India’s Ban on 59 Chinese Apps: The Right Discourse?

India on June 29, 2020 imposed a ban on a total of 59 Chinese apps. This included the widely favored apps like TikTok, UC Browser, and ShareIt among others. As specified in the press release by the Ministry of Electronics and Information Technology (MeitY); it used Section 69A of the IT Act to enforce the ban. The step comes in the wake of heightening diplomatic tensions between India and China. While there might be bonafide reasons behind the major step, its basis and constitutional legitimacy remains a grey area. Since the ban, it set off a debate on whether the Executive outwitted the fundamental freedoms by being arbitrary in its approach.

The Decision

These apps, the government said in a press release, are “prejudicial to the sovereignty and integrity of India, defense of India, the security of the state and public order”. Simultaneously, they give rise to significant data security concerns; which the Ministry based on “several complaints that it received by the users.”

While the IT Act provides the power to impose a ban like this, the procedure for doing so is provided by the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009. The Centre can exercise the power, given it be “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 or for preventing incitement to the commission of any cognisable offence relating to above”. However, these elements suspend from the grounds specified under Article 19(2) of the Indian Constitution.

Section 69A also makes space for an event of “emergency nature”, during which the designated officer examines the blocking request. Meanwhile, the Ministry of Electronics and Information Technology, as an interim measure, can issue directions to block a website; the latest order that bans 59 Chinese apps is an interim one and issued under the emergency clause.

Consistency of Government’s Basis

EMERGENCY NARRATIVE

Rule 9 of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009  provides that in an emergency situation where “no delay is acceptable”; the Designated Officer may directly refer the request to the Secretary, Department of Information Technology; who, upon her satisfaction of the justifiability of the request, may issue interim directions to block access without providing a hearing.

Since the government employed the emergency narrative, the press release by the government was an interim measure; and calls for ratification from the select committee. The same could be established by the statement of TikTok’s national head that stated the need for them to appear before government stakeholders. In any case, the government had been aware of the alleged shortcomings of the banned apps for a while. Hence, the urgency required to resort to Rule 9 simply did not exist.

REASONABLE CLASSIFICATION?

For state action to be fair, just and reasonable; it needs to be in harmony with Article 14 which requires that all persons are treated equally before the law. However, even if reasonable restrictions were the basis; the Chinese apps don’t exclusively fall in the ambit of apps that raise data security concerns. For instance, many American or European apps collect data that goes beyond what an average consumer would think they are handing over to the app. Given that, a stand-alone review of Chinese Apps may suffer from the absence of comparative analysis to know how it fares in relative terms. Therefore, the differential treatment makes for arbitrary state action.

However, given the decision in Anuradha Bhasin v. Union of India & Ors. where the Apex court allowed the government to impose narrowly based restrictions on access to content; it made a classification as to access to specific online platforms only and not to absolute internet access. Hence, the Chinese app ban may pass this scrutiny, but the absence of clear and cogent classification invites a closer constitutional inquiry.

EXCESSIVE USE OF STATE-SANCTIONED AUTHORITY

Fundamental rights can only be limited by state actions that are proportionate to the intended object. Modern Dental College v. Union of India & Ors. laid down a test of proportionality of state actions. Nevertheless, the intended action should be backed by law.

Although the ban may be legitimate given its statutory backing, the test of suitability, necessity, and proportionality still remains unacknowledged.

Insufficient information as to how using Chinese apps raises national security concerns hasn’t fared well in establishing a watertight case against the apps. Even if data security concerns and excessive user interface demands by the apps is to be taken into consideration; singling out only Chinese apps may require some unique basis in order to be considered a ‘suitable’ restriction. Moreover, it points towards loopholes in the Data Protection framework of India that is far from robust. The purposes of Justice Puttaswamy I (Retd.) v. Union of India is yet to be lived up to.

In order to establish necessity, the government would need to prove as to why less restrictive measures wouldn’t have sufficed. This becomes difficult since the appendix includes an amalgamation of all kinds of functionalities. Hence, each app shall pose a varied kind of ‘threat‘. Moreover, the scope of the ban applies to all Indians and not just a select group of government officials who deal with compromising official information. The restrictions could have been narrowed down to include a select group of individuals.

A careful examination of the procedural and the substantive safeguards relied upon to curtail the right becomes crucial. While these are valid concerns, haphazard instances of cybercrime using these apps could at best be considered to compromise law and order. Therefore, using the emergency threshold to restrict the right to access the internet seems to be overly dramatic.

Conclusion

A restriction on access to the internet also has to be fair, just and reasonable and not arbitrary at the very least. China’s firewalls to prevent the misuse of its digital public spheres offer no scope for judicial review. On the other hand, India gives aggrieved parties the right to avail judicial recourse.

In Shreya Singhal, the Apex Court clarified that the blocking orders can be challenged under Article 226 of the Constitution. Although, TikTok in its official statement, clarified that they had no plans to seek legal recourse; the question of whether the State can fervently impose restrictions on civil liberties needs redressal.