Oct 20, 2020
Technological Turmoil: Legal Validity of Banning Chinese Apps in India
By Ananya Bose
Introduction
“A nation’s ability to fight a modern war is as good as its technological ability” ~ Frank Whittle.
India’s unilateral action of stripping Kashmir of its special status of autonomy back in August, 2019 to usher the new dawn of “peace and development” resulted in shaking up the tentative balance between India, Pakistan and China — all of which hold portions of land of Kashmir. Staring down at the possibility of a confrontation involving nuclear power, Indian’s open vow to get back Gilgit-Baltistan, a northern part of Kashmir that went with Pakistan in 1947, appears to be the trigger for the domino effect which started the manifestation of heightened tension between India and China as troops of both counties engaged in an all out brawl on June 15, 2020, in Ladakh. What seemed to have forced China’s hand into taking drastic measures was the fear that its $60 billion investment in the China-Pakistan Economic Corridor, a part of China’s belt and Road Initiative that wound through Gilgit-Baltistan, could become a victim of any major Indian military thrust into the region¹.
With the mounting tension between Indian and Chinese troops in eastern Ladakh, which left 20 Indian soldiers dead, triggered the dormant anti-China sentiment to flood the streets and communities in India. Indian citizen poured out into the streets in outrage and protestation over the dead soldiers and hue and cry to boycott Chinese product could be heard loud and clear. Amidst of the chaos of rising tension between these two nuclear powers, banning 59 Chinese apps in India to curb the technological reign of China was an unexpected move.
Procedure of Imposing the Ban
On June 29, 2020, the Secretary of Ministry of Electronics and Information Technology, through an interim order, banned 59 apps of Chinese origin which were red flagged by Indian Intelligence Agencies and were held ‘prejudicial to India’s sovereignty, integrity and national security.’ The Indian Government, reportedly receiving complaints from the public concerning cyber security and data mining, invoked the powers of Section 69A of the Information Technology Act, 2000 (hereinafter referred to as the IT Act) read with relevant provisions of the Information technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 (hereinafter referred to as the IT Rules) and chose the Emergency Procedure for blocking the apps.
Section 69A(1) of the IT Act empowers the Central Government to enable the blocking of certain information generated, transmitted, received, stored or hosted in any computer resource for the following reasons-
i. Interest of sovereignty and integrity of India;
ii. Defence of India;
iii. Security of the State;
iv. Friendly relations with the foreign States;
v. Public Order;
vi. For preventing incitement to the commission of any cognizable offence relating to the above-mentioned reasons.
Rising level of tension between India and China with no permanent solution in sight, Indian Government invoked emergency procedure for blocking the apps. Rule 9 of the IT Rules states that in the event of emergency no delay shall be acceptable and the Designated Officer has to examine the complaints made by the general public to determine whether the complaints fall within the scope of the grounds mentioned in Section 69A(1) of the IT Act and shall submit specific recommendation to the Secretary of Department of Information Technology. The Secretary, if satisfied, can proceed with the blocking of the computer source only after recording the reasons in writing for the interim order which would carry out the decision of the Secretary.
However, within 48 hours of issuing the interim order, the Designated Officer has the duty to refer the complaint to the Committee, established under Rule 7 of the IT Rules, for approval. The Committee shall issue notices to all concerned parties to hear them and examine relevant facts and after consideration, the Committee shall send its recommendation to the Secretary of the Department of Information technology. It is the Secretary who takes the final decision, based on the findings of the Committee, regarding maintaining the interim order to block or revoking the order to restore the status quo of the computer sources².
It should be noted that the order according to which initially 59 apps and later on 47 other apps were banned, were not made public by the Indian Government, leaving the press release by the Press Information Bureau the only legitimate source of information regarding the order. Experts have voiced their concerns over such lack of transparency and accessibility, raising questions as to the validity of the procedure and policy taken by the Government. Though, it should be noted that Rule 16 of the IT Rules safeguards the Government from being held liable if the order is not published to the public as Rule 16 clearly states that utmost confidentiality must be maintained regarding the complaints received which builds the foundation of the order.
Constitutionality of the Ban
This is not the first instance of Chinese origin apps suspected of being ‘spyware’ or accused of violating privacy policy or data mining. But ban on creative platforms such as TikTok and messaging and social media apps like WeChat in amidst of a nationwide lockdown due to COVID-19 pandemic has proven to be a hindrance to the communication flow between the Tibetan refugees stuck in Delhi who used WeChat to communicate back home, to the Indian students enrolled in Chinese University who used WeChat and like apps to communicate with their colleagues and administrators and to those small businessmen who earned money using apps such as TikTok³.
Since the apps provide a platform for self-expression, a prominent question arises- does the ban violates Article 19(1) of the Indian Constitution which guarantees freedom of speech and expression? Despite of the decision of Faheema Shirin v. State of Kerala⁴, where the Kerala High Court had held that interfering with someone’s internet access amounts to violation of their fundamental right to privacy, a simple reading of Article 19(2) of the Constitution makes it clear that restrictions can be imposed upon Article 19(1) in the interest of public order, health, national security etc. But seeing the effect of block on Chinese apps on the right guaranteed under Article 19(1), a constitutional challenge in the ban is likely.
Keeping the interconnected nature of fundamental rights in view, to ascertain constitutional validity of the ban on Chinese apps, it also has to be fair, just and reasonable under Article 14 of the Constitution. In order to be free from arbitrariness, the block on Chinese apps has to conform with Article 14 which guarantees equality before law and equal protection of law to all citizen and non-citizens of India and also allows reasonable classification.
A classification to be reasonable between two groups must fulfil two conditions- firstly, there must a recognizable distinguishing feature between two groups and secondly, the dissimilar treatment between the two groups has to have a rational connection with the object that it seeks to achieve⁵. From the hasty decision of block of Chinese apps when anti-Chinese sentiment clouding the social and political atmosphere, Chinese app developers and investors are treated differently than other similar app developers. American Origin apps such as Facebook and Amazon have also been accused of violating privacy policy and data mining in both their origin country and in international level. Thus, the decision to ban Chinese app is arbitrary and unjust.
However, on the question of constitutionality of Section 69A of IT Act, the Supreme Court, in Shreya Singhal v. Union of India (2015) 5 SCC 1, had upheld the constitutional validity of Section 69A of the IT Act and IT Rules formed thereunder by citing the safeguards provided by the statute. They are as follows —
1. The order blocking the computer sources must be supported by reasons recorded in writing, so that the order can be challenged, if the reasons are violative of fundamental rights, under Article226 of the Constitution; and
2. A pre-decisional hearing must be held to ensure misuse of governmental power.
Supporting the view of the Shreya Singhal Case, Supreme Court, in Anuradha Bhasin v. Union of India⁶, has held that Indian Government does have the power to impose narrowly tailored restriction to access to content.
Socio-Legal Impact of the Ban
Estimates by Sensor Tower show the video sharing social networking app TikTok had been downloaded 611 million times in India and number of active users fall somewhere around 200 million⁷ and the ad revenues of the app have increased over 50% in past one year⁸. While the Chinese expansionism in digital space must be a reason of concern, the fact remains that millions of Indians are adversely affected by this ban. In a nationwide lockdown to combat a global pandemic, short video creating apps, messaging apps and social media platforms were serving as a unified front of entertainment and a source of income for some. It should also be noted that total exclusion of Chinese apps would pave a way for American monopoly to be established in the Indian market to feel the void left by the Chinese apps.
It has been pointed out that TikTok’s parent company ByteDance only gains 0.03% of their global revenue from India, hence banning Chinese apps like TikTok may not be as fruitful in economically disabling China as some might think. But on the other hand, this ban may be able to set up examples for those countries which have voiced their concerns over these pervasive natured apps.
In response of the ban, China has thrown around veiled threats to drag India to World Trade Organization of which both India and China are members. And if push come to shove, the Dispute Settlement Body of World Trade Organization has to interfere to settle the dispute relating to the block on Chinese app and found India violating provisions of GATS or GATT, then the international community may force India, through imposing economic sanctions, to comply with the Agreements. But, seeing the support from United States and France rallied behind such ban, the apprehension of economic sanctions on India may remain a fear only.
Conclusion
Issues regarding severely disputed territory of Kashmir, fear of Chinese expansionism in digital and commercial space and high stake conflict at the Himalayan borders between the two country along with a history of different ideologies, political and social view have left a bitter, mistrustful tentative balance between India and China; even that balance is being frayed at the edges with the recent ban of Chinese app. Being hailed as ‘digital strike’ by many, the ban on Chinese app is being seen as a retributive move on the part of India, but the warning of IAMAI which stated that arbitrary blocking of social media platforms will impede Foreign Direct Investment in India, should not be completely overlooked. If the Government fails to provide substantial proof of its claims and the rationale behind banning the apps are found lacking when the order is challenged in the Court of law, India will find its reputation tattered to bits in the international community and will lose every bit of support due to being a liberal, secular, democratic country. The only way forward for India, with its integrity intact, is to provide for an opportunity of being heard to the representatives of the apps.
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[1] Tariq Mir, What was the deadly India-China border clash was really about? ALJAZEEERA, (Aug. 15, 2020, 10:23 AM), https://www.aljazeera.com/amp/indepth/opinion/deadly-india-china-border-clash-200702113826083.html.
[2] Phillip Oommen, Critical Analysis of Legality of Chinese Apps Ban, LATEST LAWS, (Aug. 15, 2020, 10:49 AM), https://www.latestlaws.com/articles/critical-analysis-of-legality-of-chinese-apps-ban/.
[3] Shubhangi Agarwalla and Siddharth Sonkar, Examining the Legal and Policy Process Behind Indian’s Ban on Chinese Apps, THE WIRE, (Aug. 15, 2020, 12:10 PM), https://m.thewire.in/article/tech/india-bsn-chinese-apps-tiktok-legal/amp.
[4] Faheema Shirin v. State of Kerala, WP(C)NO. 19716 of 2019(L).
[5] Shubhangi Agarwalla and Siddharth Sonkar, Examining the Legal and Policy Process Behind Indian’s Ban on Chinese Apps, THE WIRE, (Aug. 15, 2020, 12:10 PM), https://m.thewire.in/article/tech/india-bsn-chinese-apps-tiktok-legal/amp.
[6] Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25.
[7] K. Bharat Kumar, The Hindu Explains what will be the impact of Chinese apps ban, THE HINDU, (Aug 16, 2020, 01:15 PM), https://www.thehindu.com/news/national/the-hindu-explains-what-will-the-impact-of-Chinese-apps-ban/article31991127.ece.
[8] Saumya Tewari, Can TikTok bite into YouTube, Instagram’s ad revenue pie, LIVEMINT, (Aug 16, 2020, 02:35 PM), https://www.livemint.com/industry/advertising/can-tiktok-bite-into-youtube-instagram-s-ad-revenue-pie/amp-115904020484813.html.
The author is a year IV B.A. LL.B student of Jogesh Chandra Choudhuri Law College, affiliated under the University of Calcutta. Her submission secured a special mention in the Journal and Seminar Committee National Article Writing Competition 2020 organised in the month of August, 2020.
Disclaimer: Any academic content published in Legis Sententia will be for informational and academic purposes only and shall not be reflective of the views of the Department of Law, University of Calcutta or the Editorial Board thereof or any other institution but only the views of the authors concerned.
