When ban on Chinese apps can, and cannot, be challenged in court

When ban on Chinese apps can, and cannot, be challenged in court

Chittarvu Raghu

As a retaliatory measure consequent to the ‘Galwan Valley’ aggression, the Government of India invoked Section 69A of the Information Technology Act 2000 and banned 59 smart phone applications which include the popular TikTok and Cam Scanner. The reason cited was that these apps posed threat to the sovereignty and integrity of India.
The Information Technology Act 2000 was enacted pursuant to a resolution passed by the General Assembly of United Nations on January 30, 1987, adopting the model law on electronic commerce formulated by the United Nations Commission on International Trade Law. The said resolution recommends that all States may enact laws in the light of the model law.
The IT Act was amended in the year 2009 to introduce more provisions, particularly Sec 66A and Sec 69A. The Sec 66A is a penal provision against acts of sending offensive messages. Sec 69A(1) authorises the central government to direct any agency of the government or any intermediary to block for access any information generated, transmitted, received, stored or posted in any computer source. However, Sec 69A(1) specifically mandates that before taking such an action, reasons have to be recorded in writing.
Apart from stating that the Chinese apps pose a threat to sovereignty and integrity of India, material particulars in support of the same are to be stated in such orders. When the statute mandates that ‘reasons’ ought to be recorded, the order without material particulars would be arbitrary and in violation of principles of natural justice. The order should disclose a nexus between the programme contained in the application and the perceived threat to the integrity and sovereignty of the country. The apex court has been reiterating the principle that reasons have to be stated and the order should be passed in accordance with the procedure contained in the statute.
Article 66A of the Information Technology Act 2000 which was brought in by way of amendment on 27.10.2009 was challenged before the Supreme Court in the light of the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India, in Shreya Singhal’s case. The original enactment did not contain the said provision. The incorporation of Article 69A was also challenged.
The Supreme Court examined Sec 69A and held that unlike Sec 66A it is a narrowly drawn provision with several safeguards. Sec 66A was struck down and the incorporation of Sec 69A was held to be constitutionally valid. The apex court had taken into consideration the safeguards provided under the said provision and in the light of the same upheld the said provision. The apex court held that any complaint made under Sec 69A(1) shall be examined by the organisation concerned and after being satisfied shall be transmitted to the designated officer for taking action. The procedure contained in the rules with regard to blocking of information has been examined meticulously. In this process, a notice has to be given to the affected person to submit a reply. The Supreme Court had also noticed Rule 9, which provides for blocking of information in cases of emergency where delay caused would be fatal, in which case the blocking may take place without any opportunity of hearing. In such cases, the order should reflect the reasons as to why the procedure to provide hearing is dispensed with. The order invariably should also reflect the emergency conditions which warrant passing of such an order.
Any order in breach of the aforesaid procedure may not be sustainable as per law. The apex court has been reiterating that when a statute provides certain requirements, the authority is bound by the same while passing the order.
Invocation of the provisions of the Information Technology Act 2000 would make the order amenable to judicial review. It would be incumbent upon the authority to comply with the procedure contained in the Act. The aggressive acts of any country may not be a ground to block business apps relating to the said country, unless it is shown that there is nexus between the nature of information utilised or transmitted by the apps and the enemy country.
The Defence of India Act was enacted on December 4, 1971. The main objective of the Act was to provide for special measures to ensure public safety and defence of India, and for the trial of certain offences. Sec 2(b) of the Act defines ‘enemy’ as any person or any country committing external aggression against India.
The ‘Galwan Valley’ incident is per se an act of aggression within the said definition and China can be declared as an ‘enemy’. Chapter II of the said Act relates to emergency powers. Sec 3 of Chapter II confers power upon the central government to frame rules in relation to preventing or prohibiting any contracts or commercial deals with enemy, enemy subjects, or persons residing, carrying on business in enemy country, etc.
In the present circumstances, the government may have power to treat China as an enemy and take action which may not be exposed to any judicial scrutiny. Once the provisions of Section 2(b) are invoked and a particular country is treated as an enemy, the government’s actions may not be subjected to any judicial scrutiny for the reason that all institutions should strive to maintain sovereignty of the country. The act of aggression by China would be a ground to issue any order, including that of banning Chinese apps. The apps would be banned not on the grounds that the apps pose a threat to internal security but on the grounds that their country of origin has been declared as an enemy. If such an order is challenged before the apex court, the court would be examining only if the apps originate from the enemy country. But now, if any challenge is made before the apex court regarding the banning of the apps, the court would be testing the order in light of the parameters contained in Sec 69A of the Information Technology Act 2000.

The writer is an Advocate at the High Court of Andhra Pradesh and Telangana. craghuadvocate@gmail.com

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