-Raushan Tara Jaswal*
Time is running out on the National Security defence adopted by the Government of India for the prolonged ban on Chinese based Mobile Applications
Introduction
The defence of ‘national security’, while admittedly under the domain of the sovereign function, has recently been over-used and exploited by the present regime, even in open Courts under the garb of ‘secret envelops’. The same reasoning has also been given to prohibit the use of some-what frivolous Chinese based mobile-based applications such as TikTok and PUB-G, for almost one and a half years. Without disregarding the rising tensions between China and India, especially since 2017, from the issue of Doklam to the recent Galwan Valley strife during the coronavirus pandemic, however, the prolonged ban of Chinese Mobile-based applications seems unjust, arbitrary, and excessive. India is trying to navigate a precarious tightrope considering the decline of digital exceptionalism combined with raising concerns of privacy, informed consent, and political intervention by social media platforms. While exploring the different reasons for the permanent ‘ban’, this article seeks to analyze the constitutionality and sustainability of such bans in light of the reasons stated by the Government of India and hopes to suggest alternatives to avoid ‘over-regulation’ and still protect fundamental human rights.
Digital Strike Against China
Tensions between India and China were at an all-time high during the Galwan Valley dispute last year, which left 20 Indian soldiers dead and has been stated to be the most violent clash between the two nations in 45 years. With the world already harboring anti-China sentiments at the time due to the novel coronavirus outbreak, which could be traced to Wuhan Province in China, this clash triggered a fresh wave of anti-China sentiments in India. These rising tensions were followed by the nation’s overall sentiment to boycott Chinese goods/products. It went to the point of the Government also planning to introduce import restrictions on certain Chinese produced goods.
These moves, accompanied by the ban on several Chinese mobile applications, which at a point in time stood at over 250, in the aftermath of the Galwan Valley were a strategic and politically motivated move to curb dependence on ‘anything-Chinese’. This ban was initiated through a statement in June 2020 by ‘the Ministry of Electronics and Information Technology, Government of India under its powers under Section 69A of the Information Technology Act read with the relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009’ and banned 118 mobile apps. Initially, the Ministry of Information Technology attributed the ban to complaints about theft and surreptitious use of users’ data in an unauthorized manner, and data harvesting especially in locations outside of India. The official statement while recognizing such complaints, banned the applications on the grounds of being ‘prejudicial to sovereignty and integrity of India, defence and security of the State and public order’, without delving into the reasons on how these apps were prejudicial. In more than a year since the initial ban and reduced border skirmishes, the ban continues under different garbs of ‘protection’. While the anti-China sentiment has reduced over time, the Government has found new reasons to prolong the existing ban on these mobile-based applications. Currently, the renewal of the ban hinges on issues of compliance and privacy. This is also seemingly in consonance with the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 (Rule 8 and 9) after reviewing responses from these companies and found it still lacking on grounds of compliance and privacy. In fact, it was India’s ban that also prompted the United States Government to ban TikTok and WeChat (an action which has now been reversed) on similar grounds of privacy, compliance, and ‘national-security’. While the United States has ‘paused’ this extreme measure, India has extended the same for a few apps, which still includes TikTok and WeChat.
Outcomes of the Ban
The ban has truly encouraged the Indian digital businesses to be ‘atmanirbhar’ (self-reliant) and Indian apps have mushroomed in the past year. Some have found incredible popularity and alternatives of existing platforms – especially Instagram, YouTube have also gained momentum. However, everything is not as rosy as it seems.
The impact of this prolonged ban has major ramifications on India’s trade obligations under the World Trade Organization. While the intention of the ban finds its reasoning on national security exceptions under its sovereign functions, it does seem politically driven. Such an overarching ban also threatens to have counter-effects on the economy of both nations. While China (through these applications) has not been able to exploit the Indian market which has been the fastest growing mobile market in the recent years, India has risks to lose out on sizable investments by such companies up to the tune of $1 Billion.
The ban also prima facie seems discriminatory, arbitrary, and disproportionate as the reasons recorded in the official statement under Section 69A of the Information Technology Act seem vague. Apart from the vagueness and lack of specificity for each ofthese apps being banned, as envisaged under Section 69A, this ‘Digital Strike’ also seems to target one country (without naming ‘China’) and a politically strategic move in the aftermath of Galwan Valley incident. China, while raising the issue of these curbs at the WTO, argued that India’s measures were selective and discriminatory on ambiguous and far-fetched grounds (especially in light of India’s over-use of the ‘national-security’ defence), and abuses the national security exception.
Exploring India’s Defence
The arguments put forth by India, while extremely valid and carry merit, seem to be arbitrarily discriminating against one country, especially in the wake of its territorial clash with China. This measure also does not have any reasonable classification and the arbitrariness is further perpetuated by vagueness of the statement under Section 69A. In the absence of a new data privacy law after the Puttaswamy judgment, there is a gap in technology-related policies especially on the touchstone of the fundamental right to privacy. However, this gap has seemingly been exploited by the Indian Government to economically hurt Chinese companies, especially in the light of the competition around emerging technologies. Apart from that, the on-going ban, now under privacy concerns, can also seem hypocritical in the face of the Pegasus Scandal and concerns of users’ privacy in the government mandated – Aarogya Setu. The new Information Technology Rules, which tries to regulate social-media platforms, has been challenged on concerns relating to user’s privacy by WhatsApp. Hence, the Government relying on issues pertaining to privacy and compliance can be seen as insincere and mala fide.
Apart from privacy-related concerns, there is also an argument to be made in respect of freedom of speech and expression. Such restrictions, especially on the internet (and by extension - on such apps) as discussed by the Supreme Court must be for a legitimate aim and must be least restrictive in nature. While the ‘right to the internet’ still doesn’t exist as a fundamentally and constitutionally recognized right, it has been considered an essential ingredient as an instrument to exercise their freedom of speech and expression.
Another line of argument, akin to trade restrictions mentioned earlier, can be made on freedom of trade or business, as most of these apps have had to substantially curtail their India-based offices and operation or shut down completely. Arguments can also be ascribed in China’s favour to view this measure as anti-competitive in nature.
Time is running out for India
Instead of a complete ban, less restrictive measures could have been adopted by the Government of India. Such measures would include requesting company policies on data privacy, data transfer and sharing, data storage by such companies. Recently, Twitter also came under fire in its failure of compliance issues under the new IT Rules. However, Twitter was given ample time to comply and recourse to the domestic Courts to defend its actions, and no complete ban was ever imposed on Twitter. Hence, alternative, and less-restrictive measures such as information sharing, fines, issuing directions, implementing policies to make such applications privacy compliant, are still recourses that should have been adopted by the Government of India.
Proceedings in the WTO aside, these Orders can also be challenged on constitutional grounds within domestic courts of India. However, due to anti-China sentiment persisting (albeit not as strong) in India and the lack of political will to reverse such bans, especially considering the recent over-regulation of social-media platforms, a positive outcome seems overly ambitious. While India’s arguments on the privacy of user’s data seem legitimate, (and similar concerns have been raised by other nations on such apps) its selective targeting of Chinese apps seems political, mala fide, unconstitutional and prima facie does not seem to protect and preserve privacy of its people and in the interest of ‘defence and security of the State’.
*Raushan Tara Jaswal is currently a Lecturer at O.P. Jindal Global University and an Advocate at the Supreme Court of India. She has an LLM from the University of Cambridge as a Commonwealth Shared Cambridge Trust Scholar.