In this eve of Covid-19, as and when we were striving for Winner Winner Chicken
Dinner in PUBG and rocking in Tiktok, we were constrained to face the heart
break of not having those apps anymore. And this happened at the outset of the
border issues between India and China, but it is unclear as to whether the
border dispute has any nexus to the banning of apps.
All that the press release
states that, having national security and privacy concerns as the reason, India
had banned a series of Chinese apps. It is apposite to note that, during this
lockdown for Covid-19 outbreak, even those people who were not generally using
their mobile and mobile applications started to use the same and in fact few of
the banned mobile applications were the sole basis for entertainment for humpty
number of people.
Its not just all about entertainment, especially during this
lockdown, applications like that of Cam scanner were also used for official
purposes too.In such a circumstance, whether the reason stated by the
government of India sufficient to for the banning few applications just like
Leave alone the sufferings faced by us, thing about those Chinese companies
which were minting money through these apps. As a matter of fact, since services
have become the most prevalent subject matter of trade, this will definitely
cause a downfall in the China's economy.
- Do you think that China will concur
with such a decision and stay calm just like that?
- Arguendo, India had sufficient reasons for banning, is it actually
legitimate to do so? If so, then how?
Ban on Chinees apps had not only caused unrest within India, but also had
raised International Concern. India had claimed that it is bothered about
National security and Privacy concerns. But for a matter of fact, privacy
footing of most of the Chinese apps are erupted and are in parametria with other
American Apps. So, the deferential treatment of Chinese apps must be
substantiated by India. Also, the genuine concerns of Indian users of such app
can't be neglected.
In such a circumstance, it is necessary to check whether
there is any violation of domestic or International laws on trade. This
doctrinal research work is an attempt to answer all such question and provide a
clarity as to India's legal footing in banning Chinese apps. But this work will
be limited to the scope and applicability of the Domestic laws in India and the
International Trade Laws.
Background of Banning Chinese apps:
As far as the official information in the Press Information Bureau of the
Government of India is concerned, on 29th June 2020, during the 1st phase of
nationwide unlock for COVID outbreak, the Indian Government through the Ministry
of Information Technology, initially banned 59 mobile applications for the
Those apps were prejudicial to sovereignty and integrity of India, defence of India, security of state and public order.
Even though banning
was done at the outbreak border dispute at Ladakh, it is apposite to note that,
information through the Press Information Bureau was the only publicly made
available information and nowhere in the publication made in PIB, those 59
mobile applications are referred as Chinese mobile applications. But
fortunately, or unfortunately all those mobile applications banned by India
happens to be owned by the Chinese companies.
Also, the press release provides
no information about the compliance with the WTO agreement. India had merely
substantiated its power under the IT Act and its IT Rules. In order to identify
and determine the actual intend of Indian Government for banning the Chinese
mobile applications, it is expedient and necessary to keenly examine both the
border dispute and the privacy concern of India. And the same will be
elaborately analysed in this particular chapter.
Border dispute between India and China:Whatsoever it is till date India and China had never compromised with their
border issues. India's claim for sticking to the McMahon Line and China's claim
for sticking to the Line of Actual Control have never been settled. When it
comes to border issue, the crooked ways the countries approach can never ever be
imagined. Despite the fact that there are many misleading online news regarding
the border issues between India and China.
The fact that, border issues had led
to death of many army men in both the ends, that too especially in the month of
June 2020 can't be negated. Both the countries are trying really had to
supersede over the other. Of course, both the countries are showcasing their
strong contentions at the cost of the lives of the soldiers, about which many
does not actually bother.
Since, the government of India deciding to ban the Chinese apps during the
pendency of tension between India and China it is been suspected that India had
undertaken this action in a resentful manner. The key question over here is
arguendo, the decision regarding ban of Chinese apps were not done in any
resentful manner, then how come all those apps banned by India happens to be
owned by the Chinese companies? Also, China is not the only country providing us
mobile applications. Even countries like America are also providing us such
applications. In fact, similar applications of different countries competitors
of each other.
And this intensifies our doubt. There are no much difference
between the privacy and security system by the applications of different
countries. It is apposite to note that privacy concern will be more convincing
than resentfulness. Hence, the researcher suspects that the India is trying to
play a safe game by merely projecting its privacy concern in place of its
resentfulness. On the other hand, there is possibility for the same need not
being a resentful action, considering the prevailing tension, India would have
been more cautious to the point that China should not be let free with an
advantageous position of having India's privacy at stake.
National Security and Privacy Concerns:As substantiated by India with the help of complaints, reports and
recommendations, there is a possibility for the sovereignty of the nation and
privacy of the citizens to be endangered. For a matter of fact, we ourselves
give permission for numerous applications to access our gallery, camera, micro
phone, so on and so fore. The documentary titled the great hack has rightly
pinpointed the innumerable ways in which our data are stolen.
When it comes to
mobile applications we are constrained to give irrelevant permissions for them.
For example, the call recording application which has nothing to do with my
gallery mandates permission for the same for letting me to use the said
application. In case of Pubg, since we give permission to use our microphone,
the same can be used even when the apps are running in background. In addition
to that, when the payments are made through such apps using debit/ Credit cards,
there is high possibility for our card details including CVV number be stolen.
This can be done even while purchasing guns in Pubg.
These are just few of the
examples to show how our data is at stake. Since there is possibility for all
such data to be sold in Dark-web, undoubtedly there is a serious threat for the
privacy of the citizens. This is not just all about our privacy concerns, when
such data is in hands of a company or an enemy country, there are chances for
them to use our data as tump card and demand control over India. Hence,
admittedly privacy concerns are in turn connected with the sovereignty and the
integrity of the nation.
Here, the Major concern of the researcher is that, such privacy issues are not
something which becomes emergent in one fine morning, i.e. 29th June 2020. Since
India has claimed to have received recommendation form the Indian Cyber Crime
Coordination Centre, several reports and complaints regarding the same from the
citizen [Not on 29th June 2020], it could have very well facilitated formation
of a separate committee to analyse the same and furnish its recommendations.
Also, the ability to extract data is not just available for Chinese apps, but
also with the American applications like that of google meet, google photos,
etc,. In that case if Chinese apps could misuse over data then obviously even
the American apps can. So, if this issue is taken to the international forum,
India is obliged to substantiate with its reasons for differential treatment
those banned apps which happens to be Chinese apps. But as a matter of fact, the
stand- alone concern of privacy which in turn implies the threat to the
sovereignty of the nation is itself sufficient for invoking IT Act and
substantiating the same in International forum.
Applicability of International Trade Laws and the Domestic Laws:
There is always a dilemma as to which law has to applied in to applied in such
cases where two countries are involved. In this particular case, since there is
wide ambit for applicability of both International law and domestic law, in
order to understand the context of legitimacy of Chinese app ban, relevant
provision in both laws has to be analysed. Hence, this chapter will discuss
about the applicability of relevant provisions in both International Trade Laws
as well as Indian laws with regard to this particular case.
Relevant International Trade Laws:Since 1995, India is a member of WTO, which strives to regulate the global trade
of both goods and services. Both India and China had signed both General
Agreement on Tariffs and Trade (GATT) which covers the trade of goods and
General Agreement on Trade in Services (GATS) which covers the trade of
services. It is apposite to note that, WTO has one of the most active
international dispute settlement mechanisms that operates through panels and
In this particular case, since few banned apps like that of
club factory enable us to place the order and provide the customer with delivery
of its products, here there is involvement of both goods as well as the
services. Therefore, all the provisions of GATT as well as GATS will be made
applicable for the consideration of this particular issue. One of the baseline
fundamental of WTO rules and policies is equal treatment of the members of WTO
in respect of trade.
The general sequence articles of both GATT and GATS are
framed in such a way that the globalisation of trade is not disturbed. But in
Art. XIV (c) (ii), exemption is provided for the protection of the privacy of
individuals. Also, in Art. XIV bis, such exemptions are provided for security
reasons. Even in Article XX and Article XXI of GATT, such general and security
exceptions have been provided for them. It is apposite to note that, in no
exemptions will be entertained in cases where the member country had
discriminated other member country.
Relevant Indian Laws:As we look into the domestic laws of India, section 69A (1) of the IT Act
empowers the Central Government or its officer to pass order/ direction for
blocking access for information provided to the public. But the central
government can't do that just like that. In order to do so, the central
government must be satisfied that, the said access to the information is categorised under any of the following reasons, for the interest of the
sovereignty and integrity of the nation, defence, security of the Nation, For
friendly relation with foreign states, Public order, and for preventing
incitement to the commission of any cognizable offence relating to above.
is apposite to note that, the procedure for blocking is provided under the IT
rules. Two ways has been provided by the act, one is the normal procedure and
the other is the emergency procedure. In this particular case, the Indian
Government had adhered to the emergency procedures. As per rule 9 of IT Rules,
the Designated Officer has to check whether the particular complaint comes under
the ambit of section 69A(1) of the IT Act and then make a recommendation to the
secretary of the IT Department.
If the Secretary is also satisfied for blocking
then he can very well proceed by providing an interim order for blocking.
Provided that the Secretary records the reason for proceeding in writing. It is
imperative to note that, before blocking the concerned service provider will not
even be given an opportunity to be heard and the same is against the natural
justice. But after providing the interim order, within 48 hours of time the same
will be referred to the formed under Rule 7 of IT Rules for approval.
then on usual procedure of issuance of notice, hearing the parties will done.
Only after that the final order for the said issue will be passed. By this way
the banned apps will be given an opportunity to represent their side. Even
though when the constitutionality of section 69A and the rules of IT was placed
under question before the Supreme Court, its constitutionality was upheld for
the reason that, there were sufficient safeguards like that of mandated written
reasoning for the order and pre-decisional hearing. Also, even the court itself
had admitted that, these provisions permit the Indian Government to impose
narrowly tailored restrictions on access to content.
Implications of Ban:
Apart from the procedures involved for the ban, the after effect of the ban is a
matter of serious concern. In order to conclude as to whether the banning of
Chinese apps were legitimate or not, it is expedient and necessary to look into
the possibility of China and Indian citizens claiming and analyse the
implications of the same. And this chapter will be dealing with the same.
India Vs. Chinese Apps:Since ban on china apps started with 59 apps and now has come to an extend of
118 apps, definitely owners of these apps will make their claim. Chinese apps
are left with remedy in both India as well as in WTO. In the case of remedy in
India, these banned apps has the statutory entitlement of pre decisional
hearing. But still they same may not actual sound to be absolute. It is because
since the committee formed under rule 7 of the IT Rules are completely Indian
officials there are high chances from them to be biased.
Apart from this since even the foreign organization are permitted to file a
writ under Art. 226 of the Indian constitution,so obviously even those
Chinese app companies can also file case in India. Now that, China in a
holistic preview, is urging India to rectify its discriminatory practices. Since both India and China are the
members of WTO, if China is ready to make a claim in WTO, it can very well do
so. In fact, China's foreign ministry is strongly concerned about the
same. But at the end its left to the other member countries of WTO.
India Vs. Indian citizens:The fact that users of banned apps are really worried can't be negated. And
there are numerous fans for few of the apps which were banned. In the year 2019
alone itself, TikTok has been downloaded 277.6 million times. TikTok is just
one such example and there are many others. There are individuals who are ready
to sacrifice such privacy concerns for their entertainment. On the other hand,
we have the Indian Government with a holistic approach of striving to protect
the interest of the state. Even by applying the utilitarianism principle, the
interest of nation prevails over the interest of the individuals.
But still the
fact that, the Indian constitution had empowered the individuals with the right
to claim against the nation can't be negated. India has claimed to be the leading innovator in the field of technology and has projected itself as the saviour of privacy of 130 crore Indians. But in no other way Indian Government
or the Indian Companies are benefitted by the same. So, it is seemed to be one
such unnecessary action taken by the Indian Government. And the individuals
reserves their right to challenge the government's decision.
Will China Succeed?
Even though for China, India is one of the main application markets,for a
matter of fact, Chine making its claim in WTO is highly questionable. Because
China by itself had banned several popular websites and apps by stating its
privacy concerns. In addition to that, China had not complied with various
provisions of GATT and GATS. When China is more concerned about the privacy and
security, of course there is nothing wrong in India thinking in that very same
This weakens the China's argument, but still, this does not debar China to
bring its contention before the WTO. One of the major argument for the side of
China is that, Even though there are few exempting provisions in favour of
India, its differential treatment of Chinese apps has not been substantiated.
The researcher suspects that, only for the sake of evading from the clutch,
India did not even say that it has banned China application rather random 58
application. For the sole reason of differential treatment by India, China can
succeed, provided that China does not violate the provisions of GATT and GATS.
Even though the Indian citizen's right has been curtailed, the positive
implications of the same, i.e., Recovery from Pubg and Tiktok addiction can't be
negated. But still the choice to do so is reasonable expected from a democratic
nation like that of India. Arguendo, all those banned raise serious privacy
concerns, regulatory framework for the same would have been much more effective
rather than outright ban.It is because among those banned applications there
were plenty of much needed applications too.
That too especially during this
lockdown. After the apps ban, India had also witnessed cases suicide attempts
due to the depression of not being able to use those applications. In the due
course of dealing with this issue, India seem to be less transparent because it
had not let the order of banning in public sphere. Since many suspicions are
raised against India, it would have chosen to be more transparent.
Considering the present footing of both India and China in the international
forum, it is evident that, since India had chosen not to ban any other apps
which belong to other countries, there is outright violation of the basic
principle rule of WTO, and that proves India's Ban on Chinese application to be
But by considering the violations and the illegalities committed
by China, firstly, there is only minimal scope for China to approach WTO and
even if approached there is only minimal scope for it to hold India's move to be
illegitimate. At the end of the day, the decision as to the legitimacy of
banning Chinese apps are left to the court or WTO to decide.
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=1635206 (Last visited Nov. 19, 2020).
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visited Nov. 19, 2020).
- WTO, https://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm#appendix1 (Last
visited Nov. 20, 2020).
- Section 69A(1) of the Information Technology Act, 2000.
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- Anuradha Bhasin v. Union of India & Ors., MANU/SC/0022/2020
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