On 24th November 2020, an order under Section 69A of the Information Technology Act, 2000 read with the Procedure and Safeguards for Blocking of Access of Information by Public Rules, 2009 was released by the Ministry of Information and Technology, Government of India banning access to 43 mobile applications. Similarly, on 29th June 2020, 59 mobile apps and on 02nd September 2020, 118 more mobile applications were ceased to be used under the same provisions.
This venture evolved owing to the feedbacks and inputs received from the Cyber Crime Coordination Centre, Ministry of Home Affairs, which stated that the applications in questions were engaged in practices that were detrimental to India’s sovereignty, integrity, Indian defense system, the security of the state and public order (1).
Today, technology has become a very essential and intrinsic part of our daily lives. It allows us to harmonize, co-relate, and channelize our creativity with reality (2). But the world came to a halt when the World Health Organisation divulged that COVID-19 is a “Pandemic”.
The novel Corona Virus engendered catastrophe all over the globe. Amidst all the chaos, the Indian Government took a massive step of banning Chinese mobile applications.
Howbeit, is India equipped enough for this digital face-off?
The impact and the possible outcomes of the ban
Some of the apps that are banned by the Indian Government were handy and the go-to apps for Indian users. The installed apps may continue to exist but the updated versions of the app will not be available in Google or the Apple Play Store in India.
The persons aggrieved by the orders of the ban can challenge in the line with Article 226 of the Indian Constitution, both procedurally and substantively. Procedurally, the order can be challenged by manifesting that the ban was not in adherence to the Blocking rules and substantively, it can be challenged by affirming that the restrictions imposed under Section 69A of the Information Technology Act are not under the reasonable restrictions as per Article 19(2) of our Indian Constitution (3).
In the Shreya Singhal v. Union of India (4) case, the Supreme Court had upheld the constitutionality of Section 69A of the Information Technology Act and the corresponding blocking rules. The apex court had pronounced that the information can be blocked only if the Central Government is satisfied that it is necessary to do so, and the necessity relates to the subjects permitted as reasonable restrictions under the Constitution. Also, the reasons for blocking have to be recorded in writing which may be challenged in the future (3).
According to the General Agreement on Trade and Tariffs, 1947 the term “Services” is defined as any service in any sector except services supplied in the exercise of governmental authority” and thus it includes all kinds of services in its definition as long as they are commercial in nature. In cases such as Shrimp-Turtle Dispute and U.S Gambling Dispute, the wider interpretation of services also entails internet-based services. Internet-based services have the same standing as ordinary services. Article XXI of the General Agreement on Trade and Tariffs lays down a list of exceptions to the security obligations. The provision specifically affirms that a state party may do away with its responsibilities under the said agreement if it considers that the act of abstaining is essential for its National Security. Therefore, here India is in no way contravening the provisions or violating the agreements as it is duly protected as an exception under the General Agreement on Trade and Tariffs, 1947 (5).
Moreover, most of the applications banned by India have their alternatives. People who were comfortable in using the banned mobile applications could shift to better substitutes for their work.
For instance, after the cessation of the video-making app Tik Tok, the downloads of the Indian competitors of Tik Tok, the Chingari app has increased manifolds; that is from one lakh users to one crore plus on Google Play Store.
A big bash to the Chinese Economy
India is a developing and the second largest populated country in the world right now. Therefore, it serves as a good market for many foreign countries to sell their products. China is also one of them.
This shows that trade is a paramount strength of China's economy and India's stratagem in banning Chinese mobile applications is a big and hard blow to China. The cessation of the use of certain Chinese apps in India will impact China to a great extent.
India growing as an imperium in the IT Industry
The prohibition enforced on Chinese applications may act as a hindrance to the technological growth and development of China. China will be at the receiving end of a lot of pitfalls. Here, there is a chance for India to grow as a technological superpower of the 21st century.
In the case of Anuradha Bhasin v. Union of India (6), the Supreme Court of India had reiterated that the freedom of expression online enjoyed constitutional protection, but it could also be subjected to restrictions in the name of national security.
Therefore, now India can develop better substitutes and replacements of the Chinese applications, by allowing the young minds of our country. This would inspire and motivate our young programmers to make appropriate and in-demand software and applications that can elevate India’s position in the field of technologies. Furthermore, by doing so we could limit the brain-drain of our country by generating more employment opportunities (7).
India ascertaining the importance of protection of data
The foremost aim of the ban, as stated by the Indian government, was that the applications were a major threat to data privacy as those were involved in some illegal activities.
At this moment in time, India has comprehended the significance of the protection of private data. This realization may lead to the passing of India's Data Protection Bill, 2019 which is still pending in the Parliament house, to have a uniform digital national security code.
The Chinese applications are more of an issue because the Chinese Intelligence Law authorizes any data collected to be shared with the Chinese government. For example, Article 7 of the Chinese Intelligence Law mandates individuals, organizations, and institutions to assist Public Security and State Security officials in carrying out a wide array of “intelligence” work. It here specifies that any organization or citizen is bound to support, assist and cooperate with the state intelligence work according to their law. Furthermore, Article 14 also states that “state intelligence work organs, when legally carrying forth intelligence work, may demand that concerned organs, organizations, or citizens provide needed support, assistance, and cooperation.” This entails a matter of great concern about data privacy for India (8).
Moreover, the data privacy issue should not be limited to only Chinese applications or any particular country. It should also not be a retaliatory measure of digital strike owing to the border clash between India and China. The prohibition should be proportionate and should also apply to the applications of other countries that are found to be suspicious.
In the case of Modern Dental College v. State of M. P (9) case, certain conditions were laid down by the Supreme Court to test and decide whether the state conducts are proportionate. The conditions are as follows:
Seeks a valid and lawful interest,
Should be befitting i.e., there has to be a reasonable connection betwixt the means adopted and the object aimed to be accomplished,
Should be vital and necessary i.e., the means adopted must not be excessive, as in, it should be the least intrusive measure in the given set of circumstances and
Should be proportionate i.e., the balance between the interest in constraining the right must override the need to safeguard the right.
Each of the aforementioned conditions is needed to be fulfilled for the geoblock to be regarded as proportionate (10).
The economic reliance of India on China
By far, India is taking precautions and making arrangements for safeguarding the sovereignty and integrity of the country by banning all suspicious mobile applications. Nonetheless, India is still dependent on China for several other things.
Foreign Direct Investment (FDI) from China comes to metallurgical industries, renewable energy, electrical equipment, automotive, and chemicals. Chinese FDI into India in 2019 was $ 4.14 billion (11).
According to reports, Chinese tech investors have put about $ 4 billion into Indian start-ups. As of March 2020, 18 out of India’s 30 Unicorns are Chinese funded. India’s pharmaceutical industry is the third-largest in the world, but still, India imports two-thirds of its active pharmaceutical ingredients or key ingredients from China. Furthermore, according to data available with the Tourism Ministry of India, travel between India and China has been growing at an annualized rate of 32.4% (12).
China’s rejoinder to the ban
China’s response to the ban was that they have invested so much in India for such a long period. When a country has invested a lot in the market of India on bilateral agreements, the chances of development on both sides are quite likely to happen, considering the nations to be of resource and capital-rich like India and China. However, China had been given a setback by Indian authorities in the name of ‘national security as the Chinese officials firmly oppose this partial and discriminatory action taken by the Indian Government.
The Chinese App developers have also mentioned that the Indian Government had provided them with a provision that they can directly contact the Indian government regarding their complaints about the cessation of their apps and can also propose why their app should not have been banned. However, the government seems to be having deafness when the developers seek answers.
Also, as per the sources, China has affirmed that India has violated the World Trade Organisation (WTO) rules by selectively and discriminatorily picking out Chinese apps on indeterminate and improbable grounds. The bilateral agreement which catalyzed the flow of investments would have to be put under the norms brokered under international trade norms and it proves that India had not respected this when it comes to the ban of Chinese apps, and therefore, can face a prospective issue on the global stage.
Now that both India and China are members of the World Trade Organisation, China stipulated that it could lodge a formal complaint at the WTO (13).
We know India is a land with an abundance of human capital, with great potential. But these resources are unutilized or underutilized. The major problem with this is the lack of skill development. Adequate and proper skill development is not achieved by the human resources of our nation.
Now, if we become so protective, we will never be able to grow. If we do not compete with the top players in the global market, we will not be aware of the current trends and not give our own companies a fair chance to grow and compete as well.
At present, China is one of the topmost producers of high technologies like Artificial Intelligence in the world currently. Also, their proportion to research and development is at par with the countries like the United States, Japan, South Korea, etc. Competing with such a challenger would benefit India's growth. But India does not provide it. Our proportion to the Research and Development sector is quite insignificant. Even our society does not accept Research and Development as a wider area of a profession.
The Indian government should make provisions and take a stand where they provide more funds and encourage the Research and Development sector of our country if we want our Indian applications to be competent and flourish in the global market. This would encourage our Indian developers and also curb brain-drains. We can also follow the principle of Destructive Capitalism. It means that an economy is creating destruction on its own so that new things can come up that would be much more efficient.
We are in a digital era. So, the development of a country lies in its digital sector too. Therefore, the digital sector, today is also known as the electronic backbone of any country. This can be done only if the Research and Development sector is encouraged.
If given a chance and enough resources, the ban would be a great opportunity for the Indian companies to launch, upgrade and create the best alternatives for the prohibited applications.
Furthermore, India is in a trade deficit with China, and taking such a harsh step against it could cost India a lot more than expected. It will create a problem for Indian employment as well. People working in India with Chinese companies would lose their jobs. Right now, we are also in a situation where the economy must be supported by Foreign Direct Investments.
Therefore, we must realize that the development in the digital sector and protecting the integrity of the country can go hand in hand. Hence, India should nurture a balance between maintaining the sovereignty and dignity of the country along with the growth and development of the country in the digital field.
1. PIB Delhi. Government of India blocks 43 mobile apps from accessing by users in India. [Online] [Cited: March 04, 2021.] https://www.pib.gov.in/PressReleasePage.aspx?PRID=1675335.
2. Radhika Taori. Technology: A Boon or A Bane? https://medium.com. [Online] [Cited: March 06, 2021.] https://medium.com/@rtaori60/technology-a-boon-or-a-bane-91572ea087b4.
3. Vaibhav Parikh and Yashasvi Tripathi. Technology Turmoil: The Impact of India Banning Chinese Apps. https://www.law.com. [Online] [Cited: March 05, 2021.] https://www.law.com/legaltechnews/2020/08/12/technology-turmoil-the-impact-of-india-banning-chinese-apps/.
4. Shreya Singhal v. Union of India. (2013) 12 SCC 73, Writ Petition (Criminal) No. 167 of 2012. Delhi: Supreme Court of India, 2015.
5. Mohd Rameez Raza and Raj Shekhar. Indian Ban on Chinese Apps: Does the Move Contradict WTO Rules? https://www.jurist.org. [Online] [Cited: March 11, 2021.] https://www.jurist.org/commentary/2020/07/raza-shekhar-india-wto-apps/.
6. Anuradha Bhasin v. Union of India. 2019 SCC Online SC 1725, s.l. : Supreme Court of India, 2020.
7. Ms. Arushi Lamba. Impact of Banning Chinese Apps in India. https://bnblegal.com. [Online] [Cited: March 10, 2021.] https://bnblegal.com/article/impact-of-banning-chinese-apps-in-india/.
8. Himanshu Singh Rajpurohit and Tilak Dangi. Is India’s Ban on TikTok and other Apps Justified by the WTO National Security Exception? regulatingforglobalization.com. [Online] [Cited: March 13, 2021.] http://regulatingforglobalization.com/2020/10/27/is-indias-ban-on-tiktok-and-other-apps-justified-by-the-wto-national-security-exception/.
9. Modern Dental College v. State of M.P. 2009 7 SCC 751, s.l. : Supreme Court of India, 2011.
10. The Wire. https://thewire.in. Examining the Legal and Policy Process Behind India's Ban on Chinese Apps. [Online] [Cited: March 10, 2021.] https://thewire.in/tech/india-ban-chinese-apps-tiktok-legal.
11. Yusha Rahman. Fact Check: PIB Fact Check Says Congress Wrongly Claimed 'Chinese FDI Drastically Rose During Modi Regime'. The Logical Indian. [Online] [Cited: March 13, 2021.] https://thelogicalindian.com/fact-check/chinese-fdi-26202.
12. Mahima Kapoor. Six Things To Know About India-China Economic Relations. https://bloombergquint.com. [Online] [Cited: December 02, 2020.] https://www.bloombergquin.com/economy-finance/six-things-to-know-about-india-china-economic-relations.
13. K. Bharat Kumar. The Hindu Explains | What will be the impact of the Chinese apps ban? https://www.thehindu.com. [Online] [Cited: March 15, 2021.] https://www.thehindu.com/news/national/the-hindu-explains-what-will-be-the-impact-of-chinese-apps-ban/article31991127.ece.
5th Semester, 3rd Year
University Law College
Utkal University, Bhubaneswar