Amidst rising tensions between India and China at the Line of Actual Control (LAC), India’s digital strike has caused a flutter in the app-paradise enjoyed by Chinese companies.
The Ministry of Electronics and Information Technology (MeitY) issued a press release on 29th June, 2020. The press release announced the decision to ban 59 Chinese applications (apps). The list of apps banned is extensive. Certain notable apps banned are- TikTok, CamScanner, Shein, ShareiT, UC Browser.
The government has banned these apps under section 69A of the Information Technology Act,2000(IT Act) read with the Information Technology (Procedure and Safeguards for Blocking for Access to Information by Public) Rules, 2009. (herein referred to as ‘IT Rules’).
The Press Release explained that these applications further engaged in activities which were prejudicial to sovereignty, integrity and defence of India, as well as security of state and public order. These activities included-
a) data theft; and
b) surreptitious transmission of users’ data in an unauthorized manner to servers located
outside India.
Furthermore, such data was being allegedly compiled, mined and profiled by China. Given the tense border situation between the two countries, such activities impinge on the sovereignty and integrity of the country.
How is the defence and sovereignty of our country threatened?
The government has not revealed any evidence supporting its allegations. This is in light of Rule 16 of the IT Rules. This rule mandates strict confidentiality of the requests and complaints received for blocking access to information. This move was further aimed at halting the ‘military-civilian fusion’ programme run by China.
India is one of the world’s largest web services markets in the world. As per reports the 59 banned apps had recorded roughly 4.9 billion downloads in India since January 2014. Also, India is the biggest driver of TikTok app installations. It accounts for 611 million lifetime downloads i.e 30.3% of the total worldwide downloads as of April,2020. Out of a total 450 million smart phone users in India, there are 300 million unique Indian users of Chinese internet apps.
Chinese Apps
Monthly Active Users in India (in millions):
ShareIT- 200
UC Browser- 130
TikTok- 120*
Mi Community- 80
Helo- 50
*120 million out of a total user base of 200 million users.
Source: Table published in the Economic Times on 3rd July, 2020, available at: https://economictimes.indiatimes.com/tech/software/india-bans-59-chinese-apps-including-tiktok-helo-wechat/articleshow/76694814.cms.
The number of Indian users reflects the sheer volume of data which these companies have. In the era of cloud computing, big data and artificial intelligence, the information derived from the collective data of these apps, can be very pervasive. The line between the private companies and the government in China is often blur. The threat alleged by the Indian government seems legitimate especially in light of the Chinese Counter- Espionage Law and National Intelligence Law, 2017.
This can jeopardize the defence and security of our state especially in the given circumstances.
What is the impact of this ban?
The ban has hit the rage of the lockdown-TikTok the hardest. This is the second time that the app was further banned. Last year, the Madras High Court banned TikTok over concerns about access to pornographic content through the application. It ordered Apple and Google to take down the app from their respective platforms. The company reportedly lost $15 million a month due to the ban. But on 24 April, 2019 the court lifted the ban. Furthermore, Bytedance, the parent company of TikTok was looking to invest $1 billion in India over the next three years. A plan which is now in limbo.
The government created an official account on TikTok on 6th June, 2020, which made a quiet exit on the day of releasing the press note. The government also issued orders to Google, Apple and internet service providers for blocking the listed apps.
The ban on Chinese companies will boost its Indian rivals such as Roposo and ShareChat which are looking to capitalise on the Anti-China sentiment.
Is the ban violative of principles of natural justice?
The government’s action was further seen as a political move due to its timing and economic impact on China. The companies were not given a chance to be heard before imposition of such a ban. This was further criticised as violative of the principle of natural justice ‘audi alteram partem’ i.e. ‘all parties must be heard’. A look at the legislative framework and judicial decisions will help us assess the merit of this criticism.
Mechanism under IT Act and the IT Rules
The IT Rules prescribe the procedure and safeguards for blocking for access of information. Section 69A (2) read with section 87(2)(z) of the IT Act empowers the Central Government to make these rules.
Rule 8 of the IT Rules, provides for a mechanism wherein a designated officer is then in mandate to issue a notice to the intermediary of the information sought to block, to present its case. In the instant case, neither such notice, nor any representation by the intermediaries then called for.
But, Rule 9 of the IT Rules is a non-obstante clause. It exempts the designated officer from. the conditions laid down under Rule 7 and Rule 8 of the IT Rules in case of emergencies. Moreover, the press release made by MeitY reflects that the decision was considering “emergent nature of threats”.
Judicial Decisions on the “right to be heard”
The Supreme Court (SC) has time and again held that principles of natural justice cannot have an abstract application. Consideration of the facts and circumstances is necessary. In the case of Maneka Gandhi v Union Of India, the SC held that rules of natural justice can operate only in areas not covered by law. The principle ‘Audi Alteram Partem’ is not in violation if a statute provides for a post-decisional hearing instead of a pre-decisional hearing. It further held that if a statute is silent on the same, a post-decisional hearing is good in law. The SC reiterated the above in the case of Charan Lal Sahu v Union of India.
This year, the SC further reiterated the above in the case of Nisha Priya Bhatia vs. Union of India. It held that natural justice is not a mere artifact. Considering all circumstances, if the party visited with an adverse order has not suffered from denial of reasonable opportunity it would not amount to a violation of principles of natural justice.
The IT Act is silent about pre-decisional hearings. Moreover, Rule 9 of the IT Rules permits obviating a pre-decisional hearing, and provides for review after the decision. In the instant case, MeitY has clarified that the ban is an interim order. It has called the parties to submit clarifications and given them an opportunity to respond.
Thus, concluding that the companies are not deprived of a reasonable opportunity to be then heard. So, the action of the government is good in law.
Conclusion
India’s ban on 59 Chinese apps aimed at pushing back China’s military- civilian fusion program. The sheer volume of Indians using these applications provides the mega data required to accumulate pervasive information about the country. The ban addressed this threat temporarily. But, there are still other Chinese companies in the Indian market, excluded from the list of banned apps.
India will have to take strategic steps on several fronts to protect the nation from the over-arching threat. Meanwhile, the ban will help boost market penetration of Indian apps in the segment.
The ban faced criticism for being violative of principles of natural justice. But, this criticism rings hollow in light of the jurisprudence on post-decisional hearings. The Apex Court has held time and again that principles of natural justice are neither mere artifacts, nor can their application be abstract. Considering the facts and circumstances, as long as a reasonable opportunity is there, the executive action remains. Thus, the post-decisional hearing given due to circumstances is valid in law.
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