Author: Ramya Dronamraju
On June 29 2020, the government of India banned 59 Chinese mobile applications including social media platforms such as Tik Tok, Helo and WeChat, for posing a threat to the ‘sovereignty and security’ of the country. While the ban may be justified, the government’s failure to do so in accordance with the law has jeopardized the freedom of speech and expression of its citizens.
What does the law protect against?
Article 19 of the Universal Declaration of Human Rights protects every person’s freedom to “hold opinions without interference” and “receive and impart information and ideas through any media”. Similarly, the Indian constitution protects the fundamental right to freedom of speech and expression and permits reasonable restrictions on its exercise. Measures taken on the grounds of sovereignty, integrity and the security of the state are constitutionally permitted despite their ability to restrict the exercise of the right itself. While the scope of each ground is not defined and remains subjective, the Information Technology Act 2000 (IT Act) provides for procedural safeguards against government interference in access to public information. However, the government chose to flout its statutory obligations, forcing the Indian public to bear the consequences of the act.
The government relied on Section 69A of the IT Act to ban all 59 mobile applications in India. The ban nevertheless is illegal as the text of the section does not extend to blocking smartphone applications. Its scope is limited to blocking individual pieces of information through any computer service. Further, it requires the government to record its reasons for the ban in writing in an order. Only if the reasons provided are in furtherance of the sovereignty, integrity, defence, security of state and public order of India, will the ban be legal and constitutional. Even if the power to block mobile applications is interpreted to fall within the ambit of Section 69A, the legality of the government’s act remains unknown as the legal order has not been made available to the public till date.
The government has only published a press release which identified the 59 banned mobile applications and the reasons stated for the ban itself. Since the Ministry of Information and Technology received complaints of stealing and transmitting users’ data in an unauthorized manner to servers outside the country, the applications were banned in the interests of data security and privacy. Not only has no evidence been presented to prove the theft, but the government’s position also remains hypocritical as India still does not have a data protection law in place.
The Impact
The Supreme Court case of Anuradha Bhasin v Union of India recently noted that as per its proportionality standard, a measure is only permissible if no other alternative is available to achieve the legitimate aim. Consequently, any restriction on fundamental rights of individuals is constitutional only if it is the least restrictive measure. While data security and privacy are legitimate aims, less intrusive measures such as fining companies for violating data sharing policies could have been employed to achieve the same aim.
This move by the government sets a dangerous precedent that undermines the freedom of speech and expression of Indian internet users. Apps such as TikTok have many Indian creators, for many of whom this is their only source of income. Further, applications such as Helo and Likee have become popular alternatives to Facebook and Instagram, catering to the suburban, non-English speaking populations. The ban directly affects creative expression and social interaction in one broad stroke. With tensions rising between India and China at the Line of Actual Control, along with the United States considering a ban on TikTok for similar reasons, only time will tell if more restrictions will be placed on other fundamental rights in the name of protecting sovereignty.
Disclaimer: This article is a result of the author’s personal reflections, and does not reflect this blog’s position on any political, legal or social issue, whether sub judice or not.
About The Law 