legality-of-59-apps-banned-by-government

Context: Recently 59 smartphone applications got banned after a press release by the Government of India, many of them being web services.

More on News:

  • The apps include tik tok (social media platform), UC browser, Cam Scanner etc.
  • The rationale behind the move is to strengthen the security framework as there is apprehension that owners of these apps are violating the privacy of Indian citizens by exploiting their data, thereby deterring the security of the nation. 
  • Some experts are questioning the legality of the move as no legal order has been passed and procedural requirements are not fulfilled.

A similar move in the past:

  • Even prior governments have made press releases like in August 2012, a decision was made to block around 245 webpages. 
  • The objective was to prevent disinformation that purportedly was causing the exodus from Bengaluru of Indians belonging to the north-eastern part of the country.
  • Proper Grounds such as defense and integrity of India, public order, security and privacy of users were mentioned. 
  • The directive was premised on specific recommendations
    • By the Indian Cyber Crime Coordination Committee at the Ministry of Home Affairs 
    • In reports received by our premier cybersecurity body, CERT-In
    • By debates in Parliament

Concerns with current press release:

  • Lack of Examination: The Ministry of Home Affairs has played a pivotal role in drafting the release but its assessment by Parliament is not done.
  • No Legal Order as per IT Act, 2000: A mere press release can’t substitute a legal order. Its disclosure is necessary as blocking website information impairs citizen’s right to access information.
    • Further, the court in Shreya Singhal Case (Online Speech and Intermediary Liability) upheld the blocking power of Government but also allowed writ jurisdiction over such powers.
    • However in the recent Anuradha Basin (Kashmir Internet Shut Down) Case, the court clarified that it is necessary for the government to disclose the proper information to the public as per S- 69A, based on which a writ petition can be filed.
    • Here citing a mere press release won’t allow you to file a case.
  • No Grounds Mentioned
    • Section 69A of the IT (Amendment) Act, 2008, allows the Central Government to block content where it believes that a particular content threatens - 
      • The security of the State; 
      • The sovereignty, integrity or defence of India; 
      • Friendly relations with foreign states; 
      • Public order; or 
      • To prevent incitement for the commission of a cognisable offence relating to any of the above.
    • However no concrete ground was mentioned in the press release, even the name China has not been used anywhere and other countries individuals also own a stake in the banned applications.
  • Procedural Violation: 
    • The Website Blocking Rules, 2009 specifically provide for a defined process of notice, hearing and a reasoned order.
    • But here the ban has been imposed without any form of pre-decisional hearing and reasoning.

Way Ahead:

  • The need is to issue a detailed reasoned and speaking order so as to make relevant information available to the public.
  • Further, there are two concerns which must be legitimately addressed through legislation.
    • The first is pertaining to privacy and data protection for which the pending Data Protection Bill must be passed. 
    • The second is to examine whether investments and operational control pose cybersecurity concerns which can be addressed through legislation and the creation of an institutional process that may draw inspiration from the Committee on Foreign Investment in the United States. 
    • Both these measures will suitably empower the government to act within the bounds of law and act as per evidence to reach the goals they so desire. 

The principle of legality is a necessity for a republic that is governed by laws and not the whims of higher officials. It is the hallmark of a democracy that laws are validly enacted and do not violate fundamental rights. To circumvent them simply means undermining the constitutional framework of India.

Source:

https://www.thehindu.com/opinion/op-ed/how-not-to-tame-the-digital-dragon/article31966409.ece