- India is a quasi-federal system of government: the federal government (also known as the “Union Government” or the “Central Government”) and the state governments work independently in their respective areas as specified in the Constitution of India, with some exceptions provided for in the Constitution of India. Constitution of India.
- Article 245 of the Constitution of India lays down the competence of the Parliament of India and the legislatures of the States as follows:
- 245. Scope of laws passed by Parliament and State Legislatures
- Subject to the provisions of this Constitution, the Parliament may make laws for the whole or any part of the territory of India, and the State Legislature may make laws for the whole or any part of the State.
- No law passed by Parliament shall be invalid by reason of its extraterritorial operation.
Under Article 245 of the Constitution of India. The Seventh Schedule Part of the Constitution of India contains a detailed list of matters on which the Union Government, the State Government and the Union and the State can legislate. These lists are called
- Union List,
- state list and
- parallel list.
The Union or the State has the exclusive right to legislate in respect of items falling under the Union and State lists respectively. Both the Union and the State can legislate on matters which are included in the Concurrent List. However, for entities in the same list, the laws passed by the central government prevail over the laws passed by the states, except where the state law has been assent by the President of India. In such a case, state law prevails over Union law.
2. The exclusive power of the Union to legislate on the Internet.
Entry 31 of the Union List states: 31.
Posts and telegraphs; telephones, wireless, broadcasting and other similar forms of communication.
This means that only the Parliament of India can make laws related to the Internet. This entry also gives the central government absolute power to control and regulate the entire IT industry in India, including mobile apps and other internet-based services.
Therefore, only the central government has the power to ban or restrict mobile apps in India through its ministries and specialized agencies like MEITY, CERT-In etc.
3. MEITY – Regulatory body of the Ministry of Electronics and Information Technologies
The Ministry of Electronics and Information Technology (MEITY) is the nodal agency of the Government of India that regulates matters related to electronics and information technology. Among other functions, the ministry is responsible for;
- Promoting policy issues related to information technology; Electronics; and Internet (all matters except ISP licensing).
- Regulate internet, IT and IT enabled services.
- Promotion of digital transactions, including digital payments. Questions related to cyber laws, administration of the Information Technology Act. 2000 (21 of 2000) and other IT related laws.
- MEITY also has a designated body called Computer Emergency Response Team of India – CERT which has been notified under s. Section 70B(1) of the Information Technology Act. This specialized body is responsible for protecting India’s cyberspace and has powers such as investigation. cyber security issues etc.
4. What is the basis for banning the program?
- in 2000 Section 69A of the Information Technology Act authorizes the central government to block a website, mobile app or specific content.
- 69A. Power to give instructions to block public access to any information through any computer resource.‒
- (1) When the Central Government or any officer specially authorized by it is satisfied that it is necessary or expedient to do so in the interests of the sovereignty and integrity of India, the defense of India, the security of the State, the maintenance of friendly relations with foreign countries or public order or for the prevention of incitement to commit any cognizable an offense related to the above may be subject to the provisions of this subsection.
- (2) for reasons to be recorded in writing, order to compel any Government agency or intermediary to block public access to or block any information that is created, transmitted, received, stored or hosted on any computer resource.
- This section states that if the central government (through MEITY or other relevant department) considers that the content or features of the application are prejudicial to national security, public order or incitement to commit any other offence, the central government may direct ISPs or telecommunication service providers to block access to any which programs.
5. Procedure to be followed
6. Can the state government ban the program?
- No, only the central government can ban apps as per the above-discussed provision of the law. Last year, the Gujarat government tried to ban PubG through an administrative order. This was challenged in the Gujarat High Court Internet Freedom Foundation v. State of Gujarat.
7. Does the order to remove the app from the App Store completely limit its access?
- No, not even the central government Sneha Kalita Vs Union of India Writ Petition (Civil) No. 943/2017 stated that “there is very little opportunity to use technical solutions to identify or block the game (apps)”.
- So, to ban the app completely, the Union government can only specify geo-blocking to block the app in India. Thus, Section 69A of the IT Act does not provide for complete prohibition.
8. Can the court ban the program in public interest cases?
- No, the court can only direct the competent authority of the Government of India to ban the app.
9. Remedy against Blocking: Doctrine of Judicial Review
- Judicial review refers to the power of the courts to interpret the constitution, any law passed by the Parliament or the State Legislature and declare any such law or order of the Legislature and the Executive to be invalid if they are inconsistent with the Constitution of India. and the rights guaranteed by it.
- This means that if a competent department of the Union of India has passed an order to block or ban an app, the aggrieved party has the right to challenge such order in court and the ban can be lifted if it is found to be in violation of applicable Indian law or the Constitution.
- Recently Twitter has taken legal action against the Indian government in state high court for issuing unreasonable blocking orders. The case is still pending in court.
- Based on the above discussion, only the Union Government can legislate, regulate and control Internet-related matters. So only the Union government can pass an order to ban the program. However, such orders issued by the competent department of the Union Government regarding the banning/blocking of the app may be appealed to the Constitutional Court.