Some experts have called the move unconstitutional and that it does not abide by sections of the Information Technology Act.

59 Chinese apps were banned by the governmentImage Credit: Picxy.com/munna
Atom Chinese Apps Tuesday, June 30, 2020 - 13:34

The banning of 59 Chinese applications by the Indian government, including TikTok, UCBrowser, CamScanner and shopping apps like Shein and Club Factory, is being seen as India’s response after the clash at the LAC with China. These apps, the Ministry of Electronics and Information Technology said, are “engaged in activities prejudicial to sovereignty and integrity of India, defence of India, security of state and public order.

The move elicited many reactions, with some welcoming the move and saying it was long overdue, while others have questioned the legality of such a move. 

Technology and law expert Pranesh Prakash called the move short-sighted, and said it was unconstitutional and does not abide by the Information Technology Act. Under Section 69A of the IT Act, which gives the government the ability to block, Pranesh said that certain conditions need to be fulfilled. In the case of the apps blocked — such as TikTok and UCBrowser — they can be viewed as facilitating free speech and access to information respectively — which are protected under the Constitution. 

“The government’s press release mentions data privacy but doesn’t expand on data privacy and how it is impinged. Each of these apps have a different privacy policy. It doesn’t seem to say that this privacy policy falls short of Indian law. The government hasn't taken any action of Section 43A of IT Act which deals with data protection,” he said. 

He adds that the government has not made a case for how the sovereignty and integrity of India or the security of the state is impinged on by people using something like UCBrowser to browse the internet. 

“How is the sovereignty of India impacted? How is it impacted by teens posting memes on TikTok? They have said this is on the basis of Section 69A. Have the procedures under Section 69A been followed? That also is not something that the government lays out in its press release. For me, legally, this is a highly questionable move,” he says. 

In a statement, the Internet Freedom Foundation said that there is no legal order issued under Section 69A, and asked for transparency and disclosure.

“The website blocks are directed in an aggregated basis against 59 websites. Here common grounds and reasoning is made which goes against the individualised nature of the blocking power under Section 69A and the Blocking Rules,” IIFF stated. 

The statement further added that there is legitimacy in concerns of data security and privacy, and may be achieved through regulatory processes. 

“Bans are absolute prohibitions. These must be adopted as a last step examining a wider roster of regulatory interventions including fines and directions. Admittedly, many of these measures are dependent on a Data Protection law which awaits enactment,” it added.

Vivek Chandy, Joint Managing Partner at law firm J Sagar Associates, said that while data protection has been given as the reason for the move, its impact on the companies remains to be seen. “In addition to this move, the government should look at strengthening India’s data privacy and protection laws.”

Rajesh Chharia, the President of the Internet Service Providers Association of India said that they are fully with the government, and that the government should be more aggressive in banning websites directly or indirectly controlled by Chinese corporates. “When China is earning a lot of money from India and then attacking us, encroaching on us, they shouldn’t take us  for granted that Indians are total slaves of China by using chinese services and apps. We have to put our foot down and say no we should not,” he said. 

The Confederation of All India Traders called the move a bold step, and said that it would go a long way in strengthening their boycott China campaign. They have also called for investments made by Chinese firms in various Indian startups to be investigated 

Vijay Shekhar Sharma, the founder of Paytm, called it a bold step in national interest.” A step towards Atmanirbhar App ecosystem. Time for the best Indian entrepreneurs to come forward and build the best by Indians, for Indians! ये है भारत की डिजिटल क्रांति !” he said. However, many questioned this as Alibaba’s Ant Financial is one of Paytm’s biggest backers. 

Former Infosys director and Aarin Capital Chairman Mohandas Pai told Moneycontrol that we should support whatever India does at this time. “I don’t think we should target companies based in India which are investing in China. We have to make sure data doesn't go to China. Don't think this is a matter of life and death for India, but it is so for troops at the border,” he told the news website. 

Pranesh says that, however, how this could have been carried out is that people who deal with classified government information be prohibited from using certain apps. “They could have made an order applicable to government servants and people dealing with classified government information — they could do that by contract when they are outsourcing, make it applicable to all people in the Army that they cannot use WeChat — something which is narrowly tailored to classified information or official secrets might make sense. But the general kind of restriction they have put, in the absence of any law under which to do it does not seem to pass the muster of legality,” he says. 

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