APPELLANT SIDES

1ST SPEAKER- May it please this Hon’ble Court, this is counsel __ appearing along with my
co-counsels ___, __ and ____ on behalf of the appellant in the case concerning RIGHT TO
FREE NET v. UNION OF GONDOLIN & ANR. If the hon’ble Court is well versed with the
facts of the case, the counsel would like to move on to the contentions.
It is contended that the public interest litigation is maintainable. A PIL can be filed against the
State for the violation of Fundamental rights under Article 32 of the Constitution; therefore, the
PIL is maintainable against Union of Rambo. Further, to constitute a private party as being state,
the same must fall within the ambit of other authorities u/a 12 and thus must satisfy the court that
it is either an instrumentality or an agency of the State. In order to adjudge the same, the
functions of the corporation must be of public importance, and closely related to governmental
functions.

In Zee Telefilms Ltd. v. Union of India, Justice S.B. Sinha said that the expression ‘authority’ must be
given a liberal interpretation. The concept that all public sector undertakings incorporated under the
Companies Act or the Societies Registration Act or any other act for answering the description of State
has in the past three decades undergone a sea change. The thrust now is on the composition of the
body and the functions performed by it. Thus in this case, the company itself is the highest dominating
internet service providers having the major shares in the market and thus, this court is under full
authority to take charge of the same and thus, take consideration of this public interest litigation.

Hence, Fundamental rights can be enforced against a company discharging public function.
Consequently, even private educational institutions are required to abide by the norms of fairness
articulated by Article 14, even though they may not, as a matter of constitutional law, be held in
violation of the Article 14 that is found in the constitutional text. Therefore, in certain cases, it is
possible to subject private entities performing public functions to constitutional norms without
bringing them under Article 12’s definition of the State, and without the need for an enacted
statute, or a set of regulations. The Kerala High Court has recently stated that right to internet is a
fundamental right in Faheema Shirin RK Vs State of Kerala and others in WP (C) No. 19716 of
2019 and thus here it is infringement of right.

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Now I would like to call upon counsel ___ for other contention.

Much obliged your lordship.

2ND SPEAKER- May it please this Hon’ble Court, this is counsel, ___ contending on the issue

It is submitted before the Hon’ble Supreme Court that the agreements that are not net neutral
violates the fundamental rights guaranteed under Article 19 and 21 of the Constitution of
Gondolin. The idea that all Internet traffic should be treated equally is known as network
neutrality. In other words, no matter who uploads or downloads data, or what kind of data is
involved, networks should treat all of those packets in the same manner.

The latest TRAI regulations state that:

(i) no service provider is allowed to enter into any agreement or contract that would result in
discriminatory tariffs being charged to a consumer on the basis of content (data services),

(ii) such tariffs will only be permitted in closed electronic communications networks, which are
networks where data is neither received nor transmitted over the internet,

(iii) a service provider may reduce tariff for accessing or providing emergency services,

(iv) in case of contravention of these regulations, the service provider may have to pay Rs 50,000
per day of contravention, subject to a maximum of Rs 50 lakh, etc. It may be noted that, in 2006
and 2008, TRAI had suggested that the internet sector remain unregulated and non-
discriminatory (net neutral)

Violation of Artilce 19 (1) (g)- It is submitted that when a particular telecom operator gives free
access, all the other operators would suffer and their right to trade, business and occupation will
be infringed.
Further, there is Abuse of Dominant Position also. It is most respectfully submitted that the
respondent company was clearly in a dominant position being an internet provider. Its actions
had direct consequences on other networks other than Ignorkut and its services and they have

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misused that position by affecting the services of the petitioner herein. section 4 of the
Competition Act, 2002 deals with abuse of dominant position by an enterprise. The concept of
abuse of dominant position of market power refers to anti-competitive business practices in
which the dominant firm may engage in- order to maintain or increase its position in market.

Much obliged your lordship.

3rd SPEAKER It is further humbly submitted that right under article 21 has also been violated
by the said company that abuses its power of dominance over the internet service providers.

Net Neutrality means an Internet that enables and protects free speech. It means that Internet
service providers should provide us with open networks and should not block or discriminate
against any applications or content that ride over those networks. 1Under this principle,
consumers can make their own choices about what applications and services to use and are free
to decide what lawful content they want to access, create, or share with others. This openness
promotes competition and enables investment and innovation. Just as your phone company
cannot decide who you could call and what you say on that call, your ISP should not be
concerned with what content you view or post online. Hence, they are violating right to privacy.
Without Net Neutrality, ISPs will be able to devise new schemes to charge users more for access
and services, making it harder for us, the consumers to communicate online and easier for
companies to censor our speech. Without Net Neutrality, ISPs will be able to block content and
speech they don’t like, reject apps that compete with their own offerings, and prioritize Web
traffic by reserving the fastest loading speeds for the highest bidders and sticking everyone else
with the slowest.
Hence, it is submitted that Right to privacy which is inferred right as per Article 21 is also
violated here.

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4th SPEAKER- Your lordship, the counsel is here to deal with the contentions that that the
agreement between DSM and Ignorkut is invalid and arbitrary as this agreement violates the
principles of Net Neutrality. The agreements stated that if the users on the network of DSM
accessed a list of websites using the mobile application of Ignorkut they would be able to access
those websites for free and at a speed faster than the competitors of DSM can access them. The
users of DSM would not need to pay any fee to download the app, use it and access the websites
that Ignorkut and DSM agree on mutually. The Agreement between DSM and Ignorkut will
destroy the competitors of Ignorkut as users will not see the need to pay for the internet and in
this way, the internet consumers will be compelled to take up only DSM services. The
Appellants submit that the agreement between DSM and Ignorkut enter into anti-competitive
agreement, and indulged in behavior that may be adduced to be anti-competitive in nature. The
conduct of the respondent assumed to have an appreciable adverse effect on competition as there
was violation of Section 3(3) of the Competition Act, 2002 on their part. It is most respectfully
submitted that the respondent company was clearly in a dominant position being an internet
provider. Its actions had direct consequences on other networks other than Ignorkut and its
services and they have misused that position by affecting the services of the petitioner herein.
Sec 4 of the Competition Act, 2002 deals with abuse of dominant position by an enterprise. The
concept of abuse of dominant position of market power refers to anti-competitive business
practices in which the dominant firm may engage in- order to maintain or increase its position in
market. Hence the agreement being a cartel agreement under competition act and thus is not
valid.

In the light of the issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may be pleased to adjudge and declare the writ to be maintainable, That

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the agreements that are not net neutral violate the fundamental rights guaranteed by article 19
and 21 of the constitution of Gondolin, That the agreement between dsm and ignorkut is invalid.

Also, the Court may pass any order, writ, direction that it deem fit in the interest of justice,
equity and good faith. Thank you, your lordship.

RESPONDENT SIDE

1ST SPEAKER- May it please this Hon’ble Court, this is counsel __ appearing along with my
co-counsels ___, __ and ____ on behalf of the respondent in the case concerning RIGHT TO
FREE NET v. UNION OF GONDOLIN & ANR. If the hon’ble Court is well versed with the
facts of the case, the counsel would like to move on to the contentions.

Net neutrality law is still not in force in India as a whole, and hence, no right has been violated
thus leading to no writ. Mechanisms for establishing rules ensuring Net neutrality in India, are at
present mainly enforced by the Telecom Regulatory Authority of India(TRAI). At present, there
are no constitutional provisions for establishing Net Neutrality by any legislative or judicial body

Where there are no constitutional provisions there is writ maintainable.

Also, the abuse of PIL has become more rampant than its use and genuine causes either receded
to the background or began to be viewed with the suspicion generated by spurious causes mooted
by privately motivated interests in the disguise of the so-called public interests.
Steps necessary: With the view to regulate the abuse of PIL the apex court itself has framed
certain guidelines (to govern the management and disposal of PILs.) The court must be careful to
see that the petitioner who approaches it is acting bona fide and not for personal gain, private
profit or political or other oblique considerations. The court should not allow its process to be
abused by politicians and others to delay legitimate administrative action or to gain political
objectives. Political pressure groups who could not achieve their aims through the administrative
process or political process may try to use the courts (through the means of PILs) to further their
closely vested aims and interests

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There may be cases where the PIL may affect the right of persons not before the court, and
therefore in shaping the relief the court must invariably take into account its impact on those
interests and the court must exercise greatest caution and adopt procedure ensuring sufficient
notice to all interests likely to be affected.

2ND SPEAKER- May it please this Hon’ble Court, this is counsel, ___ contending on the issue
that not having net neutrality would infringe article 19 and 21 of the constitution. The counsel
would like to point out a hypothetical situation if net neutrality is allowed.

It is contented that if net neutrality is allowed then there might a lot of problems such as:

Less network innovation- The rise of bandwidth-heavy web services like video streaming and
content downloads means internet service providers have less money to spend on upgrading their
networks.

Porn and objectionable content thrives- Some opponents of net neutrality lament how easily
accessible legal but age-sensitive content like pornography is. While there are plenty of security
vendors who allow families to restrict the sites available on a family computer, more children
have smartphones and connected devices with which they can get online without adult
supervision. Also, Offensive, dangerous, and illegal content is accessible to everyone and
difficult to remove. Removing net neutrality makes it easier for Internet service providers to
filter dangerous content, although this is a small step from censorship.

Hence there will be no check.

In India the cyber cases plays an important role wherein a lot of cases are being filed day to day
basis. And upon this if we allow net neutrality it would act as a licence to the online criminals.

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Also, hence it would come under the exception of article 19 as in welfare of public order and
reasonable restrictions.

And in article 21 also, the phase says, no one shall be deprived of their right to life and liberty
except for the procedure established by law. The restriction would very well come under the
“procedure established by law”

3RD SPEAKER- Your lordship, the counsel is here to deal with the contentions that’s the
agreement between DSM and ignorkut is valid and that the DSM did not misuse its dominance.

Economic laws such as the competition law should keep pace with changing economies and
business realities
“The primary purpose of competition law is to remedy some of those situations where the
activities of one firm or two lead to the breakdown of the free market system”. “Economic
model” is the model for perfect competition and the very objective of the Act is to promote
economic efficiency and prevent anti-competitive practices “keeping in view the economic
development of the country”. The fundamental objective of competition law which to promote
competition and the legislative intent that two wrongs cannot make a right and in this case it is
contended that the economy of the country is such that competition changes from time to time
and its only a business tactics at the part of DSM.
The DSM has allowed users to surf internet at the fast pace when loging in to ignorkut and hence
it is contended that it is not a cartel agreement rather it is an agreement of valid nature because
DSM has personal business space which could not be infringed by any entity.
Thus, it is contended that in the present case the company cannot be said to have abused its
alleged dominant position as it entered into the contracts with different banks as a business
policy decision and did not cause any harm to the consumers.

In the light of the issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may be pleased to adjudge and declare the writ to be not maintainable,.
That the agreements that are not net neutral does not violate the fundamental rights guaranteed

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by article 19 and 21 of the constitution of Gondolin, That the agreement between dsm and
ignorkut is valid.

Also, the Court may pass any order, writ, direction that it deem fit in the interest of justice,
equity and good faith. Thank you, your lordship.