Apps ban will stand judicial test

The government has the powers to treat China as an ‘enemy’ and take action under the Defence of India Act

By Author Chittarvu Raghu   |   Published: 10th Jul 2020   12:05 am Updated: 9th Jul 2020   11:24 pm

As a retaliatory measure consequent to the Galwan Valley aggression, the government of India invoked Section 69A of the Information Technology Act, 2000, and banned 59 applications, including the popular TikTok and CamScanner. The reason cited was that these apps pose a threat to ‘sovereignty and integrity of India’.

The IT Act, 2000, was enacted pursuant to a resolution passed by the UN General Assembly on January 30, 1987, adopting the United Nations Commission on International Trade Law Model Law on Electronic Commerce. The resolution recommends that all states may enact laws for uniformity of the law applicable to alternatives to paper-based methods of communication and storage of information.

The IT Act was amended in 2009 introducing, more particularly, provisions of Section 66A and Section 69A. Section 66A is a penal provision introduced penalising the acts of sending offensive messages. Section 69A(1) authorises the Central government to direct any agency of the government or any intermediary to block for access by the public, any information generated, transmitted, received, stored or posted in any computer source. However, Section 69A(1) specifically mandates that before taking such an action, reasons have to be recorded in writing.

Recording Reasons

Apart from stating that the apps pose a threat to ‘sovereignty and integrity’, material particulars in support of the same are to be stated in such orders. When the statute mandates that ‘reasons’ ought to be recorded, the order without material particulars would be arbitrary and in violation of principles of natural justice. The order should disclose any nexus between the programme contained in the application and the perceived threat to the integrity and sovereignty of the country.

Article 66A of the IT Act, 2000, was challenged before the apex court in the light of the right to free speech and expression guaranteed by Article 19(1)(a) of the Constitution in Shreya Singhal’s case. The original enactment did not contain the said provision. Along with the same, the incorporation of Article 69A was also challenged.

The SC while examining the said provision of Section 69A held that unlike Section 66A, it is a narrowly drawn provision with several safeguards. Section 66A was struck down and the incorporation of Section 69A was held to be constitutionally valid. The court had taken into consideration the safeguards provided under the said provision and held that any complaint made under Section 69A(1) shall be examined by the organisation concerned and after being so satisfied shall transmit it to the designated officer and s/he shall take action.

Apps ban

The Rules

The procedure contained in the rules with regard to the blocking of the information was examined meticulously. During the said process, a notice has to be given to the affected person to submit his reply. The SC also noticed Rule 9, which provides for blocking of information in cases of emergency, where delay caused would be fatal in which case the blocking may take place without any opportunity of hearing.

Obviously, the rule confers power to block the information without affording an opportunity of hearing, but it can be done only in cases of emergency where delay caused would be fatal. In such cases, invariably, the order also should reflect the reasons as to why the procedure to provide hearing is dispensed with. The order invariably should also reflect the emergency conditions. Any order in breach of the aforesaid procedure may not be sustainable as per law.

Ground to Block

Invocation of the provisions of the IT Act would make the order amenable to judicial review. It would be incumbent upon the authority to comply with the procedure contained in the Act. The aggressive acts of any country may not be a ground to block the business apps relating to the said country unless it is shown that there is a nexus between the nature of information utilised or transmitted by the apps and is a threat to the security and sovereignty of the country.

Act No. 42 of 1997, titled as the Defence of India Act, 1971, was enacted on December 4, 1971. The main objective of the Act is to provide for special measures to ensure public safety and interest, defence of India, civil defence and for the trial of certain offences and for matters connected therewith. Section2 (b) of the Act defines ‘enemy’ as any person or any country committing external aggression against India.

The ‘Galwan Valley’ incident is per se an act of aggression within the said definition and China can be declared as an ‘enemy’. Chapter II of the Act relates to emergency powers. Section 3 of the said Chapter confers power upon the Central government to frame rules in relation to various aspects as contained in Sub Section 2. The Central government may frame rules in relation to preventing or prohibiting any contracts or commercial deals with enemy, enemy subjects or persons residing, carrying on business, etc.

Current Circumstances

In the present circumstances, the government may have the power to treat China as an enemy and take action under the said Act, which may not be exposed to any judicial scrutiny. Once the provisions of the section are invoked treating a particular country as an enemy, the same may not be subjected to any judicial scrutiny for the reason that all the institutions should strive to maintain the sovereignty of our country.

The aggression act by itself would be a ground to issue any order without any further reasons. Apps would be banned not on the ground that there is any nexus between the functioning of the app and the internal security but on the ground that the country has been declared as an enemy. If such an order is challenged before the SC, the court would be testing the same only in the light of declaration that the apps originate from enemy state. But now if any challenge is made before the SC regarding the banning of the apps, the SC would be testing the order in view of the parameters contained in Sec 69A of the IT Act, 2000.

(The author is Advocate, High Courts of AP and Telangana)

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