Banning of Chinese Apps and Its Legality

In the month of July, this year, The Ministry of Electronics & Information Technology banned 59 Chinese apps. For the aforesaid purpose, Section 69A of Information Technology Act 2000 read with the relevant provisions of Information Technology (Procedure and Safeguards for blocking information by the public) Rules, referred to as IT Rules, were invoked. The step was taken by the Government of India as a geopolitical strategy against China. It is true that the government can use any tool for fulfilling its geopolitical motives, but there must be adherence to the provisions of law.

The Ministry denoted the banned application as ‘malicious’, because of unauthorized transmission of user data. It was also stated that many of these applications that are against user privacy and consequently the sovereignty of India.

Section 69A of the Information Technology Act:

Sec 69A of the Act gives power to Central Government for blocking any information for public access through any computer resources if the government believes that this content threatens the sovereignty and security of India, defence of India, friendly relations with foreign states, public order, or to prevent incitement for the commission of cognizable offence relating to any of the above. The government shall record its reason in writing for the said order. The procedure and safeguards through which blocking will be carried out must be prescribed.

Section 69A is basically a content regulation tool, which is designed to deal with offensive content by blocking access to it.

What does the rule state?

The IT Rules lay down the procedure which provides for an institutional framework which enables the central government to act upon the complaints and requests received from the general public regarding blocking certain computer sources. Under Rule 3 of IT Rules Central Govt. will appoint a Designated Officer and the relevant companies and requests received will be forwarded to him.

There are two types of procedure:

Usual procedure:

Under rule 7 of IT Rules, a committee will be formed, with Designated Officer as Chairman to examine the request for blocking a computer source. The Designated Officer will put his best effort to identify intermediary and the persons concerned and then he will issue a notice to these persons to file their replies within a specified time (within 48 hours). The committee will give “special recommendation” regarding the ban which will be sent to the Secretary of Department of Information Technology. On approval of Secretary, the Designated Officer will ban the computer resources.

Emergency procedure:

No delay is tolerable in cases of emergency. Under Rule 9 of IT Rules Designated Officer shall examine the complaint, whether it is within the scope of Sec 69(1) of IT Act and will straightaway send the “special recommendations” to Secretary. The Secretary, after being satisfied will proceed with blocking the computer resource and will record reasons for an interim order.

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How did the government bring about the recent ban?

The Secretary of Ministry of Electronics & Information Technology, through an emergency procedure and interim order, banned 59 Chinese apps on June 29, 2020. The reason behind the emergency procedure was rising levels of geopolitical tension between India and China. Through interim order, Sec 69A of IT Act was invoked due to threat to (1) sovereignty and integrity, (2) Security and (3) defence of India. Sec 69A is used by the State to exercise power under Article 19(2). The reasons mainly pointed towards the threat to national security, however, no content-related issues were found with these apps.

In Shreya Singhal v. Union of India, the constitutional validity of Sec 69A was challenged. The Supreme Court held the constitutionality of the section and provided the following safeguards:

  1. The Supreme Court held that reasons in writing must be given to support the order of blocking of computer resources otherwise the order can be challenged under Article 226.
  2. Another safeguard, namely, pre decisional hearing helps in check of misuse of governmental powers and it also provides rights to affected parties to be heard before any decision regarding that matter.

Shortcomings of the present order:

  • The order passed by The Secretary, IT department, which states reason and confirmation of emergency was not made public. The 59 Chinese apps which were banned had a huge following and the alleged step by the government without giving detailed reasons is of serious concern.
  • The order, in the present case, has not been released, the consequence of which is an uncommon legal scenario.
  • Rule 16 of IT Rules states that “strict confidentiality shall be maintained regarding all the requests and complaints thereof.” According to which, the ministry will not disclose the contents of complaints. The negative consequence of this rule is that affected parties might not be able to confirm the accuracy of the claims or requests.
  • The selection of the apps by the government is very random.
  • There is a lack of transparency in the alleged order as it was released through the press, which made it difficult to understand. On the other hand, the actual order would have helped in understanding the legality of the order.
  • This arbitrary action of banning apps will have a grave effect on Foreign Direct Investment in India. Also, the rise in TikTok’s ad revenue will be a concern. Moreover, shutting down Chinese apps will lead to shifting in reliance on American apps and monopoly of American apps.
  • Lastly, the government should have provided a fair opportunity to representatives of an app in the present issue.

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