A Digital Strike in India to Secure Sovereignty   

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    Harold Laski in the Respublica Christian said that “oneness” of humanity was to be found through the pervasive unity of God (jus divinum)[1]. Jean Bodin’s De la Republique reflected the state makes, interprets and applies its own laws. “Jus est quod jussum est” became the “essence of the state and absolute sovereignty resting in these sanctions. Throughout history, sovereignty has had both an internal and an external component. Thus, the internal aspects of sovereignty carry with them the problems of submission of subjects to the sovereign, limits on the authority of the sovereign, and the need to determine a sovereign representative[2]. India.

    To maintain the Indian Sovereignty on 30 June 2020 Indian Government impose ban on approximate 59 Chinese apps popular in Indian youths like TikTok (an app which makes short videos, UC Browser, Share It (by this app we can share our files), and Cam Scanner, (iOS and Android devices by which images and documents scan easily). 

    Such type of ban on various social media, any books or movies should trigger a debate on its legality. India’s social virtual platforms are basically different from developed countries (USA & UK etc.) where freedom of speech is a supreme fundamental right. 

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    In the Constitution of India ‘freedom of speech’ is given to us with some limitations and people of India are bound to follow these limitations (limitations are also mentioned in the Constitution of India). Although such a ban on social media platforms could impede foreign direct investment and affect the expansion of Indian digital policies. Various cyberlibertarians have advocated that the sovereignty of states must be maintained, and it is states’ obligation to plan national and worldwide law to oversee the internet. Barely any issues in overall relations are as flawed as the use of intensity and the genuine framework that legitimizes a state’s usage of intensity in self-insurance.  

    Legal basis of the ban on apps in India

    Hobbes in his Leviathan saw a sovereign is established through the mutual covenant and confer all powers and strength on him. According to Hobbes sovereign is to provide security through peace and common defence of the individuals who have covenanted for that purpose. India also tries to maintain its sovereignty.  Harold Laski said that sovereignty is an ultimate territorial organ which knows no superior was to the middle ages an unthinkable thing. 

    In India, ban on 59 apps enforced by  Section 69A,  Information Technology Act, 2000.  Section 69A, IT Act authorized[3] to give directions to block and access any information through any computer resource and by the network to the public. Under the Section 69 A, Information Technology Act, 2000 read with the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 Central Government or its officials are authorized under this to make a move. It is the obligation of such officials that after fulfilled that it is important to do, by its request or they issue bearings to any administration organization or delegate to hinder for access by the open ( to be obstructed for access by the open any data produced, transmitted, got, put away or facilitated in any PC asset). 

    This block or ban may for the sake of the interest of sovereignty and integrity of India, defence of India, the security of the Indian States, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offences. 

    The Ministry of Information and Technology take this step due to the received various complaints about abuse of for taking and secretly transmitting clients’ important information in an unapproved and unethical way to servers, which situated inside or outside India. 

    Enforcement of ban on Apps[4]

    Warning by the Government of India is carefully trailed by certain directions to Indian network access suppliers to hinder these applications and this notification likely showcases as a message, saying access to the applications has been confined to the solicitation of the administration. 

    Presently downloads of these restricted applications, like Tik Tok, CN, Cam Scanner, are on Google’s Play Store as well as on  Apple’s App Store is now blocked.

    List of banned Apps

    Reason for banning apps 

    Indian Government banned all the above-mentioned apps on the basis of the incident of Galwan Valley. But, there is some hidden reason,  that they steal the data of Indians by these apps

    International Framework to protect the sovereignty 

    Island of Palmas Case (the United States vs. The Netherlands)[5] ICJ said that sovereignty is the primary subject of states and all the relations are dependent on this.  There are various treaties and conventions related to the protection of sovereignty: 

    • In 2001, Agreement on Cooperation in Combating Offences related to Computer Information came to in effect to harmonize national cybercrime laws.
    • The Arab Convention on Combating Information Technology Offences, 2010 main aim was to empower cooperation between states and protect their citizens, property and interests from cybercrime.
    • Agreement on Cooperation in the Field of International Information Security, 2010 is related to information security (INFOSEC) of member states. 
    • Convention on the Establishment of a Legal Framework Conductive to Cybersecurity in Africa (Draft African Union Convention), 2012 is related to promotes the provision and maintenance of human, financial. 
    • African Union Convention on Cyber Security and Personal Data Protection, 2014 is related to creating and/or amend national laws to adequately combat cybercrime, harmonize national laws, create mutual legal assistance treaties. 
    • Model Law on Computer Crime and Cybercrime, 2012 serves as a guideline for states related to developing substantive and procedural cybercrime laws. It is a model law.  
    • Directive on Fighting Cybercrime, 2011 is related to criminalizing cybercrime in national law and facilitating mutual legal assistance, cooperation, and extradition in cybercrime and cybersecurity-related matters.

    Judicial Pronouncements 

    In India, such ban is not new in April 2019 by the direction of Madras High Court Ministry of Electronics and Information Technology (MeitY) directed Google and Apple to remove Tik Tok App on the ground of its pornography contents. The High Court, in this case, directed the Government to legislate a statute analogous to the Children Online Privacy Protection Act, 1998 & Children’s Online Privacy Protection Rules, 1998 to prevent children from becoming cyber victims.  On 1 July 2020 Tik Tok’s Indian head Nikhil Gandhi issued a public notice on social media that how much Indian population depends on it, but most of the advocates denied to represent Tik Tok in the Supreme Court.

    Effect of banning Apps

    As we know that behind the banning these apps is the reason is the geopolitical context of clash in Galwan Valley.  But it’s also true that Approximate 50 billion India’s trade deficit with China. Both countries have nuclear capabilities which cause any escalation. But during this pandemic situation risk on the business part also seems unnecessary while more of the population is depending on these banning companies. It is without a doubt essential for the administration to hold the ground when confronted with the Chinese expansionism. It doesn’t bolster that the two India and China have nuclear capacities, which makes it fundamental to counter any peril of increasing speed. While the choice to use an inventive measure may be kind towards obliging the twin interests of motioning similarly as thwarting senselessly pointless elevating, it probably won’t have the perfect effect. These applications hardly begin to uncover the Chinese stake in the Indian economy.

    The banning of apps has veiled threats that China is taking the matter to WTO, although India is also a member of WTO. The main question raised by this ban is whether the regulatory framework to evaluate such a ban is GATS or GATT. Both the counties are under the governance of WTO rules which limits territorial restrictions to crossing the border trade. But integrity and sovereignty are superior then business. Hope, Banning of apps may provide a role model for other countries. But, such filters, bans & burden on network-based businesses will have to be justified with the GATS commitments. In the dispute between the superpower Russia and Ukraine WTO’s settlement panel issued a landmark. In this case in 2014 after political turmoil in Ukraine, measures adopted by Russia blocked the trade between Ukraine, Kazakhstan, and the Kyrgyz. 

    Panel/ Board held that ‘political or financial contrasts between Members are not adequate,’ of themselves, to establish a crisis in worldwide relations for motivations behind subparagraph (iii) of Art XXI of GATT.

    Great Firewall of China

    China within its territory applies comprehensive internet regulations known as ‘Great Firewall of China’. Facebook, YouTube, Twitter and What’s App are totally banned in China. China justified this ban on the name of the sovereignty issue.  

     Conclusion

    Above mentions conventions and Indian Legislation clearly states that sovereignty of the state is most important. India cannot compromise its integrity and sovereignty. Various Foreign leaders appreciate the step of Government of India and said that it is important to protect the sovereignty and integrity of India.  Online networking, substance and gaming applications are looking for an approach to manage elevated administrative examination as courts world overstep in to stem the surge of offensive substance on these stages. India is one of the world’s quickest developing web showcases and is seeing nothing unique. Hope, Lockean’s second-tier social contract sovereignty must be maintained with following the International laws.  

    Endnotes

    1.  Cf. Laski (1925) A Grammar of Politics [London: Allen & Unwin], chapter 7, passim.
    2.  Elliott (1928) The Pragmatic Revolt in Politic [New York: Macmillan], passim.
    3. https://theprint.in/opinion/can-chinese-apps-appeal-india-ban-section-69a-of-it-act-has-answer/455316/
    4. https://pib.gov.in/PressReleseDetailm.aspx?PRID=1635206
    5. https://legal.un.org/riaa/cases/vol_II/829-871.pdf

    BY- Anjali Dixit | Assistant Professor, Rama University, Kanpur

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