Section 69A of the IT Act provides govt with emergency powers to hold enquiry after the ban
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 serving any prior notice to the concerned content providers before ordering a ban.
The issue came to light after the government on Monday evening issued an order banning 59 Chinese apps under this section of the IT Act. 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 provide their version on the allegations levelled. Internet Freedom Foundation in a statement said, “The Blocking Rules, 2009 specifically provide 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 the government did not serve a notice on these companies in advance, is baseless. The rules under Section 69A, are such that the concerned companies can after the ban represent their case to the government which will then conduct a full-fledged enquiry by an inter-ministerial panel into the matter. This inter-ministerial body will then submit its report to the IT secretary who then, considering the evidence, decides the future course. If the secretary feels that the ban is justified and needs to be continued, the concerned companies can 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.
Looking at the way the law and the rules governing the Act have been formulated, the chances of the concerned Chinese firms getting any legal reprieve at this stage by moving the courts is negligible. According to cyber law expert Pawan Duggal, “Since the law provides first to represent your case before the government, the courts are likely to say that exhaust the options provided in the law before coming to us.”
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 which 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 enquiry said that the nature is such that the onus lies on the concerned companies to prove that they have not indulged in any anti-national activities rather than the government furnishing any proof which 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.