The decision to block access to Chinese apps has significant consequences
since a large part of the Indian population accesses those services regularly.
TikTok has more than 100 million active users in India. Combined with
more affordable internet recently, Tik Tok has brought marginalised people
online in a way no other app has been able to. Trans, lower caste,
independent artists from rural areas are creating and broadcasting content
on TikTok in a way that was previously the monopoly of groups with
greater social capital.
Not only is the short-from video app convenient to use, but it is also more
accessible for it has given people who don’t lead instagrammable lives or
even speak English the confidence to share their work and showcase their
skills.
Reports demonstrate how TikTok gave a voice to entrepreneurs and small
business owners in rural India. That the ban has come into being during the
pandemic is particularly unfortunate given the sense of community that the
platform brings people during isolation.
Another group that is severely impacted by the app ban are the Tibetan
refugees in Delhi who use We Chat to connect with their families and
friends back in Tibet. They also rely on this app to get access to news and
information. They cannot use other global social media applications like
Facebook or Whatsapp since it is banned in Tibet. Further, WeChat is easy
to use, and voice messages do not require literacy in Tibetan, enabling
refugees who do not read Tibetan to participate in groups.
Similarly, in the past decade or so, many Indian students have enrolled in
Chinese universities. They too depend on apps like WeChat to
communicate with their colleagues and administrations.
Any account of freedom of expression that does not consider how this ban
will affect already marginalised communities is disingenuous at best. Since
apps that provide a platform for expression and allow for the dissemination
of information are protected by Art.19(1)(a) of the Indian Constitution, a
constitutional challenge to the ban is likely.
In order for the freedom of speech and expression to be meaningful, the
right must be inclusive and available to everyone; not just those with the
requisite social capital to access applications with relatively complex and
inaccessible user interfaces. This is particularly true because of low levels
of digital literacy in India. The freedom to express in this context should be
understood to include the manner in or platform on which people wish to
express themselves. Further, even if one is to assume that the freedom to
engage in trade or business is not available to Chinese app developers
(presumably non-citizens), they continue to exercise the right against under
article 14.
In order to know whether the diplomatic and security interests sought to be
achieved through the geoblock outweigh civil liberties affected by the
move, a careful examination of the procedural and the substantive
safeguards relied upon to curtail the right is crucial. The adequacy of
existing safeguards help in understanding whether the geoblock in the
manner in which it has been imposed excessively curtails civil liberties
when compared to the interest sought to be achieved.
The general procedural safeguard against blocking access to the internet
that such orders must be backed by a certified copy of a court order.
Judicial scrutiny ensures that there are some checks and balances against
executive indiscretion. However, there is an exception to this rule.
Rule 9 of the Blocking Rules 2009, empowers the Government to impose a
geoblock (such as in this case) without providing a prior opportunity to be
heard to an online intermediary (i.e. an entity providing an online service,
e.g. a Chinese app). Since TikTok and other intermediaries (e.g. internet
service providers) have been offered a post-decisional hearing, it seems as
if the basis of the geoblock was rule 9. This means that the Government
must have assumed the existence of an ‘emergency’ to impose the
geoblock.
The PIB notification refers to the following conditions (all but one)
mentioned under Article 19(2) of the Constitution as the basis to impose a
geoblock, namely, sovereignty and integrity of the state, defence and public
order.
Since the geoblock disproportionately impacts the quality of expression of
millions of users, it is difficult to regard it as minimally intrusive, enabling
overboard restrictions on civil liberties.
