The recent ban on 59 Chinese apps, amid on border stand-off tension with China is in a considerate opinion inconsistent with the already existing procedure provided under the Information and Technology Act, 2000 (“Act”) and with the constitutional scheme of the country. It can be argued that such a ban is also violative of the fundamental rights, with Article 19(1) which guarantees the freedom of speech and expression being at the pinhole.
This unprecedented decision of the government is purportedly aimed at safeguarding the integrity and sovereignty of the nation in light of the border situation with the Chinese army which resulted in the martyring of 20 soldiers.
Various complaints of data theft and fraudulent transfer of users’ personal data by these apps through unwarranted means to the servers situated outside India are recorded as the primary reason behind the ban in the press release by the Ministry of Information and Technology through the Press Information Bureau. The press release further mentioned that these apps were “prejudicial to the sovereignty and integrity of India, defence of India, the security of the state and public order”.
This article focuses on unravelling the legal standing of the ban, and the impact it will have on different subjects of society.
Under the directions of Section 69-A of the Act, the government is empowered to block the public access of any information being transmitted, stored, or hosted if it is necessary or expedient in the interest of sovereignty and integrity of the nation and its defence. The statute mandates that reasons ought to be recorded. However, the reasons mentioned in the press release were superficial and lacked material particular in support of the same without which it would be regarded as arbitrary and in violation of principles of natural justice. Even the Supreme Court in the Anuradha Bhasin’s case, in the context of internet suspension, mandated the publication of such orders for the purpose of analysing and judging its reason and rationale. The power given under Section 69-A is also in reference to Article 19(2), stating reasonable restrictions on the right to the freedom of speech and expression.
A combined and harmonious reading of the said provision with the Information and Technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009 (“Rules”), speaks of the procedure for blocking the access of any online information by the government.
Rules 7 and 8 state the procedure for blocking any information in general or non-emergent circumstances, whereas Rule 9 directs the procedure to be followed in the case of an emergency.
The government has presumably invoked its power prescribed under Rule 9 of the notification, considering the language mentioned in the press release saying, “emergent nature of threats” and “a matter of very deep and immediate concern which requires emergency measures”.
A bare perusal of Rule 9 signifies that the said rule must only be invoked when on the satisfaction of the Secretary, there exist emergent conditions for which “no delay is acceptable”. Only such conditions shall empower the government to take immediate action, thereby making the procedure short to satisfy the need of the time.
Further, if the designated officer deems fit, s/he may transfer the request to the Secretary, Department of Information Technology, who is satisfied with its reasonability and justification, may issue interim directions to block access without providing a chance to be heard. Even though the Rules confer the power to block the information without affording an opportunity of hearing but the emergency should be such that it is considered to be fatal.[i] In the case of Liberty Oil Mills, an interim abeyance order was passed banning the import and licenses through a single notification without an opportunity of hearing. The Court expressed that natural justice is quintessential in every decision-making process, and “it may be that the opportunity to be heard may not be pre-decisional; it may necessarily have to be post-decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay”.
In the present case, though it will be a post decisional hearing, which is the scheme provided under the Rules only for an emergency. The order should highlight the reasons as to why the opportunity of hearing was dispensed with, and justify the emergency conditions which warrant passing of such an order.
During these difficult times of pandemic, where the whole world is struggling for sustenance, and to safeguard human lives, the thought of shifting the focus at protecting the integrity and security of nation through the means of banning apps seems to be a frivolous step aimed to satisfy the political vendetta guise as a measure to protect the security.
It is also a requirement under Rule 9 to present the interim order before the committee within 48 hours, however, ratification of the said interim order from the committee is still pending. No final order in furtherance to the existing order has been passed by the government to date, which very well goes against the foremost purpose of Rule 9, signifying the “emergent nature, to which no delay is acceptable”. It is still uncertain whether any committee was formed as mentioned under Rule 9. Such delay on the part of the government strengthen the argument; whether this was a protective measure or just a political gimmick motivated by political interests rather than national interest.
The intrusive act of any country should not be the sole ground to block any business generating apps associated with that country, unless a nexus could be drawn, between the nature of information being transmitted by such apps, with the nation’s security and sovereignty. Therefore, it won’t be incorrect to say that the order imposing the ban is unreasoned and acting prejudicially to the users and the companies owning it while at the same time pushing it under the lenses of judicial review.
Taking in the record the lack of transparency and absurd statements made in the press release, it is very uncertain to examine whether they complied with the procedures mentioned under the Act and the Rules, or not. Such abrupt orders lack clarity and veracity, while adversely affecting international relations. The serious concerns raised by the government relying on the complaints obtained through various sources are still obscure. This preposterous reasoning put forth by the government, does not provide a clear picture of the procedures being followed while imposing the ban.
The ban suggests of its incongruency with the fundamental rights (Article 14, 19(a), 19(f), and 21) of the users of the concerned apps and the parent companies who own them.
Considering Article 14, Equality before the law; the government in its order selectively banned only 59 apps of all the existing apps, providing no intelligible reasoning to such differential treatment. The order lacked transparency, and failed to provide the reasons why only these 59 apps, imposed a potential threat to the nation’s security and not the other existing foreign or Chinese apps?
Likewise, the ban impacts the freedom of speech and expression (Article 19(a)), as the ban on these apps, taking away the platforms of the people who used these platforms to voice their opinions or showcase their creativity and talent. It also restrained the access to information and acted as a hurdle, limiting and influencing their choices.
Such influence or infringement with the fundamental rights of the citizens is unconstitutional, as no decision, law, or policy of the government can be in contravention of the fundamental rights. Tiktok, CamScanner, and many other Chinese apps that were banned hold huge market share, generating employment in the country and revenue for the Government by way of tax and investments. Shein another one of 59 banned Chinese apps, is an online shopping platform owning a vast market share in the country.
Such an immediate, vague, and unclear order imposing the ban puts them and their users hanging, as they require sufficient time to suspend their due/ongoing operations. The government overlooked or failed to realize this problem. These problems could have been avoided if, these apps were notified before and were provided with a notice period for the suspension of their operations.
People made showcasing their talent/creativity on these platforms provided by the apps. Such destitution from their existing means is acting against their right to work of their choice. It is also violating the rights of the employees working for the concerned apps, as they are expropriated of their employment without any justifiable reasons in these difficult times of the pandemic.
Lastly, forcefully depriving people of their profession or taking away their source of livelihood is in derogation with their right to life as under Article 21. The government failed to take into consideration, the plight and misery of the people being dependent on these apps for their livelihood and sustenance. There have been various cases of suicide by users of the Tiktok app, who earned their livelihood by making and uploading videos on its platform. The ban caused huge despair amongst the users and people associated with these apps, which is a matter of deep concern and should not be overlooked.
It is to be noted that the Supreme Court in Anuradha Bhasin asserted that, an executive action that has a far-reaching consequence on rights must be the least restrictive measure, otherwise it would not pass the test of proportionality. The same principle was reiterated in Foundation for Media Professionals, with the Court striking a balance between national security and fundamental rights.
The government portraying its benevolence, highlighted the privacy concerns raised by the users of these apps and alleged them for stealing data and surreptitiously transferring it to servers located outside India.
However, it’s not the first time, the privacy concern has been raised. The fight for privacy has been prevalent in the country for a long time now, to which the government paid no heeds and turned deaf ears for years. Such a benevolent act on the part of the government is contrary to its previous attitudes regarding the privacy as the idea that says, the state and corporations should and are allowed to have primary rights over the citizen’s data, was vividly clear in the Draft E-Commerce Policy 2019, which regard data as a “national asset” and “societal commons”.
The Indian Economic Survey 2018-19 mentions, “care must also be taken to not impose the elite’s preference of privacy on the poor, who care for a better quality of living the most”. This significantly attributes the inconsiderate attitude of the government towards the privacy concerns of its citizens. The recent case of the AarogyaSetu app for COVID-19 also signifies the hypocrisy of the government where despite various complaints raised regarding the infringement of the user’s privacy the government took no measure against it.
The arbitrariness on the part of the government can be seen as a weapon or tool in the hand of the powerful ones using it against the vulnerable to satisfy their political interests. The lethargic attitude of the government in dealing with the current “emergent threat” makes us question their true motive behind such an intrusive act.
While the government may applaud its decision thereby creating an environment for localization, the practicality and the expected success of this are still doubtful. During these difficult times, when the country’s economic conditions plummet, such actions will discourage foreign investment from China, which is the leading player in the world market. This might also affect the propensity of other countries to venture and invest in India. The order should have considered the rights of international investors, as it might affect foreign investment in the future. Some of these apps have cemented a very wide and deep-rooted user base, that the ban would leave the users with low or no substitutes.
National safety should be the topmost priority and shouldn’t be compromised and all required measures should be taken to protect its integrity. But the government should have envisioned the potential harm produced by these apps, under the guidelines mentioned in Section 69-A of the Act. They should have analysed the threat imposed by each app individually, rather than treating them under the same blanket. The government’s measure discriminatorily aims at certain Chinese apps on ambiguous and far-fetched grounds, runs against transparent and fair procedure requirements, abuses national security exceptions.
It would be interesting to see how the government justifies its order imposing this ban when it will send its final order after the approval of the committee as per the requirements under the law.
In the wake of growing digitalization and dependency on technology and digital platform/data, the effective way to contain data delocalization, improve data security and privacy is by formulating a National Digitalisation Policy concerning the whole digital sector of the country.
[i] Shreya Singhal vs Union of India, (2013) 12 S.C.C 73 (India).
This article is written by Rajnandini Singh Shaktawat who is a student at Nirma University, Ahmedabad.
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