Recently, Ministry of Electronics and Information Technology (MEITY) recently directed a ban on 59 smartphone applications provided by China.This includes TikTok, a popular social media platform; the UC Browser, a preferred web browser for low budget smartphones; and CamScanner, which is used to convert images into shareable documents.
Concerns:
- Beyond the geopolitical and economic impacts, concerning questions arise as to its legality and the impact on democratic norms.
- The first concern arises due to the lack of transparency in website blocking. No relevant grounds are mentioned for the ban, such as defence and integrity of India, public order and even security and privacy of users.
- Lack of examination and debates: The recommendations of the Indian Cyber Crime Coordination Committee at the Ministry of Home Affairs as well as that of CERT-In are not taken. And most importantly, the issue has not been debated in the Parliament.
- Further, more importantly, the legal order by itself has not yet been made publicly available. The action of blocking impacts the right not only of the owners of these smartphone applications, but the public’s fundamental right to receive information.
Related Laws and Supreme Court Judgments:
- Shreya Singhal and Anuradha Bhasin judgments: The first concerned the constitutionality of Section 66A under which the Supreme Court, while upholding the blocking powers of the government, reasoned that the writ remedies would always be available to an aggrieved person.
- Hence, to approach a High Court in a writ, the petitioner would require the availability of the legal order.
- Proceeding to the more substantive aspects of the action seems to contain fairly obvious flaws. The first is with respect to the adherence to the prescribed power under Section 69A of the Information Technology Act, 2000 that permits the blocking of information, when it is “necessary and expedient”.
- Further, the process for this is required to be created under the second sub-clause for which the government made the Website Blocking Rules, 2009. Such a process would have required a show-cause notice to be served, offering the aggrieved party a detailed opportunity to defend itself.
Way forward:
- The principle of legality is inherent to a republic that is governed by laws and not the whims of powerful individuals in high office. It is the hallmark of a democracy that laws are validly enacted and do not violate fundamental rights.
- For Privacy and data protection, a watered down version of a Data Protection Bill is pending before a parliamentary committee. So, a robust law is needed for this.
- An exploration into whether investments and operational control pose cybersecurity concerns, is needed. This may be done through legislation and creation of an institutional process that may draw inspiration from the Committee on Foreign Investment in the United States.
Conclusion:To protect individual liberty and national interests, India must proceed with caution and remember the age-old adage, of being careful of whom we hate, for we may end up just like them.
