This post is authored by Kumar Shubham, a second-year student of BBA LL.B. (Hons.) at the National Law University, Odisha.
Amidst the increase in tensions between India and China due to border disputes, the Indian Government banned 59 Chinese-origin applications that included some top-grossing social media apps such as TikTok and WeChat. The decision to ban these applications was taken to combat the danger posed by such apps to India's "sovereignty and security”. The Government’s position was that it had been receiving several complaints of illegal data transfer to foreign locations without the users’ authorization. Consequently they imposed an interim ban on the listed applications under Section 69A of the Information Technology Act, 2000 (“IT Act, 2000”) read with the relevant provisions in the Information Technology (Procedure and Safeguards for Blocking Access of Information by Public) Rules, 2009 (“Blocking Rules”). A month later, another ban on 47 more Chinese-origin applications under the same statute was enforced and over 250 apps were kept under radar. The media labelled this step of the Government as a “digital strike on China”.
Legality of the Ban in domestic Law
The Centre invoked Sec. 69A of the IT Act, 2000 to impose ban on the Chinese apps. This particular section was inserted by amending the original act in 2008. It empowers the Central Government of India to restrict or block online contents that are a threat to the sovereignty, integrity and national security of the country. The State has the power to take all necessary steps in the interest of national defence, amiable relations with other countries and maintaining public order or preventing any kind of incitement. The procedure to enforce such bans has been listed in the Blocking Rules. Rule 9 of the given act, gives the power to the government to impose a Geoblock on an online content without giving any prior notice or chance to for online mediation to the company. Geoblocking is limiting internet access, based on the geographical location of the user.
The decision of the government to ban apps like TikTok was met with criticism. TikTok has more than 100 million active users in the country and the ban denies its users the freedom of expression. This app provides a platform to its users, to express their views and opinions. Since the Indian Constitution gives the freedom of speech and expression to all under Article 19(1)(a), the constitutional validity of the ban is likely to be challenged.
Constitutional Validity of Section 69A, IT Act, 2000
In Faheema Shirin v. State of Kerala, the High Court of Kerala observed that interference with an individual’s access to internet violates their fundamental right to privacy. Also the Hon’ble Supreme Court of India, in Anuradha Bhasin v. Union of India, has observed that suspension of internet for indefinite time may amount to abuse of power by the government. However, the apex court didn’t reaffirm the stand taken by the High Court of Kerala in the Faheema Shirin case. Since the decision of the Kerala High Court hasn’t been overruled, it can be assumed that there does exist a freedom to access internet under Art. 19 of the constitution. Thus it is important to evaluate whether the ban on the Chinese apps affects this right or not.
The Chinese companies claim that the Government in India is not treating them equally among other multi-national companies. They said that the ban imposed by the government is arbitrary, discriminatory and in violation of Art. 14 of the Indian constitution. Article 14 gives the right to equality to all citizens and non-citizens. Art. 19(1)(g) grants the citizens of this country the freedom to practice any profession or occupation. However, this right is not available to non-citizens. Thus, Chinese companies don’t enjoy right but enjoy the rights provided by Article 14.
It is admitted that the basis of imposing such bans or restrictions should be in accordance with the numerated conditions mentioned in Art. 19(2) of the constitution (i.e. public order, national security, etc.). Also, given the inter-connected nature of constitutional freedoms (reaffirmed by the Supreme Court in Justice K.S. Puttaswamy (retd.) v. Union of India, the ban should also be fair, just and reasonable under Art. 14 and should not be arbitrary in nature.
However, Art. 14 does provide for dissimilar treatment between different classes, provided it should be reasonable. Chinese tech companies are being treated differently from other foreign tech companies which make similar apps. However, given the rise in tensions with China, the Centre claims that these Chinese apps are a threat to the internal security of India as they have been transferring users; data and other vital information to their origin country. Also, the ban is in accordance with Section 69A of the IT Act which empowers the Union of India to impose such restrictions.
The Apex Court, in Anuradha Bhasin case, has affirmed that Section 69A, read with the Blocking Rules, gives the government the authority to impose such restrictions on access to online content. In the Shreya Singhal Case, the constitutional validity of Section 69A of the IT Act was also challenged apart from Section 66A. The apex court, while declaring Sec. 66A unconstitutional, upheld Sec. 69A and acknowledged its constitutional validity.
Legality of the Ban under International Law
In response to the ban imposed on Chinese applications, the Chinese government threatened to take the matter to the World Trade Organization (WTO) and claimed that the restriction is against the agreements of the WTO. Both India and China abide by WTO rules and regulations for cross-border trade and the territorial restrictions of the same. The WTO is the chief authority that looks into discriminatory trade matters and works towards settling disputes between parties through panels and appellate bodies. Every member state of the WTO is under the obligation to keep its markets open for all and abstain from effecting any discriminatory policies.
The WTO has two frameworks to regulate discriminatory trade matters and all cross border trade, General Agreement on Trade in Services (GATS) and General Agreement on Tariffs and Trade (GATT). Article XVI of the GATS agreement states that all the member states of the WTO are prohibited from imposing any sort of restrictions on ‘service suppliers’ or ‘service transactions’ on companies of foreign origin. They should abstain from framing discriminatory policies against any foreign ownership. As India’s app ban policy is discriminatory against Chinese companies, it can be said that the ban is in violation of the GATS Agreement.
However, there can be instances where the obligations under GATS agreement can be conflicting with the national security of a member state. Therefore, according to Article XXI of the General Agreement on Tariffs and Trade (GATT), there are certain exceptions which state that a member country can refrain from those obligations if it believes that such an act of putting restriction is important for its national security and interests. The Indian government cited the same exceptions for blocking the Chinese-apps.
Is India’s move discriminatory against China?
In recent times, American and European companies (like Facebook, Amazon) have faced grave allegations of data transfers and privacy related issues. These companies have been operating in India since for more than a decade and have also been scrutinized in their own origin countries and by other international agencies because of their data mining policies. However, while American and European companies go through scrutiny in their own countries, Chinese laws make it necessary for their internet providers, to share user data when requested by their government. Further, a recent independent study stated that Chinese-apps collect relatively excessive information from their users (like access to camera, microphone, precise location) than is necessary to render that particular service. Given the border tensions between India and China, the Chinese Government may use these apps to spy on Indian military movements or track strategic defence locations of Indian Army. This makes the Chinese-apps a bigger threat to India’s sovereignty, than any American or European origin applications, at this point of time.
Therefore, if we interpret the GATT framework, it can be said that India’s move is not violative of any rules as it falls under the category of an exception to the WTO Agreement. Also India and China have no bilateral agreements related to smartphone applications. China was only able to launch its apps in India because India has a free market providing access to all.
In recent developments, India has banned 118 more Chinese-apps, which were earlier under its surveillance radar. This third wave of ban includes one of India’s most popular gaming app PUBG mobile and other apps like Baidu and MV master. The Chinese have strongly opposed India’s move and have asked India to rectify its mistake.
According to the law of the land, the government’s step to ban the Chinese apps is constitutionally valid. The ban has been imposed in accordance with Sec. 69A of the IT Act, 2000 and is constitutional. The government has the power to restrict any online content to protect the sovereignty, integrity and national security of the nation. Also, the constitutional validity of Sec. 69A has been upheld by the Supreme Court in the Shreya Singhal Case. Since the Hon’ble Calcutta High Court, in the case of Hongkong & Shanghai Banking ... vs Union Of India, has ruled that any foreign organization can file a writ petition in any court of India under Art. 226 of the Indian Constitution, so the Chinese companies are free to challenge the ban.
In the context of International Law, even though India is in violation of the GATS/GATT agreements, it needs the support of other member-countries to compel India to remove the ban. However, because of the fact that USA and France have supported the ban on Chinese Apps, it seems unlikely to happen. China has always kept its market blocked for foreign tech giants, and this makes its threat to approach the WTO much hollow.