Delhi High Court: A Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., dismissed the petition filed by a Lieutenant Colonel, Indian Army challenging the Social Media Ban Policy of Indian Army.
Lieutenant Colonel with the Indian Army filed a petition seeking a writ of mandamus directing respondents to withdraw their policy banning petitioners and other members of the Indian Army from using social networking platforms.
The said policy requires the petitioner and other members of the Indian Army to delete their accounts from social networking platforms like Facebook and Instagram.
Petitioner also sought a declaration that respondent 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.
Bench on perusal of the policy as well as other voluminous documents, stated that the policy is:
- an outcome of constantly evolving intelligence of security threats and assessment of security safeguards needed
- to plug the gaps and meet the ever-threatening electronic and cyberinfrastructure
- an outcome of the paradigm shift in the intelligence activities of hostile nations; increased popularity of various social media platforms; the vulnerability of unsuspecting military personnel
- necessitated by the directives, instructions and policies issued from time to time, advising the military personnel to regulate the use of social media websites, failing to meet the threat
- virtual impossibility to keep track of lacs of online profiles or to identify the fictitious enemy profiles
- on assessment of the different modes adopted to honey trap, not necessarily in the conventional sense ;
- an outcome of the assessment of the vulnerability of different social media platforms.
Further, Bench relied on the Supreme Court decision in Ex-Armymen’s Protection Services (P) Ltd. v. Union of India (2014) 5 SCC 409, wherein 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.
High Court on perusal of the impugned policy found the same be suffering from the vice of non-application of mind or being not based on any material on record or being without proper deliberations.
Court stated that it does not appreciates the pleading of the petitioner as a senior officer in the Army, of army personnel being treated as slaves and the government not trusting its army.
Court noted 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.
Hence, if the government on complete assessment has concluded that permitting the use of certain social networking websites by defence personnel enables the enemy countries to gain an edge, Court would be loath to interfere.
In view of the above, the petition was dismissed. [Lt. Col. P.K. Choudhary v. UOI, 2020 SCC OnLine Del 915, decided on 05-08-2020]
Delhi High Court dismisses the challenge to the Court’s Order wherein an Indian Army Personnel was directed to delete his social media accounts from “Facebook” and Instagram in consonance of the Social Media Ban Policy for Indian Army.
Earlier, a petition was filed impugning the policy of respondent 2 Director General of Military Intelligence, to the extent it bans the petitioner and other members of Indian Army from using social networking platforms like Facebook and Instagram.
To the said petition, Bench had stated that only after perusing the policy counsels be heard.
“we are of the view that the counsels be heard after we have had an occasion to peruse the policy and if the document prescribing the policy does not record the reasons therefor, the document containing the reasons for the policy.”