The Delhi High Court has asked the Centre to file a copy of the policy in a sealed cover in which Army officers were directed to delete their accounts from social networking platforms.(LT. COL. P.K. CHOUDHARY v. UNION OF INDIA & ORS.)
The order has come in the wake of a petition moved by Lieutenant Colonel PK Choudhary, challenging the Indian Army’s instructions to its soldiers against using social media sites like Facebook. The petition stated the policy is unconstitutional and sought the court’s direction to the Director-General of Military Intelligence (DGMI) for withdrawal of the order.
Earlier, the DGMI ordered army personnel to delete their accounts from social networking platforms and also placed a ban on the use of 89 apps and websites by all army personnel, citing security concerns and risks of the data breach as the basis of the restrictions.
The Division Bench of Justice Rajiv Sahai and Justice Asha Menon noted that they will only go into the merits of the petition after carefully examining the impugned policy.
The court said:
“We are of the view that the counsels be heard after we have had an occasion to pursue the policy and the reasons prescribing such policy. “
The petition pleaded the withdrawal would ensure that the fundamental rights of the armed forces are not amended, abrogated or modified by such an arbitrary action, which “offends provisions of Army Act and Rules” and is “unconstitutional”.
In addition, the plea stated the ban is in violation of Article 33 of the Constitution and Section 21 of the Army Act, 1950 and provisions of which cannot be nullified by an executive order.
It further argued that the move to ban these sites for soldiers serving in various far flung areas of the country and asking them to delete their accounts on Facebook is “illegal, arbitrary, disproportionate and violates the fundamental rights of Soldiers which is not limited to the right to freedom of speech and expression but includes the right to life and the right to privacy.”
The bench passed the order after observing that the petition has been filed on the basis of newspaper reports regarding the social media ban in Army.
However, the court refused to grant interim relief to the petitioner who had asked for permission to deactivate his Facebook account instead of deleting it as the deletion of the account will result in permanent destruction of valuable data.
The bench observed,“ …the question of granting any such interim relief does not arise especially when the matter has he potential of concerning the safety and security of the country.”
Petitioner relied on decision passed in the Union of India v. G.S. Bajwa, (2003) 9 SCC 630 and further contended that,” Article 33 permits the Parliament,by law, to modify fundamental rights of members of armed forces i.e. Soldiers. The Respondent is not the Parliament. Ban on use of social networking platforms and order to delete accounts is an attempt by the Respondent to use powers which are exclusively vested with the Parliament.”
Moreover, it was claimed that the policy is in violation of Article 14 of the Constitution as there are several members in civil administration and political class who possess information which is of higher sensitivity compared to that of regular soldier.
The petitioner has therefore prayed the High Court to direct the Respondent to withdraw its policy dated June 6, 2020.
The matter is listed for 21st July, 2020.