SAKSHAM SRIVASTAVA | Recently, the Government of India implemented a ban on 59 Chinese apps labelling them as malicious. As per the press release of the Press Information Bureau, the Ministry of Electronics and IT took this step on the recommendations of the Ministry of Home Affairs and Indian Cyber Crime Coordination Centre. The Ministry pointed out that these apps secretly stole and transmitted the data of the users outside the country. And as this could have resulted in a threat to the sovereignty and integrity of India, the Ministry blocked these apps.
This was done by invoking Section 69-A of the Information Technology Act, 2000 that gives the power to the government to block public admittance to any online information, if such information can have a negative impact on the public order, sovereignty and integrity, and the defense of India. The bare text stipulates, “Power to issue directions for blocking for public access of any information through any computer resource”: “Where the Central Government or any of its officers specially authorized by it… is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may… by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.” However, Section 69-A only gives the power to the government while the procedure for imposing the ban is provided under the Information Technology Rules, 2009. As per it, once the nodal officer receives a complaint, he has to forward it to the designated officer, who then heads a committee to examine the complaint and give the app company a chance of being. After this, the designated officer based on the committee recommendation blocks or unblocks the app, only after receiving the approval of the IT Department Secretary. It is to be noted here that, this procedure that is followed in ordinary circumstances has not been followed here, as the government has considered it to be a case of emergency and followed the procedure that is required to be followed in such circumstances. This is evident from the fact that the app companies were not given any chance of being heard before the ban and have now been allowed to respond and give clarifications. Moreover, the Ministry had specifically stated that it is a matter of deep and instant concern that requires emergency measures.
Rule 9 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, deals with the procedure in case of emergency and an order under it is only interim. This means that the current order is not final unless the app companies are given a proper hearing before the committee and the decision is approved by the IT Department Secretary. However, on what basis the government considered the present circumstances to be an emergency is unclear. This is due to the fact that what amounts to an emergency with reference to blocking access of information on the internet is not defined particularly.
The Supreme Court in the case of Shreya Singhal v. Union of India and Ors., held that such app or website blocking orders can be challenged under Article 226 of the Constitution of India. Two points need to be understood here, first, that the order is interim and can be changed; and secondly, even if the final order maintains the status quo, it can still be reversed. For instance, about 32 websites were banned in Mumbai in 2014 for hosting pro-ISIS content but later in the year 2015, the ban was removed.
In case, the final order is against the app companies they would have two alternatives, namely – WTO and Indian Courts. As all the apps are Chinese, the China government may take the case to WTO, as was stated by the Chinese Embassy Spokesperson Ji Rong. However, even if China reaches WTO for relief, there is barely any chance for it to get the same. As according to the WTO rules a country can act against a company in case of it being a threat to the country’s national security and sovereignty. In the present case where the government has based its move on similar grounds, the chances of China getting the relief is almost negligible.
And in case, the app companies approach the Courts, their contentions would majorly rely on the violation of Article 19(1)(a) and Article 14 of the Constitution. The government might not face any issues in dealing with Article 19(1)(a) but it can have a hard time, explaining the absence of any alternative measure that could have been taken. Article 14 can emerge as an even bigger issue for the government to tackle. It could be so because the app companies may argue that there is no intelligible differentia in the decision. As, if the differentia is based on data breach concerns then apps such as Uber and Facebook should also have been included and in case, the reason behind it is the National Intelligence Law of China that requires companies to help the government in information gathering, then there is no rationale in banning only 59 apps while allowing the rest. However, what turn the issue takes, remains to be seen.
Saksham Srivastava is a fourth-year student of Rajiv Gandhi National University of Law (RGNUL), Patiala. He can be reached at sakshamsrivastava@rgnul.ac.in.
Photo Source: Deccan Chronicle
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