No Interference With Government Conclusion That Use Of Social Media By Army Personnel Enables Enemies To Gain Edge: Delhi High Court

While dismissing a petition challenging the ban on army officers using social media, the Delhi High Court in Lt Col PK Choudhary Vs Union of India & Ors. in W.P.(C) No. 4181/2020 delivered via video conferencing on August 5, 2020 has observed in no uncertain terms that the scope of judicial review over matters concerning defence and security is limited. We thus see that the Delhi High Court declined to interfere with the government conclusion that use of social media by army personnel enables enemies to gain edge. Very rightly so!

To start with, this extremely laudable, latest and landmark judgment authored by Mr Justice Rajiv Sahai Endlaw for himself and Ms Justice Asha Menon first and foremost sets the ball rolling in para 1 by observing that, “The petitioner, a Lieutenant Colonel with the Indian Army, has filed this petition seeking a writ of mandamus directing the respondents (i) Union of India, (ii) Director General of Military Intelligence, and (iii) Chief of the Army Staff to withdraw their policy dated 6th June, 2020 to the extent that it bans the petitioner and other members of the Indian Army from using social networking platforms like Facebook and Instagram and to the extent it orders the petitioner and other members of the Indian Army to delete their accounts from social networking platforms like Facebook and Instagram; declaration is also sought that the respondent no. 2 Director General of Military Intelligence is not empowered under the Constitution of India or under any other law, to modify, amend or abrogate the fundamental rights of the petitioner and other members of the Armed Forces.”

While elaborating further, it is then observed in para 2 that, “The petition came up before us first on 14th July, 2020. It was found that though the petitioner had pleaded that on 9th July, 2020, the policy aforesaid was circulated to the members of the Indian Army but the policy had not been produced before the Court. It was the plea and contention of the counsel for the petitioner that the petitioner, as a responsible officer, to maintain confidentiality, had not annexed the policy, which is for restricted circulation, to the petition or reproduced the contents thereof in the petition. Being of the view that the counsels should be heard only after we have had an occasion to peruse the policy and if the documents prescribing the policy did not record the reasons therefor, the documents containing the reasons for the policy, we directed the counsel for respondents, appearing on advance notice on 14th July, 2020 to circulate in a sealed cover the policy and/or the documents containing the reasons therefor and deferred the hearing to 21st July, 2020.”

To put things in perspective, it is then pointed out in para 17 that, “We find it to be a fit case to apply the law as discussed in the paragraph before the preceding paragraph. Even if there is any error in the respondents issuing the impugned policy and direction, without complying with the procedure prescribed in Section 21 of the Army Act, considering that the issue has an element of urgency and concerns the safety and security of the entire country, we do not deem it necessary to, for the grievance of the petitioner only, render an adjudication on the questions urged and which may require us to refer to the documents and materials shown to us in confidence. What has also weighed in our mind is, that any interpretation given by us in the facts of the present case, of Section 21 of the Army Act, Defence Regulations and army orders, may be prejudicial to the personnel of the armed forces in a case with better facts. The counsel for the petitioner also has in response to the question posed to him not been able to give any explanation, why we should not in our discretion refuse to adjudicate the question urged of violation of fundamental rights of the petitioner of speech and expression without in accordance with law. In fact, save for stating that Facebook and Twitter are more convenient, no answer was forthcoming to, why the filial and other social needs of the petitioner cannot be fulfilled by other means of communication cited by the ASG, which are still available to the petitioner. It was suggested that the petitioner cannot explore other people whose contacts are not known to him. In this context we may record that we find the petitioner, on Facebook and Twitter, following and being followed by a large number of persons from other fields and making comments on their posts/tweets and qua which the ASG said, is breach of earlier advisories/Regulations.”

While citing the relevant case laws, it is then envisaged in para 18 that, “Supreme Court, in People’s Union for Civil Liberties Vs. Union of India (2004) 2 SCC 476 was concerned with writ petitions seeking disclosure of information relating to purported safety violations and defects in various nuclear installations and power plants across the country. It was held that (i) the jurisdiction of the Courts in such matters is very limited; (ii) the Court will not normally exercise its power of judicial review in such matters unless it is found that formation of belief by the statutory authority suffers from mala fide, dishonesty or corrupt practices; (iii) the order can be set aside if it is held to be beyond the limits for which the power has been conferred upon the authorities by the legislature or is based on the grounds extraneous to the legislation and if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction required thereunder, no such case had been made out in the facts of that case; (iv) the State must have the prerogative of preventing evidence being given on matters that would be contrary to public interest and, (v) when any claim of privilege is made by the State in respect of any document, the question whether the documents belong to the privileged class, is first to be decided by the Court; the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question; the claim of immunity and privilege has to be based on public interest.  Again, in State of N.C.T. of Delhi Vs. Sanjeev (2005) 5 SCC 181, it was held that (a) the present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troops, entering into international treaty etc.; the distinctive features of some of these recent cases signify the willingness of the Court to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised; (b) the administrative action is subject to control by judicial review on the grounds of illegality, irrationality and procedural impropriety; (c) if the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous; (d) if a power is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated; and, (e) judicial review can be limited in the case of national security. Again, in Ex-Armymen’s Protection Services Pvt. Ltd. Vs. Union of India (2014) 5 SCC 409, it was held that (i) the decision on whether the requirements of national security outweigh the duty of fairness on a particular case is for the government and not for the Courts; the government alone have access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security; (ii) those who are responsible for the national security must be the sole judges of what the national security requires and it is undesirable that such matter should be made the subject matter of evidence in a Court of law or otherwise discussed in public; (iii) what is in the interest of national security is not a question of law – it is a matter of policy and it is not for the Court to decide whether something is in interest of State or not; and, (iv) once the State is of the stand that the issue involves national security, the Court shall not disclose the reasons to the affected party. The same was followed in Digi Cable Network (India) Pvt. Ltd. Vs. Union of India (2019) 4 SCC 451.”

While explaining the reasons behind denying the petitioner what he wanted, it is then stated in para 22 that, “It is also in the light of the aforesaid judgments that we have herein observed that we do not deem it appropriate to exercise the discretion vested in us as aforesaid in exercise of powers under Article 226, to not entertain the petition and not adjudicate the issues raised. Had we, on perusal of the impugned policy which itself is a restricted document or the supporting material thereof found the same to be suffering from the vice of non-application of mind or being not based on any material on record or being without proper deliberations, we would have certainly proceeded to answer the legal issue raised by the petitioner, of the ban being imposed on the petitioner and others similarly placed as the petitioner without complying with Article 33 of the Constitution and Section 21 of the Army Act. However, once we are satisfied on the aforesaid parameters and find other means of communication to be still available to the petitioner and the ban being with respect to certain social networking websites only and more so, once we have found the petitioner himself to have been posting tweets which according to the ASG are in violation of the policy earlier in force qua use of social media, we do not deem it apposite to at the instance of the petitioner to go into the questions urged. Rather, we do not appreciate the pleadings of the petitioner as a senior officer in the Army, of army personnel being treated as slaves and the government not trusting its army.”

Most significantly, it is then held in para 23 that, “We may also notice that warfare and inter-country rivalries and animosities today are not confined to accession of territory and destruction of installations and infrastructure of enemy countries but also extend to influencing and affecting the economies and political stability of enemy country including by inciting civil unrest and disturbance and influencing the political will of the citizens of the enemy country. In such a scenario, if the government, after complete assessment, has concluded that permitting of certain social networking websites by personnel of its defence forces is enabling the enemy countries to gain an edge, the Courts would be loath to interfere.”

To summarise, the Delhi High Court Bench of Justice Rajiv Sahai Endlaw and Justice Asha Menon made it clear by this notable judgment that the Government has the power to ban use of social media by army personnel when it feels that this will give enemies an edge as we see here also! The Delhi High Court also took a serious note of the submission of the Centre that army officers were posting pictures and details of their posting locations in social media which can easily convey a full picture to an expert espionage eye. Thus we see that the Delhi High Court clearly and convincingly ruled while dismissing petitioner’s claim that no case for interference is made out! Very rightly so!

Sanjeev Sirohi

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