing a selection of applications, content and services to be accessed for a negligible amount or for free would likely have led to the exclusion of a large section of the population from being able to make use of the medium to the fullest. It would also have undone the relatively “permission-less” nature of innovation by applications developers and content and service providers on the internet, 133 Ibid. Para 24.3 of Explanatory Memorandum. 134 Ibid. INDIA / 77