This article is written by Shourya Bari, a student of Jindal Global Law School.

The Indian Constitution provides for enforcement of Fundamental Rights in the Supreme Court of India under Article 32.[1] Fundamental Rights can be enforced only against a state, as defined in Article 12[2] of the Constitution. Article 12 concludes the list of authorities falling within the definition of state referring to the phrase ‘other authorities’ within the territory of India or under the control of the government of India. The Indian judiciary for the last five decades has strived towards laying down the ambit of the phrase ‘other authorities’ through extensive interpretation.

Until Rajasthan State Electricity Board, Jaipur v. Mohan Lal[3] was decided, several High Courts were of the opinion that since in Article 12 ‘other authorities’ is mentioned after specifying all other authorities which would be a state, namely the Government and Parliament of India, the government and the legislature of each states, and all local authorities; it would be reasonable to construe the expression ‘other authorities’ ejusdem generis with government or legislature.[4] Following such construction, ‘other authorities’ would only include such bodies functioning on or behalf of the union or state governments. The Supreme Court in the Rajasthan case rejected this restricted interpretation, and held that the doctrine of ejusdem generis is inapplicable to the interpretation of ‘other authorities’. The court said that there was no distinct genus or category running through the bodies already named, and those bodies could not be placed in one single category on any rational basis. The Supreme Court in its maiden expansion of the scope of Article 12 included all authorities created by the constitution or statute on which powers are conferred by law.

In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi[5], the Supreme Court decided the question whether statutory corporations came within the definition of state. The court held statutory corporations to be a state under Article 12. The Supreme Court noted that the kind of function performed by the body was a crucial factor to determine whether it was a state.     

R.D Shetty v. International Airport Authority of India[6] and Ajay Hasia v. Khalid Mujib[7] laid down certain factors to ascertain whether a body was a state. One such factor was whether the functions of the corporation are of public importance and closely related to government functions. The Supreme Court’s emphasis on the function approach is evident in Justice Bhagwati’s opinion, that the enquiry to decide whether a body is a state or not must not be how the juristic person was born, but why it was brought into existence.

As elucidated above, the Supreme Court starting with the Rajasthan case[8], in a series of judgments has expanded the scope of Article 12 through a purposive interpretation of the phrase ‘other authorities’. They have substantially relied on the ‘public function’ approach by examining the functions performed by an authority in question and the reason why it was brought into existence. However, the last decade has witnessed a restrictive approach to the interpretation of ‘other authorities’. In  Pradeep Kumar Biswas v. Union of India[9], a seven judge bench held that in order to declare a body to be a state, the state or union government must have deep and pervasive, financial, functional and administrative control in that body. Zee Telefilms v. Union of India[10] relied on this principle to declare that BCCI was not a state. The present restrictive approach revolves around a principle, which requires ample government control in a body to declare it to be a state; and excludes the legal reasoning which focuses on the nature of functions discharged by a body instead of the source of its ownership or control.

The adoption of such a restrictive approach based on government control is fundamentally problematic. A bare reading of the text of Article 12 does not say that ‘other authorities’ must necessarily be under the control of the government. The word or used in Article 12 is disjunctive and not conjunctive.[11] Therefore, the restrictive approach in Pradeep Kumar Biswas[12] almost amounts to a misinterpretation of Article 12.

However, this stands as the Indian jurisprudence and legal position on the interpretation of ‘other authorities’ in Article 12. In the backdrop of such a legal position, this post argues in favor of including private Internet Service Providers within the legal contours of ‘other authorities’. The arguments supporting such a contention will substantially rest on the ‘public function’ approach.

The first legal obstruction in applying the ‘public function’ test is the deviation of a seven judge bench in Pradeep Kumar Biswas[13] from such an approach. However, this particular precedent’s binding nature can be questioned while deciding the question, whether private Internet Service Providers are a state or not. Justice S. B Sinha, in his dissenting opinion in Zee Telefilms[14] notes that a decision is an authority for the questions of law determined by it; and such a question is determined having regard to the factual circumstances of the decision. Pradeep Kumar Biswas[15], only decided the question, whether the judgment in Sabhajit Tewary v. Union of India[16] was correctly rendered or not. Therefore, the facts of Pradeep Kumar Biswas[17] are completely different from the question the post seeks to answer and the decision is not absolutely binding. More importantly, the ‘public function’ approach finds support in several other Supreme Court judgments such as Sukhdev Singh[18], R. D. Shetty[19] and Ajay Hasia[20]. The apex court, among several other factors considered the functions performed by corporations to decide whether they were a state or not. The post takes considerable aid of the judicial reasoning in these judgments to support its contention.

The ‘public function’ approach has been adopted in international judicial decisions and legislations as well. In Marsh v. Alabama[21], the United States Supreme Court had held that, a corporation when privately performing a public function is held to the constitutional standards regarding civil rights and equal protection of the laws which apply to the state itself. Section 6 (3) (b) of the United Kingdom Human Rights Act, 1998[22] provides that an authority subject to human right obligations, includes any person whose functions are functions of a public nature. Accordingly, Fundamental Rights can be enforced against private corporations as well, provided they are discharging a public function.

The next important question the post seeks to answer is what constitutes public function and whether Internet Service Providers discharge a public function. The First argument in this post also encompasses a response to the question, why private Internet Service Providers should be brought within the ambit of Article 12 and Article 32 in the first place.

The right to freedom of speech and expression also includes the right to educate, the right to inform, and to entertain, and also the right to be educated, be informed, and be entertained.[23] This right is equally applicable in all forms of communication media, including the internet. Article 19 of the ICCPR[24] protects all forms of expression, and the means of their dissemination, including all forms of electronic and internet based modes of expression. Thus the fundamental right to freedom of speech and expression is guaranteed while communicating through the internet.[25]

Rule 3 of the Information Technology (Intermediaries’ Guidelines) Rules, 2011[26] equips the Internet Service Provider which is an intermediary, to censor content, before publication and once content has been publicly made available online. Internet Service Providers are so situated that they can block any content on the internet.[27] Thus, while discharging their functions private Internet Service Providers can regulate and restrict freedom of speech and expression on the internet, which is a guaranteed fundamental right available to the general public.[28]

In a globalized modern world, numerous trade ventures are undertaken in the internet. Such trading has led to the development of what is known as the ‘Internet Economy’.[29] India is also a major stakeholder of this economy. A citizen can utilize the service offered by an ISP, and exercise his fundamental right to freedom of trade. ISPs are so situated, that they can restrict access to lawful content on the internet[30], and if that content happens to be a part of an online trading system, they can effectively regulate a citizen’s fundamental right to practice any trade or profession.

Therefore, the phrase ‘other authorities’ should be liberally interpreted to include private Internet Service Providers within its ambit. This is necessary in order to prevent Internet Service Providers from violating fundamental rights.

In order to ascertain whether a private body is discharging a public function, two major conditions among others must be fulfilled. Firstly, when it regulates the right of a citizen contained in Article 19(1) (a)[31] of the constitution of India available to the general public. Secondly, when a private body regulates a profession or vocation of a citizen which is a fundamental right under Article 19 (1) (g), its functions are deemed to be public functions.[32]

As demonstrated, private Internet Service Providers regulate the fundamental right of a citizen to freedom of speech and expression and the fundamental right to freely practice any trade or profession. As per the principles furnished, any person which regulates or restricts fundamental rights of a citizen in the course of its functioning is discharging a public function and should be amenable to fundamental rights obligation.

In Edmonson v. Leesville Concrete Company[33], the United States Supreme Court had held that a private body while discharging a function traditionally and exclusively reserved to the state is discharging a public function and is subject to fundamental rights obligation.

Traditionally, the duty to provide internet service in India was vested exclusively in the hands of the government, owing to the monopoly of the government in the telecommunication sector[34]. The telecommunication sector was opened to the entry of private corporations only in November 1998. The private Internet Service Providers in India today discharge a function which was initially performed only by the government. Following the principle in the Edmonson case, it is further argued that private Internet Service Providers are discharging a public function and fundamental rights are enforceable against them.

The phrase ‘public functions’ has been debated previously in Indian jurisprudence. The phrase has been described to be imprecise and general in nature.[35] In order to interpret an imprecise and general term, this post adopts a rule suggested in YL v. Birmingham City Council[36]. The rule suggests a close scrutiny of policy documents of the government as a method of interpreting anything imprecise and general in the legal context.

The post closely examines the National Telecom Policy of 2012[37] and Broadband Policy of 2004[38]. In these policy documents, the government has recognized the potential of ubiquitous broadband service in societal applications such as tele-education, tele-medicine, e-governance, as well as generation of employment by way of high speed access to information and wed based communication. The government considers it necessary to install fibre optics technology, which provides unlimited bandwidth potential. Out of the 4.5 lakh km of optical fibre laid down in this country, only 1 lakh km is owned by private internet service providers and the rest is owned by government.[39] The spread of networks of private ISPs will play a crucial role in achieving the objective of the government, of bringing optical fibre to homes and rural areas. Private Internet Service Providers are expected to focus on it.

Internet service seeks to enhance welfare of the public. National Telecom Policy- 2012[40] recognizes the predominant role of private ISPs, in furthering the prerogative of the government of increasing affordable access to broadband services all over India.  The National Telecom Policy- 2012[41] recognizes broadband connectivity as a basic necessity and is working towards creation of a right to broadband.[42]

From a perusal of these major policy documents of the government, it is submitted that the function discharged by private Internet Service Providers is not merely commercial in nature. The functions performed have an aim of public welfare, through the growth of internet services across the country.  The government seeks to create a right to broadband for its citizens and private Internet Service Providers have a crucial role to play to achieve that end. The functions private Internet Service Providers are of immense public importance as it caters to a basic necessity and are means of accomplishing governmental objectives. Therefore, private Internet Service Providers discharge public functions.

A major factor considered by Indian courts to determine whether a body is a state or not is the degree of governmental control or regulation. According to Black’s Law Dictionary[43], the meaning of the word control includes regulation as well. Therefore, a high degree of government regulation would amount to exercise of government control.

Private Internet Service Providers are highly regulated by the government. It has to obtain a license under Section 4 of the Indian Telegraph Act[44] to even initiate its operation. The quality and nature of services offered by a private Internet Service Provider, including the minimum speed at which it is supposed to provide access to the internet is governed by The Telecom Regulatory Authority of India Act, 1997. [45]Section 6A of the Information Technology Act, 2000[46] bestows upon the government, an authority to issue orders to Internet Service Providers to upgrade their services and perform other functions in the interest of the public. The functions of private Internet Service Providers are extensively regulated in the light of public interest. Therefore, private Internet Service Providers fulfill the major condition of high government control required in Indian jurisprudence, to be declared a state.

Those against the argument made in this post may cite the Jatya Pal Singh v. Union of India[47] judgment to support their opposition. Jatya Pal Singh held that VSNL does not discharge any public functions and is not a state as per Article 12. However, the Jatya Pal Singh[48] judgment can be distinguished from the arguments made in this paper. The function of VSNL is restricted to with respect to making telephone calls abroad. The scope of functions of an Internet Service Provider is much wider than that of a telephone service provider. Therefore, the Jatya Pal Singh[49] case will not negate the arguments raised in this post.   

There is a presumption that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes which have occurred since the Act’s passing in law, social conditions and technology.[50] Internet Service Providers occupy a position of utmost importance today, effectively controlling every sphere of life. The framers of the constitution did not envisage such a drastic change in technology. However, courts today are required to accord an interpretation to the law in question, which will prevent abuse of fundamental freedoms by corporations which occupy a position by virtue of which they can violate fundamental rights.

Internet Service Providers are an unique example of such a corporation. They discharge public functions which were exclusively reserved to the state initially, cater to a basic necessity as per government policy, regulate fundamental rights, and are highly regulated by the government. Therefore, the courts should recognize these extra ordinary features of an Internet Service Provider, liberally interpret the phrase ‘other authorities’ and include private ISPs within its ambit.

[1] The Constitution of India.

[2] Ibid.

[3] A.I.R 1967 SC 1857.

[4] University of Madras v. Shantha Bai, A.I.R 1954 Mad 67.

[5] (1975) 1 S.C.C. 421.

[6] (1979) 3 S.C.C. 489.

[7] (1981) 1 S.C.C. 722.

[8] Supra note 3.

[9] (2002) 5 S.C.C. 111.

[10] (2005) 4 S.C.C. 649.

[11] Ibid.

[12] Supra note 9.

[13] Supra note 9.

[14] Supra note 10.

[15] Supra note 9.

[16] (1975) 1 S.C.C. 485.

[17] Supra note 9.

[18] Supra note 5.

[19] Supra note 6.

[20] Supra note 7.

[21] 326 U.S. 501.

[22] United Kingdom Human Rights Act, 1998.

[23] Secretary, Ministry of Broadcasting and Information, Government of India and Ors. v. Cricket Association of Bengal and Ors., (1995) 1 S.C.R. 1036.

[24] International Covenant on Civil and Political Rights, 1966.

[25] Ajay Goswami v. Union of India, (1998) 1 S.C.C. 226.

[26] Information Technology (Intermediaries’ Guidelines) Rules, 2011.

[27] R.K Productions v. BSNL, (2012) 5 L.W. 626.

[28] Supra note 25.

[29] Broadband and the Economy, Ministerial Background Report, 8-9 May 2007.

[30] Beyond Denial: Introducing Next Generation Information Access Controls, 4-7, 2010.

[31] Supra note 1.

[32] Supra note 10, See Also: Daniel Lee v. Vera Katz, 276 F. 3d 550.

[33] 500 U.S. 614.

[34] National Telecom Policy 2012.

[35] Black Diamond Beverages and Anr. v. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta and Others, A.I.R. 1997 SC 3550.

[36] (2007) U.K.H.L. 27.

[37] Supra note 34.

[38] Broadband Policy of 2004.

[39] Ibid.

[40] Supra note 34.

[41] Ibid.

[42] Supra note 34.

[43] Black’s Law Dictionary, 9^th Ed, 2013.

[44] Indian Telegraph Act, 1885.

[45] Quality of Broadband Service Regulations, 2006, Telecom Regulatory Authority of India Act, 1997.

[46] Information Technology Act, 2000.

[47] (2013) 6 S.C.C. 452.

[48] Ibid.

[49] Id.

[50] Francis Bennion, Statutory Interpretation, pg – 762, 4^th Ed.