LEGALITY OF CHINESE APPS BAN
Article by Joysurjo Roy
(Student of KIIT School of Law)
What was the problem exactly?
Since early May, China and India were facing a standoff of military strength across the Northern Indian border across Ladakh and “LAC” (Line of Actual Control). A mutual de-escalation agreement took place on June 6, 2020. While de-escalating, a violent faceoff transpired at Galwan valley, in which 20 Indian soldiers were martyred as reported and 40 Chinese soldiers [unofficial data from the Indian Army]. Following the tensions, the Indian public decided to ban Chinese products and service to show solidarity with the soldiers.
Soon, the Ministry of Information and Technology on June 29, issued an order banning 59 Chinese Apps, and directed strict compliance guidelines. On July 24, the Ministry further banned 47 more apps which allegedly were functioning as clones of the previously banned 59 apps. The Ministry has also kept 250+ apps under close supervision, including popular apps like PubG. The order so passed, was passed under section 69A of the Information Technology Act 2000 read along with Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of information by Pubic) Rules 2009.
Section 69A of the IT Act explained
Section 69A, as inserted by the amendment of 2008 and published in the official gazette on February 5, 2009 is an enabling legislation that empowers the Government of India through its Ministry of Information to issue directions for blocking for public access of any information through any computer resource.[i] The order under this particular section may be passed to safeguard the sovereignty, national security and defence of the State. The information may be generated, transmitted, received, stored or hosted in any computer resource, and the same may be blocked for access by public. The word public has not been defined in this Act or otherwise and therefore includes the said Chinese Multinational Corporations who stored the data of Indian nationals on their online applications.
What is the section all about that empowered the government to ban all the 59 Chinese Apps?
This section was added in the Information Technology (Amendment) Act 2008. The government has previously, by invoking this section, banned more than 8000 websites, including websites with pornographic and child pornographic content. The government must mandatorily, in writing record the reasons for issuing and invoking such order, which is subject to judicial review. The act in itself does not say that the Court is authorized to do it. The Court assumes its jurisdiction only in footings of Rule 5 and Rule 10 I.T. (procedure and safeguards for blocking for access to information by public) rules.[ii] The said rules require maintaining strict confidentiality of the requests, complaints and actions taken thereof filed under this section which in turn also restricts RTI appeals regarding such orders.
The order was passed under the emergency provision[iii], and not on grounds of receiving complaint(s).
Scope of section 69A
The Supreme Court in Shreya Singhal v. Union of India has upheld the constitutional validity of Section 69A and the blocking procedures. The said blocking however could be only made vide a detailed reasoning, in writing in support of such blocking. The Apex Court also accentuated that this section is safeguarded with sufficient sections. Even in cases of invoking emergency blocking, the Designated Officer (DO) must present a report before the committee within 48 hours of passing such interim order. Thereafter, a notice will be issued to such intermediary, to appear before the committee to contest such blocking.
In the present scenario too the banned apps will be directed to appear and submit their pleadings before the committee to contest against such bans.
Rule 9 drawn in with section 69A
The said order was passed in accordance with Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of information by Pubic) Rules 2009. The said rule supersedes Rules 6, 7 and 8 of the same Rules in case of an emergency. The review by the committee is deferred and the order to block may be passed by the DIT Secretary by an order, in writing, recording the detailed reasons for the said blocking order. The said order may be confirmed by the committee later.
Is the problem solved?
The problem is more political in nature than that of a legal dispute. The order passed, is in pursuance of the aim to block the leakage of data mostly personal and private in nature of Indian nationals to the Chinese government and has been passed in accordance with the national information technology laws. The order is appealable and puts an interim ban, which is more in the nature of a precaution than a cure. The state of cold war, could have escalated, and still may in future, escalate and the leakage of such personal data puts the sovereignty of the State at jeopardy.
However, the ban does follow all the due procedures and safeguards and is also appealable.
[i] Information and Technology Act, Section 69A [ii] Facebook. Inc v. The State Of West Bengal & Anr on C.R.R. No. 2332 of 2017 [iii]Information Technology (Procedure and Safeguards for Blocking for Access of information by Pubic) Rules 2009, Rule 9 Picture Courtesy - Solen Feyissa/@solenfeyissa