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Picking a winner in free speech vs national interest debate is easy

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

Government Bans 59 mobile apps which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order.

Posted On: 29 JUN 2020 8:47 PM by PIB Delhi

The Ministry of Information Technology, invoking it’s power under section 69A of the Information Technology Act read with the relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009 and in view of the emergent nature of threats has decided to block 59 apps since in view of information available they are engaged in activities which is prejudicial to sovereignty and integrity of India, defence of India, security of state and public order. This move will safeguard the interests of crores of Indian mobile and internet users. This decision is a targeted move to ensure safety and sovereignty of Indian cyberspace.

Rule 9 provides that in an emergency situation where “no delay is acceptable”, the Designated Officer may directly refer the request to the Secretary, Department of Information Technology who, upon satisfaction of the justifiability of the request, may issue interim directions to block access without providing a hearing. Within 48 hours of such a direction, the request has to be placed before the Committee for its determination.

A reading of the order makes it evident that the move is an ‘interim measure’ as an ‘emergent’ one, as Tik Tok, the leading light among the 59 and others have been “been invited to meet with concerned government stakeholders for an opportunity to respond and submit clarifications”.

We live in polarised times. And the Indo-China border skirmishes and 20 of our brothers in the armed forces being martyred on the Galwan Valley, has added muscle to the decision. Yes, it is undeniable that ever since the break-out of Coronavirus from Wuhan, Hubei Province of China, anti China sentiments have been naturally unleashed, the world over. No less than Donald J Trump, the US President has mocked it as a Chinese Virus and now as ‘Kungflu’. US Secretary of State Mike Pompeo applauded India’s sweeping ban on Chinese apps including TikTok, saying New Delhi was ensuring its own security.“We welcome India’s ban on certain mobile apps” from China, Pompeo told reporters, saying the move would “boost India’s integrity and national security.”

No other country has commented on this development either supportive or adverse. Not to ignore that “China is strongly concerned, verifying the situation,” Chinese Foreign Ministry spokesperson Zhao Lijian was quoted as saying. China has a huge firewall and does not allow access to the likes of Facebook, Twitter, Google, WhatsApp et al. They have their own versions. Mind you, that no foreign App is allowed in Chinal,. And these 59 Apps all have their Servers in China, where Big Brother is keeping tab 24×7 as State Surveillance in a regime Digotatorship. So, the ‘strong concern’ of the Chinese Ambassador is hypocritically touching.

No wonder in double quick time, Prime Minister Narendra Modi has ‘invited the start-up and technology community to participate in the Atmanirbhar Bharat App Innovation challenge’ to scale up and come up with our desi versions to ‘become world class apps in their respective categories’.

Typically, the usual suspects have complained that the Government ban has a ‘chilling effect’ on the fundamental right to free speech and Sec.69A of IT Act,2000 cannot be invoked to violate Art.19 of the Constitution. Doubts have been raised as to whether the ban was a ‘reasonable restriction’ authorised by law. They have flipped the Right to Privacy arguments also, to question the motives of the Modi 2.0 dispensation.

Rest assured there would be busybodies moving the constitutional courts against the ban, irrespective of whether the 59 apps themselves would be moving or not, as yet. Already controversy has broken out with former Attorney General Mukul Rohtagi declaring that he would not be helping Tik Tok in any legal challenge.

PILs are dime a dozen now. It has become a Pandemic virus that is not going away. Recently, Harish Salve, a jurist, now based in London wrote an OpEd- ‘Rise and fall of the PIL: Courts are increasingly being asked to intrude into the elected executive’s domain’ on Jun 5, 2020. He made out a case as to how Judiciary may be granting too much leeway to avoidable judicial forays.

No matter what, eager beavers may be knocking the doors of courts, questioning the UOI notification dt. 29th June, 2020. They may have their own reasons. Let us legally explore, at least, on the periphery, if not indulge in a research paper like work, which may belong elsewhere.

Fundamentally, the order under the scanner is an interim order. The impacted entities have been called to make a representation and they are inclined to and ready to avail it. There is no permanency attached to the ban, as yet. In such a scenario, all that a constitutional court may need to see is whether the UOI had the power to pass the interim order. It may not go beyond or at least not judicially expected to indulge, in a further and beyond look in, for now.

A plain reading of Sec.69A read with Rule 9 gives ample power and jurisdiction to the GOI to pass the order it has. The wordings are wide and clear and it must be easy pickings and one wonders whether even a desperate court bird cannot read it to be so. We are at the threshold of challenge. The order is of interim nature. Prima facie, as they say in legalese, would suffice to support the government order, to nix any such PIL, at this stage.

Honestly, one does not anticipate or expect any of the 59 apps suffering the ban, to go to court at this stage. They would be ‘seriously’ examining their rights and interest and so unlikely to make a dash to the constitutional courts, as if a PIL infected being. They may also have the benefit of expertise of a high order, who can easily through the obvious at this stage.

Even assuming for a moment that interim measure also can be called into question on ‘merits’, even if UOI had the prima facie authority, it needs to be noted that the ban order has not yet revealed all the cards. They may come, after a proper hearing being given to the 59 entities or those who choose to avail the opportunity afforded.

That is where the use of the phraseology ‘prejudicial to sovereignty and integrity of India, defence of India, security of state and public order’ could be overwhelming for now. The words are huge and humongous. They have meaning and import, far beyond the contours of challenge. The expressions are used by UOI and are deemed to be so used in a responsible way. They are expected to be in possession of more than what meets the eye in the ban order. No litigant or court can lift the veil to identify them now or insist on it now. UOI can play truant to reveal the cards and argue that any challenge would be premature at this stage. That could be a telling argument in law.

Let us give the challenger his day in court. Let us assume he crosses all the above insurmountable hurdles, and makes out a case to warrant a hearing of the cause. Dehors many a ground in defence of the stand of the UOI, there could likely to be one going to a similar dispute premised on Free Speech vs National Interest debate. No less than Aa4:1 verdict from the Supreme Court of United Kingdom. In R (on the application of Lord Carlile of Berriew QC V Secretary of State for the Home Department dt.12th Nov, 2014.

Mrs Maryam Rajavi was a dissident Iranian politician, resident in Paris.. In 1997, the Home Secretary excluded Mrs Rajavi from the UK on the ground that her presence “would not be conducive to the public good for reasons of foreign policy’. That exclusion remained in force. In December 2010, Lord Carlile of Berriew, together with two other members of the House of Lords, asked the Home Secretary for a meeting to discuss lifting the exclusion to enable Mrs Rajavi to address meetings in the Palace of Westminster. The Home Secretary sought the advice of the Foreign Office. She replied in February 2011 stating that she had concluded that Mrs Rajavi’s admission to the UK would not be conducive to the public good.

Lord Carlile and other members of the House of Lords launched judicial review proceedings in May 2011, arguing that the decision contravened their freedom of belief and expression rights. Mrs Rajavi herself later joined as a claimant. The Home Secretary issued second and third decisions in October 2011 and January 2012, supported by evidence from a Foreign Office official, stating that lifting the exclusion would cause significant damage to the UK’s interests in relation to Iran and place British people and property in Iran and the region at risk. Both the judge and the Court of Appeal held that it was. The claimants appealed to the Supreme Court.

The claimants argued that the Home Secretary’s reasons were legally irrelevant, because they depended on the potential reaction of a foreign state. The Supreme Court dismissed the appeal by a majority of 4-1 (Lord Kerr dissenting). Lord Sumption delivered the leading judgment. The other three majority judgments gave similar reasons, but with differences in nuance.

A predictive judgment of the executive about the likely reaction of a foreign country to a decision of the United Kingdom government is ordinarily entitled to a large measure of respect from the courts both (i) because the constitutional separation of powers assigns such judgments to the executive, and (ii) because the executive has greater institutional competence in this area by virtue of its greater specialised experience and the wider range of advice available to it.

In this case, per Lord Sumption, the executive’s decision was rational, there are no grounds to challenge the good faith or the evidential base of the decision, and the Secretary of State had committed no error of principle, Per Lord Clarke, in dissent. There was no evidence before the court permitting it to doubt the strength of the Home Secretary’s reasons. Accordingly, although the Court of Appeal was wrong to approach the issue on the usual domestic judicial review grounds, the appeal should be dismissed.
The entire debate before the Supreme Court of United Kingdom was one between Free Speech vs National Interest, as determined by the British Government. Forget not that even in the most famous of free speech cases in the Pentagon Papers, four of the judges in majority of 5:4 held that if Nixon administration had provided ‘valuable evidence impact oln national interest’, they may have permitted restraint of publication. This, in a country where their First Amendment to Constitution is a free speech doctrine with no fetters whatever of the ‘resonable restriction’ ours has.

Lady Hale, then Vice-President of UKSC,in the majority in Maryam Rajavi case, who went on to become the President and now retired, has always argued that “I found it a very hard case to decide, as I have always been a strong votary of free speech and that is an eternal British tradition. But, the clinching element was ‘sovereignty and integrity of the nation’. Esoteric the expressions may be, but we all know what it means and who knows it best when it matters. The Executive has all the inputs and Judiciary needs to yield, we concluded”.

Read this verdict in full. Such a fascinating debate on free speech vs national interest. The protagonists of liberal values and free speech need to deliberate and understand that while individual rights matter under the Constitution, in the face of a conflict between individual rights vs. societal or more specifically national interest, it should be an easy choice.

(Narasimhan Vijayaraghavan- Author is practising advocate in the madras High Court)

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

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