By Navin Parik and Lokesh Vyas
India with its massive tech savvy population is often referred to as a “golden bird” especially for any tech start up both in terms of popularity as well as growth[1]. This can be fathomed by AppAnnie’s recent report which shows India as the largest growing market worldwide for app downloads.[2] The recent ban of 59 Chinese applications is an appropriate example to illustrate the importance of such bene characteristic of India.[3] Undoubtedly, investments are important and beneficial for both investor and investee. However, these benefits are to be tested on the altar of sovereign threats and national security. In the technocratic world where everything is niching itself in the cyber arena, it becomes imperative for nations to be vigilant. Thus, the software and applications that do not meet defence standards and raise national security concerns can be justifiably be banned.
A Tech-Armoured Retaliation
In the cybernetic world where the principle of vasudhaivakutumbakam (the whole world is family) gets utmost relevance, it becomes important to understand the socio-economic impact of such moves. The recent ban not only shows India’s attack on the economic interests of China but also heralds many geopolitical repercussions, for eg. major changes in the trade policies or an impetus to groupism. The decision to ban the apps appears to be largely a political one. Relevantly, these apps have been used in India for a long time and there hasn’t been any significant change in the way that these apps work. Thus, the recent announcement seems to be sending a signal to China.
Given this, it won’t be amiss to say that the move is part of the tit-for-tat retaliation after the Indian and Chinese militaries clashed[4] earlier this month. Earlier after the spat in the borders, the customs officials began halting clearances of industrial consignments coming from China at major Indian ports and airports. It signalled that something big was coming, however, there was no clue that the Indian government would retaliate in this way. Notably, India’s prohibition is very likely to give a surge to the American apps.[5] Illustratively, banning WeChat is very likely to succour WhatsApp’s growth. Similarly, prohibition on TikTok would boost Alphabet Inc.’s Youtube’s usage. Hence, there arises a question that if this is going to be a new state of affairs then whether Indian apps will fulfil the need or American apps will take the market share.
Banning Apps: A Trend?
India may be the first country to ban a bouquet of Chinese apps but it is certainly not the first one to raise security concerns about the privacy and security of smartphone applications built and promoted by Chinese companies. These apps have often been accused of furthering the ideological and (geo)political agendas of the Communist Party of China.[6] Further, it has been a major player of this ‘banning game’ on several occasions. It has blocked major famed applications such as Google, Tumblr, play store, YouTube, WhatsApp, Facebook, SnapChat etc. under the pretext of national security and privacy.[7]
The practise of banning has been followed by other countries as well. In 2018, Australia and the USA instructed its armed forces personnel not to use the Chinese messaging and payment app for security concerns.[8] Similar incident also happened after a 2017 border clash between India’s and China’s militaries where Indian troops were forced to delete dozens of Chinese apps from their phones over national security concerns.[9] Recently, TikTok, a famous Chinese app got lambasted for violating a biometric of Illinois. [10]
Similarly, it has faced a European privacy probe over privacy concerns.[11] Last year, the Madras High Court directed the government to ban TikTok over encouraging pornography.[12] At other instances, the same app, TikTok,was a subject of a national security review by the U.S. government.[13] Indonesia had banned it in 2018.[14] Huawei, another Chinese product was also embroiled in privacy and security issues.[15] It was banned or strictly treated by countries such as the UK, Australia, USA, Canada, Austria, Belgium etc.[16]
Pertinently, cyber Security analysts have continuously been giving warnings in the past years about the economic risks associated with Chinese apps and telecom companies owing to China’s National Intelligence Law.[17] The law holds Chinese companies legally responsible for providing access, cooperation or support for Chinese intelligence gathering.
Legitimacy of the Ban
The ban was undertaken by invoking Section 69A of the Information Technology Act, 2000 [“IT Act”]which enables power available to the government to direct an intermediary to block access to information from the public.[18] This provision can be invoked if the Central government or its authorised officers consider it “necessary or expedient” “in the interest of sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognisable offence relating to above”.[19] It also coincides with the reasonable restrictions enshrined under Article 19(2) of the Indian Constitution which reiterate similar restrictions on freedom of speech.[20]
Further, the procedural laws to be followed for exercising this blocking power are enlisted in the IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.[21] The government for a speedy action has skipped the procedure provided in Rule 5-8. As per Rule 5, the power to block public access to online information is accorded to a Designated Officer and can be exercised only upon a request from either a “Nodal Officer” or a competent court.[22] Rule 7requires a committee to examine the blocking request from the Nodal Officer.[23] Rule 8 mandates the Designated Officer to serve a notice upon the intermediary against whom the request has been made to file a reply or any clarifications.[24]
However, the government instead of taking the long route, counted on Rule 9 that provides for blocking in emergency cases. Appositely, Rule 9 clarifies that in an emergency situation where “no delay is acceptable,” the Designated Officer may directly refer the request to the Secretary, Department of Information Technology who, upon her satisfaction of the justifiability of the request, may issue interim directions to block access without providing a hearing. Within 48 hours of such a direction, the request has to be placed before the Committee for its determination.[25] From a legal perspective, grounds like national security are often given paramount importance by the courts. Armymen’S Protection vs Union Of India[26]and A.D.M Jabalpur v. Shivakant Shukla[27] are appropriate examples to corroborate this reasoning.
What Future holds?
There are two conversing views about the entire banning brawl. On one hand, it seems to be a retaliatory measure as the Union Minister of Electronics & Information Technology Ravi Shankar Prasad called it a digital strike against the fight in Galwan valley.[28] He further went on to say that “nowadays we only hear of two ‘Cs’, coronavirus and China”.[29] This highlights the political nature of the move aiming at the economic interests of China. On the other hand, the notification banning the applications cites ‘safety, security, defense, sovereignty & integrity of India and to protect data & privacy of people of India (sic)’ as the reasons for the ban.[30] This shows two contrasting approach of the Government as the banned apps have been used in India for more than a year. Thus, it was not a recent ‘national security and sovereignty threat which these Apps caused. Considering the ‘national security and sovereignty’ as a genuine reason, it won’t be gaffe to say that the Indian government has for a long time either normalized these threats and compromised with national security or it did not pay any heed to such threats.
Pertinently, the ban has both negative and positive repercussions. On the positive side, it coincides with the ‘Digital India Atmanirbhar Bharat Innovate Challenge’ which aims to evangelize India into a techno-friendly nation by incentivizing Indian application developers and innovators to come up with their own apps and facilitate the growth of the Indian technology market.[31] The challenge involves a two-track process. Track-I aims at promoting the existing apps and platforms and Track-II would focus on creating new apps.[32] Interestingly, the App ban has also given a surge to indigenous apps such as Chingari which witnessed an increase from 1 lakh to 1 crore plus downloads.[33] Roposo (another Indian avatar of TikTok) gained 22 million users in just 48 hours.[34] Similarly, other Indian counterparts of banned Chinese apps such as Mitro, Triller, Chingari, ShareChat, Epic Web Browser, Jio Browser, ShareAll, Photo Video Maker with Music, JioMeet, Say Namaste, etc. are also echoing the Atmanirbhar Mantra, thus, fructifying the idea of Atmanirbhar Bharat (Self-reliant India).
On a negative side, the ban would render many Indian creators helpless. These Indian creators include people from marginalized groups such as Trans, lower caste, independent artists from rural areas who could create content without socio-economic barriers[35] The ban would jeopardize the employment of thousands of Indians working for these application companies and devoid many people of their communication mediums. Illustratively, Tibetan refugees in India and the Indian students enrolled in Chinese universities who were hugely counting on WeChat to connect with their families and friends would face greater difficulties of this ban as other social media applications like Facebook or Whatsapp is banned in Tibet and China.[36] One of the biggest drawbacks of the move appears to be of ByteDance, which has since last year hired Indian senior executives and laid out plans to invest $1 billion in India.[37] On the trade front, it could impact the trade policy of both the countries because nearly 12% of India’s imports across sectors such as chemicals, automotive components, consumer electronics, and pharmaceuticals including 70% of India’s drug intermediary needs are being fulfilled by China.[38]
Further, China’s call of taking the matter to the World Trade Organisation may further cascade problems for India.[39] Although Indian officials have hinted at the use of security exceptions of the WTO agreements (Article XXI of GATT and Article XIV of GATS).[40] However, in the light of Russia-Measures Concerning Traffic in Transit, where the panel noted [para 7.75, page 41] that “political or economic differences between Members are not sufficient, of themselves, to constitute an emergency in international relations for purposes of subparagraph (iii) of Art XXI of GATT”, India’s onus of justifying its ban increases.[41] Similarly, differential treatment to Chinese apps from other Apps with the same setting and arrangements which JiRong (the spokesperson of the Chinese embassy) called “discriminatory” and “abuses national security exceptions”, further casts doubt on India’s action of banning apps.[42] The only lighting hope for India is the post-ban support from the US, Japan, and France coupled with China’s infamous COVID connections.[43] But there is no conclusive proof that it will safeguard India at the international legal front.
Interestingly, from an economic perspective it does not seem to impact the Chinese economy significantly which approximately stands at 15 Trillion.[44] However, it will surely be a big setback for many Chinese internet giants with ambitions of global expansion. Pertinently, if other countries start following India’s cue and act against these apps for national security and privacy reasons, the Chinese economy is very likely to suffer.
The authors, Navin Parik and Lokesh Vyas, are currently students at the Institute of Law Nirma University, India.
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[3] The Economic Times, India bans 59 Chinese apps including TikTok, Helo, WeChat, July 03, 2020, available at, https://economictimes.indiatimes.com/tech/software/india-bans-59-chinese-apps-including-tiktok-helo-wechat/articleshow/76694814.cms (Last visited on July 4, 2020).
[4]Jeffrey Gettleman, Hari Kumar and Sameer Yasir,Worst Clash in Decades on Disputed India-China Border Kills 20 Indian Troops, June 29, 2020, available at https://www.nytimes.com/2020/06/16/world/asia/indian-china-border-clash.html (Last visited on July 4, 2020).
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[18]The Information Technology Act, 2000, §69A
[19]Id.
[20]The Constitution of India, 1950, Art. 19(2).
[21]IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, 1962.
[22]IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, 1962, Rule 5.
[23]IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, 1962, Rule 7.
[24]IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, 1962, Rule 8.
[25]IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, 1962, Rule 9.
[26]Armymen’S Protection vs Union of India (2015) 5 SCC 409
[27]A.D.M Jabalpur v. Shivakant Shukla(1976) 2 SCC 521.
[28]The Hindu, Ravi Shakar Prasad called it a digital strike against the fight in Galwan valley, JULY 02, 2020, available at https://www.thehindu.com/news/national/if-our-20-jawans-sacrificed-their-lives-then-the-toll-is-double-on-the-chinese-side-prasad/article31969577.ece(Last visited on July 10, 2020).
[29]Id.
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[31]The Hindu,PMModi launches Atmanirbhar Bharat app challenge, available at July, 4, 2020, available at https://www.thehindu.com/news/national/modi-launches-atmanirbhar-bharat-app-challenge/article31991458.ece(Last visited on July 10, 2020).
[32]Id.
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[41]Panel Report, United States – Measures Affecting the Cross-Border Supply Of Gambling And Betting Services, WT/DS285/AB/R, ¶7.75 (April 5,2019).
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[43]Times of India, Support in US for India banning TikTok and other Chinese apps, available athttps://timesofindia.indiatimes.com/world/us/support-in-us-for-india-banning-tiktok-and-other-chinese-apps/articleshow/76724761.cms(Last visited on July 11, 2020).;Snehesh Alex Philip,France extends ‘steadfast & friendly’ military support to India amid LAC tensions with China, June 30, 2020, available at https://theprint.in/diplomacy/france-extends-steadfast-friendly-military-support-to-india-amid-lac-tensions-with-china/451533/(Last visited on July 10, 2020).
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