Author: Megha M, Student at Kerala Law Academy, Thiruvananthapuram.
Government of India banned 59 Chinese applications on 29th June 2020 citing data security and national sovereignty concerns. The Centre has blocked these apps through its Ministry of Electronics and Information Technology invoking its powers under section 69A of Information Technology Act ,2000. Border tensions have been rising between the two countries since early May 2020 leading to the first violent clash between the two military forces in 45 years. Even though the Government of India did not name China openly in the action taken,it makes sense to analyze both the events together considering the timing of the same .
MOTIVES BEHIND THE APP BAN
The Ministry has banned the apps by invoking its power under Section 69A of the Information Technology Act, 2000 (the IT Act) read along with the relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 (the Blocking Rules) mentioning the engagement of these apps in activities “prejudicial to sovereignty and integrity of India, defense of India, security of state and public order.” According to the ministry, these banned apps were “stealing and surreptitiously transmitting users’ data in an unauthorized manner to servers which have locations outside India. The compilation of these data, its mining and profiling by elements hostile to national security and defence of India, which ultimately impinges upon the sovereignty and integrity of India, is a matter of very deep and immediate concern which requires emergency measures.”
One could safely assume that this concern is resulting from the two Chinese legislations – the Counter-Espionage Law and National Intelligence Law, which mandates all Chinese citizens and corporations to cooperate and assist with national intelligence gathering efforts whenever asked and maintain secrecy about this.
Also, it is considered that the other reason for this extreme step is that India’s Data Protection Bill is yet to be passed. So, as of now , there is no legislation available in India that can be used to prevent data theft and protect individuals and corporations from data infringement issues. As such, the Government is left with the IT act to prevent any and all crimes related to data privacy.
Yet another reason behind the app ban is the “Atma Nirbhar ‘ Bharat vision envisaged by PM Narendra Modi. Currently there is an over-dependency of Indians on these Chinese apps, to the extent that a lot of people can even be called addicts.To put this into perspective, at the time of the app ban, TikTok India had 120 Million users, UC browser had 130 million users and Wechat had over 200 Million users in India. Hence the idea of App ban to give a boost to Indian App developers.
IMPACT OF APP BAN ON INDIA
When there is a case of face-off between 2 countries, the natural expected outcome is a military confrontation or economic trade sanctions between them.
But between India and China, China is the bigger power when it comes to sheer military power.Also India and China are both nuclear superpowers, so it is too big of a risk to initiate a military engagement. Also,there is an over-dependency of India on Chinese Goods which has resulted in India’s huge trade deficit on China.There is a lot of Capital infused into Indian Economy by China, routed through other countries like Singapore. These seriously limit India’s chance of imposing trade sanctions on China.
Hence the app ban is considered to have a signaling effect on China to limit further escalations.
Impacts of the App ban in India are manifold. Positive impacts include limiting the dependency of Indians on Chinese Apps, Boost to Indian App developers, Protecting the data privacy of its citizens and to show the world that India is no longer run by passive diplomacy.
There are many negatives to this as well ,like a lot of Indians students enrolled in Chinese Universities use these apps to contact their family back home, they have been impacted. A lot of people were addicted to these applications and the ban has impacted their mental health. Investments planned by these companies in India will also be lost.
IMPACT ON CHINA
Even though it is expected that the ban of these apps in India will severely impact the revenues of the companies , the reality is that India is currently a very small marked for most of these App companies. For instance , India Revenue accounts for just 0.03% of the global revenue of Byte dance , the parent company of TikTok. Thus the action to ban the apps will not significantly impact Chinese economy in the short term, However the bigger picture reveals that this move has put an end to the aspirations of the Chinese companies to capture the huge untapped digital market in India.
LEGAL ASPECTS OF THE APP BAN
As per Section 69A of the IT Act, the Government of India can, for reasons recorded in writing, instruct an intermediary to block for public access any information generated, transmitted, received, stored or hosted in any computer resource when the Government is satisfied that it is necessary to do so in the interest of sovereignty and integrity of India, defense of India, the security of the State and public order.
According to this Blocking Rule, an order to issue a block can be done in two ways: firstly, a ban imposed post receiving a complaint, involving inquiry and notifying the affected persons about the complaint and hearing their replies (Rule 6, 7 and 8); secondly, an ‘interim ban’ imposed in emergency situations prior to giving any opportunity of hearing, however with written recorded reasons (Rule 9). Rule 16 prescribes confidentiality principles regarding complaints and actions taken under the Rules.
Section 69A seeks to restrict information, which is defined as including “data, message, text, images, sound, voice, codes, computer programs, software and databases or micro film or computer generated micro fiche”, and directly implicates the fundamental right to freedom of speech and expression guaranteed under Article 19 of Indian Constitution. Accordingly, grounds of restriction in Section 69A are derived from the language of reasonable restrictions on freedom of speech permitted by Indian Constitution under Article 19 (2).
The Indian Supreme Court in Shreya Singhal v. Union of India has upheld the constitutionality of Section 69A of the IT Act and the corresponding Blocking Rules. The court reasoned that information can be blocked only if the central government is satisfied that it is necessary to do so, the necessity relates to the subjects permitted as reasonable restrictions under the Constitution, and the reasons for blocking have to be recorded in writing which may be challenged in a court of law. Additionally, the Blocking Rules provide for procedural safeguards, including a committee that examines the necessity to block information and provides hearings to affected parties.
In the case of this current ban it is clear, from the actions taken by the Government, that an Interim block has been issued on the Chinese Apps. The Government had issued a questionnaire to the affected parties seeking their clarification after the ban. In line with the interim blocking order rules, the ban was effected without any delay.
CONCLUSION
It is clear from above that the economic impact of this action on China is not too big in reality, however this is the maximum that the Indian Government can act against China, lest India is ready to face the risk of a military and economic battle with China. However the move has greatly helped the Indian government in giving a boost to the morale of Indian citizens ,giving them the satisfaction that they are not run by passive diplomats but by a very proactive government who is ready to act instantly if anybody tries to mess with its land or the people.
Keeping the political agenda in perspective, it is highly imperative that we Indians actually utilize this opportunity and leverage it as a chance to grow as a digital superpower.It is a fact that digital capabilities are the backbone of any economy today and hence India should invest more into research and development to create apps that not just replace the banned ones, but that are technologically superior and flaunt even better user interface. Thus Indian App developers are given a free hand and a whole untapped market to test their development capabilities and grow.
REFERENCES
Technology Turmoil: The Impact of India Banning Chinese Apps (Law.com)