When the Narendra Modi government’s Ministry of Electronics and Information Technology banned 59 Chinese apps, including TikTok, WeChat, and UC Browser, it did so through the powers of one law. The government said that these apps were banned under Section 69A of the Information Technology Act, 2000 because “they are engaged in activities which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order.”
As India-China tensions keep rising across the Line of Actual Control (LAC), it is important to understand the powers of such a law.
What is Section 69A?
Section 69A of the Information Technology Act, 2000, was introduced by an amendment to the Act in 2008. It gives the Central government the power to block public access to any information online — whether on websites or mobile apps.
Under Section 69A, if a website threatens India’s defence, its sovereignty and integrity, friendly relations with foreign countries and public order, the government can ban it, after following due procedure.
The detailed procedures to do so are listed under the Information Technology (Procedure and Safeguards for Blocking Access of Information by Public) Rules, 2009. Apart from this, a court may also issue directions for blocking information online. The Department of Telecommunications, too, can issue blocking orders to internet service providers, to enforce licensing conditions.
Section 69A mandates that every ministry in central, state and Union Territory governments must have a nodal officer, to receive complaints about websites that host ‘offensive’ content. Once the nodal officer sees merit in the complaint, he/she then forwards it to a designated officer, who chairs a committee to examine the grievance.
This committee includes representatives from the Ministries of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Computer Emergency Response Team (CERT-In), and give the intermediary a hearing. Once this procedure is over, the designated officer can issue directions to block a website, only after the approval of the secretary of the Department of Information Technology — in ordinary circumstances.
Section 69A also makes space for an event of an “emergency nature”, during which the designated officer examines the blocking request, and submits recommendations to the secretary of the Ministry of Electronics and Information Technology, who, as an interim measure, can issue directions to block a website. In such cases, the aggrieved party does not get a hearing.
However, within 48 hours of the interim orders being passed, the designated officer must bring the blocking request before the committee. The designated officer will then issue a notice to the website, asking its representatives to appear before the committee at a specified date and time. The website is given at least 48 hours to prepare for the hearing. The recommendation of the committee is conveyed to the IT secretary who has the final say and may approve the request. The secretary has the power to disapprove the blocking request and give directions to unblock the website. Section 69A also has a provision for a review committee, which meets once in two months to review directions issued to block a website. It may set aside the blocking order if the procedures in law have not been followed.
The latest order that bans 59 Chinese apps is an interim one, which has been issued under the emergency clause. The app companies have been given an opportunity to appear and submit their clarifications before the committee.
In the interest of national security
A feature of Section 69A is that it includes terms such as “security of the state, emergency nature, sovereignty and integrity of India and public order”, which are common for national security determinations across Indian laws. The Section mandates strict confidentiality about complaints and action taken. Due to the presence of this clause, Right to Information (RTI) queries are not applicable to the law. Moreover, the committees to examine requests and review appeals comprise entirely members from the executive.
In its 2015 judgment in the landmark Shreya Singhal v/s Union of India case, the Supreme Court of India upheld the validity of Section 69A and the extant blocking procedures. The court said that the law was constitutional and a website could be blocked only on the basis of reasoned order. The Supreme Court also emphasised that the law has sufficient safeguards under which the order can only be issued with the committee’s approval to block a website after it has heard the aggrieved party. As mentioned in the Rules, in all cases, whether emergency or not, the reasons to block the website have to be recorded in writing.
How has it been used?
The law prohibits revealing information about complaints to block websites and the manner in which they were dealt with. Consequently, the names of blocked websites are difficult to find. Citizen Lab, an interdisciplinary laboratory based in the University of Toronto, along with the Canadian Broadcasting Corporation (CBC) and The Indian Express, investigated this aspect of Section 69A and found that between August 2017-2018, the category of blocked websites included international organisations and NGOs. The Ministry of Electronics and Information Technology, however, denied blocking these websites. In the absence of public announcements, it is difficult to identify who ordered a website to be blocked, when and on what grounds.
The executive has also reversed certain decisions. In November 2014, the Additional Chief Magistrate in Mumbai ordered the government to block 32 websites, including popular online software development platforms such as Github and video-sharing platforms such as DailyMotion and Vimeo, on the grounds that they hosted ‘pro-ISIS’ content. In January 2015, the order was reversed, after these websites told the government that they would not allow propaganda. They added that they would work with the government to remove such material in future.
The oversight of online information is a common feature in the legal frameworks of many countries, and India is no exception. China’s firewalls to prevent the misuse of its digital public spheres offer no scope for judicial review. On the other hand, India gives aggrieved parties the right to avail judicial recourse. The Supreme Court, in the Shreya Singhal judgment, clarified that the blocking orders can be challenged under Article 226 of the Constitution. It is the process established by law that is subject to judicial scrutiny, which distinguishes India from the People’s Republic of China.
The authors work at Koan Advisory Group, a technology policy consulting firm. Views are personal.
This article is part of ThePrint-Koan Advisory series that analyses emerging policies, laws and regulations in India’s technology sector. Read all the articles here.
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