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Legitimacy in Banning Chinese Apps in India

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 that?

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 reason that:
Those apps were prejudicial to sovereignty and integrity of India, defence of India, security of state and public order[1].

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.
  1. 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.[2] 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.
     
  2. 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.
  1. 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 appellate bodies.[3]

    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.
     
  2. 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.[4]

    It 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.

    And from 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[5], 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.[6]

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.
  1. 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,[7]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[8]. 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.[9] But at the end its left to the other member countries of WTO.
     
  2. 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.[10] 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,[11]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 way.

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.

Conclusion:
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.[12]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 illegitimate.

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.

End-Notes:
  1. Press Information Bureau of the Government of India, https://pib.gov.in/PressReleseDetailm.aspx?PRID =1635206 (Last visited Nov. 19, 2020).
  2. The New York Times, https://www.nytimes.com/2020/06/17/world/asia/india-china-border-clashes.html (Last visited Nov. 19, 2020).
  3. WTO, https://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm#appendix1 (Last visited Nov. 20, 2020).
  4. Section 69A(1) of the Information Technology Act, 2000.
  5. Shreya Singhal v. UOI, (2015) 5 SCC 1.
  6. Anuradha Bhasin v. Union of India & Ors., MANU/SC/0022/2020
  7. Hongkong & Shanghai Banking Corporation Ltd.v. Union of India and Ors. MANU/DE/0967/2017
  8. Deccan Herald, https://www.deccanherald.com/national/india-flouted-wto-rules-by-banning-apps-china-8821 31.html (Last visited Nov. 20, 2020).
  9. Poddar, Prem. Digital Borders - The Banning of Chinese TikTok in India. (2020)
  10. Influence Marketing hub, https://influencermarketinghub.com/tiktok-stats/#:~:text=India%20is%20another % 20populous%20country,11%20months%20of%202019%20alone. (Last visited Nov. 20, 2020).
  11. Nikitha, Impact of Banning Chinese Apps in India B&B Associates LLP, (2020).
  12. Wang, Jufang. "From banning to regulating TikTok: Addressing concerns of national security, privacy, and online harms." (2020).

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