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India’s Ban on Chinese App Consistent with the Constitution?

Last Tuesday, the Indian government had banned a fresh set of 43 Chinese mobile apps, including Alibaba Workbench, WeTV, CamC

After banning a fresh set of 43 Chinese apps (1), reports suggest that the government is in the process of preparing another list of Chinese mobile applications that it would restrict very shortly.

“This action was taken based on the inputs regarding these apps for engaging in activities which are prejudicial to sovereignty and integrity of India, defense of India, the security of the state and public order,”

– The Ministry of Electronics and Information Technology (2)

As per the sources, since there is no comprehensive list of Chinese apps that the Indian government can ban in one go, the officials adopt a process to follow the most downloaded app with the most traction in app stores and follow them. Once the process is done, they do strict monitoring and then take action.

Despite being banned, several Chinese apps are reappearing via proxies, and hence authorities need to monitor these apps constantly (3).

The government had invoked Section 69A of the Information Technology App to band the fresh 43 Chinese phone applications. Notably, the Indian government’s fourth occurrence banning Chinese applications since the India-China border stands off.

First, the government had banned 59 Chinese applications such as TikTok, We Chat (4), followed by the ban of 47 apps in July, which were the banned apps’ proxies (5).

In early September, Indian authorities banned 118 Chinese mobile applications, including popular game PUBG and Baidu (6), China’s largest search engine. Altogether, India has banned over 260 apps since June. However, there is no method yet to be set for redressal.

The Strategy

The government is banning more and more Chinese mobile applications at regular intervals. Then, it is offering them a route to present their case before an inter-ministerial panel. The pace of bans would be far ahead of the redressal mechanism process.

For instance, the government banned a fresh set of 43 Chinese phone apps on November 24. It restricted the apps by invoking Section 69A of the Information Technology Act. Notably, it empowers the government to block apps or content engaged in activities prejudicial to the country’s integrity and sovereignty, defense, and security of public order and state.

As per the law, in the case of app bans, the government does not require first to notice concerned companies and wait for their replies. The firms can also not approach courts for any interim relief.

The order came amid the tension between India and China at the border, going on for months. The later standoff follows a series of moves taken by the government against Chinese apps in recent times. It follows the surging tension between the two Asian giant nations.

Geopolitical tensions are constantly rising between the two since the border clash between their armies in Galwan Valley, Ladakh, in June. It is now manifesting in trade and economic ties with Indian political members calling for a boycott of Chinese products and services.

The Cries of Dragon

After India banned a fresh set of Chinese apps on November 24, the Republic of China has been opposing the Indian government’s decision to ban other Chinese mobile apps citing national security concerns.

On Wednesday, November 25, the Chinese embassy in India stated that it resolutely opposes the ban and affirmative that the move violates the rule of the WTO, World Trade Organization (7).

“We firmly oppose the Indian side’s repeated use of ‘national security’ as an excuse to prohibit some mobile apps with a Chinese background. We hope the Indian side provides a fair, impartial, and non-discriminatory business environment for all market players from various countries, including China, and rectifies discriminatory practices that violate WTO rules. Both sides should bring bilateral economic and trade relations back to the right path for mutual benefit and win-win results based on dialogue and negotiation.”

– Ji Rong, Chinese Embassy Spokesperson (8).

Even though Alibaba and its apps are not big players in the Indian ecommerce domain, they are popular among bike enthusiasts and small shopkeepers who use it to procure cheaper goods. Additionally, Alibaba is also among the chief investors in popular Indian startups such as Paytm and BigBasket, with a solid user base in India.

Altogether, the Indian government had banned about 260 Chinese apps in four separate orders. It issued the first order in June, where 59 Chinese phone apps such as Tiktok, UC Browsers, CamScanner, Likee, and more. Then, on September 2, the government banned 118 more apps, including Baidu, Soul Hunters, Rules of Survivals, along with the popular South Korean game PUBG.

Though, recently, the online multiplayer battle royal game PUBG Mobile is hoping to make a comeback by December 2020. The company has withdrawn its association with the Tencent games and registered an Indian company, PUBG India Pvt Ltd (9).

Earlier in November, PUBG announced that it would be launching PUBG Mobile India to cater to the requirement of Indian users, specifically with several localized game elements.

However, recently the Meity put an end to all the speculation, according to sources. The sources stated the corporation or any new company in India does not have the grant to restart operations (10).

“Any banned entity can’t operate just by floating a new company. This even Tik Tok or anyone else can do. They will have to get permissions from MEITY to operate once again in India”

– The Source.

After PUBG, TikTok is also getting serious about making a comeback and looking for different alternatives. The China-based firm is currently trying to loop partner firms for policy, legal, communication, and advocacy functions.

It is optimistic that the resolution would come with the US administration via the Walmart Oracle deal, under which these global giants would buy about 20% of TikTok’s international business (11). However, it has not yet been able to crack its way in India.

The Indian Law

According to the law, the Indian government does not need to send a notice to concerned companies and wait for their replies before taking any app ban action. The concerned companies also cannot approach courts for any interim relief.

Under Section 69A of the IT Act, the government has emergency powers to block any content where it is satisfied that it is against the country’s sovereignty, integrity, and defense. In such cases, there is no requirement to serve any prior notice to the concerned content providers before ordering a ban.

According to Section 69A, the concerned companies can represent their case to the officials after the ban. They would then conduct a full-fledged inquiry by an inter-ministerial panel. It would subsequently submit its report to the IT secretary, who, based on the evidence, would decide the future progression.

The concerned companies can appeal before the cabinet secretary if they feel that the ban is justified and needs to be continued. The Cabinet secretary will then form a panel to hear them, and it doesn’t include the IT secretary.

China: An Uneconomic Move

While responding to the India successional ban on Chinese apps, China cried that such bans are not beneficial to the Indian users and not for China’s businesses. It added that it is also a violation of WTO rules.

While responding to India’s ban on Chinese apps, Gao Feng, spokesman of the China Commerce Ministry (12), stated that India is abusing the concept of national security and is adapting discriminatory restrictive measures against Chinese companies. China further urged India to correct its unfair practices.

“China-India economic and trade cooperation is mutually beneficial and win-win. It is hoped that the two countries will jointly maintain the hard-won cooperation and development situation and create an open and fair business environment for international investors and service providers, including Chinese companies.”

– Gao Feng (13).

At a separate Chinese Foreign Ministry briefing, Hua Chunying stated that the Indian user’s rights and interests are first harmed, and Chinese business rights and interests would also be harmed. She added that what India has done is not beneficial to anyone.

She added that the people of China and India could conduct regular cooperation or exchange in all sectors. And they should not let temporary short-sightedness hurt the long-term interest of both countries and people.

The Lack of Transparency

Several internet experts are worrying over the Indian government banning the Chinese app trend. They believe that the biggest worry is the lack of transparency with the bands.

“The kind of power being used with these bans, there is no degree of transparency. Certainly, there are insecurities with a bulk of these applications. However, the question is whether only the banned applications have such insecurities or they exist with other applications as well.”

– Apar Gupta, Lawyer, Executive Director of Internet Freedom Foundation (14)

Gupta also pointed out that public policy’s objective should not discriminate between losers and winners but need to set standards and enforce penalties with uniformity, which is not happening.

According to Mishi Choudhary (15), a New York-based lawyer specializing in technology law stated that one could not ignore that cyber policy, geopolitics, and the information technology market are quite intertwined with each other.

Choudhary also acknowledges that China doesn’t play by the rules, and we have seen their practices notorious in several matters. Hence, it should not be said that the government does not have any reason to do it but why people are told that nationalist apps are better than foreign apps.

She added that at the same time, we could not ignore the demand for transparency when it comes to app blocking. Subject all entities, whether they are Chinese, American, or Indian, to the same set of standards and laws.

Policy Uncertainty

According to the experts, the bans are creating an uncertain regulatory environment. According to Choudhary, it doesn’t reflect a well-thought and thorough policy decision.

She added that short-term steps are now seeming as the preferred mode for the last few months. Moreover, India’s Data Protection Bill has not yet passed, adding to the problem. A joint parliamentary committee is currently examining the Indian Data Protection Bill 2019 in consultation with stakeholders and experts.

At present, India does not have comprehensive privacy-based laws on data protection, which it can rely on to deal with data theft or apps not complying with the laws. Hence, it needs to use the IT Act, and that’s what it has decided to do.

It raises the question of applying the same law to all entities. All players should subject to the same law.

Choudhary highlighted several reports, whether all these big wallets, fintech firms, or anything about data theft, how one can buy a list of people’s phone numbers and Aadhaar numbers and other details from various people. There is no law enforcement or even discussion about law. She added that we are dithering for three years now for data protection legislation.

The issue of protecting user data must apply to all apps and not only to the Chinese ones. So while these apps present all cyber-security risks, personal aggregation risks, the truth is that there is no data protection law. The issue also arises out of millions of other apps already present in the market. Hence, it does not differ if the app is made in Chian or Timbuktu, stated Gupta.

In short, India needs to go through a legislative means. It needs justifiable penalties for data protection. Instead of these bans, it is better to have prescriptive practices.

The ban also raises questions about where India is heading with its tech policies. Chaudhary cautions that we still do not have comprehensive thinking on tech policies. It is the uncertainty that India offers is not making it an attractive destination for firms even though it is a desirable destination as a market.

Executives and businesses are frequently in the guessing game regarding rules and regulation, and everyone likes some predictability.

Limiting Fundamental Right

Several experts also believe that the Indian government’s decision to ban Chinese apps is inconsistent with the information Technology Act provisions and limits the fundamental right to free expression and speech.

As per the press release of the Indian government (16), Chinese apps are prejudicial to Indian sovereignty and integrity, state security, defense, and public order. It added that there have also been raging concerns on aspects relating to data security and privacy of 130 crore Indians.

The press release further added that the Ministry of Information Technology had received many complaints about several mobile apps stealing users’ data and transmitting them in an unauthorized manner to servers located outside India.

The Indian government has imposed the ban by invoking powers available to direct an intermediary access block of information from the public under Section 69A of the Information Technology Act (17).

The central government or authorized officers can consider its power in the interest of Indian sovereignty and integrity, state security, defense, and public order. These elements come from the specifications of Article 19 (2) of the Indian Constitution, which permits reasonable restrictions on the right to freedom of speech and expression.

Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (18) prescribes the procedures, formalities, and exercising the blocking power. According to Rule 5, the power to block public access to online information is accorded to a Designated Officer. And can be exercised upon a request from Nodal Officer or a competent court’s request.

Taking a Free Hand

The Indian government is not deciding a court’s direction or Officer’s request but relies on Rule 9, blocking emergency cases.

Rule 9 provides that in case of an emergency, where there no delay is acceptable, the Designated Officer may directly refer the request to the Department of Information Technology Secretary. And upon her satisfaction on the request’s justifiability, may issue interim directions to block access without offering a hearing. Within 48 hours of such direction, the request needs to be placed before the Committee for its determination.

Since the government has utilized an emergency narrative, it justifies the statement from the head of TikTok India. In the statement, he stated that the concerned government had invited the company for an opportunity to respond and submit clarifications (19).

Conclusion: The Urgent Need for Data Privacy Law

The press releases make the Indian government look like an altruistic guardian for its citizens’ data privacy. However, it doesn’t make sense, especially when the government has not yet passed a law to protect citizens’ data.

The notion the corporations and states should have primary rights over citizens’ data is apparent in the Draft e-Commerce Policy 2019. It characterizes data as a societal commons and national asset. Moreover, according to the Indian Economic Survey 2018-19, care must be taken to impose the elite’s privacy preferences on the poor who care for a better living quality the most.

For instance, the government’s disregard for citizens’ rights is reflected in its recent promotion (20) of the Aarogya Setu App for COVID-19 despite strong concerns that it violates privacy (21).

According to the press release, TikTok, the content sharing platform, is the first in banned apps. It has become a tool for users of several different communities to create their videos. And without TikTok, the marketplace of creative ideas have become smaller.

The ban amounts to a significant restriction on the freedom of speech and expression rights considering it. The restrictions imposed by blocking access to these applications must be reasonable and fall within the prescriptions of Article 19 (2).

Recently, the Indian Supreme Court, in the Anuradha Bhasin and Union of India case (22), stated that according to the proportionality standard, any restriction on individuals’ fundamental right s must achieve a legitimate aim. In the absence of any alternative for the aim, it must constitute only the least restrictive measure.

With this logic, the press release’s vague justifications and the blanket ban on these apps without considering the individual case for restriction each app usage is not justifiable. It is necessary to determine the harms of each app, as envisioned by Section 69A.

Additionally, the government could also achieve its aims via less intrusive measures such as seeking assurances from each app creators regarding their products’ security methods and data sharing policies. They can also impose fines or issue directions to creators regarding their operations.

Yes, protecting citizens’ data from Chinese app is a valid concern (23). Especially when China’s 2017 National Intelligence Law, Article 7 and 17, stated that all citizens and corporations must corporate with Chinese national intelligence-gathering efforts and maintain secrecy about them.

However, as much as a ban on Chinese apps is paramount because of the data theft concerns, India also urgently needs a data protection law.