(My thanks to Malavika Prasad for bringing this case to my attention)

With the recent release of the Telecom Regulatory Authority of India’s [“TRAI”] “Consultation Paper” on the regulatory framework for over-the-top [“OTT”] services, net neutrality is up for sustained debate in India. Previously, I had written about how net neutrality, in the context of the internet, should be understood as a core free speech issue, and it might be helpful to consider the controllers of the “gateways” to the internet (or, in other words, the owners of the infrastructure of speech on the internet) as having public obligations of non-discriminatory access (even though they might be private parties). The idea of public obligations inhering upon private parties because of their control of public infrastructure, or their performing of a public function, has been upheld by the American Supreme Court in Marsh vs Alabama and by the Indian Supreme Court in the concurring judgment of Mohan J. in Unnikrishnan.

In the net neutrality debate this time, another bit of imagery has been doing the rounds: that of a public highway. It is permissible to charge a toll for the use of a highway, the rate of which might be proportional to how much one uses – so goes the analogy – but it is impermissible to charge differential toll rates based upon the make of the car you drive, or depending upon whether you’re going to work, or to vacation.

This is a particularly interesting analogy, because, as it turns out, the Indian Supreme Court has ruled upon precisely this point: that of non-discriminatory access to public highways. Saghir Ahmed vs State of UP, decided in 1954 by a five-judge bench, involved a constitutional challenge to the UP Road Transport Act, which allowed the State government to take exclusive control of running and operating road transport services within the state, if it believed such a step to be necessary in the public interest. Or, in other words, it allowed the State government to create a transport monopoly by executive fiat – which it actually did, for a part of the road network.

In deciding upon the validity of the State government notification, as well as the constitutionality of the Act, the Court noted:

“According to English law, which has been applied all along in India, a highway has its origin, apart from statute, in dedication, either express or implied, by the owner of land of a right of passage over it to the public and the acceptance of that right by the public . In the large majority of cases this dedication is presumed from long and uninterrupted user of a way by the public, and the presumption in such cases is so strong as to dispense with all enquiry into the actual intention of the owner of the soil and it is not even material to enquire who the owner was.“

In response to the Attorney-General’s argument that the rights of commercial passage over a highway were determined by the Motor Vehicles Act, the Court observed:

“But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public rights over a highway. The State only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned AdvocateGeneral that the user of a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the State.”

A few things ought to be noted:

(1) Although Saghir Ahmed was a case about State action, and consequently, implicated the petitioners’ Article 19(1)(g) and 14 rights, the Court’s logic here is based upon the nature of the utility (public highway) rather than the nature of the owner. In the first excerpted paragraph, the Court makes it clear that the question of ownership is immaterial, since whatever property rights the owner has, he is deemed to have intended to give up his right to the extent that passage requires.

(2) The power of the State to control and regulate the public utility must be for the purposes of ensuring safety, peace, health and morals.

(3) The nature of the use of the public utility (i.e., in this case, whether commercial or for pleasure) does not affect the scope of the right of use in any way.

(4) The right stems from long and uninterrupted prior use, presumably stretching back to the beginning of road networks, and consequently, being somehow part of the very nature, or essential characteristic, of a “road”.

Note the striking similarities with the net neutrality debate, with respect to each of the elements. There is, of course, a danger with pushing any analogy too far, but the vocabulary of the TRAI Consultation Paper itself conjures up an image of the internet “highway”. In paragraph 2, it states:

“The term over-the-top (OTT) refers to applications and services which are accessible over the internet and ride on operators’ networks offering internet access services e.g. social networks, search engines, amateur video aggregation sites etc.”

And, in para 3:

“Carriage is separated from content in internet networks, enabling OTT content and application service providers to deal directly with end users.”

A full elaboration, of course, would need significant unpacking. What, precisely, is the public highway here? Is it the spectrum? And is the argument then that a spectrum auction by the original owner (i.e., the government) does not carry with it complete rights of ownership, but rather, attendant obligations that act as limits upon those rights. One of those obligations being to provide non-discriminatory access to a public utility, whose public character remains unchanged despite the ownership being in private hands. Of course, such an argument would also need to establish the analogy between roads and the internet, both in terms of their public character (perhaps not so difficult), and the establishment of a right of non-discriminatory access through a long period of uninterrupted usage (perhaps harder in the case of the internet).