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Competing Processes Obfuscate Internet Policy-Making in India

Net Neutrality has become a hot topic in India, following a brief but high-profile national debate instigated by a consultation paper from the Telecom Regulatory Authority of India (TRAI) that solicited views on what net neutrality is, and whether regulations protecting it are needed in India. The paper also hinted at possible regulation of all kinds of online services (like Skype, Uber, or Google) in the future.

But no-one could have predicted what happened next; the public comment period saw an unprecedented tidal wave of public engagement with the regulator, with more than a million responses hitting TRAI's inbox (most of which were doubtless facilitated by an online platform run by pro-net neutrality activists). TRAI can be left in no doubt as to the public's very dim view of its consultation paper, the tone of (and assumptions underlying) which betrayed the decidedly pro-telco bias of what's supposed to be a neutral regulator. It's now for TRAI to sit and ponder next steps in the face of what has been quite a public shaming. TRAI's parent statute gives it the power to make regulations on certain issues, while on others it can only make non-binding recommendations to the central government. Whichever course of action it follows, TRAI would be well advised to tread carefully, because it's on very thin ice as far as its public image is concerned!

But things became really interesting (at least to those of us who follow Internet policy developments in India!) when, even before TRAI's public consultation process had concluded, the Minister for Communications and IT announced the formation of a panel within the central government's Department of Telecom, reportedly to "examine the issue" of net neutrality. The Minister confirmed that this panel would make recommendations on net neutrality "independently of TRAI" to the central government, effectively creating a parallel process. News reports indicate that the panel has now completed its report and sent it to the Minister (who, in turn, has reportedly sent a copy to TRAI), but the report isn't publicly available yet.

Also coming (fashionably late) to the party is a Parliamentary Standing Committee that has convened to discuss net neutrality, and has sought meetings behind closed doors with telcos to hear their side of the story.

So: one issue, three completely unrelated policy development processes. One each with the independent regulator, the executive branch, and the legislative branch. The TRAI process was open to participation by all stakeholders, while the other two processes have been closed, "by invitation only" affairs. The specific mandates of the three bodies on the issue are unclear (although TRAI's power is constrained by its parent statute) — it's not as if each body is working on a well-defined portion of the larger issue. While TRAI's ineptitude with the consultation paper may make this development seem not entirely unwelcome, the fact remains that the central government has basically thumbed its nose at the independent regulator. That this has come to pass has as much to do with TRAI's failings as with an underlying tendency towards reactive and ad hoc Internet policy-making in India.

The most obvious question now is, what happens if the three bodies' findings contradict each other? Parliament may have the final say in theory, but in practice, there's a good chance that any proposed net neutrality law tabled before it will come from the desk of a Department of Telecom draftsman. As between the Department of Telecom and TRAI, the latter is a specialized body that, despite having published a deeply flawed consultation paper, has conducted a transparent, open public consultation on the issue. Wouldn't TRAI's conclusions, even if they're non-binding recommendations, have more legitimacy than anything generated by the Department of Telecom's closed process? Then there are the larger issues of duplicated effort and wasted time associated with having three parallel processes — in short, it simply offends common sense!

For stakeholders (whether Internet companies, academics, civil society, or even telcos), this will make articulating their side of the story three times more difficult. For the government, it will open up the very real possibility that contradictory views, or a "turf war" between different government agencies, will stall action on the issue. For the general public, it will only erode faith in the government's ability and willingness to take action to protect their rights as consumers. So the various government agencies involved may have unwittingly created a no-win situation. As the saying goes, the road to hell is paved with good intentions!

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