The Government of India (GoI) has banned several Chinese apps. It first banned 59 Chinese Apps in June 2022; followed by the ban of 118 apps in September 2022 and another 43 in November 2022 vide press releases (Press Releases) issued by the Ministry of Electronics and Information Technology (MeITY), the total number of mobile applications banned in India has gone up to 267.
The Government’s position was that it had been receiving several complaints of illegal data transfer to foreign locations without the user’s authorization. Consequently, they imposed an interim ban on the listed applications under Section 69A of the Information Technology Act 2000 read with the relevant provisions in the Information Technology (Procedure and Safeguards for Blocking Access of Information by Public) Rules, 2009 (“Blocking Rules”).
Section 69 A- [69A Power to issue directions for blocking public access of any information through any computer resource. –
(1) Where the Central Government or any of its officers specially authorised by it on this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence 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 subject to the provisions of sub-section (2) for reasons to be recorded in writing, 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.
(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to a fine. ]
A press release was issued by the Ministry of Electronics and Information Technology (MeITY), attributing to the ban of the Chinese apps, (a) the engagement of apps in malicious activities prejudicial to the sovereignty and integrity of India, the defense of India, the security of the state and public order and (b) breach of privacy, illegal data mining, profiling and unauthorized transmission of user data outside India. The ban was also a result of recommendations of the Indian Cyber Coordination Centre, and the Ministry of Home Affairs on blocking malicious apps and representations received by the Computer Emergency Response Team (CERT-IN) regarding the security of data and breach of privacy.
Legalities of the App-Ban
The Government of India has invoked section 69 A of the Information Technology Act 2000. This section was inserted in the Act by an amendment in 2008. It empowers the GoI to restrict or completely block any online content which it deems a threat to its sovereignty, integrity, and national security of the country.
The procedure for such a ban has been given in Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption of Information) Rules 2009 (Blocking Rules). Rule 9 of the mentioned act empowers the government for a geoblock of online content without giving prior notice.
The Constitutional Perspective
Since the Indian Constitution gives Freedom of Speech and Expression under Article 19 as a fundamental right, the constitutional validity of such a ban is questionable.
In the case of Faheema Shirin v. State of Kerela 2019 SCC OnLine Ker 2976, the Hon’ble High Court has held that interference with an individual’s access to the internet is a violation of their fundamental right to privacy.
The Hon’ble Supreme Court in Anuradha Bhasin v. Union of India 2020 3 SCC 637 has observed that the suspension of the internet for an indefinite period of time may amount to an abuse of power by the government. The Court has also said that Section 69 of the Information Technology Act, 2000 read along with Blocking Rules empowers the government to impose restrictions on online content.
The Chinese companies have alleged that the GoI is discriminating against them and not treating them equally and the ban on them is a violation of Article 14 of the Indian Constitution. However, Article 14 itself provides for dissimilar treatment between different classes, on the basis of reasonableness.
The GoI in the context of rising tensions with China claims that the banned Chinese apps are a threat to national security as they are transferring user data and certain vital information to their origin country. Moreover, the ban is in accordance with Section 69A of the IT Act which empowers the Union of India to impose such restrictions.
In Shreya Singhal v. Union of India 2015 5 SCC 1, the Apex Court has upheld the constitutional validity of section 69A of the Information Technology Act, 2000.
The International Law Perspective
A concern raised with respect to the app blocks imposed by the Indian Government is the possible violation of international trade law. Disputes under international trade law are overseen by the World Trade Organization (WTO).
However, Article XXI of the GATT (General Agreements of Tariffs and Trade) provides for certain exceptions which state that a member country can refrain from those obligations if it believes that such an act of putting restriction is important for its national security and interests. The Indian government cited the same exceptions for blocking the Chinese apps.
According to the law of the land, the government’s step to ban the Chinese apps is constitutionally valid. The ban has been imposed in accordance with Sec. 69A of the IT Act 2000, and is constitutional. The government has the power to restrict any online content to protect the sovereignty, integrity, and national security of the nation. Also, the constitutional validity of Sec. 69A has been upheld by the Supreme Court in the Shreya Singhal Case.
Legal Intern, LawDiktat
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