Note: This is the second in a two-part series that reviews the geopolitical and constitutional repercussions emerging from the Indian government’s decision to restrict access to 59 Chinese apps from India.
This broader analysis seeks to evaluate the suitability of the move given the strategic limitations within which these measures were operationalised. The first part, which situates the move in the context of the global trade debate, can be read here.
The decision to block access to Chinese apps has significant consequences since a large part of the Indian population accesses those services regularly. TikTok has more than 100 million active users in India. Combined with more affordable internet recently, Tik Tok has brought marginalised people online in a way no other app has been able to. Trans, lower caste, independent artists from rural areas are creating and broadcasting content on TikTok in a way that was previously the monopoly of groups with greater social capital.
Not only is the short-from video app convenient to use, but it is also more accessible for it has given people who don’t lead instagrammable lives or even speak English the confidence to share their work and showcase their skills.
Reports demonstrate how TikTok gave a voice to entrepreneurs and small business owners in rural India. That the ban has come into being during the pandemic is particularly unfortunate given the sense of community that the platform brings people during isolation.
Another group that is severely impacted by the app ban are the Tibetan refugees in Delhi who use We Chat to connect with their families and friends back in Tibet. They also rely on this app to get access to news and information. They cannot use other global social media applications like Facebook or Whatsapp since it is banned in Tibet. Further, WeChat is easy to use, and voice messages do not require literacy in Tibetan, enabling refugees who do not read Tibetan to participate in groups.
Similarly, in the past decade or so, many Indian students have enrolled in Chinese universities. They too depend on apps like WeChat to communicate with their colleagues and administrations.
Any account of freedom of expression that does not consider how this ban will affect already marginalised communities is disingenuous at best. Since apps that provide a platform for expression and allow for the dissemination of information are protected by Art.19(1)(a) of the Indian Constitution, a constitutional challenge to the ban is likely.
Recently, 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. However, since the decision in Faheema Shirin has not been overruled subsequently, it holds enormous persuasive significance and should correctly be assumed to be the correct position in law. Assuming therefore that there does exist freedom of access to the internet under Article 19, it becomes important to evaluate the effect the geoblock on Chinese Apps has on this right.
In order for the freedom of speech and expression to be meaningful, the right must be inclusive and available to everyone; not just those with the requisite social capital to access applications with relatively complex and inaccessible user interfaces. This is particularly true because of low levels of digital literacy in India. The freedom to express in this context should be understood to include the manner in or platform on which people wish to express themselves. Further, even if one is to assume that the freedom to engage in trade or business is not available to Chinese app developers (presumably non-citizens), they continue to exercise the right against under article 14 (as explained below).
Disproportionate Impact: Is the Geoblock Unfair and Arbitrary?
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.
This right under Article 14 is available to both citizens and non-citizens. The Press Information Bureau notification, therefore, potentially raises two distinct claims based on the right to equality under Article 14. The first, by Chinese tech giants who are already raising concerns of dissimilar treatment with apps developed in other jurisdictions which could potentially also be similarly inconsistent with inter alia privacy concerns (in fact, the Calcutta High Court has recently held that a foreign entity can file a writ petition in an Indian Court in the context of Article 226 of the Constitution).
The second, by Indian users who feel that the decision to ban Tik Tok restricts their access to the internet and the ability to express themselves in a manner that is unreasonable.
In order for a geoblock to be fair, just and reasonable, it would have to be consistent with Article 14 which requires that all persons are treated equally before the law. Article 14, however, does allow dissimilar treatment between two different classes provided that the classification made between them is reasonable.
A classification between two groups (e.g. Chinese apps on the one hand and American or all other apps on the other) is reasonable if two conditions are satisfied. First, there exists some intelligible differentia, or distinguishing feature between the two groups. Second, the dissimilar treatment has a rational connection with the object that it seeks to achieve.
The notification treats Chinese investors (i.e. app developers) differently from all other app developers who may also be making similar applications and have been reported to raise similar concerns of (cybersecurity, misinformation, etc.) in the past. Chinese apps are hardly alone in the mass personal data collection that go beyond what an average consumer would think they are handing over to the app.
American- or European-incorporated companies (e.g. Facebook, Uber and Amazon) have come under similar scrutiny in their home countries and by international agencies for their data mining policies. In fact, India’s own Reliance Jio markets itself saying “data is the new oil”.
Further, as already explained above, the differential treatment of Chinese apps results in arbitrary and unjust denial of access to the internet realistically.
However, in Anuradha Bhasin v. Union of India & Ors., the Indian Supreme Court (para 81) 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.
To put it simply, the restriction must be on access to specific platforms on the internet and not access to the internet as a whole. Granularly determined restrictions to access could potentially satisfy this condition, subject to other provisions in the Constitution being met (discussed below).
While granularly tailored geoblocks could be constitutionally permissible and proportionate, whether the decision to block access to these 59 Chinese apps specifically without any clear and cogent classification invites a closer constitutional inquiry.
Is this use of technology for diplomatic gains excessive?
It is settled law that fundamental rights can only be limited by state actions that are proportionate to the intended object. The test to determine what state actions are proportionate was laid down by the Supreme Court in Modern Dental College v. the State of MP. In addition to being backed by law, the following conditions to be satisfied:
- Pursues a legitimate interest,
- Is suitable (i.e. there has to be a rational connection between the means adopted and the object sought to be achieved),
- Is necessary (the means adopted must not be excessive, i.e. it should be the least intrusive measure in the given set of circumstances and
- Is proportionate (i.e. the balance between the interest in restricting the right must override the need to safeguard the right).
Each of the aforementioned conditions needs to be satisfied, for the geoblock to be regarded as proportionate:
Backed by law and legitimate:
The notification is backed by law, i.e. section 69A of the IT Act, which empowers the Government to impose geo-blocks that target specific websites.
Section 69A contains both substantive and procedural safeguards against unreasonable restrictions to access to the internet (albeit imperfect ones). However, as indicated in this report reviewing the legality of Aarogya Setu, courts have seldom been concerned with the absence of specifically enumerated statutory safeguards in restricting fundamental rights. As long as the notification itself adequately has the force of law (i.e. it is contemplated within the existing statutory framework) it would be hard to argue that the Notification banning Chinese apps was not contemplated within the scope of section 69A. The strategic interest cited in the Notification which is sought to be achieved also could be regarded as legitimate, particularly in the context of the possibility of external aggression.
At present, there is insufficient information on precisely how using Chinese apps in India raises national security concerns to an extent warranting a complete ban of the apps. However, research suggests that Chinese laws require app services to necessarily share user data upon request. Further, a recent study indicated that most Chinese apps (including Helo and Shareit) collect relatively excessive information such as access to microphones, cameras and precise cell-site location information which is not necessary to render a particular service.
While this measure could objectively indicate that Chinese apps need to increase underlying privacy safeguards, a study comparing the operability of Chinese apps with apps originating outside China on play store or apple store is yet to be conducted. In the absence of such a study, a stand-alone review of Chinese Apps may suffer from the absence of a comparative to know how it fares in relative terms. Through a careful comparison measuring the extent to which Chinese apps relatively raise greater concerns which form the basis of the Notification would help establish the suitability of directing a ban specifically against China. This would also help corroborate a cogent and rational connection with national security concerns. Singling out all Chinese apps may require some unique basis in order to be considered a ‘suitable’ restriction.
Further, vulnerabilities that could stem from access to the apps could be stemming from a rather systemically rooted problem: India continues to remain bereft of a robust data protection framework almost three years since Justice Puttaswamy I (Retd.) v. Union of India was decided.
In order to establish that the geoblock is necessary, the Government would have to demonstrate that its purported objective could not have been achieved through less restrictive means.
In order to do this, first, it would have to establish that the geoblock necessarily had to apply to all the apps listed in the Appendix. This is because the list seems to be category-agnostic, i.e. it includes not only social networking applications (WeChat) but even other apps that facilitate phone syncing, those that control or enhance phone operability (e.g. Clean Master), along with web browsers (U.C browser). Each of these apps have a different functionality. Since the extent to which each of the Apps listed in the appendix pose a threat may also be different, the decision to include all of them in the list just because of country of origin may be considered excessive.
Second, it would have to explain why the scope of the restriction was not narrow enough to only require inter alia government, judicial or army officers to refrain from using the App. Since these officials typically are engaged in handling official secrets, the restriction could have been narrowly tailored in this manner. This has in fact realistically been done in the United States where military personnel were advised against using the TikTok by the Defense Department.
These are only indicative suggestions as to how the government could have potentially adopted a less restrictive route in safeguarding the purported interests sought to be achieved through this move. Even though the burden to prove that this was the least restrictive measure is of course on the Government, these facts indicate the extent to which the move could be considered excessive.
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). Since TikTok and other intermediaries (e.g. internet service providers) have been offered a post-decisional hearing, it seems as if the basis of the geoblock was rule 9. This means that the Government must have assumed the existence of an ‘emergency’ to impose the geoblock.
The meaning of emergency in the context of an order under section 69A of the IT Act, however, is not clear. Shreya Singhal also did not go ahead and define what an emergency means in the context of blocking access to the internet.
In Anuradha Bhasin, the Court did not objectively define what geopolitical conditions constitute an ‘emergency’. It is not clear whether the meaning of an emergency in the context of temporary suspension of internet access would be the same as defined earlier by the Supreme Court while constitutionalising wire-tapping.
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). Since the threshold that triggers a public emergency is even higher than the conditions enumerated under Article 19(2) (the conditions are discussed below), the decision to bypass a pre-decisional hearing before imposing the geoblock may have been unwarranted.
The PIB notification refers to the following conditions (all but one) mentioned under Article 19(2) of the Constitution as the basis to impose a geoblock, namely, sovereignty and integrity of the state, defence and public order.
In Shreya Singhal, the SC referred to an earlier decision (in Ram Manohar Lohia) which drew three concentric circles to explain when each of the three conditions is triggered. This was done to explain the graded difference in gravity of each condition under Article 19(2) forming basis to impose restrictions on freedom of expression.
The inner-most circle represents security of the state (being the most serious condition among the three), the immediate outer circle being public order and the outermost being law and order. This means that stray instances of criminality affecting law and order are not adequate to constitute a situation that affects public order.
At present, the precise scale at which cyber threats could result in a public order breakdown is not clear. There is a potential concern about users amplifying disinformation on platforms such as TikTok which is no doubt corrosive to the democratic process. However, this concern persists on virtually every internet platform (e.g WhatsApp) which deals with misinformation and it is unclear how a ban will solve anything. News reports have also highlighted how TikTok perpetuates existing hierarchies and promotes hate mongering.
While these are valid concerns, stray instances of cyber crime using these apps could at best be considered to compromise law and order, a threshold not adequate to legitimately restrict the fundamental right to access the internet.
A restriction on access to the internet also has to be fair, just and reasonable and not arbitrary at the very least. Consequently, a restriction which is arbitrary also affects the right to equality under Article 14 of internet users in India, since they are entitled to fair, just and reasonable restrictions to access to the internet.
The diplomatic interests sought to be achieved through the geo-block could be legitimate. However, the geo-block specifically against Chinese Apps may not be a suitable means to achieve these interests. Rolf Dobielli in ‘The Art of Thinking Clearly’ highlights how crucial it is for us to be able to draw meaningful distinctions between varying degrees of threats. A content-agnostic measure sets a worrying trend of executive indiscretion, hurting access to the internet, generation of value and in turn international trade.
Since the geoblock disproportionately impacts the quality of expression of millions of users, it is difficult to regard it as minimally intrusive, enabling overboard restrictions on civil liberties.
Shubhangi Agarwalla is a final year student of National Law University, Delhi. Siddharth Sonkar is graduating with the class of 2020 from the National University of Juridical Sciences (NUJS), Kolkata with a strong interest in law, technology and regulatory policy. Views are personal.
The authors would like to thank Arindrajit Basu and Divij Joshi for their valuable feedback.