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Can the ban on TikTok and other Chinese apps be imposed through a press release, without granting them an opportunity of hearing?
The recent ban on 59 apps by the Ministry of Electronics and Information Technology [MeitY] vide a press release dated June 29 has captured a lot of attention. The general perception has been that it is a valiant move to counter border tensions with China by adopting an 'economic war' strategy, as India is the biggest market for Chinese companies.
Even as perception stands that the apps were banned because they were owned by Chinese companies, the government cites the rationale behind the move as being security of the state and the citizenry. The purpose of this article to examine the legality of this coercive action.
As the press release reads, MeitY has invoked its power under Section 69A of the Information Technology Act, 2000 [IT Act] read with the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 [Blocking Rules] to ban these apps, as the operation of these apps are "prejudicial to sovereignty and integrity of India, defence of India, security of state and public order".
De-mystifying the laws
The order in the press release appears to be cryptic in structure. It doesn’t mention the specific rule in the Blocking Rules under which the action has been taken. The Blocking Rules contemplate for two circumstances under which such order can be promulgated. First, on receiving a complaint under Rule 6, observing detailed examination under Rule 8, and then imposing a ban. Second, by imposing an ‘interim ban’ under Rule 9 without giving an opportunity of hearing to the intermediary in emergency situations, and thereafter continuing with the investigation.
Moreover, the mandate of confidentiality to be maintained in these proceedings as per Rule 16 makes it difficult to decipher the true import of such cryptic orders in the public realm. It was only after the statement of the TikTok India head was made that some clarity could be gathered on. He commented that the “company had been invited to meet with government stakeholders concerned to respond and submit clarifications”.
It appears that the present order has been passed under Rule 9, which has a non-obstante clause. This rule proposes the scheme for post-decisional hearing after taking interim measures in emergency situation, unlike pre-decisional hearing in normal course to the intermediary. The qualification of emergency situations is mentioned under Section 69A (1) and synchronous to some of the restrictions under Article 19(2) of the Indian Constitution, that is sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence.
The action appears to be motivated by a legislation in China that requires companies originating in China to share user data collected from across the world if requested by the Chinese government or intelligence agencies. The situation has become alarming due to the privacy concerns and suspected surveillance by a foreign state. However, the ban is an interim measure and shall be confirmed or vacated after taking the course of Rule 8.
Questions that may arise
Having cleared the clouds on the nature of this order, the interesting questions that arise are, whether such ban can be imposed through a 'press release' and what is the legal status of such press release? Whether an interim ban can be effected without an opportunity of hearing? Whether Section 69A allows for a bulk blocking of systematically distinct apps through a single order? Is the order arbitrary, disproportionate, and, in violation of Article 19? For these apps gave employment, were a source of income for many citizens, and a means for exercising free speech.
Effort to find an answer
The popular jingoism for 'cyber sovereignty' amidst border tensions has inspired the government to adopt such a strict policy. The recent app ban was brought into public knowledge through a press release. It is trite in law that every authoritative action must have force of law. If it is a non-legislative action, then it must emanate from delegated legislation or an executive order. The understanding of what all falls under the definition of 'law' can be gathered from Article 13(3) of the Constitution, which includes ordinance, order, bye law, rule, regulation, notification, custom or usages.
Undoubtedly, a press release doesn’t qualify to be ‘law'; it is merely a means to notify citizens about any legislative or executive action, policy measures or for bringing any official statement in public circulation. Moreover, at the least, a press release can’t be the basis to take action that directly impairs fundamental rights. So if we look at the present press release, it alone can’t suffice the test of law unless backed by some executive order.
However, the confidentiality mandate under Rule 16 of the Blocking Rules hides the blocking order from public view. On similar grounds, in the past, blocking orders have been denied access, as sought under Right to Information (RTI). So the cumulative understanding is that unless this press release isn’t preceded by an executive order with procedural fairness, it doesn’t hold good in law. The executive procedure and plea of confidentiality under the Blocking Rules requires some transparency, especially when it potentially affects the fundamental rights on a large scale.
As discussed earlier, the power to pass an interim blocking order without giving notice and opportunity of hearing is derived from Rule 9 of the Blocking Rules. But interestingly, the question as to whether an interim ban can be imposed without opportunity of hearing had been raised earlier in the Shreya Singhal case. However, in that case, the Court didn’t delve much into this question and held that the procedural structure is fair.
The power to block public access to information on a ‘computer resource' (defined under Sec. 2(1)(k) of the IT Act) extends both to websites and apps, but the question arises as to whether under bulk blocking can take place through Section 69A.
An understanding of these two aspects can be drawn from Liberty Oil Mills & Ors. v. Union of India & Ors. In this case, an abeyance order was passed banning the import of beef and licenses of several traders were put on hold through a single notification. The interim decision was taken without giving an opportunity of hearing. The Court expressed that natural justice is quintessential in every decision making process, and “it may be that the opportunity to be heard may not be pre-decisional; it may necessarily have to be post-decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay”.
It further noted that,
“Some orders of that nature, intended to prevent further mischief of one kind may themselves be productive of greater mischief of another kind’.
Therefore, such orders must give scope to parties to make adequate representation. While the Court allowed the mass action against traders through a single notification, it categorically stated that the circular should be a by-product of meticulous consideration of each individual allegation against the traders separately and that the same should be recorded in writing. It negated the requirement of formal reasons in interim orders, as stating so may lead to further complications for the matter being under investigation.
Coming to the press release, if any executive order exists, it lies behind the veil. Although the dissipation of information regarding bulk blocking can be allowed through a single press release, there have to be separate orders dealing with individual apps at the back end. Under Sec. 69A (1), these order have to be recorded in writing with skeletal allegations, individually. As far as opportunity of hearing is concerned, the same has been provided through Rule 9(3), taking the course of Rule 8 of Blocking Rules. But it will be a post-decisional hearing, which is a scheme under the Blocking Rules only for emergency situation. Moreover, the courts do not interfere in these interim orders, unless the order is plagued by mala fide or devoid of jurisdiction. So, the press release does raise some genuine concerns and can be vetted by the above standards and arguments.
The Supreme Court in Anuradha Bhasin v. Union of India held that any executive action which has far reaching consequences on fundamental rights must be the least restrictive measure, otherwise it would not pass the test of proportionality. The same principle has been reiterated in Foundation for Media Professionals, with the Court advocating to strike a balance between national security and fundamental rights.
It has to be observed that the restrictions on fundamental right under Article 19(2) are nothing but an extension of fundamental rights in itself. When the dilemma of balancing the fulcrum between fundamental rights and national security or sovereignty arises, it is not a choice between right or wrong, rather between two rights. As Chintan Chandrachud has argued, it is time that impact assessment of rights denied is considered while adopting a utilitarianism approach.
The author is a 4th Year Law student from Symbiosis Law School, NOIDA.