Introduction

Amid the escalated border tension in-country, the Indian Government has blatantly taken the decision of blocking access to 59 China-based applications. This ‘Geo-block’ is not only erratic with the provisions of the Information and Technology Act, 2000 but also leaves fundamental rights in a bizarre position.

The ban was released by the Press India Bureau’s notification which implicated the rationale behind this as their concerns towards data privacy and aspects of cybersecurity of around 130 cr. Citizens. According to the press release, these applications are articulated as “ prejudicial to the sovereignty and integrity of India, the security of the state and public order”.

The geo-block is imposed by invoking their power present under section 69A read with the pertinent provisions of Information and Technology Act ( procedure and safeguards for Blocking access of information by the public), 2009. Within two months after the purported ban, another ban was imposed on 118 more China-based applications by following the same procedure, demonstrating a virtual tech-war between India and China

The vaguely derived ban could have some consequential repercussions. Reports have demonstrated that these applications together were accounted for 330 million installs in the April-June quarter. Among them, Tik-Tok have solely managed to get 16.4 million new installs in June. And has more than 200 million active users in India.

In addition to the marginalized communities, around 23000 Indian students enrolled in Chinese education programs will also go around with the ragging connectivity issues with their peers and colleagues. This arbitrary manifesto has brought the play of freedom of speech and expression in a contentious state of affairs.

Proportionality test

Under a constitutional democracy like ours, a signatory to the Universal Declaration of Human Rights and International Covenant on Civil and political rights, there should lie a basic understanding of internet regulations. The restraining action contended to be a heroic move pulled by the Government in order to marginalize their concerns over data protection of citizens. However, the idiosyncrasies can be noted by the fact that the Indian government has yet to enact a law inter alia with the concerns of cybersecurity.

The Geo-block appeared to be coming from the premises of Article 19(2) of the Indian constitution which permits reasonable restrictions on a citizen’s right to freedom of speech and expression. As the thread continues, it precisely demonstrates center’s concern over national security and the integrity of India, which points out the “emergency nature” of the public order. Therefore the inclination towards blocking these applications is much more delicate as it’s supposed to be.

As per Faheema Shirin v. the State of Kerala, the High Court of Kerala proposed a viewpoint that hindrance with an individual’s right to access to the internet freely violates their fundamental right to privacy as well. Subsequently, in Anuradha Bhasin v. Union of India, the Supreme Court of India has stated that suspension of the internet for an indefinite time may amount to an abuse of power by the government. It can be said by the above reference that there does exist freedom to access the internet freely under Article 19 of the constitution. Thus it is significant to observe whether the ban on the Chinese apps is discriminatory in nature or not.

Is the ban discriminatory to Chinese applications?

The recent decision of the central government to ban Chinese origin apps is grossly arbitrary in nature as the move is largely inconsistent with the WTO rules and regulations. China has also registered its sharp reactions claiming it to be discriminatory. As long as the issue of privacy is concerned ‘Aarogya Setu’ which is the flagship app of the Indian government for the tracing of Covid19 patients is also not far away from criticism. According to a report, it seeks continuous access to the location for its social movement graph and it also uses Bluetooth function for sending alerts to people if they are nearer to a COVID patient. Moreover, the app is silent on its ambiguous private policy. Article 14 of the constitution gives the right to equality to the citizens as well as to none citizens and a recent judgment by the Calcutta High Court held that foreign entities can file a writ petition with respect to article 226 of the constitution. “, 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 for informing the ban, there is no reason for selectively pin-pointing these apps while allowing other Chinese apps such as LiveMe to continue”.

Ban for National security

Although the move to ban Chinese apps are not up to the merit but it is being regarded as one of the finest amid the prevalent LAC Conditions. Under the Indian Constitution, Article 19(2) guarantees us freedom of speech and expression and the government has the right to put reasonable restrictions on it. This move rightly demonstrates the nature of the article.

Supreme Court in Anuradha Bhasin v. Union of India held that section 69A of the IT act, 2000 further read with IT(Procedures and Safeguards for Blocking for Access of Information by Public) Rules 2009 allows the government to impose tailored restrictions on access to certain apps. Also,  in Shreya Singhal v. Union of India, Supreme Court acknowledged the validity of section 69A of IT Act, 2000, and held it to be constitutional.

Conclusion

In spite of the fact it seems highly ambitious but for this to become a reality we first need to take some steps. We need to work hard, develop stuff that can counter Chinese stuff. But right now thinking about the current situation it will take time. We can also not deny the gravity of interconnected Fundamental Rights. India through banning these apps have many diplomatic interests as the whole world is standing against China and does not want to take enmity of other countries. Banning Chinese apps is just like putting a Band-Aid over a gunshot wound. A cover-up and not the real deal.

Author

Deeksha Bhatia

She is a third year law student at Rajiv Gandhi National University of Law, Punjab. Deeksha has a keen interest in Constitution law and analysing it’s applications with contemporary issues.

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