How not to tame the digital dragon

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 How not to tame the digital dragon

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• Dramatic move: On June 29, 2020, the MEITY (Electronics Ministry) issued an order banning 59 Chinese Apps. Many were web services. This act of censorship instantly affected crores of Indians in one shot. The most affected were users of TikTok, UC Browser and CamScanner.
• The legal aspects: Every such govt. order banning websites and services must have a legal basis. One prior example was the banning of some sites in 2012 due to misinformation being spread leading to exodus of North Eastern people from Bengaluru. The order had mentioned many legal grounds.

1. The 2020 ban is primarily based on recommendations of Ministry of Home Affairs (MHA). It has not been debated in the Parliament.
2. The legal order is not yet published, or publicly available.
3. That order must be known publicly, because at stake is the public fundamental right to receive information. A press release isn't that.

• Shreya Singhal & Anuradha Bhasin cases: The two judgmentes in Shreya Singhal and Anuradha Bhasin cases dealt with the constitutionality of Section 66A.

1. The Supreme Court (SC) said that a writ remedy must always be available to affected person, though govt. has the right to block
2. To approach a High Court in a writ, a proper legal order is needed. Today, there is none.
3. In the telecom shutdown in J&K, the SC spoke of the need for public disclosure, and not just one order from govt. processes.

• Deeper issues: There are other flaws too. The Website Blocking Rules, 2009 made under the Section 69A of IT Act 2000 deal with such actions. But they require a pre-decisional hearing (before any ban). A show-cause has to be served, allowing the affected party a chance to defend itself. Only an "emergency" is an exception to this. 
• China not mentioned at all: If we assume that it was China's border aggression that led to this ban, the word "China" is not mentioned anywhere! 
• Legality for Rule of Law: Without a legal basis for govt. orders, the legal system will become the plaything of the powerful individuals. In a democracy, laws must be validly enacted without violating fundamental rights. Otherwise, the constitutional framework is hurt.
• Two basic concerns of GoI: First is the data privacy of citizens, but the government's own record is very poor! The Data Protection Bill in a very weak format is awaiting parliamentary approval. Second is the issue of who the investors are in foreign firms, and what kind of risks do they pose. If proper institutional structures can be made to examine all these, then no ad-hoc action may be needed at all. 
• What we lose: In our desire to hit our enemy - the one-party state - we should not end up weakening our own legal systems. That would not be a victory.

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