Recently Ministry of Electronics and Information Technology (MEITY) through a press release dated 29 June 2020, has issued a notification banning 59 mobile apps, majorly run by China based companies, citing the reason that they are engaged in activities which are prejudicial to the interests of sovereignty and integrity of India, security of state, public order and defence.
It is not for the first time that such type of ban on websites is imposed by MEITY previously it has blocked more than 14000 websites between 2010-18. In August 2012, it had blocked around 245 webpages following some of the recommendations from the Indian Cyber Crime Coordination Committee, Computer Emergency Response Team India (CERT-IN) and parliamentary debates but this time there is no as such recommendation from CERT-IN, no such parliamentary debates giving rise to the question of legality of the ban.
Legality of the Ban
The MEITY invoked its power under section 69A of Information Technology Act, 2000 which empowers the central government to order that access to certain websites and computer resources be blocked in the interest of the defense of the country, its sovereignty and integrity, the security of the state, friendly relations with foreign states, public order or for preventing incitement to the commission of an offence.
MEITY in its press release said, “….. it received many complaints and reports about misuse of mobile apps for stealing and surreptitiously transmitting users’ data in an unauthorised manner to servers that have locations outside India.” The compilation of this data, its mining and profiling is by elements who are hostile to national security and defence of India, which ultimately impinges upon the sovereignty and integrity of a nation, so immediate emergency measures are required.
The Indian Cyber Crime Coordination Committee, MHA has also sent an exhaustive list of recommendations for blocking these malicious mobile apps, said by MEITY in press release.
a. No Pre- decisional hearing
Internet Freedom Foundation said that the ban is illegal as it does not include any pre decisional hearing or any show cause by the central government to the aggrieved parties.
On the other hand, Rule 9 of Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 provides that in case of emergency, where delay caused would be fatal, blocking may be done without giving any opportunity of hearing to the aggrieved parties.
In Shreya Singhal vs. Union of India the court held that blocking can be carried out when the central government is satisfied that it is a necessity.
MEITY in the press release mentioned about the emergent nature of threats (not specifically mentioning the threats), breach of data protection and privacy, placing the sovereignty, integrity and security of state at stake and therefore, provides for the requirement of emergency measures.
However, specific cause is not mentioned for taking such emergency measures but amidst the standoff going on between India and China on Line of Actual Control (LAC) there may be actual threat to sovereignty and integrity of India through these breach of data protection and hence a need is felt for such measures.
b. Public disclosure of Recommendation made by MHA to MEITY
It is also being contested that the recommendations made by MHA should be publicly disclosed.
According to Rule 16 of the Website Blocking Rules, 2009, strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof. This confidentiality clause was challenged in Shreya Singhal case where the court held that the reasons have to be recorded in writing in such blocking order so that they could be challenged in a writ petition if needed.
To sum up, the ban will have its geo-political and economic impact but talking from legal perspective then it can be said that GOI gave full consideration to the existing rules and laws regarding such blocking. After the ban the government is also providing the opportunity of hearing to aggrieved parties.
Right to receive information is a fundamental right guaranteed under Article 19(1)(a) of Indian constitution but this right cannot supersede the national security and integrity of India.