Why in News?
- The government’s decision to block 59 Chinese apps has once again spotlighted the vulnerability of Internet freedom at a time of national security.
- Banning of the Chinese Apps is seen as India’s Digital Strike against Chinese border mis-adventure in the Galwan valley. But this article is restricted to the discussion related to internet rights of citizens vis-àvis national security of India.
- The order of blocking the Chinese Apps was communicated via a Press Information Bureau notification, which will be enforced under section 69A of the Information Technology Act, 2000 read with the Blocking Rules, 2009. This interim order was probably taken under the emergency powers of the Blocking Rules which permit the government to do away with any notice or hearing requirements for a period of 48 hours. During this 48 hour period, the government has to convene a committee to seek their recommendations. After the 48 hour period is over, the IT secretary then has to pass a final order revoking the interim measure and unblock access, or finalise the blocking order.
- The PIB notification characterises these apps as ‘malicious’, citing several complaints against these Apps for reportedly enabling unauthorised transmission of user data to servers situated ‘outside India’. The reasons stated in the notification are that these apps are engaged in activities which are prejudicial to user privacy and the sovereignty of India.
- The statement from the Ministry of Electronics and IT (MeitY) said it had received complaints from various sources, including several reports about the misuse of some mobile apps for stealing and surreptitiously transmitting users’ data in an unauthorised manner to servers outside India.
- Even though the app is still available on the phones of existing users, new users are unable to access it. Further, the Ministry of Information and Technology is in talks with the Department of Telecommunications to operationalise the geoblock.
- Geoblocking is the system used to limit your access to the internet, based on your geographic location.
- When we talk about rights then, of course the rights of (these) Chinese companies have been affected. If it is the rights of Indian individuals who use platforms like TikTok either to run their business or to just become popular, then there is no rights violation in opinion of some experts as, only a platform is banned, not the activity. Similar activities can be shifted to other platforms.
Balancing the Rights
- Section 69A (of the Information Technology Act), which has been used, is not a new power that the government is commandeering during a time of national security emergency. It must be a genuine national security risk, and the necessity of blocking the app must be very clearly made out by the government. And that is the way we try and resolve this question of where do we draw the line between this trade-off between national security, which is important, and rights, which are equally important. (69A Power to issue directions for blocking for public access of any information through any computer resource)
- In a constitutional democracy like India which is also a signatory to the International Covenant on Civil and Political Rights as well as the Universal Declaration of Human Rights, there is a certain basic understanding that regulation of the Internet or Internet-based services by governments has to respect basic human rights standards.
- For a government to block service or to block any access to content or take other coercive steps that may intrude upon people’s fundamental rights and freedoms, it has to follow what in international law is often called the three-part test. That requires:
- action that is very clear;
- that could not have been done by a less intrusive means; and
- That follows standards of necessity and proportionality.
- As per Supreme Court of India, it is very clear that our fundamental right to free speech and expression applies to online content too.
Legality behind the Curb
- The Kerala High Court in Faheema Shirin v. State of Kerala recognised that interfering with someone’s access to the internet violates inter alia their fundamental right to privacy.
- Subsequently, the Supreme Court in Anuradha Bhasin v. Union of India observed that an indefinite suspension of the internet could amount to an abuse of power. However, it fell short of reaffirming the position laid down by the Kerala High Court.
- In Justice Puttaswamy (Retd.) I v Union of India as well as the decision concerning Modern Dental College the Supreme Court has reaffirmed that rights cannot be viewed as distinct compartments. They must be viewed as a network of interconnected freedoms that complement each other. The most obvious right to get implicated by a geoblock is the fundamental right to access the internet.
- Admittedly, the basis of imposing such a restriction has to be one of the numerated conditions mentioned under Article 19(2) (i.e. public order, national security, etc). At the same time, however, due to the interconnected nature of constitutional freedoms, it would also have to be fair, just and reasonable under Article 14. This means that the manner in which the geoblock is imposed should not be arbitrary.
- In Anuradha Bhasin v. Union of India & Ors., the Indian Supreme Court admitted that Section 69A read with the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 permit the Indian Government to impose narrowly tailored restrictions on access to content. The Court further acknowledged that in Shreya Singhal v. Union of India & Ors., the Supreme Court had acknowledged the constitutionality of section 69A. The Court (in para 111) recognised that the rules are not unconstitutional.
- Thus restriction must be on access to specific platforms on the internet and not access to the internet as a whole.
- The meaning of emergency in the context of an order under section 69A of the IT Act, however, is not clear. In People’s Union of Civil Liberties v. Union of India, in the context of a challenge to the constitutionality of section 5 of the Telegraph Act, 1885 (i.e. the provision enabling wire-tapping), the SC clarified that the threshold of public emergency is even higher than the grounds stated in Article 19(2) of the Constitution. The Court defined public emergency to mean “the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action”. The nature of concern that the public emergency raises has to draw its colours from the restrictions enumerated under Article 19(2) (e.g. national security).
Diplomacy via Internet
- In order to know whether the diplomatic and security interests sought to be achieved through the geoblock outweigh civil liberties affected by the move, a careful examination of the procedural and the substantive safeguards relied upon to curtail the right is crucial.
- The adequacy of existing safeguards help in understanding whether the geoblock in the manner in which it has been imposed excessively curtails civil liberties when compared to the interest sought to be achieved.
- The general procedural safeguard against blocking access to the internet that such orders must be backed by a certified copy of a court order. Judicial scrutiny ensures that there are some checks and balances against executive indiscretion. However, there is an exception to this rule.
- Rule 9 of the Blocking Rules 2009, empowers the Government to impose a geoblock (such as in this case) without providing a prior opportunity to be heard to an online intermediary (i.e. an entity providing an online service, e.g. a Chinese app).
- Government of India issues blocking orders under Section 69A of the Information Technology Act, it asserts secrecy and confidentiality in those orders. The Supreme Court in the issue of Internet shutdowns in the Anuradha Bhasin judgment said very clearly that any order blocking people’s rights to liberty, especially in relation to the Internet, requires to be published.
- Banning of apps is a part of a larger dispute with an aggressive neighbour. Also data collection by Chinese apps and their intrusion is well documented. But the current ban has led India vulnerable to World Trade Organisation (WTO). Also there are questions raised for lack of data security and privacy laws in India and lack of critical cyber security architecture