The Government of India banned 59 Chinese mobile applications, including top social media platforms such as TikTok and Mobile Legends. This was done to combat the danger of “sovereignty and stability” of the country posed by those applications. These apps are “prejudicial to the sovereignty and integrity of India, defense of India, the security of the state and public order,” the Government of India said in a press release. The Government of India has taken into account recommendations from the Ministry of Home Affairs and Indian Cyber Crime Coordination Centre to ban these “malicious” apps. It is important to note that the interim order is only released through a press release. The much-publicized ban on the 59 Chinese apps by the Government of India this Monday is very irregular because of the incoherent use made of Section 69A of the Information Technology Act, 2000.–first, as a mechanism for placing Chinese emphasis on the ban despite many American and other applications facing many similar privacy allegations, and the second it is an unusual order passed through a press release. Although the Government of India is not hesitant in passing orders at the time when they suit the Government’s political motive. Any order passed by the government requires compliance with the relevant law. The issues that arise here are with the use of the blocking rules mentioned in the IT Act and Restriction of the principle of natural justice mentioned in Articles 14 of the Indian Constitution. Meanwhile, the Centre’s Department of Telecom has already issued directions to all internet service providers to block access to these 59 applications. This article aims to examine the difficulties and the legal problems of such an ambiguous order of the Centre.
The legality of the press release and whether it can be challenged in court
In the case of Paramount Bio-Tech Industries … vs Union Of India, the plaintiff filed a prayer for a writ of certiorari against SEBI, seeking quashing of the Securities and Exchange Board of India (Collective Investment Schemes) Regulations,1999. The Central Government had released a press release in November 1997 announcing its decision that different schemes under which instruments such as agro bonds, plantation bonds, etc. are released would be considered as ‘collective investment schemes’ under the purview of the SEBI Act. The press release by the Central Government was treated as an executive order which put many schemes of the plaintiff under the scope of “Collective Investment Schemes”, which was the main issue of the judgment. Thus, establishing a fact that a press release can be identified as an executive order passed by the Government of India. Article 32 and Article 226 of the constitution provide remedies in the form of writ petitions against any executive order violating someone’s fundamental right. In this particular case, the press release banning the 59 applications can be considered as an executive order and thus can be challenged in court as a violation of the rights provided in Articles 14 and 19, with the latter being preferred by the citizens.
The Press Release is out of step with the provisions of Art 69A of the IT Act and The Blocking Rules
The order of the Ministry of Electronics and Communication to ban the 59 Chinese apps does not constitute a legal order under section 69A of the IT Act. The blocking order is directed against 59 websites in a very aggregated form. Here there are common grounds and arguments contrary to the individualized nature of the blocking power under Section 69A and the Blocking rules. Section 69A of the IT Act, 2000 allows the Central Government to block content where it considers that a particular content threatens the security of the State; India’s sovereignty, integrity or defense; friendly relations with foreign States; public order; or to prevent incitement to commit a recognizable offense in relation to any of the foregoing. The section also sets out the protocols that had to be followed before blocking the content/website at issue. Together, the ban on these 59 apps, requires a very clear, evidence-based evaluation of the suspected content breaches of each of the 59 apps.
The Blocking Rules, 2009 specifically provide for a defined process of notice, hearing, and reasoned order. These processes emerge from the case of Shreya Singhal v. Union of India, the apex court has stated that “under Section, 69A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary….”. These provisions laid down by the court extend to all blocking grounds, including national security grounds. The Government of India has not provided the app companies with the rights given to them by the Section specified above.
under Section, 69A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary….Shreya Singhal v. Union of India, (2015) 5 SCC 1
The Government of India has also not followed any procedural formality in coming to the conclusion of banning 59 apps. This makes the ban seem very arbitrary and not a very well thought out order. The procedural formalities for the exercise of this blocking power are prescribed in the Rules 5-8 of the IT (Amended) Act 2009. Pursuant to Rule 5 of the Blocking Rules 2009, a designated officer is given the power to block public access to online information which can be exercised only upon request from either a “Nodal Officer” or a competent judge. The ruling, in this case, does not derive from any court direction. Therefore, with the caveat that it is not known if any Nodal Officer did actually make such a submission, we turn to other provisions of the Rules provided in the Blocking Rules of 2009. Rule 7 needs a Committee to accept the Nodal Officer’s blocking appeal. Rule 8 allows the appointed officer to inform the person to whom the request for a response or explanation has been created. While the press note does not specifically state the law by which the Government of India acted, this policy seems to have not been followed. Instead, the Government of India appears to have relied on Rule 9, which provides for blockage in emergency cases. This seems obvious from comments in the press release such as “emerging existence of risks” and “an issue of very serious and immediate concern that needs emergency action.” Rule 9 states that, in an emergency situation where ‘no delay is appropriate,’ the designated officer must refer the request directly to the Head of the Information Technology Department, who must issue temporary instructions. The officer may then block access after being fully satisfied with the reasoning of the request. The request for its decision must be sent to the Committee within 48 hours of such a move. Considering that an emergency narrative has been used by the Government of India, this press release tends to be simply a temporary measure that needs the approval of a committee as well. This is also supported by a recent statement by Tiktok ‘s head in India that the company was “invited to meet with concerned government stakeholders for an opportunity to respond and explain.” In any event, the Indian government had been aware of the suspected vulnerabilities of the banned devices for some time. Therefore there was no need for urgency to resort to Rule 9.
An Opaque order by the Government of India
A reading of the actual order should be easy to understand the lawfulness of the order, especially as to whether real content-specific problems existed in relation to the apps. The reasons provided for the ban and the wild random selection of the apps make it difficult to understand a press release. While there are concerns regarding data protection and the privacy of people, such activities like releasing an order through a press conference lack accountability and disclosure. The common grounds and arguments in blocking the 59 apps run counter to the individualized essence of the blocking power under Section 69A and the Blocking Rules. Specifically, the Blocking Rules, 2009 provides for a defined notice, hearing, and order procedure. Concerns about data protection and the privacy of people have credibility. This can be achieved through regulatory processes that emerge from objective measures based on facts. That can be done (data protection and privacy) by legislative mechanisms that derive from objective, evidence-based steps. The apex court in the Shreya Singhal case while narrowing down provisions of Section 69A while laying down safeguards said that “reasons have to be recorded in writing in detail to such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.” The Indian Supreme Court recently stated in Anuradha Bhasin v. Union of India that, according to the proportionality principle, if any infringement on individuals’ constitutional rights must be necessary to achieve a valid purpose. That infringement must constitute only the least restrictive method, in the absence of any alternative to achieving that objective. This reasoning can not explain the imprecise justifications in the press release and their blanket application to 59 apps, without considering the owner’s case for limiting the use of their apps. The harms presented by each app must be calculated as envisaged in Section 69A. Furthermore, by taking less restrictive measures such as obtaining assurances from software developers on the security protocols and data sharing policies of their apps, imposing fines, or giving them guidance on their operations, the Government of India should have been able to achieve its objectives. This ensures credible action that protects the interests of individual freedom, innovation & security.
The order being not in line with the constitutional aspects concerning the same
The decision by the Indian Government of India to ban 59 Chinese applications on Monday is not only inconsistent with the provisions of the Information Technology Act, 2000, but restricts the fundamental rights referred to in Article 14 and Article 19.
Principles of natural justice and the audi alteram partem rule are part of Article 14. Therefore, a statement asking for the explanation by the Government of India with respect to the charges against the apps as also a notice to show cause with respect to the proposed penalty and ban is required to be given by Article 14. The not giving of such notices or either of them renders the order of dismissal, removal, or banning of the apps invalid.
In the matter of Union Of India And Another vs Tulsiram Patel And Others, the Apex Court stated that “The rule of natural justice with which we are concerned in these appeals and writ petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order is to be made to his prejudice should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto……”. The basic freedom of trade and commerce has been enshrined under Article 19(1)(g) of the Indian Constitution. It guarantees all the citizens the right to freedom of trade and commerce. However, the guaranteed right is not absolute. The Constitution allows the appropriate Government of India to put reasonable restrictions on the exercise of this right in the interest of the general public. The state may impose restrictions on the fundamental freedom of trade and commerce. The Government of India by imposing a ban on the apps has tried to use this power vested upon them by the constitution of India, however, the restrictions which are imposed by the State should be reasonable and in the interest of the general public. The guaranteed freedom under Article 19 (l)(g) is one of the basic values which form the basis of the democratic order of Society. The word ‘reasonable’ is justifiably interpreted by Justice Mahajan in Chintaman Rao v. State of MP,
The word reasonable implies intelligent care and deliberation, that is the choice of course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(l)(g), and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality.
Banning such apps, which are actually predatory to the basic privacy rights of the people is a move that is welcomed in any country. Germany has banned Zoom while the US has banned Huawei. However, such bans that require such many people to go out of business require a very informative and detailed order to be passed. On the contrary, these directives are expressly covered, requiring that with respect to being held the secret to the submitted requests and grievances, and the action taken. Assuming the object of the confidentiality clause is simply to protect the identities of the complainants, the Government of India should consider revealing more in the interests of accountability on the reasons behind the ban. After all, policy activity is subject to the rule of law and the press release leaves it prima facie uncertain, to say the least, whether the ban complies with the law. The principles of Natural Justice and the Constitution can be construed as providing for an opportunity to be heard. Since the abeyance orders made no provision for hearing, they should be reviewed by the authorities. The ban is opposed to the principles of natural justice, and therefore arbitrary and violative of Article 14 and 19(1)(g) of the Constitution. While the existence of notorious legislation in China which requires all their brands and citizens to “cooperate” with the Chinese government is a valid concern around the world, the way this Government has hastily acted to introduce this legislation to capitalize on the nationalistic sentiments of the people sets a very wrong precedent for future corporations who then will fear this dominant position of the Government.
 PIB Delhi, Release ID: 1635206, available at https://pib.gov.in/PressReleseDetailm.aspx?PRID=1635206  The Information Technology Act, No. 21 of 2000, INDIA CODE (2000), vol.3, available at https://www.indiacode.nic.in/bitstream/123456789/1999/3/A2000-21.pdf  Jagmeet Singh, Department of Telecom Orders ISPs, Telcos to Block Access to 59 Apps Including TikTok, UC Browser, SHAREit, and Others, Viewed on 7th July 2020. https://gadgets.ndtv.com/apps/news/apps-ban-india-ministry-dot-order-isps-telcos-block-access-2255073#:~:text=The%20Ministry%20of%20Electronics%20and,Licensees%20in%20the%20country%20on  Paramount Bio-Tech Industries … vs Union of India, 2004 49 SCL 77 All. (India). Smt Ujjam Bai vs State Of U.P, AIR 1962 SC 1621 (India).  Information Technology (Amendment) Act, 2009 § 69A.  Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1 (India).  Anupriya Dhonchak & Nikhil Purohit, Is India’s ban on Tiktok and 58 other Chinese apps consistent with the provisions of IT Act?, Viewed on 7th July 2020. https://scroll.in/article/966131/is-indias-ban-on-tiktok-and-58-other-chinese-apps-consistent-with-the-provisions-of-it-act  Supra note 6.  Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25 (India).  Union of India And Another vs Tulsiram Patel And Others, 1985 AIR 1416 (India).  INDIA CONST. art. 19, amended by The Constitution (First Amendment) Act, 1951.  Chintaman Rao vs The State of Madhya Pradeshram, 1951 AIR 118, (India).  Jerome Cohen, There is no way Huawei can resist any order from the (People’s Republic of China) Government or the Chinese Communist Party to do its bidding in any context, commercial or otherwise. Viewed on 6th July 2020. https://www.cnbc.com/2019/03/05/huawei-would-have-to-give-data-to-china-government-if-asked-experts.html#:~:text=Article%207%20of%20the%20first,and%20organization%20that%20aids%20it.