A Delhi high court bench of Justices Rajiv Sahai Endlaw and Asha Menon on Wednesday upheld the recent direction by the Indian Army to its personnel to remove from their mobile phones, 89 apps, including Facebook, Instagram and Twitter, by July 15.
An army officer, Lieutenant Colonel P.K.Choudhary filed a petition in the high court 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 June 6, 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.
He also sought a declaration that the 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 members of the Armed Forces.
The high court had initially declined his plea for a stay on the direction, saying it had the “potential of concerning the safety and security of the country”.
The high court then proceeded to accept the policy document submitted in a sealed cover by the Army for its scrutiny. The document was not shared with the petitioner.
Delhi high court. Photo: PTI
‘Use social media responsibly’
Choudhary submitted that he is currently posted in Jammu and Kashmir and is an active user of Facebook and uses the platform to connect with his friends and family; he also claimed that Facebook enables him to share knowledge and information on varied subjects, with his daughters, helping him to parent them even when he is posted in remote locations. He also claimed that he uses his Facebook account responsibly, in accordance with the guidelines issued by the Indian Army from time to time and has never shared over Facebook or on any social networking platform, any classified or sensitive information, although the Indian Army disputed it.
He submitted that the soldiers rely on social networking platforms like Facebook to address various issues arising in their families and often use the virtual connection to compensate for the physical distance existing between themselves and their families. With the advent of the internet age, in particular high-speed internet connectivity over mobile networks, the soldiers have found an effective way to remain close to their friends, family and loved ones, in the virtual world, easing the stress otherwise suffered by the soldiers, he suggested.
Choudhary pointed out that the policy has an entire section dedicated to measures such as sensitisation and training of members of the Army to avoid a breach of security and data, giving rise to a glaring absurdity: on the one hand, soldiers are ordered to stop using all major social media platforms and directed to delete their profiles and on the other hand, the policy seeks to sensitise the soldiers and train them in proper and safe conduct over social networking platforms. He cited this as an instance of non-application of mind while formulating the policy.
Although Choudhary described the policy as akin to treating the soldiers as “slaves” and an insult to their integrity, the high court disapproved it in its judgment. According to him, the policy assumes that all soldiers are vulnerable to be lured by “honey traps” and bribes. While the Army claimed that there has been a rise in the cases of honey traps among army personnel, it did not give any figures to support it.
Choudhary’s main challenge is that such abrogation or restriction on fundamental rights of soldiers cannot be done by way of executive order. He relied on Article 33 of the Constitution of India and Section 21 of the Army Act, 1950.
Also Read: Delhi High Court Tells Jawan to Delete Facebook or Quit Army
According to him, the restrictions contained in the policy, particularly relating to ban the use of social networking platforms and deletion of accounts, are not contemplated under Section 21 of the Army Act or the Rules framed by the Central government in terms thereof; Rules 19, 20 and 21 of the Army Rules, 1954 are clear enough, he said.
Article 33 of the Constitution of India permits such right to be curtailed or modified in the application to the members of the armed forces, but only by law. The law contained in this regard being Section 21 of the Army Act, does not curtail the right which has been curtailed by the impugned policy issued by an executive order and which is not law; Section 21 of the Army Act requires the government to act by notification or by making rules and which has also not been done, he contended.
Besides, he suggested the policy does not satisfy the test of proportionality, fairness and the duty to impose the least restrictive ban, to curb the menace even if any. His other contentions included the following:
(i) that there is no such ban on the armies of the US and UK;
(ii) that the Indian Army, which is 18 lakh strong, has a rigorous course of conduct;
(iii) the recruitment to the Indian Army is also very rigorous and the Army is a very disciplined force and the guidelines issued on the use of social media have been serving the purpose and will serve the purpose in future also;
(iv) that the ban imposed on the personnel of the Indian Army shows the distrust of the country for its own army officials;
(v) that even if the authorities had any cause, issuing an advisory or an alert would serve the purpose;
(vi) that instead of putting a blanket ban, the social media accounts of all members of the Army can be monitored;
(vii) that in the 15 years of the existence of Facebook, there have been hardly any cases of honey trapping of army officials.
The petition contended that the policy does not satisfy the test of proportionality and fairness. Representative image. Photo: Reuters
‘Outcome of constantly evolving intelligence’
The high court, however, concluded 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 increasing threat of electronic and cyber infrastructure; 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 lakhs of online profiles or to identify the fictitious enemy profiles; on the assessment of the different modes adopted to honey trap, not necessarily in the conventional sense; and, an outcome of the assessment of the vulnerability of different social media platforms.
The bench also found that the policy has not been issued impulsively but is preceded by a prolonged study of different aspects and data collated in this regard with particular instances and deliberations at the highest level thereon and has been issued after considering similar bans imposed by other countries, on armed personnel.
The Army justified its policy in terms of Rule 21 of the Army Rules, 1954. It contended that the expression “service information and service subject” in Rule 21 is all-embracing and would encompass within its meaning any information relating to the services. It interpreted the expression “press” to include all non-military audio-visual, visual print electronic media, internet, non-military e-mail, non-military wide/local area networks and the general public;
The Army, therefore, contended that the policy is only clarificatory and the use of social media platforms already stood restricted/banned; that there is a similar ban in the Navy also and in several other countries; such bans have become essential based on the perception of threat posed by the use of certain social media platforms; it is not as if all social media platforms have been banned.
The Army provided a list of social media sites, of which restricted usage is permitted viz. Skype, WhatsApp, Telegram, Signal, YouTube, LinkedIn etc.
“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 use 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,” the bench concluded and dismissed the petition.
The Chief of Defence Staff, General Bipin Rawat, was recently in the news for his indirect criticism of the protests against the Citizenship (Amendment) Act (CAA). Opposition parties disapproved of his remarks because they were political in nature. Informed observers had suggested that his remarks were in violation of Rule 21, although the Army connived at it then. Many are likely to consider the Army’s use of Rule 21 to justify its latest ban on access to social media sites by members of the Army as an instance of discrimination.
Chief of Defence Staff General Bipin Rawat. Photo: PTI
Observers point out that when Rule 21 was drafted in 1954, its framers could not have envisaged the onset of the Internet and social media platforms. Rule 21 could be interpreted to have envisaged restrictions on the use of a platform, not its removal, it is pointed out. There is also the problem of enforceability of the policy, with its implementation likely to be marred by an atmosphere of suspicion, and trust deficit. For a government which places great emphasis on the morale of the soldiers fighting the enemy on our borders, the policy is likely to send a wrong message.
More significant, the policy is oblivious to the report commissioned by the Ministry of Defence in 2015, which recommended against such a ban. In Chapter 7.2, the report said:
“Social media, therefore, cannot be treated as a phenomenon that needs to be resisted. In fact, any resistance may be counterproductive and would discourage youth to join the services or may result in unauthorized usage of the same.”
The report had advised against the Army insisting on seeking permission by its members to use social networks. “While action can definitely be taken if a person contravenes regulations or restrictions imposed by service rules, if such ‘permissions’ are allowed to prevail, then there is no end of what all could be regulated with ‘permissions’ for anybody serving in a government organisation. In fact, no such ‘permission’ is sought by the Navy or the Air Force or even any other government service for its members and hence there is a requirement to review such an approach initiated by the Army alone”, the report stated.
From merely insisting on permission, the Army’s current ban seems to be a huge jump. Sadly, the high court’s judgment is silent on this report, which was accepted by the then-defence minister Manohar Parrikar.