The Indian government’s decision on Monday to ban 59 Chinese applications is not only inconsistent with the provisions of the Information Technology Act, 2000, it limits the fundamental right to free speech and expression.

The decision comes at a time of heightened border tensions between India and China. These apps, the government said in a press release, are “prejudicial to the sovereignty and integrity of India, defence of India, security of state and public order”.

It added: “At the same time, there have been raging concerns on aspects relating to data security and safeguarding the privacy of 130 crore Indians.” The release said that the Ministry of Information Technology has received many complaints about some mobile apps “stealing and surreptitiously transmitting users’ data in an unauthorised manner to servers which have locations outside India”.

The ban has been imposed by invoking powers available to the government to direct an intermediary to block access to information from the public under Section 69A of theInformation Technology Act, 2000. This power can be exercised where the Central government or its authorised officers consider it “necessary or expedient”...“in the interest of sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognisable offence relating to above”.

These elements stem from the grounds specified in Article 19(2) of the Indian Constitution permitting reasonable restrictions on the right to the freedom of speech and expression.

The procedural formalities for exercising this blocking power are prescribed in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. As per Rule 5, the power to block public access to online information is accorded to a Designated Officer and can be exercised only upon a request from either a “Nodal Officer” or a competent court.

Blocking requests

In this case, the decision does not stem from a direction of any court. Hence, with the caveat that it is not known whether such a request was indeed made by any Nodal Officer, we turn to other requirements of the Rules. Rule 7 requires a committee to examine the blocking request from the Nodal Officer. Rule 8 requires the Designated Officer to serve a notice upon the intermediary against whom the request has been made to file a reply or any clarifications.

Subsequently, the Committee needs to examine the request vis-a-vis Section 69A. In case it finds merit in the request, it seeks approval from the Secretary, Department of Information Technology upon such recommendation, and directs the intermediary to block the required information.

While the press note does not explicitly mention the rule under which the government has proceeded, it appears this procedure has not been followed. The government seems to have instead relied upon Rule 9 that provides for blocking in emergency cases. This seems evident from statements in the press release such as “emergent nature of threats” and “a matter of very deep and immediate concern which requires emergency measures”.

Credit: Danish Siddiqui/Reuters

Rule 9 provides that in an emergency situation where “no delay is acceptable”, the Designated Officer may directly refer the request to the Secretary, Department of Information Technology who, upon her satisfaction of the justifiability of the request, may issue interim directions to block access without providing a hearing. Within 48 hours of such a direction, the request has to be placed before the Committee for its determination.

Given that the government has utilised an emergency narrative, it appears that this press release is only an interim measure that still requires ratification from the committee. This is also confirmed by a recent statement from the head of Tiktok in India, saying that the company had “been invited to meet with concerned government stakeholders for an opportunity to respond and submit clarifications”. In any case, the government had been aware of the alleged shortcomings of the banned apps for a while. Hence, the urgency required to resort to Rule 9 did not exist.

In addition, Section 69A of the Information Technology Act requires that such blocking of access to online content can take place only by an order, the reasons for which have to be recorded in writing. In this case, the sole notification available publicly is a press release which does not satisfy the requirement of an order on part of the government.

The vague wording allows for the government to have a free hand in arbitrarily taking down online content, and sets a slippery slope as precedent.

Data privacy

The press release makes the Indian government seem like a benevolent guardian for citizens’ data privacy. This is odd, given that the government has yet to pass a law to protect the personal data of citizens.

The notion that the state and corporations should have primary rights over citizens’ data is evident in the Draft e-Commerce Policy 2019, which characterises data as a “national asset” and “societal commons.” In fact, the Indian Economic Survey 2018-’19 says that “care must also be taken to not impose the elite’s preference of privacy on the poor, who care for a better quality of living the most”.

One recent example of the the government disregard for citizens’ rights is its recent promotion of the Aarogya Setu app for Covid-19 despite strong concerns that it infringes on privacy.

Content sharing platform TikTok is the first among the list of apps banned, as per the press release. In recent years, it has become a tool for members of many marginalised communities to create their own videos. Without TikTok, the marketplace of ideas becomes smaller. In light of this, the ban amounts to a significant restriction on the right to freedom of speech and expression. The restrictions imposed by way of blocking access to these applications must be reasonable and fall within the prescriptions of Article 19(2) of the Constitution.

Recently, in Anuradha Bhasin vs Union of India, the Indian Supreme Court noted that as per the proportionality standard, any restriction on fundamental rights of individuals must be necessary to achieve a legitimate aim. In the absence of any alternative to achieve that aim, it must constitute only the least restrictive measure.

By this logic, the vague justifications in the press release and their blanket application to 59 apps without considering the individual case for restricting the use of each app cannot be justified. It is necessary to determine the harms posed by each app, as is envisioned by Section 69A. Moreover, the government could achieve its aims through less intrusive measures such as seeking assurances from app creators regarding the security procedures and data sharing policies of their products, imposing fines or issuing directions to them about their operations.

Admittedly, protecting citizens’ data from Chinese apps is a valid concern. Articles 7 and 14 of China’s 2017 National Intelligence Law statedly require all citizens and corporations to cooperate with Chinese national intelligence-gathering efforts and maintain secrecy about them. However, even if this was the justification informing the ban, there is no reason for selectively pin-pointing only 59 apps while allowing other Chinese apps such as LiveMe to continue.

Anupriya Dhonchak is reading law at National Law University, Delhi.
Nikhil Purohit is reading law at National Law School of India University, Bangalore.