Ban on Chinese Apps: Conflict between national security and fundamental rights

This article was written by Prakriti Singh, a student of HNLU.

INTRODUCTION

In 2020, the Ministry of Information Technology imposed a ban on over 200 Chinese apps by exercising its powers under the Information Technology Act, 2000 and the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009. The reason given was that these apps violate data privacy and can endanger the security and integrity of India. The ban on apps came as a restriction on the right to access Internet, a fundamental right subject to reasonable restrictions. The use of vague laws combined with the arbitrary approach of the Central Government resulted in several questionable restrictions on the fundamental rights of the citizens. This article will be analyzing these restrictions and also make some suggestions regarding the amendments than can be made in the existing laws so that the executive power is limited in scope and the fundamental rights remain sacrosanct.

OPACITY IN THE IMPLEMENTATION OF THE BAN

One of the laws used to impose the ban was Section 69A of the Information Technology Act, 2000. Section 69A empowers the central government to block public access to online information on the grounds of danger to India’s sovereignty, integrity and defence. The apex court on several instances has upheld the constitutionality of Section 69A on the grounds that it is narrow in scope and has adequate safeguards against misuse of power. However, in this context, the approach adopted by the Central Government has been replete with opacity and arbitrariness.

Woodrow Wilson, the former US President had said that it is the obligation of any government to maintain transparency. Secrecy and opacity in government actions lead to impropriety and corruption. Section 69A also attempts to ensure transparency and propriety in government actions. It permits restrictions on right to internet access only in accordance with the restrictions permitted under the Indian Constitution. It mandates the disclosure of a detailed written order justifying the imposition of such a ban. However, to date, no elaborate order or document explaining the basis of imposing such a ban has been disclosed by the Central Government.

In the case of Anuradha Bhasin v. Union of India, one of the contentions advanced by the petitioners was the imposition of restrictions on the liberties of the residents of Jammu and Kashmir without the disclosure of any detailed order. The apex court held that one of the crucial concepts of democracy is free flow of information and in case of any curtailment of the fundamental rights; the authorities are bound to provide detailed orders mentioning the grounds of such curtailments. If a complete ban is imposed, the government is mandated to give elaborate justifications on the reasonability of the ban. Also, it has to justify why a restriction of a smaller magnitude would not suffice in the situation. In the context of banning apps also the Central government was bound to furnish detailed orders mentioning the legal grounds and reasons for the same.

EMERGENCY AS A GROUND FOR BAN

Another legal provision exercised by the Central Government is Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. Rule 9(2) allows the government to impose geoblock in emergency situations without providing a pre-decisional hearing opportunity to online intermediaries.

Tik Tok was one of the apps banned through the government order. This app had been under the scanner on the grounds of promoting explicit content much before the ban. Even the Madras High Court had earlier directed the Centre to take disciplinary action against the app. An emergency is a “sudden, unforeseen happening” requiring action to protect lives or property. In this context there were explicit concerns relating to the Chinese apps much prior to the ban. Was there really an emergency situation that compelled the Central government to take such harsh measures even when there had been sufficient notice of the concerns related to the apps?

Rule 9 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 authorizes the Secretary, Department of Information Technology to block public access to any site or information in case of an emergency. This emergency is left to be decided at the discretion of the Secretary, no specific criterion is laid down. There is an absence of a reasonable magnitude of definiteness and precision in this rule. There are some other rules in the IT Rules, 2009 which comprise higher levels of precision and have adequate safeguards against the arbitrary exercise of power.

Rule 5 permits a geoblock only on the receipt of a request from the nodal officer. Rule 7 mandates the Constitution of a Committee to enquire into the need of a geoblock. Rule 8 provides a hearing opportunity to the concerned online intermediary. These rules would have maintained an effective check on executive power along with the protection of data privacy and national security. In Grayned v Rockford, it was held that a vague and open-ended law offends the principle of due process of law. One of the reasons the Supreme Court of India gave for holding Section 66-A of the IT Act, 2000 unconstitutional was that it is vague and portends misuse of power by the executive. A vaguely worded law can upset scheme of reasonable restrictions on fundamental rights, as envisaged by the Constitution of India. It can form the foundation for arbitrary and discriminatory use of power. The previously available vague provision of “internal disturbances” under the Indian Constitution as a ground for imposition of a national emergency had given the Indira Gandhi government unbridled authority to impose a national emergency and trample upon the fundamental rights. Why did the Central government use a vague rule even when more specific rules providing adequate safeguards were available?

REASONABILITY AND PROPORTIONALITY OF THE BAN

The most important question in this context is whether this ban is a reasonable restriction on the right to access internet? The Supreme Court of India, in the landmark Modern Dental College case, had recognized the doctrine of proportionality with respect to restrictions on fundamental rights. Firstly, the purpose which is sought to be achieved by the means of any such restriction must be of “sufficient importance”. Secondly, such a restriction placed on the fundamental rights must be proportionate to the purpose it seeks to achieve.

In Ram Manohar Lohia v State of Bihar, Justice Fazl Ali had held that “public order” is a very wide and vague ground for restricting the fundamental rights. Circumstances that endanger the security of the state are of varying magnitudes. “Three concentric circles” approach was laid down and three different categories were recognized- law and order, public order and the security of the state. Each of these situations is of a different gravity and requires different response from the government.

However, this level of precision is absent in the government’s approach in the imposition of restrictions. The Centre has failed to disclose any document showing a rational nexus between the restrictions and the purpose sought to be achieved. It has not even reasoned as to why a restriction of lesser magnitude, such as prohibiting the defence personnel from using the apps (as done by USA) has been exercised in the scenario. It has utilized the loopholes present in vague laws in order to bypass the due process of law.

ABSENCE OF DATA PROTECTION LAW

The root cause of the Central Government’s actions was the privacy concerns emanating from the banned Chinese apps. Due to the lack of a robust and consolidated data protection law, the Central Government resorted to the archaic and vague laws to protect the sovereignty and integrity of the country. This ban and the unreasonable restrictions have brought to the fore the need for a robust data protection law. Over three years have passed since the Supreme Court of India recognized privacy as a fundamental right in the landmark K.S. Puttaswamy v Union of India and a committee under the chairmanship of former Supreme Court Judge; B.N. Srikrishna was constituted to propose the data protection bill. However, India remains devoid of a data and privacy protection law to date.

CONCLUSION

The Central Government, while banning the apps for the purpose of data privacy and national security, has adopted a questionable approach. Firstly, it must obey the apex court’s order related to the Right to Information of the citizens while restricting the rights guaranteed by law. Detailed orders mentioning the reasons that led the central government to enforce a total ban on over 200 apps must be disclosed. Secondly, the central government must adopt an approach consistent with the due process of law. Instead of escaping from public scrutiny through the use of vague legal provisions, it must exercise powers laid down under properly defined laws. Thirdly, it must consider the high thresholds of “public emergency” and refrain from prohibiting the rights and liberties merely on the grounds of “public order”. Fourthly and lastly, it must follow the “reasonability” principle and impose the restrictions of the least possible magnitude rather than imposing an absolute ban. It must follow the reasonable distinction approach even while attempting to ensure the security and integrity of the state.

Laws that are vague and open-ended form the foundations of abuse of executive power.  India has witnessed the misuse of vague legal provisions Hence, Rule 9 of the 2009 Information Technology Rules must be held null and void, like the section 66-A of IT Act, 2000. In order to prevent the executive from exercising an upper hand while striving to maintain data privacy, a comprehensive data privacy protection law is the need of the hour.