Is it Constitutional?- Legal Implications Of the Ban On Chinese Apps

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On 29th June 2020, the Central Government banned 59 Chinese applications. This included popular apps like TikTok, Shareit and UC Browser. This decision came at a time when there are Anti-China sentiments amongst the Indians. The reason for this is the ongoing conflict between the countries at Ladakh Border.

The authorities claimed that these threaten the sovereignty and security of the country. Also, they act as prejudicial to the integrity of the nation. The authorities cited several privacy concerns. The major being the leaking of the data to servers outside India in an unauthorized manner. The Ministry received complaints from citizens with regard to the security of data. There were also cases of breach of privacy from many apps.

Chinese apps have always been in controversies for the breach of data privacy. This is not the first time that these applications have come under scrutiny. In 2017, UC Browser was accused of leaking the information of Indian users. Also, the Defence Ministry directed its officers to uninstall certain apps. They classified it as “spyware”.

Holding the sovereignty of Indian cyberspace at utmost priority, the Government banned the applications.

The Legal Authority 

The Central Government has imposed the ban. They have this power under Section 69A of the Information Technology Act, 2000. It says that the Government can block access to certain information from the public. It must be necessary for the interest of sovereignty and integrity of the nation. This provision is read with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.

Rules 5-8 provides the procedure that they must follow to put in place the said blocking. A Designated Officer may block the public access upon a request from a Nodal Officer. Also, they must constitute a committee to examine the request. Moreover, the Officer must serve a notice to the intermediary to seek clarifications. Furthermore, they need the approval of the Secretary of the Department of IT.

Press Release 

Through the press release, it seems like they did not follow the procedure. This makes Rule 9 the most significant provision in the current circumstance. The Officer may directly refer the request to the Secretary in emergency cases. This is applicable only when no delay is acceptable.

Through the content of the press release, it is quite evident that the Government has relied on Rule 9. It describes it as “a matter of immediate concern which requires emergency measures”. This is also the reason why the companies were not asked for clarifications before the ban.

The said procedure is not only directory in nature. Section 69A(3) of the Act provides imprisonment on failure to comply. The intermediary shall be punished with imprisonment for a term which may extend to seven years. Section 76 says that they can confiscate any accessories which violate the ban.

The Provisions does give immense power at the hands of the Government. But, the Supreme Court declared Section 69A and the Rules to be constitutionally valid in the case of Shreya Singhal v. Union of India, (2015) 5 SCC 1. Thus, the ban on the applications by the Central Government is legal and valid.

The Constitutional Aspects

A constitutional aspect to the current ban lies with Article 19(2) of the Indian Constitution. The State can put reasonable restrictions on freedom of speech and expression in the interest of sovereignty and integrity of the nation. In a way, banning these apps is a restriction to the freedom of speech and expression of the citizens. TikTok became a platform for every section of society to portray their ideas in the form of videos. The banning of the apps results in the restriction of the freedom of expression of such people.

The test of Proportionality is the leading test to judge whether it is valid. In CPIO v. Subhash Chandra Aggarwal, the Supreme Court defined Proportionality as:

“…that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question…”.

Landmark Judgments

In the landmark judgment, K.S. Puttaswamy v. Union of India, the Court laid down the primary components of Proportionality. These were:

– the existence of legitimate goal;
– the existence of a rational connection;
– It must not infringe the rights to an extent greater than is necessary to fulfil the aim.

Moreover, in the recent case of Anuradha Bhasin v. Union of India, the Court held that the internet is the major means to spread information. Thus, freedom of speech and expression through the internet is a fundamental right. Restrictions can be put following Article 19(2). The Court spoke about the need for a legitimate aim for a restriction on fundamental rights. It also observed that:

“the degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is necessary to combat an emergent situation.”

How far the restriction is proportional is a question that we need to look into. The straightaway ban of 59 Chinese applications seems a bit vague. The Government hasn’t given any justification with regard to every application. The threat that particular application poses the sovereignty and integrity of the nation. The Government should have provided content- specific implications.

Section 69A aims to address specific violations which these collections of apps pose. They should have released the alleged content violations by each of these applications. They also need a separate evidence-based evaluation. Also, other popular apps such as PUBG, LiveMe, Tencent Cloud, Call of Duty etc. pose a similar threat. The Government did not ban these applications.

Privacy Concerns 

They cited privacy concerns as the primary reason for banning of the applications. This move by the Central Government seems peculiar. Though it is ensuring data privacy of the citizens, the law to protect that data is still in pendency. Moreover, the Aarogya Setu app  received criticism for the invasion of privacy it poses. Despite that, the Government was reluctant to stop down its promotion. Furthermore, Draft E-Commerce Policy 2019 seems to have weakened privacy rights. Herein the State and the Corporations have a significant right over an individual’s data.

The Government must maintain confidentiality about the requests made against these apps. This is another issue. Rule 16 of Information Technology Blocking Rules, 2009 says that confidentiality must be maintained. This applies to all the requests and complaints received and actions taken thereof. The rule is to protect the identities of the people making the requests and complaints. Thus, RTI applications/queries would not be entertained on the same. But the Government must provide more reasons for the ban on these apps.

Transparency and Accountability are the major tools which make a government policy effective. Rule of Law and Principles of Natural Justice must prevail over any government.

The vague press release, with no content specific implications, undermines Rule of Law. A country which follows the Rule of Law must follow the Principles of Natural Justice. Not allowing the companies to clarify weakens the Natural Justice Principles.

The Government must immediately bring into force the Personal Data Protection Bill. It would be essential in such times of conflict. With the world becoming digital, there are more exceeding concerns about a privacy breach.

China’s Point of View

China has claimed the decision of the Indian Government as “selective and discriminatory”. They said that the ban on these apps is on ambiguous and far-fetched grounds. Also, it runs against fair and transparent procedure requirements. They said that it violates WTO rules on fair trade practices. But, we must consider that WTO laws authorize a country to act against companies if it poses a threat. In the present context, the Government cited this to ban the applications.

Here, a glance at China’s National Intelligence Law 2017 is a must. Article 7 of the law provides that:- Any organization or citizen support, assist and cooperate with the state intelligence work under the law. They must keep the secrets of the national intelligence work known to the public.

Also, Article 14 says that:- The state intelligence work organization must carry out intelligence work according to law. They may need relevant organs, organizations and citizens to provide the necessary support, help and cooperation.

Thus, citizens and corporations are obligated to cooperate with national intelligence. Laws that compel companies to provide data poses a threat to the sovereignty of the nation.

One interesting thing to note is that in Shreya Singhal v. Union of India, the Supreme Court said that they could challenge such bans under Article 226. In China, there would be no scope for any judicial review. However, India addresses the process established by law and subjects them to judicial scrutiny.

Conclusion

The decision does come as a surprise to the companies who were enjoying a large and growing market in India. India is the largest market for apps like TikTok, with over 600 million downloads. This will also affect China’s ambitions with regard to its Digital Silk Road. The Digital Silk Road (DSR) is China’s project to become a technology power. They aspire to become a global provider of Digital Infrastructure. India’s move might encourage other countries to follow the same and hinder the success of DSR.

This move by the Government is an opportunity for Indian apps to prove their worth to society. They had potential, but with the dominance of Chinese apps, they were unable to flourish in the market. With those applications gone, Indian apps like Roposo, ShareChat, etc., have a great opportunity. They can prosper keeping Data Privacy as their highest priority.


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