Our Constitution provides protection against laws imposing criminal liability for actions committed prior to the enactment of the law. Article 20 (1) under the Part III (Fundamental Rights), reads: 20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Thus, the maximum penalty that can be imposed on an offender cannot exceed those specified by the laws at the time. In the context of the Bhopal Gas tragedy in 1984, the Indian Penal Code (IPC) was the only relevant law specifying criminal liability for such incidents. The CBI, acting on behalf of the victims, filed charges against the accused under section 304 of the IPC (See Note 1). Section 304 deals with punishment for culpable homicide and requires intention of causing death. By a judgment dated September 13, 1996, the Supreme Court held that there was no material to show that “any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being.” The Supreme Court thus directed that the charges be re-framed under section 304A of the IPC (See Note 2). Section 304A deals with causing death by negligence and prescribes a maximum punishment of two years along with a fine. Consequently, the criminal liability of the accused lay outlined by section 304A of the IPC and they were tried accordingly. Civil liability, on the other hand, was adjudged by the Courts and allocated to the victims by way of monetary compensation. Soon after the Bhopal Gas tragedy, the Government proposed and passed a series of laws regulating the environment, prescribing safeguards and specifying penalties. These laws, among other things, filled the legislative lacunae that existed at the time of the incident. Given the current provisions (See Note 3), a Bhopal like incident will be tried in the National Green Tribunal (once operationalized) and most likely, under the provisions of the the Environment (Protection) Act, 1986. The criminal liability provisions of the Act (See Note 4) prescribe a maximum penalty of five years along with a fine of one lakh rupees. Further, if an offence is committed by a company, every person directly in charge and responsible will be deemed guilty, unless he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such an offence.
The civil liability will continue to be adjudged by the Courts and in proportion to the extent of damage unless specified separately by an Act of Parliament.
Notes 1) IPC, Section 304. Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 2) IPC, Section 304A. Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 3) Major laws passed since 1984: 1986 - The Environment (Protection) Act authorized the central government to take measures to protect and improve environmental quality, set standards and inspect industrial units. It also laid down penalties for contravention of its provisions. 1991 - The Public Liability Insurance Act provided for public liability - insurance for the purpose of providing immediate relief to the persons affected by an accident while handling hazardous substances. 1997 - The National Environment Appellate Authority Act established to an appellate authority to hear appeals with respect to restriction of areas in which any industries, operations or processes are disallowed, subject to safeguards under the Environment (Protection) Act, 1986. 2009 - The National Green Tribunal Act, yet to be notified, provides for the establishment of a tribunal for expeditious disposal of cases relating to environmental protection and for giving relief and compensation for damages to persons and property. This Act also repeals the National Environment Appellate Authority Act, 1997. 4) Criminal liability provisions of the Environment Protection Act, 1986 Section 15. Penalty for contravention of the provisions of the Act (1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. (2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years. Section 16. Offences by Companies (1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
Yesterday, the Telecom and Regulatory Authority of India (TRAI) released the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016. These regulations prohibit Telecom Service Providers from charging different tariffs from consumers for accessing different services online. A lot of debate has taken place around network (net) neutrality in India, in the past few months. This blog post seeks to present an overview of the developments around net neutrality in India, and perspectives of various stakeholders. Who are the different stakeholders in the internet space? To understand the concept of net neutrality, it is important to note the four different kinds of stakeholders in the internet space that may be affected by the issue. They are: (i) the consumers of any internet service, (ii) the Telecom Service Providers (TSPs) or Internet Service Providers (ISPs), (iii) the over-the-top (OTT) service providers (those who provide internet access services such as websites and applications), and (iv) the government, who may regulate and define relationships between these players. TRAI is an independent regulator in the telecom sector, which mainly regulates TSPs and their licensing conditions, etc., What is net neutrality? The principle of net neutrality states that internet users should be able to access all content on the internet without being discriminated by TSPs. This means that (i) all websites or applications should be treated equally by TSPs, (ii) all applications should be allowed to be accessed at the same internet speed, and (iii) all applications should be accessible for the same cost. The 2016 regulations that TRAI has released largely deal with the third aspect of net neutrality, relating to cost. What are OTT services? OTT services and applications are basically online content. These are accessible over the internet and made available on the network offered by TSPs. OTT providers may be hosted by TSPs or ISPs such as Bharti Airtel, Vodafone, Idea, VSNL (government provided), etc. They offer internet access services such as Skype, Viber, WhatsApp, Facebook, Google and so on. Therefore, OTT services can broadly be of three types: (i) e-commerce, (ii) video or music streaming and, (iii) voice over internet telephony/protocol services (or VoIP communication services that allow calls and messages). Prior to the recent TRAI regulations prohibiting discriminatory tariffs, there was no specific law or regulation directly concerning the services provided by OTT service providers. How is net neutrality regulated? Until now, net neutrality has not directly been regulated in India by any law or policy framework. Over the last year, there have been some developments with respect to the formulation of a net neutrality policy. TRAI had invited comments on consultation papers on Differential Pricing for Data Services as well as Regulatory Framework for Over-The-Top Services (OTT).[i],[ii] A Committee set up by the Department of Telecommunications (DoT) had also examined the issue of net neutrality.[iii] Internationally, countries like the USA, Japan, Brazil, Chile, Norway, etc. have some form of law, order or regulatory framework in place that affects net neutrality. The US Federal Communications Commission (telecom regulator in the USA) released new internet rules in March 2015, which mainly disallow: (i) blocking, (ii) throttling or slowing down, and (iii) paid prioritisation of certain applications over others.[iv] While the UK does not allow blocking or throttling of OTT services, it allows price discrimination. What do TRAI’s 2016 Regulations say? 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.[v] It may be noted that, in 2006 and 2008, TRAI had suggested that the internet sector remain unregulated and non-discriminatory (net neutral).[vi][vii] What are some of the key issues and perspectives of various stakeholders on net neutrality? TSPs and ISPs: TSPs invest in network infrastructure and acquire spectrum, without getting a share in the revenue of the OTT service providers. Some have argued that the investment by TSPs in internet infrastructure or penetration levels would diminish if they are not permitted to practice differential pricing, due to a lack of incentive. Another contention of the TSPs is that certain websites or applications require higher bandwidth than others. For example, websites that stream video content utilise much more bandwidth than smaller messaging applications, for which the TSPs need to build and upgrade network infrastructure. The Committee set up by DoT had recommended that the TSPs may need to better manage online traffic so that there is better quality of service for consumers and no network congestion. Further, the Committee also said that in case of local and national calls, TSP (regular calling) and OTT communication services (calls made over the internet) may be treated similarly for regulatory purposes. However, in case of international VoIP calling services and other OTT services, it did not recommend such regulatory oversight. Consumers and/or OTT service providers: The Committee set up by the DoT said that the core principles of net neutrality (equal treatment and equality in speed and cost) should be adhered to. It also said that OTT services (online content) enhance consumer welfare and increase productivity in many areas. These services should be actively encouraged. In the absence of neutrality, the internet may be fragmented and not as easily accessible to those who are unable to pay for certain services. It has been said that discrimination of internet content by TSPs could be detrimental to innovation as the bigger market players would be able to pay their way out of being throttled. This could potentially result in TSPs restricting consumers’ access to small-scale, but innovative or qualitative OTT services (restricting growth and innovation for start-ups too). Now that regulations regarding price discrimination are in force, we do not know whether TRAI or the government will enforce rules regarding other aspects of net neutrality. Also, the extent to which these regulations would affect the business of TSPs and OTT service providers remains to be seen. [i] “Consultation Paper on Differential Pricing for Data Services”, the Telecom Regulatory Authority of India, December 9, 2015, http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/CP-Differential-Pricing-09122015.pdf. [ii] “Consultation Paper on Regulatory Framework for Over-the-top (OTT) services”, TRAI, March 27, 2015, http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf. [iii] “Net Neutrality, DoT Committee Report”, Ministry of Communications and Information Technology, May 2015, http://www.dot.gov.in/sites/default/files/u10/Net_Neutrality_Committee_report%20%281%29.pdf. [iv] “In the Matter of Protecting and Promoting the Open Internet: Report and Order on Remand, Declaratory Ruling, and Order”, Federal Communications Commission USA, February 26, 2015, http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0403/FCC-15-24A1.pdf. [v] “Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016”, TRAI, February 8, 2016. [vi] “Consultation Paper on Review of Internet Services”, TRAI, December 2006, http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/consultation27dec06.pdf. [vii] “Recommendations on Issues related to Internet Telephony”, TRAI, August 18, 2008, http://www.trai.gov.in/WriteReadData/Recommendation/Documents/recom18aug08.pdf.
