India's digital strike on China

Author-Anushka Malkhare, ILS Law college

Editor: Naman Joshi, Delhi University

Introduction

The tension between India and china was brewing for the past few months as a result India enforced higher restriction on China’s FDI and encouraged the public to be more Aatmanirbhar, as to lessen the dependency of India on Chinese manufactured products and encourage domestic manufacturing.


Amongst the rising tension between the countries, on 29th June 2020 the Indian government initiated a ban on 59 apps of Chinese origin. These included some popular apps namely TikTok, WEchat along with Shareit and Camscanner. The order was executed because of data sharing concerns arising from china’s data sharing law which required the Chinese companies to share the data acquired by them with Chinese-intelligence.


Consecutively on 24th July India further banned 47 more apps which were clones or lite versions of the banned Chinese apps.

Legality of the ban in India

The ban was executed by department of Ministry of Electronics & information technology invoking Sec 69A of the Information Technology Act, 2000 (herein after referred to as IT act, 2000) read with relevant provisions of information technology (procedure and safeguards of blocking of access of information by public) Rules 2009 ( here in after referred to as ‘IT Rules’)


Clause 1 of section 69A gives the central government the power to block some information generated, transmitted, received, stored or hosted by any computer resource (1) interest of sovereignty and integrity of India (2) defense of India (3) security of the state (4) friendly relations with foreign states (5) public order (6) for preventing incitement to the commission of any cognizable offence mentioned above.


Clause 2 of section 69A of IT act states that the blocking should be in accordance with the procedure and safeguards laid down under the blocking rules

How was the ban bought about?

On 29th June 2020 by way of an interim order the ban was executed. This emergency ban was implemented because of the rising tension between the countries.


Rule 9 of the IT Act has laid down the procedure for implementing an emergency ban; Rule 9 of the act gives the government the power to put Geoblock on computer generated content without any prior notice to the public or a chance of mediation to the company. Geoblock means to block the access to certain online content based on geographical location of user.


Constitutionality of section 69A

The order blocking the internet user from accessing certain content should be presented along with reasons. As the order can be challenged by the foreign entity . Calcutta high court recently held that the foreign entity have a right to file a writ petition in the context of Article 226 of the Indian constitution.


Does it violate Article 19(1) of the constitution?

An app provides the user a platform for expression and also for spread of information, they are protected under article 19(1) of the constitution this ban is likely to be challenged constitutionally

In Faheema Shirin vs. state of Kerala[1] the Kerala high court case the court held that interfering with some ones internet violets the person’s fundamental right to privacy. In Anuradha Basin vs. union of India[2] the apex court held that indefinite suspension of internet could potentially amount to abuse of power but failed to reaffirm the decision held by the Kerala high court but since the decision of the Kerala high court was not overruled it is safe to assume that the freedom to access internet is covered under article 19(1).


Thus restrictions can be implemented on Article 19(1) in matters concerning public order, health, and morality as stated in Article 19(2).


Was the ban fair in nature?

The Chinese government had raised claims against the Indian government of receiving dissimilar treatment as compared to other multi-national companies. They claimed that the ban imposed was not fair and arbitrary in nature and in violation of Article 14 of the Indian constitution.


Article 14 is available to the citizens as well as non-citizens. In Justice Puttaswamy (Retd) vs. Union of India[3] it was held that the ban implemented should not be arbitrary in nature and should be just and reasonable. In Modern dental college vs. State of M.P[4] the Supreme Court reaffirmed that the rights cannot be view separately and are interconnected and also stated that the actions of the entity should be proportionate with the intended object as well as laid down the conditions for a geoblock to be held valid.


Article 14 of the constitution does provide for dissimilar treatment as long as it is reasonable. Considering the tension between India and China. The centre claimed that the Chinese apps are a threat to the internal security of the country. Also, under sec 64 of the IT Act 2000, the government of India is empowered to impose such restrictions.


In Shreya Singhal Case[5] the constitutionality of sec 67A and Sec 66A of IT act along with the IT rules were challenged. the apex court held Sec 66A to be unconstitutional and upheld the constitutionality of sec 67A citing the safeguards provided by the statute and rules. The Anuradha Basin case stated that Sec 67A read with the blocking rules has the power to impose reasonable restrictions on online content.


Legality of the ban internationally

The Chinese government claimed that the ban was against the agreement of WTO. The WTO has two frameworks for dealing with discriminatory behavior, General agreement on trades and services (GATS) and General agreement on tariff and trade (GATT). Article ⅩⅤⅠ of GATS states that the member country should abstain from imposing any sort of restrictions on the service suppliers and service transactions on companies of foreign origin. The Chinese government claimed that the app ban policy is against the GATS agreement


However Article ⅩⅩⅠ of GATT gives certain exceptions which state that the member country can impose such restrictions if such restrictions are necessary to protect the national security and interest. The Indian Government used this clause as defense.


Effect

Even though there was a rise in TikTok ad revenue the main issue still remains the loss bared by the Indian users. Because of the immense popularity of the app the burden bared by Indian users is also huge. Further this ban has made way for more American apps to enter Indian market which may result in American monopoly, to tackle this there needs to be equitable balance of apps usage in India, so that no particular country can have any sort of monopoly.


This ban has hampered the foreign direct investment of India. The Indian government has succeeded in banning the apps on the basis of data misuse hampering the sovereignty of the country. The future of India is bright if this concept of Self-Reliance is taken seriously by the citizens of the country.

[1] Faheema Shirin.R.K vs. State Of Kerala on 19 September, 2019 W.P(C).No.19716/2019-L [2] Anuradha Basin vs. Union of India on 10 January, 2020 Writ Petition (Civil) NO. 1031 Of 2019 [3] Justice K.S.Puttaswamy (Retd) vs. Union Of India on 26 September, 2018 WRIT PETITION (CIVIL) NO. 494 OF 2012 [4] Modern Dental College & Res.Cen. & ... vs. State Of Madhya Pradesh & Ors on 2 May, 2016 CIVIL APPEAL NO. 4060 OF 2009 [5] Shreya Singhal vs. U.O.I on 24 March, 2015 WRIT PETITION (CRIMINAL) NO.167 OF 2012

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