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The Fallout Of India And Chinese APPS

As the tensions between China and India's forces continue to escalate ever since their melee over the disputed Himalayan border on 5 May 2020, the Indian government has taken a plethora of steps to minimise its relation with China. One such measure was banning Chinese mobile applications. India's Ministry of Electronics and Information Technology has banned a total of 224 apps with links to China, including top social media and gaming platforms such as TikTok, WeChat, Helo, and PUBG, citing reasons such as a threat to India's sovereignty and integrity, defence, security of the nation, and public order.

TikTok is a short-form video sharing and streaming service owned by ByteDance, a Beijing-based Internet technology company. It has a simple user interface that converts one's mobile into a studio, allowing aspiring artists to gain recognition. The app's popularity is present globally, India being its biggest market outside China in 2019. The app was downloaded 323 million times in that year, accounting for 44% of its total downloads. TikTok had come under the ambit of the ban in June; however, there were many other Chinese apps banned in the later months.

Another set of Indians severely affected by the app ban is the Tibetan refugee group, who relied on WeChat to communicate with their relatives back in Tibet. They were dependent on this one particular app, as all other popular platforms like Facebook, WhatsApp, etc. are banned in Tibet.

One of the highly-addictive and world-famous games with a huge fan base in India did not get banned in June, but later in September. This delay was because PUBG was not invented in China; it was developed by an arm of South Korean video game maker-Bluehole. The app acquired a Chinese footprint when a giant company from China (Tencent Holdings Ltd.) came into the picture for the purpose of distribution. This had created a dilemma for the Indian government if it should ban it or not in the first place.

The suddenness of the ban left all the users of these 224 apps in a limbo. Given the soaring popularity and addictive nature of the apps, it can be deduced that China was perhaps all set to develop a Digital Silk Route and flourish by earning from the subscriptions. Most importantly, China would have had access to the mindset and have the ability to influence the community using artificial intelligence.

The ban orders were issued to the public via the Press Information Bureau (PIB) notifications. The authorities outlawed the apps under Section 69A of the Information Technology Act, 2000 read with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (IT Rules). These legislations provide for the concept and procedural measures to block public access to online information.

The press release comes across as a responsible action undertaken by the State. But it is strange, considering that the State is bereft of legislations to protect the citizens' personal data despite the Indian Supreme Court's (SC) ruling in Justice K.S. Puttaswamy (Retd.) v.Union of India, two years ago, wherein the government was ordered to develop the Personal Data Protection Bill, which would give the State overarching authority over personal data matters.

IT Rules Of India

The PIB notifications do not expressly mention the rules under which the government has proceeded. It seems to have relied upon Rule 9 of the IT Rules that permits blocking in emergency cases. This is apparent from the notifications' language, which states that the nature of the threat was emergent and emergency measures were required. Although once blocked, Rule 9 lays down that within 48 hours from issuance of the interim blocking order, the Committee under Rule 7 needs to decide whether to approve the decision or not.

At the moment, the Indian government has only made the press release, an interim measure, available to the public. Other important things like the committee's approval, reasoned order, etc. are not in the public domain. Further, the affected parties may not be able to determine the veracity of claims against them due to Rule 16. This Rule terms the allegations on them as 'strictly confidential' and puts a veil of secrecy on them.

Paralysis Of Democracy

Few people favour banning the apps under Section 69A due to the strong anti-China sentiment erupting in them. However, the above directive can be used arbitrarily to target other apps to bend them as per the government's will. As recently as in 2017-18, Citizen Lab (interdisciplinary laboratory based in the University of Toronto), along with the Canadian Broadcasting Corporation (CBC) and The Indian Express, investigated to find that the Indian authorities had blocked several websites, including those of international organizations and non-governmental organisations, without any proper notification. The ideology that the State should have primary rights over citizens' data is evident from the Draft National e-Commerce policy 2019, which characterises data as a 'national asset' and 'societal commons.'

One recent instance of the government's utter disregard for citizens' rights was promoting the Aarogya Setu app for COVID-19 in spite of the severe concerns with respect to violation of privacy.

Fundamental Rights Undermined

Suppression of Speech and Expression
Since most of the blocked apps allowed Indian citizens to disseminate information openly, their right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution has been violated, subjecting the ban to a constitutional challenge. In Anuradha Bhasin v. Union of India, the SC observed that an indefinite suspension of the internet could amount to an abuse of power. Article 19 gives an unfettered right to freedom of access to the internet, making it crucial to evaluate the effect, of banning Chinese apps, on the citizens.

Having said that, Article 19(1) of the Indian Constitution is not absolute. Article 19(2) permits the State to legislate, imposing reasonable restrictions on the freedom of speech and expression, on various grounds. The PIB notifications mention relevant conditions under which the geoblock has been enforced, namely, sovereignty and integrity of the State, defence, security, and public order.

The SC in Dr.Ram Manohar Lohia v. State of Bihar, held that there are three concentric circles for triggering the conditions under Article 19(2). The largest circle represents law and order within which is the next circle constituting public order, and the smallest circle concerns the security of State. It can be inferred that random acts of criminality affecting law and order cannot attract the measures needed in case of public order.

It is currently unclear how the existence of the Chinese apps could have emerged in a public order breakdown. Undoubtedly, there was a potential concern of damage to democracy via the amplification of disinformation. But this problem subsists with other apps too, rendering the geoblock of Chinese apps a futile attempt at safeguarding the nation.

Now the SC has set a precedent, allowing the State to act immediately contingent upon a public emergency. Public emergency has been given a higher status than the conditions mentioned under Article 19(2). Hence, in an emergency situation, if the nature of the concern enumerates from Article 19(2), the government can pursue the emergency procedure. Subsequently, the stakeholders are entitled to the issuance of a notice and a hearing before the committee, formed under Rule 7 of the IT Rules (Pre-Decisional hearing).

However, it is highly possible that the principle of Audi Alteram Partem will not be followed for the apps. Bias is probable due to the fact that the ban was initiated on the recommendations of the Home Affair's ministry and Indian Computer Emergency Response Team (CERT-IN). This seems to be a targeted move, as the recommendations are generally sent by the committees or designated officers.

Equality before the law: Subdued
Another fundamental right, Equality before the law, is envisaged under Article 14 of the Indian Constitution. This provision makes it mandatory for the government to ensure that the geoblock imposed is fair, just, and reasonable rather than arbitrary. Article 14 applies to both citizens and non-citizens. Therefore, there can be two possible setbacks for the government after the geoblock.

First, an allegation of dissimilar treatment by the Chinese app developers as there are many apps present from other jurisdictions, which could potentially be similarly inconsistent with inter alia privacy concerns. Second, grievances from those Indians who assume that banning apps like TikTok and PUBG restrict their access to the internet and the capability to express themselves due to which Article 14 is being infringed.

The Government might resort to the exception of dissimilar treatment being allowed, provided the classification made is reasonable. Albeit, the claim of arbitrary differential treatment is quite evident because Chinese apps were not alone in breaching the data collection laws of India. Several apps developed in the US like Facebook, Uber, YouTube, etc. have come under the radar of their home countries itself for data mining policies. This differential treatment of Chinese Apps is entirely outside the scope of reasonable classification.

The ban also goes against the verdict of the SC in Anuradha Bhasin v. UOI, wherein it was held that any restriction on fundamental rights of individuals must be necessary for realising a legitimate aim. Assuming that the government's aim was 'protection' of its citizens' data, it has failed to achieve this goal due to the existence of apps hailing from other countries, with the same loopholes. The court had also recognised the power of the government to impose only a 'narrowly-tailored' restriction on access to content, contrary to what has been done.

Will China Approach The WTO?

After the latest ban was declared, Chinese officials passed a statement voicing their serious concern about the ban. They urged India to rectify its discriminatory practices of violating the World Trade Organisation (WTO) rules. Whilst, China has pointed out the WTO rules' violation, it is ambiguous if it will approach the WTO against the apps ban.

WTO serves as an essential forum for negotiating multilateral trade agreements and settling trade disputes among Member states, of which both China and India are Members. The WTO agreements cover trade in goods through the General Agreement on Tariffs and Trade (GATT), and trade in services through the General Agreement on Trade in Services (GATS). Matters of internet regulation and governing internet privacy are generally regulated through the GATS.

The odds of China going against India before the WTO are minimal, given the country's own stringent censorship laws. China happens to be committed to one of the world's most rigid internet regulations, better known as the Great Firewall of China. It has banned popular sites like Amazon, Google, BBC, Netflix, etc. The 2019 United States Trade Representative (USTR) Report suggested that China's real intention of imposing such restrictions was to support China's technology localisation policies and replace foreign products and services with domestic ones. Beijing uses the phrase 'internet sovereignty' as a garb to promote digital protectionism, which directly contravenes the rules of WTO. These actions could form an arguendo in case a dispute is filed.

In the event that the matter goes to the WTO, India may invoke provisions of general and security exceptions of the GATS to defend the ban.

General Exceptions- Article XIV(c)(ii) of the GATS is the most relevant provision when it comes to the protection of individuals' privacy with respect to data. Clause (a) of the Article can also be used by India as the ban was apparently for maintaining public order. This Article vetoes any other provision of this agreement in its fullest capacity.

Security Exceptions- Article XIVbis(b) allows a Member State to take any action required to protect its security interests. The State has been authorised to take action during 'emergency in international relations,' and the current scenario can be assumed to be an emergency between China and India.

Further, in US - Gambling, the WTO's Appellate Body had stated that foreign internet-based services might demand access to a state's markets. Bans and other restrictions on them will have to be justified, if possible, purely for the interest of the state- as per the exceptions to the GATS commitments. Hence, India will have to justify its ban accordingly and prove that it was non-discriminatory. The Government has to convince that it has not violated the Most-Favoured-Nation (MFN) principle in any which way. This seems problematic, as many other controversial apps continue to exist in India.

The Government's modus operandi appears ill-conceived and could have been narrowly tailored, focusing only on a small group of people. India's general public is confused as to why the scope of restriction was not narrow enough only to require government officials, judicial, or army officers to refrain from downloading the app. It is they who are engaged in keeping State secrets and not ordinary individuals.

Banning apps and websites is not a viable solution in today's Information Technology regime. The Internet and Mobile Association of India (IAMAI) has also said that random blocking of social media platforms could hamper India's growth and foreign direct investments. Countries ought to establish a more elaborate regime with better regulation policies to scrutinise activities, in order for us to continue deriving the full benefit of the digital world.

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