LEGAL ANALYSES OF INDIA’S BAN ON CHINESE APPS: ISSUES AND CHALLENGES

 

Introduction:

India is nowadays one of the world’s largest markets for digital internet technologies. While operating in India one needs to abide by the principles and laws issued by relevant ministries and departments, including those pertaining to data security and privacy of individual data. On 15 June 2020, a violent clash erupted on India- China border in Ladakh that left 20 Indian soldiers dead. The Union Government initiated a bold move in banning 59 Chinese apps citing data security and sovereignty concerns. These embrace the popular ones like TikTok, UC Browser, Club Factory, WeChat, etc. The decision to ban the Chinese app has a significant impact since it is a proven fact that Indians are highly dependent on Chinese apps. This article analyses the legality of India’s ban on Chinese apps and also deals with the various issues and challenges in the law.

The legality of the ban on 59 Chinese Apps

The Ministry of Electronics & Information Technology (IT) has blocked 59 Chinese Apps, by invoking Section 69A of the Information Technology Act, 2000 read with the relevant provisions of Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009[1]. According to a press statement issued by the Ministry of Electronics & IT, the banned apps have “engaged in activities which are prejudicial to sovereignty and integrity of India, defense of India, the security of the state and public order.” The ban has been invoked under Section 69A of the Information Technology Act, 2008. This power can be exercised where the Central Government or it’s authorized officers if they consider it “necessary or expedient to do so in the interest of sovereignty and integrity of India, defense of India, the security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offense relating to above”[2]. These components stem from the grounds specified in Article 19(2) of the Indian Constitution permitting reasonable restrictions on the right to the freedom of speech and expression. The audacious move by the Indian Government has been claimed as a “digital strike” but legal analysts seek greater clarity and justifications on the legal process backing this decision of the government.

Issues and Challenges

There are some legal repercussions that have emerged from the Indian Government’s decision to block access to 59 Chinese apps. A brief analysis regarding the legal repercussions of the ban is put forth below.

• The ban is inconsistent with the provisions of the IT Act

The Government’s decision to ban 59 Chinese apps is inconsistent with the provisions of the Information Technology Act, 2000. Firstly, the procedure for exercising this blocking power is prescribed in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. As per Rule 5, the power to block public access to online information is accorded to a Designated Officer and that can be exercised only upon a request from either a “Nodal Officer” or a competent court. In this case, the decision does not come either from a court or from a Nodal officer. Secondly, Rule 7 requires that the request for blocking a computer source has to be examined by a committee chaired by the Designated Officer. Rule 8 requires the Designated Officer to serve a notice upon the intermediary against whom the request has been made to file a reply or any clarifications. Subsequently, the Committee needs to examine the request and in case it finds merit in the request, it seeks approval from the Secretary, Department of Information Technology upon such recommendation, and directs the intermediary to block the required information. While the press note does not mention the rule under which the government has proceeded, it appears this procedure has not been followed. The government seems to have instead relied upon Rule 9 that provides for blocking in emergency cases. This seems evident from statements in the press release such as “emergent nature of threats” and “a matter of very deep and immediate concern which requires emergency measures”. Given that the government has utilized an emergency narrative, it appears that this press release is only an interim measure that still requires ratification from the committee[3]. In any case, the government had been aware of the alleged shortcomings of the banned apps for a while. Hence, the urgency required to resort to Rule 9 did not exist.

• Reasons to be recorded in writing

Section 69A of the Information Technology Act requires that the order for blocking of access to online content must be supported by reasons and the same have to be recorded in writing. In the landmark case of Shreya Singhal v. Union of India [4]the Supreme Court held this to be very important as the Order invoking Section 69A can be challenged under Article 226 of the Indian Constitution. In this case, the sole notification available publicly is a press release that does not satisfy the requirement of order on part of the government.

• Restriction on Fundamental Rights of Individual

The Indian government’s decision to ban 59 Chinese apps limits the fundamental right to free speech and expression. It restricts their freedom of access to the internet under Article 19 of the Indian Constitution.  The decision to ban Chinese apps has a profound impact since a large part of the Indian population accesses those services regularly. Starting from the purchase of groceries (Big Basket App) and taking food (Zomato and Swiggy Apps) to book tickets (Make my Trip App), majority of Indian citizens depend on the Apps which are either developed by China or the Apps in which China have major shares of investments. Estimates by Sensor Tower revealed that TikTok has about 611 million downloads in India over the app’s lifetime. The app has brought marginalized people online in a way that no other app has been able to[5]. An independent artist from the rural background was able to showcase their skills and talent in a way that was previously the monopoly of groups with greater social capital. In Faheema Shirin v. State of Kerala[6] the Kerela High Court recognized that interfering with someone’s access to the internet violates inter alia their fundamental right to privacy. In light of this, the ban amounts to a significant restriction on the right to freedom of speech and expression and less restrictive should be used by the Government.

• Absence of the Public Order

The legal order that empowers the designated authority to implement the ban has not been made available in the public domain by the Government of India. The only source of information with regards to the order in a press release by the Press Information Bureau. Although Rule 16 of the Blocking rules requires strict confidentiality to be maintained regarding blocking requests, complaints received, and actions were taken but this provision primarily applies to intermediaries. It is a matter of grave concern as 59 apps have been blocked and the order stating the same has not been released yet. The government ought to disclose the orders passed in the interests of transparency and accountability. Recently, it has also been recognized by the Supreme Court in the case of Anuradha Bhasin v. Union of India[7] that publishing such orders is the only way in which the reasons and rationale for the decision can be judged. Challenging the decision-making process requires the reasoning to be made public. This has resulted in a wholly unprecedented legal scenario, if not a dangerous precedent.

Conclusion

Indian Government’s decision of banning Chinese apps is a great initiative to ensure the privacy of citizen’s data. Admittedly protecting Indian user’s data from Chinese apps is a matter of valid concern. The Indian Government could have resorted to alternate remedy instead of a blanket ban to 59 apps without considering the individual case of the fundamental right to access the internet. A restriction on access to the internet also has to be fair, just and reasonable and not arbitrary. Instead of blocking the apps, the Indian Government should think of establishing a robust legal framework for cyber laws to address national security concerns. India still does not have a dedicated cybersecurity law which will adequately safeguard the privacy data rights of individuals in sharp contrast to an authoritarian regime like China. For now, the least the government can do is to make available in the public domain, the Interim Order stating detailed reasons to enable the vast number of Indian Citizens associated with the apps to know the rationale behind the ban. Hence, instead of blocking the apps under the present Information Technology Regime, the establishment of a more elaborate regime ought to be considered.

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*Jyoti Sharma, National Law University and Judicial Academy, Assam.

[1] K. Bharat Kumar, “What will be the impact of Chinese apps ban?”, https://www.thehindu.com/news/national/the-hindu-explains-what-will-be-the-impact-of-chinese-apps-ban/article31991127.ece (July 5, 2020)

[2] Information Technology Act, 2000, Section 69 A. Clause 1.

[3] Nandagopal Ranjan, “How ban of TikTok and other Chinese apps will be enforced; the impact for Indian users” https://indianexpress.com/article/explained/india-bans-chinese-apps-impact-explained-6482150/, (July 4 2020)

[4] (2015) 5 SCC 1

[5] Craig Chapple, “TikTok Crosses 2 Billion Downloads After Best Quarter For Any App Ever”, https://sensortower.com/blog/tiktok-downloads-2-billion

[6] 2019(2) KHC 220

[7]Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, 10-01-2020

RELATIONSHIP OF STAKEHOLDER THEORY AND CORPORATE SOCIAL RESPONSIBILITY WITH BANKING SECTOR: AN ANALYSIS

“All human problems desired that business and industry should be conducted in the interest of the community, and businessmen should consider themselves servants of society”- Mahatma Gandhi

A stakeholder includes shareholders, employees; customers, etc. and are those individuals who invest in the business in one way or the other, i.e., by contributing capital or by investing their time and money, therefore having something or the other at-risk or stake. Stakeholders are the essence of the business of every company who not only get affected by the acts of the company but also affect the business of the company in one way or the other. Stakeholder theory has its origin from the year 1930 which basically is a combination of all individuals as well as the society to whom the company owes a responsibility. This theory varies from the shareholder theory which lays emphasis only on the shareholders and leaves the other factors of the external environment of the business of the company in isolation. Stakeholder theory is based on the presumption that business shall be deemed successful only when it delivers value to the majority of its stakeholders, i.e., the business cannot flourish only by earning profits. It is the responsibility of the business to create a balance between profits and the interest of its stakeholders since the business acquires majority of its resources and perform its activities with the help provided by the stakeholders and thus, their needs are to be kept in mind and should be considered equally important to earning profits.

Hypothesis: Whether there is an interrelationship between Stakeholder Theory and Corporate Social Responsibility with the Banking Sector in India? Stakeholder Theory and Corporate Social Responsibility

In earlier times, the companies only focused on profit maximization and ignored the interest of other factors responsible for the growth of the company. However, with time this concept has been scrapped out of the system and a new system has been developed which has transformed into an approach that focuses on both, the interest of the stakeholders and maximization of profits; the reason for the same is that the company must give back, what it has taken from its society or surroundings, i.e., resources and privileges, which includes the stakeholders of the company and the environment. The relationship between Stakeholder theory and Corporate Social Responsibility is overlapping in nature, i.e., both the concepts stress or focus upon the incorporating interest of the society and the stakeholders into business operations. This theory is thus, internally related to the concept of Corporate Social Responsibility since the company owes a duty towards the internal and external stakeholders of the company and thus the company’s success depends upon the perceptions made by the stakeholders that influence the decisions of the consumers and the reputation of the business as well; the failure to recognize the interest of the stakeholders can also result in the loss to the company and also might increase the risk involved.

Criticism

This theory however has not been completely accepted by organizations and they focus only on the interest of the shareholders and not the entire external environment of the organization. Thus, it is believed that this theory fails in its practical application.

Corporate Social Responsibility in Banking Sector

The old school concept of profit maximization has not only developed gradually but has also transformed into an approach which focuses on both the interest of the stakeholders and maximization of profits; the reason for the same is that the company must give back, what it has taken from its society or surroundings, i.e., resources and privileges, which includes the stakeholders of the company and the environment. The relationship between the banking sector and stakeholder theory is crystal clear since the banking sector is considered a stakeholder’s business. Besides this, the role of the banking sector in India has been immeasurable and they have been conferred with a responsibility similar to that of a trustee time and again. A similar principle was reiterated in the case of RBI v. Bank of Credit and Commerce International Ltd.[1], wherein it was observed that a bank has been conferred with the responsibility as that of a trustee where it acts, primarily for the benefit of the company and to the extent of the balance for the benefit of the subscribers. Similarly, in the case of Bartlett v. Barclays Bank Trust Co. Ltd[2], it was held that a bank which acts as a trustee and is therefore responsible to exercise a high duty of care and is liable to compensate for any such loss which has resulted from the negligence of its part. There also exists an interconnected relationship between stakeholder’s theory, the concept of Corporate Social Responsibility and banking sector in India, due to the traditional banking system which reflects the duty of the banks to act as a trustee towards its shareholders and also towards the environment, which emphasizes on the responsibility owed by banks, just like other companies, towards their stakeholders. With the growth of the concept of Corporate Social Responsibility in India, banks have also started recognizing this concept by attempting to promote such activities in the interest of its stakeholders. This was made even more affirmative with the circular issued by the Reserve Bank of India on 20^th December 2007 wherein it had directed all the banks which fall under the ambit of scheduled banks to promote social welfare, keeping in mind the interest of its stakeholders, by adopting the very practice of Corporate Social Responsibility. Thus, it can be said that the role of the bank is like an agent to the banking company and of a trustee to its shareholders and thus is bound to act not only in a fiduciary manner but also for the benefit of its stakeholders.

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* Richa Bhandari, 4^th year, University of Petroleum and Energy Studies, School of Law, Dehradun

 [1] [1955] 3 All ER 210.

[2] [1980] 1 All ER 139.

UNLAWFUL ACTIVITIES (PREVENTION) ACT,1967: CONSTITUTIONAL OR UNCONSTITUTIONAL?

Introduction

Unlawful Activities (Prevention) Act, 1967[1] was enacted with the aim to prevent unlawful associations and terrorist activities, all the provisions of which are enshrined in the Act. After the enactment of UAPA on 30^th December 1967, the two acts namely Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA) were repealed and UAPA became the primary terror legislation in India. The Act was introduced to set out reasonable restrictions on the fundamental freedoms under Article 19(1) of the Constitution, such as freedom of speech, right to assemble peacefully, and right to form associations. The Act has been amended six times until 2019[2] to cater to the needs of the present society. UAPA, the name itself suggests the objects of the Act. To protect the Integrity and Sovereignty of India was the main theme of the Act in the context that all unlawful activities should be taken down. With these two words, the first thing that comes into mind is the Constitution of India. The Constitution (Sixteenth Amendment) Act, 1963[3] introduced these two words i.e. Integrity and Sovereignty into the Constitution of India.

Do the provisions of UAPA violate the Constitution?

Just like any other Act or legislation, UAPA also has both positive as well as negative effects. With the enactment of this Act, this became the sole act for regulation and thus removing ambiguities as to which statute to follow to impose liability. But on the other hand, the reasonable restriction is not so reasonable on various aspects. This debate is going on for a long time now, whether the provisions of UAPA violate the Constitution or not. With the Amendment of 2019, a person can be arrested only on the suspicion of that person being a terrorist and his properties can be attached even before trial. The act is also interpreted by the Supreme Court of India in various cases and pointed that Constitutional Law is the highest law of the land and if any statutory provision exists which violates it then it would have already taken down. The provisions of UAPA are considered to be of wide ambit but the substantive provisions of the act are ambiguous and even the procedural provisions are such which allow the state to keep people in custody for extended periods of time without bail. At present, this situation can be illustrated with the ‘Safoora Zargar’s’ (a student of Jamia Milia Islamia) arrest and alleged role in the riots in North-East Delhi. She was charged under UAPA and was granted bail after two months despite her severe medical conditions[4]. The court was of the view that law does not make any distinction with respect to pregnancy and further said that many women delivered in custody. UAPA, as stated earlier has ambiguous substantive provisions and it lacks various provisions such as provisions imposing reasonable restrictions on labeling as terrorist organizations, provisions with respect to human rights in cases of arrest on unlawful apprehension, provisions which provide for government responsibility and accountability in a restrictive manner, etc. Now, the current situation is such that the ambiguity of the word ‘Unlawful’ should be removed and a new competent act should be incorporated again for the terror-related activities. Because punishment in the act is based only on three to four things such as unlawful associations, terrorist activities & funding, undertaking unlawful activities, etc and this classification creates problems in deciding the actual liability of the accused. The arrest of ‘Safoora Zargar’, ‘Varavara Rao’[5], ‘Sharjeel Imam[6]’ was made under the UAPA and were refused bail on various grounds under the court’s opinion. Taking this into account, this can lead to long detentions even on suspicion which is not healthy for the system. The apex court in 2019 issued notice to the Union Government in response to a petition which said the UAPA Amendment Act of 2019, passed by Parliament, conferred the Centre with “discretionary, unfettered and unbound powers” to categorize a person as a terrorist[7].

Conclusion

Therefore, the whole Act cannot be termed as unconstitutional but few of its provisions in many situations will be against the Constitution. The foremost rule to interpret the act is the literal rule but which may not be possible in cases of various provisions under this Act. There should be the introduction of new provisions and amendments to the existing ones to limit the power of authorities and to remove ambiguities. And the Doctrine of Eclipse should be adopted in order to vanish the eclipse and to make the entire law valid.

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*Neelakshi Bhaskar, 4^th year,  B.A LL.B(H), Vivekananda Institute of Professional Studies, Delhi.

[1] “Unlawful Activities (Prevention) Act, 1967” (January 1, 1967) <https://www.indiacode.nic.in/handle/123456789/1470?sam_handle=123456789%2F1362&gt; accessed July 27, 2020.

[2] (National Portal of India) <https://www.india.gov.in/gsearch?s=Unlawful+Activities+Prevention+Amendment+Act&gt; accessed July 27, 2020.

[3] “THE CONSTITUTION (SIXTEENTH AMENDMENT) ACT, 1963: Legislative Department: Ministry of Law and Justice: GoI” (Legislative Department | Ministry of Law and Justice | GoI) <http://legislative.gov.in/constitution-sixteenth-amendment-act-1963&gt; accessed July 27, 2020.

[4] “Delhi High Court Grants Jamia Student Safoora Zargar Bail” (The Wire) <https://thewire.in/rights/safoora-zargar-bail-delhi-high-court&gt; accessed July 28, 2020.

[5] “What Is Bhima Koregaon Case, Bhima Koregaon Violence, Bhima Koregaon Case News” (Business Standard) <https://www.business-standard.com/about/what-is-bhima-koregaon-case&gt; accessed July 28, 2020.

[6] Pti and others, “Sharjeel Imam Moves Delhi HC Challenging Order Granting Police More Time in UAPA Probe” (ThePrintMay 11, 2020) <https://theprint.in/india/sharjeel-imam-moves-delhi-hc-challenging-order-granting-police-more-time-in-uapa-probe/419163/&gt; accessed July 30, 2020.

[7] Correspondent L, “UAPA Amendment: Respond to Pleas, Apex Court Tells Govt” (The Hindu September 6, 2019) <https://www.thehindu.com/news/national/uapa-amendment-supreme-court-asks-govt-to-respond-to-pleas/article29349629.ece&gt; accessed July 30, 2020.