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Legal and Constitutional Implications of the Ban on 59 Chinese Apps.


Author By Riya Jariwala


Keywords- App-Ban order, Information Technology Act, Fundamental Rights, Right to Information, Intermediary Obligations, National Security, Data Privacy, Data Theft, Freedom of Speech, and Expression.


Abstract- The App-Ban order brought about by Chinese Aggression along the Line of Actual Control (LAC) is a precedent in itself and shall set rhetoric for the global community about India’s response to attempts at threatening its sovereignty and integrity. However, these measures shall be in consonance with the prevailing laws and preserve the sanctity of our constitution.

This article seeks to shed light upon the relevant legal provisions and the constitutional challenges posed owing to this order.


Introduction:

On June 29th, 2020, the Ministry of Electronics and Information Technology of the Government Of India announced a ban on access to 59 Chinese Applications including apps like Tiktok, Shareit, Camscanner, Shein, Wechat which had mustered popularity amongst Indian masses in the recent years. While this may be intended as a retaliatory step towards making India self-reliant in the aftermath of Chinese Aggression in border areas and strained relations between the two countries, the move is a clear departure from an inclusive, border-less, trans-national way of life attained after the Financial reforms of 1991.


Relevant Provisions and Procedural Safeguards:

The Ministry passed this order under Section 69A of the Information Technology Act, 2000 (hereinafter, The IT Act) which grants power to the Central Government for blocking access to the public of information of this nature (for instance, a website or an application), “in the interest of sovereignty and integrity of India, defence of India, the security of the State, friendly relations with foreign states or public order.” In its press release following the App-ban, reasons for security, safety, defence and integrity of India were cited by the Ministry. The press release elaborated its concerns that complaints were received from several users that the apps were a façade for “stealing and surreptitiously transmitting users’ data in an unauthorized manner to servers which had locations outside India[1].

The procedure for exercising the powers under Section 69A of the IT Actis prescribed in the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009 (hereinafter, The IT Rules). Compliance with these procedural safeguards is mandatory and not discretionary.[2]

Under these rules, the Central Government may block access to websites or applications after giving the stakeholders a hearing. However, the Secretary, Department of Information and Technology is empowered to take interim measures to block access in the event of an emergency, without first giving a hearing to the stakeholders[3]. This order was issued as “a matter of immediate concern which requires emergency measures.” Therefore, it may be construed as an interim order passed as a matter of emergency and without giving stakeholders a hearing. In such cases, within 48 hours of the passing of the order, it shall be kept for consideration before the prescribed committee[4]. This committee summons the concerned stakeholders to solicit their responses. Upon recommendation by this Committee, a final order shall be passed[5].


Blocking Orders vis-à-vis Right to Information(RTI).

Owing to a strict confidentiality clause, any information about complaints received for blocking of websites and the manner in which they are dealt with are left outside the ambit of the Right to Information Act (RTI), 2005[6]. This has also been endorsed by the Department of Telecommunications (DoT)’s response to an RTI query whereby, it declined to produce any reasons for blocking popular Dutch File Sharing Website ‘Wetransfer.’


Constitutional Challenges:

The courts are empowered to pass orders for blocking of content on websites or applications. The Madras High Court through a PIL issued the direction of Mandamus for banning TikTok since it exposed children to pornographic and disturbing content[7] and withdrew it only after ensuring that TikTok set up adequate safety protocols. This is in lieu of the fact that service providers are obligated to follow ‘all due care’ and ensure that their network is not used for any illegal acts[8].

Many Indian students enrolled in Chinese universities rely on apps like WeChat to communicate with their administrations. Since these apps act as a platform for expression and allow for the dissemination of information under Article 19(1)(a) of our Constitution. In order for the freedom of speech and expression to be meaningful, the right must be inclusive and available to everyone; not just those having the requisite social capital to access applications with relatively complex and inaccessible user interfaces. Therefore, in this context, freedom to express should include the manner in or platform on which people express themselves, especially considering the low level of digital literacy in our country.

Further, the freedom of trade or business of enterprising Indian citizens and creative professionals is likely to be impeded by this ban even if not this freedom is not available to Chinese app developers (presumably non-citizens).

The right under Article 14 is available to citizens and non-citizens. Chinese companies may raise concerns of dissimilar treatment with apps developed in other jurisdictions which also bear similar inconsistencies Inter Alia privacy concerns. Therefore, a constitutional challenge to this app-ban order is likely on aforesaid grounds.

Any controversy on the power of the Central Government to pass such order under Section 69A of the IT Act has already been put at rest in the case of Shreya Singhal v. Union of India[9] the constitutionality of Section 69A was probed on grounds of:

1. Lack of a pre-decisional hearing to the stakeholders,

2. Violation of the Fundamental Right of Free Speech and Expression,

3. ‘Strict confidentiality’ clause in violation of Right to Information.

The Apex Court held that it was a narrowly drawn provision with several procedural safeguards. The Constitutional validity of the IT Rules was also upheld. The Supreme Court elaborated that-

“Firstly, blocking of access could be resorted to only by the Central Government if it was satisfied that it was necessary to do so. Secondly, such necessity was relatable to only a few subjects as also set out in Article 19(2) of the Constitution. Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution


Conclusion:

The concern for national security and data privacy are paramount in this day and age where data is oil. However, these grounds of ‘National Security’ shall not be used overzealously by Government as a means to curb freedom of Speech and Expression.

Furthermore, since these bans affect a large section of our population, institutional mechanisms must be placed to facilitate public consultations since these bans impede their Fundamental Right to receive information. The economic impacts posed on the freedom of trade and profession as well as the very Right to Life and Livelihood for many entrepreneurs and creative professionals ought not to be overlooked.

The final determination of this interim order would gain public attention and stand precedent to like situations in the future.

While blocking orders act as a band-aid for the prevention of data theft and data misuse, a robust data privacy law is the key to these concerns.


[1]https://pib.gov.in/PressReleseDetailm.aspx?PRID=1635206 [2] Section 69A(2), The IT Act. [3]Rule 9, The IT Rules. [4] Rule 7, The IT Rules. [5]Rule 9 (4), The IT Rules. [6]Rule 16, The IT Rules. [7]https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2019/07/Muthukan-v-Byte-dance-madras-high-court-24042019-Copy.pdf [8]Section 79, The IT Act [9]https://indiankanoon.org/doc/110813550/

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