Legal Process Behind Banning Chinese Apps in India: A Major Indian Technological Retaliation
The India-China relationship soured during the China-India skirmishes of 2020. These asinine border disputes have resulted in the loss of a lot of human lives. As multiple rounds of deliberations failed to create an opportunity for calm resolutions, the Indian Government did the unthinkable!
The Ministry of Electronics and Information Technology (Ministry) invoked its powers under Section 69A of the Information Technology Act (IT Act), 2000, and banned 59 apps. The Government of India justified its actions by revealing that the banned apps jeopardised the sovereignty and security of India.
Apparently, the Ministry had received “many representations raising concerns from citizens regarding the security of data and risk to privacy”. Subsequently, the Ministry, while acting upon the recommendations of the Indian Cyber Crime Coordination Centre, banned an additional 118 applications.
Since the turn of this century, India has emerged as a leading hub for technological innovations and developments. With a population of over 1.3 billion, it is no secret that India is a great market for Chinese products. Therefore, this ban on Chinese apps is a major Indian technological retaliation without resorting to physical warfare.
Legal Analysis of India’s Ban on Chinese Apps
The Chinese government and the various enterprises marketing these apps have expressed their dismay, albeit unto deaf ears. Nonetheless, the Indian Government has made a bold choice and will want to make an example out of this. Meanwhile, let us look at the legality of the Chinese apps ban.
What Is Section 69A of the Information Technology Act, 2000?
Section 69A (S.69A) of the Information Technology Act, 2000 grants the “power to issue directions for blocking for public access of any information through any computer resource”. Section 69A allows the Central Government or any of its specially authorised officer (authority figure) to wield substantial power.
The authority figure can pass directions to anyone, to block any information from public access, in the interest of:
- sovereignty and integrity of India;
- defense of India;
- security of the State;
- friendly relations with foreign States; or
- public order; or
- for preventing incitement to the commission of any aforementioned cognizable offense.
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The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 regulates the implementation of S.69A. A quick perusal of Rules 5-8 will disclose that the Government has hastened the process by following Rule 9 instead. Rules 5-8 professes a phased plan for blocking of access. However, Rule 9 allows the exercise of this “blocking power” in situations of emergency.
Furthermore, according to Rule 9, in situations of emergency, “no delay is acceptable”. Thus, the legality of the Chinese Apps Ban has to be seen from the point of view of an emergency. Needless to mention, that the action of the Government, in bocking the Chinese apps, was after the Indo-China border clashes. Hence, the hastiness in the blocking of the Chinese apps may display a political colour.
Additionally, the Union Minister for Communication and IT had referred to the app ban as a “digital strike”. In any event, India has played the card of a national emergency, citing serious concerns regarding data privacy and security. Any challenge to the act of app blocking could be unsuccessful since the Courts have historically upheld notions of defence, security, sovereignty and integrity.
Ji Rong, from the Chinese embassy in India, called the app ban “discriminatory” and violative of “national security exceptions”. He said that India’s actions are ambiguous since it has shown differential treatment towards Chinese apps. Additionally, China has vowed to urge this issue before the World Trade Organization (WTO).
Incidentally, a WTO panel had opined in a separate matter in the past that “political or economic differences between Members” does not “constitute an emergency”. India remains confident that the security exceptions to the WTO agreements will validate the legality of the Chinese apps ban. Moreover, the US, Japan, and France have been supportive of India’s stance regarding this issue—which is promising.
Effect of India’s Ban on Chinese Apps
The Indian Government has banned some of the major Chinese applications including TikTok, SHAREit, WeChat, Cam Scanner, and PUBG Mobile.
India is a hub for technological advancements, and a bulk of the users of these banned apps were from here. The banning of the apps will serve a stern blow to their plans for global expansion. However, many people in India could also suffer as a consequence of this action.
TikTok had a considerable user base in India. Content creators across various ages had been using the app in a bid to get famous. This ban will put a spanner in their works as well. Furthermore, the Cam Scanner app is a user-friendly and extremely versatile document editor.
Most importantly, the WeChat app has helped the Tibetan refugees in India, to connect with their people living in Tibet. The WeChat application also benefits the Indian students enrolled in various Chinese universities.
This blanket ban will make communication difficult since the government there has banned apps like WhatsApp and Facebook. Clearly, the Chinese government has been hypocritical by its criticism despite banning a catalogue of apps due to ‘security concerns’. It has blocked several other major apps such as Google, Play Store, YouTube, and Snapchat.
Nonetheless, this is not the first time that apps having a link with China have been banned. The Australian and USA governments had instructed their armed forces to not use Chinese messaging and payment apps for security reasons. The UK, Canada and Belgium governments have also raised concerns regarding some Chinese apps in the past.
Looking Forward: The Need for a Personal Data Protection Law
Alternatively, India’s ban on Chinese apps has paved the way for the ‘Digital India Atmanirbhar Bharat Innovate Challenge’ in India. The government has been encouraging Indian developers to channelise their creativity and create technology that can rival these global behemoths.
Thus, Roposo and Chingari have replaced TikTok, Jio Switch has replaced SHAREit, and Camera Scanner has replaced Cam Scanner. Furthermore, FAUG has tried to replace PUBG. While most of the alternatives may not be as user-friendly or efficient, this is a testament to a positive trend. Of course, there have been certain issues relating to data security for the home-grown apps as well. The need of the hour is a comprehensive law on data protection and data security. A Joint Parliamentary Committee is examining the Data Protection Bill, 2019. A comprehensive law will bring about a certain uniformity regarding data protection. That will allow the application of a uniform law to every player, and the exercise of such power under Section 69A will not have a political color.
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