Bleak chances for Chinese apps to get interim relief from courts; thanks to govt’s ’emergency’ powers

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Updated: Jul 05, 2020 11:23 AM

After the government's order banning 59 Chinese apps came on June 29, questions were raised by some internet activist groups that the action was illegal as the government should have first served a notice on these companies and given them a chance to respond to the allegations levelled.

TikTok users, including influencers with huge fan-followings, have started switching to Roposo in large numbers after the ban.Under Section 69A of the IT Act, the government can block any content where it is satisfied that it is against the country’s sovereignty, integrity, and defence.

The Chinese firms owning the apps that were banned by the government on June 29 will be constrained to move courts for any legal reprieve until the government completes its inquiry into their activities, which are alleged to be against national interest.

Even if any of these firms move courts to seek interim relief on the grounds that they were not served with any notice before effecting the ban, chances of any judicial intervention at this stage is remote, said legal experts.

This is because the government has emergency powers under Section 69A of the Information Technology Act to block any content where it is satisfied that it is against the country’s sovereignty, integrity, and defence, and in such cases the law does not require it to serve any prior notice to the content providers concerned before ordering a ban.

After the government’s order banning 59 Chinese apps came on June 29, questions were raised by some internet activist groups that the action was illegal as the government should have first served a notice on these companies and given them a chance to respond to the allegations levelled.

Internet Freedom Foundation said in a statement, “The Blocking Rules, 2009, specifically provides for a defined process of notice, hearing and a reasoned order. These processes emerge from the Shreya Singhal judgment and apply to all grounds for blocking, including those premised on national security.”

However, officials and legal experts told FE that the question as to why did the government did not first serve a notice on these companies is baseless. The rules under Section 69A are such that the companies concerned can represent their case to the government after the ban, which will then conduct a full-fledged inquiry by an inter-ministerial panel into the matter. This inter-ministerial body will subsequently submit its report to the IT secretary, who, based on the evidence, decides on further action. If the secretary feels that the ban is justified and needs to be continued, the companies concerned then have the option to appeal before the cabinet secretary, who will then form a panel to hear them. This panel would not include the IT secretary as it is on his decision that an appeal has been made.

According to cyber law expert Pawan Duggal, “Since the law provides first to represent your case before the government, if any company moves the court, they are likely to be told to first exhaust the options provided in the law before coming to the judicial forum. ”

Duggal explained that since the provisions of the law cite sovereignty, security, and integrity of the nation, it comes under emergency powers and no prior notice is required.

This is quite evident in the government’s statement on the ban order. “The ministry of information technology has received many complaints from various sources, including several reports about misuse of some mobile apps available on Android and iOS platforms for stealing and surreptitiously transmitting users’ data in an unauthorised manner to servers that have locations outside India. The compilation of these data, its mining and profiling by elements hostile to national security and defence of India, which ultimately impinges upon the sovereignty and integrity of India, is a matter of very deep and immediate concern, which requires emergency measures,” the statement said, adding, “This ministry has also received many representations raising concerns from citizens regarding security of data and risk to privacy relating to operation of certain apps.”

Officials aware of the process of inquiry said the nature is such that the onus lies on the companies concerned to prove that they have not indulged in any anti-national activities, rather than the government furnishing any proof that may be in its possession. For instance, in the case of Chinese apps, the government panel may ask them to prove how the data stored abroad was not shared with the Chinese government.

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