Let’s evaluate the recent decision of the government to ban Chinese mobile applications on national security grounds. Does the decision of the government pass the test of due process and proportionality? So, essentially this is a debate over internet freedom v/s national security.
The government decided to ban Chinese mobile applications on national security grounds by invoking its power under section 69A of the Information Technology Act (IT Act). Cyber activists have always pointed out that Section 69A of the Information Technology Act of 2000 has several limitations. According to them, it provides very wide and broad coverage for blocking online content that is hosted on computer resources and websites. It allows the government to block online content on grounds that it threatens defence, sovereignty, integrity, the security of the state, friendly relations and public orders.
These grounds are very broad and wide, and this provides discretion to the government to block online content. In this regard, the Section 69A of the IT Act 2000 is said to be quiet similar to the notorious Section 66A of the IT Act 2000, which was earlier declared as unconstitutional by the Supreme Court. Section 66A would allow the police to arrest anyone who sends online messages that could cause annoyance, inconvenience, or that could deceive or mislead the recipient. This broad definition of Section 66A was widely misused by the police around the country.
This sweeping provision of Section 66A of the IT Act 2000 was seen as a violation of Article-19, which guarantees the freedom of speech and expression. In the landmark Shreya Singhal case, the Supreme Court struck down this provision of the Section 66A as unconstitutional by specifically pointing out that the broad coverage of the provision was creating opportunities for the state to misuse, leading to the violation of fundamental rights guaranteed under Article-19.
Now Section 69A which also has such broad coverage creates opportunities for misuse and abuse. Under Section 69A the due process of blocking online content is to first investigate, then to issue orders to the violators to comply with the existing provisions and then impose fines on the violator, if they fail to comply with these orders. As a part of the due process, a ban can be imposed only after the above steps have been followed.
But in the case of the ban imposed on Chinese mobile applications, the government seems to have directly jumped from investigation to ban. If the due process was followed, the violators are given a chance to represent themselves before a complete ban is imposed on them. But in this particular case, the Chinese companies have been asked to represent themselves after the ban. This failure to follow the due process could raise legal challenges, which could even lead to charges of censorship against the government of India.
The fundamental rights of the users of these applications have not been really affected because they always have the option to switch to other similar platforms in order to publish their content. But as far as the Chinese companies are concerned, even though they enjoy a set of basic rights, if not fundamental rights, those rights are only subjected to reasonable restrictions. And if their applications did violate India’s national security, then the government would be well-in with its rights to take actions against these companies.
As a way forward, it is necessary to pluck the legal gaps that exist with regards to data protection and cybersecurity. Till date, India does not have any dedicated legislation that deals with cybersecurity and data protection.
Comment your take.