In September, following renewed tensions at the Sino-Indian border, the Indian government banned 118 Chinese apps, including gaming sensation PUBG. This followed the ban of 59 Chinese apps in late June after the Galwan Valley clash between the two armies. A slew of other restrictions on Chinese technological inroads into India have been ordered, such as a changing stance on Huawei’s participation in 5G trials, and a press note that placed cumbersome restrictions on foreign direct investment (FDI) from China. On October 4, 2020, Beijing hit back against the FDI restrictions and app ban at the World Trade Organization, accusing India of discriminatory behavior against China.
Excessive economic or technological dependence on a hostile neighbor limits the spectrum of strategic choices available to New Delhi. While these measures, proclaimed as ”digital strikes” by India’s IT Minister Ravi Shankar Prasad, form part of a consequent decoupling strategy, they need to be firmly grounded in both the legal and constitutional tenets which form the bedrock of Indian society and the universally accepted standards of international law.
Consider the three directives of the Indian government since June that make several apps operated by Chinese companies unavailable to Indians. The regulations that the government used to effectuate the ban, section 69A of the IT Act and the associated rules, have long been criticized for enabling an opaque and arbitrary censorship regime. None of these orders have been published, and the government still has not publicly justified how the list was arrived at, or the data security and privacy risks involved. Instead, the government has not yet undertaken any clear steps toward surveillance reform and is yet to pass data protection legislation, which could serve as tools to precisely counter the threats these apps pose.
Section 35 of the Personal Data Protection Bill was tabled by the Government in the Parliament in December 2019. It allows the granting of exemptions to collection rules, reporting requirements, and other requirements whenever the government feels that it is “necessary or expedient” in the “interests of sovereignty and integrity of India, national security, friendly relations with foreign states, and public order.” The phrase “‘necessary and expedient” departs from the “necessary and proportionate” standard that was used in a previous draft prepared by a committee of experts, and is a recognized standard in international law. The phrase “necessary or expedient” grants much more leeway to the state and is not faithful either to constitutional rights or the principle of democratic accountability. Coupled with the current state surveillance regime in India, which allows information access without judicial or parliamentary oversight, India remains open to the same criticism (on the right to privacy) that it has leveled against China.
It is important to note also that section 69A is a generic online censorship mechanism available to the government which can be used for blocking Indian, Chinese or other companies’ apps. Such arbitrary use of power, apart from negatively affecting citizen’s freedom of expression, creates regulatory uncertainty for all businesses unless the decisions are justified through transparent and concrete reasoning.
Which Way on Huawei?
Over the last two years, the Department of Telecommunications has been vacillating between permitting or restricting Huawei’s and ZTE’s entry into 5G networks in India. The fear that these companies are aiding Chinese espionage operations has cast a cloud over its operations around the globe. However, state-led efforts like the steering committee of the 5G High Level Forum did not identify the Chinese companies as threats in their 2018 report. In December 2019, Huawei was seemingly even approved to be invited for 5G trials in India. A possible U-turn was reported in June when telecommunications officials stated that they may stop Huawei and ZTE from partnering up with Indian telecoms for 5G deployment.
In a written response to a Parliamentary question in September, however, the government stated that there was no proposal for excluding Chinese companies from its 5G network infrastructure. Ideally, the government should conduct an independent security audit of equipment manufactured by these companies. There is a procedure for exactly that, in the mandatory testing and certification of telecom equipment which formed part of the Indian Telegraph (Amendment) Rules, 2017. However, the government has been pushing the deadline for these tests for the past year. A direction by the Department of Telecommunications to all telecoms calling for stringent security audits is a step in the right direction, if implemented through these legal procedures. This would clearly communicate to the world that India’s decisions are based on fact and a willingness to protect domestic interests.
Foreign Investments by China
Another attempt at restricting the influence of Chinese tech in India is the requirement for prior state approval of any FDI by Chinese entities. This was effected through a press note issued by the Ministry of Commerce. Pertinently, the press note does not name China, and does not state any reasoning for its decision. Industry experts noted the ambiguity in the definition of “beneficial ownership” in the note and its potential impact on a large number of non-Chinese foreign investments in India, as Chinese investors have stakes in several companies around the world.
According to a Gateway House report, Chinese tech investors have already put in around $4 billion in India startups, covering a majority of industry “unicorns.” So, while the move may protect Indian economic interests, experts have highlighted the lack of a framework for examining FDI in India.This is unlike the U.S., where the Committee on Foreign Investment in the United States comprises of representatives from various departments, and systematically reviews the national security implications of foreign investments, and has the explicit authority to reject deals. India should establish an inter-ministerial committee that follows a clear policy to safeguard against foreign capture that poses national security risks.
Lawfare, a term coined by Charles Dunlap Jr., is broadly understood as the strategic deployment of international and domestic law by a state or non-state actor against an adversary. Lawfare can take the form of sinister imperialism: tenets of the United Nations Charter have been manipulated by the U.S. to wage wars across the world, such as those in Iraq and Libya, and by China to justify brute expansionism in the South China Sea. Over time, the international community has seen through such facades and censured this brazen weaponization of law. However, lawfare can also be normative, premised on moral high grounds. A case in point is the recent decision of the Court of Justice of the European Union in Schrems II disallowing cross-border transfer of EU citizens’ data to the U.S., owing to U.S. surveillance practices being inconsistent with privacy guarantees in the European Convention on Human Rights. Through this judgment, the EU not only attained its strategic goal of protecting its citizens from nefarious surveillance by the U.S., but also burnished its reputation as a defender of human rights and constitutional values.
It is clear that China, with its checkered history of digital firewalls and restrictions on global apps and platforms is engaging in lawfare at the WTO by leveling accusations at India. To counter this, India has reportedly made statements arguing that these restrictions are in compliance with the General Agreement on Trade in Services (GATS) and also in line with the democratic right of Indian citizens to privacy. However, no analysis of either has been adduced publicly — a missed opportunity for New Delhi to highlight both the compliance of its actions with international law and the hypocrisy of Chinese engagement with international organisations.
India’s Constitution and legal strictures are certainly as rich as Europe’s, and should serve as an integral component of India’s strategic toolkit. Civil and political rights, state accountability, and the rule of law allow India to distinguish itself from China’s authoritarianism. Upholding and promoting these values is not just a democratic obligation, it is digital lawfare.