Author: Shefali Chitkara
Vivekananda Institute of Professional Studies
“Digital strike stands as the biggest warning or revenge against China as well as an opportunity for India.”
Amidst the pandemic, a violent clash on the India-China border in Ladakh on June 15 left twenty Indian soldiers dead. As a warning to China, Indian Government banned Chinese applications on June 29, 2020. It banned 59 applications of Chinese origin citing data security, national sovereignty and integrity concerns. This ban has been called as a ‘digital strike’ by the Indian Government. The banned apps include TikTok, which was the most widely used app in India, SHAREIt, UC Browser, CamScanner, Shein, Club Factory, Helo, WeChat, Kwai, YouCam makeup, Vigo Video, Sweet Selfie etc. With the ban by the Indian Government, many Chinese apps users including those of TikTok have shown their support to the government for their nation. We have proved “United we stand, divided we fall.” The reason behind such a ban is to counter the threat posed by such apps to the country’s sovereignty and security. The competition for the investors in Indian social apps has definitely decreased due to this step. However, now it would depend on the abilities of Indians how they grab this opportunity and make it a success and take a large market share. Let us have a look on its legal consequences, alternatives available and why it is seen as a ‘welcome move’.
LEGAL BASIS FOR INDIA’S ACTION
The ban has been imposed under Section 69-A of the Information Technology Act, 2000. This section provides with the powers to issue directions for blocking any information for the public access through any computer resource if the central government or any officer who is authorized by it finds that it is necessary to do so, in the interest of sovereignty and integrity of India, defense of India, security of the state, friendly relations with foreign states or public order. Any intermediary who fails to comply with the directions as issued by the government under this section shall be punished with the imprisonment for a term of maximum seven years and shall also be liable to fine.
Rules have also been framed to include the provisions of this section in the Information Technology (Protection and Safeguards for Blocking for Access of Information by Public) Rules, 2009. Section 69-A as well as the rules under IT Act, 2000 have been held constitutionally valid by Supreme Court in Shreya Singhal v. Union of India. In this case, the Court discussed the Indian, English and US jurisprudence on free speech. The Supreme Court had struck down section 66-A through which government had acquired arbitrary powers to take down the content from the internet on any trivial ground. Section 66-A was declared unconstitutional by the Court. In this case, Court also upheld section 69-A as constitutionally valid as it lays down the recording of reasons for any action that is taken under it. The Court, thus, reiterated the doctrine of proportionality. However, in the present scenario the government hasn’t provided any reasons for banning of so many apps.
Many complaints have been received by the Ministry of Information and Technology regarding the misuse by such apps like stealing and transmitting user’s data in an unauthorized manner to servers outside India. Since, it directly affected the sovereignty and security of India, hence, there’s nothing illegal in such ban by the government.
Also, according to Section 76 of the Information Technology Act, if any computer or computer system contravenes the order then it shall be liable to confiscation.
WHAT IS THE IMPACT OF THE BAN?
Earlier, in May 2019, TikTok was banned on the orders of Madras High Court for two weeks but then TikTok went for appeal and the court reversed its ruling. But this time, the action has been taken considering specific strategic and national security concern. It is a warning not only to the Chinese businesses but to the China itself. It has been noted that around 30% of TikTok users were from India. Many such apps like Helo, Likee are immensely popular among Indians because of the personalization that they provide. For many Indian creators, this was the only source of income and as many apps have employees and offices in India, a few thousand jobs are at stake now. It has severely impacted the Tibetan refugees in Delhi who used WeChat to connect to their families and friends in Tibet. Similarly, many Indian students who have enrolled in Chinese universities were too dependent on such apps. However, it has only a limited impact on Indian businesses and greater impact on Chinese businesses. If the ban would have been on physical goods then it would also have adversely affected India’s business and economy. So, the digital strike could be called as a smart move by the Indian government.
Users of some banned apps may find it easier to shift to similar platforms. After the ban, Chingari, an Indian company saw its download going from 1 lakh to above 1 crore on Google Play Store. Instagram has also used this opportunity by launching ‘Reels’ as a substitute for TikTok. Similarly, Indian music service app ‘Gaana’ has developed ‘Hotshots’ which provides a platform for making short videos. As an alternative to CamScanner, an Indian document scanner has been developed by Zoho Corporation. Still, there are some problems faced by the users to find a suitable substitute for Chinese apps but that would definitely be solved soon too.
LEGAL OPTIONS AVAILABLE WITH THE INDIAN GOVERNMENT
No doubt this seems to be the right thing to do as we have lost our brave soldiers but is it the right time? Everyone is aware of the fact that recession will emerge soon as a result of this pandemic and banning apps would definitely lead to unemployment in India. It should have been done eventually over the years while making our economy strong simultaneously.
Under Section 69-A, there are two options available to government i.e. normal and emergency ban. In the first option, the procedure is initiated by a complaint sent by any person to the nodal officer. It is then examined and if the concerned authority is satisfied that the grounds provided under section 69-A exist, then it is sent to a government committee through a designated officer. The committee is required to give a hearing to the originator of the information before actually giving the green signal to block the objectionable content. The procedure is laid down in rules 6, 7, 8, and 9 of the Information Technology Rules, 2000. The second option that deals with the emergency cases in which the designated officer issues an interim order blocking the content without giving a hearing beforehand to the originator is provided by rule 9. It provides for a subsequent hearing to the originator by the designated officer and the committee within forty-eight hours of such order. The designated officer is required to record reasons for making any order under rule 9.
When we talk about the present case in which an interim order has been issued, Gurshabad Grover, who is a research manager at the Centre for Internet and Society said that we can’t be sure whether the ban is under rule 6, or 9.
CAN THIS ORDER BE CHALLENGED IN THE COURT OF LAW?
Either the companies or any affected individual in India can challenge the banning orders in the court under violation of right to freedom and expression as well as the right to trade. But it is unlikely that the companies concerned would take such step immediately. If at all it is challenged, then the courts will look at whether the government has provided sufficient explanation as to the connection between what these apps are alleged to be doing and the reason given by the government such as security and strategic interests. Mr. Rishab Bailey, a technology researcher suggested that other factor that need to be considered is whether the process of blocking under Section 69-A of the IT Act includes blocking on the grounds of privacy violation. The court will also consider the necessary steps that could be taken and if the ban is proportionate.
Recent papers have argued that there is the absence of detailed order that is to be issued by the government to support the ban which states that the ban is void ab initio and is likely to be set aside. But if the question is on the security and integrity of the nation and its people then the ban is definitely the need of the hour. Though it has been done immediately without taking into consideration its loopholes, yet it is an appropriate step taken by the government at this point of time.
7. AIR 2015 SC 1523