Delhi High Court
Lt Col Pk Choudhary vs Union Of India & Ors. on 5 August, 2020
Equivalent citations: AIRONLINE 2020 DEL 1105
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th August, 2020
+ W.P.(C) No.4181/2020
LT. COL. P.K. CHOUDHARY .... PETITIONER
Through: Mr. Prashanto Chandra Sen, Sr. Adv.
with Mr. Shivank Pratap Singh & Ms.
Sanandika Pratap Singh, Advs.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. Chetan Sharma, ASG with Mr.
Ajay Digpaul, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
1. 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
W.P.(C) No.4181/2020 Page 1 of 19
other law, to modify, amend or abrogate the fundamental rights of the
petitioner and other members of the Armed Forces.
2. 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.
3. The contention of the counsel for the petitioner on 14th July, 2020, that
the petitioner till the next date be relieved from the mandate of being
required to delete his existing social media accounts by 15th July, 2020, was
rejected observing that till we had found a reason to entertain the petition and
had entertained the petition, the question of granting any such interim relief
did not arise especially when the matter had the potential of concerning the
safety and security of the country.
W.P.(C) No.4181/2020 Page 2 of 19
4. The respondents, on 20th July, 2020 circulated to us in a sealed cover
the documents as directed vide order dated 14th July, 2020 and we heard the
senior counsel for the petitioner appearing on 21st July, 2020 and the
Additional Solicitor General (ASG) appearing for the respondents and
reserved orders.
5. The petition has been filed, pleading that (i) the petitioner is currently
posted in Jammu & Kashmir and is an active user of Facebook and uses the
said platform inter alia to connect with his friends and family; (ii) most of
the petitioner's family members including his elder daughter are settled
abroad; the younger daughter of the petitioner studies in a residential school
and the wife of the petitioner works in Lucknow and the father of the
petitioner also spends a lot of time outside India; in these circumstances, the
petitioner finds social media platforms, particularly Facebook, an important
tool to connect with his family; (iii) Facebook enables the petitioner to share
knowledge and information on varied subjects, with his daughters, helping
the petitioner to parent them even when he is posted in remote locations; (iv)
the petitioner, owing to the nature of his profession, being constantly on the
move, also at forward locations on the country's border, finds Facebook to
be an effective means to maintain his social relationships with friends,
family and other acquaintances; (v) the petitioner 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 pertaining to his
role and duties as an Indian Army officer; (vi) on 9th July, 2020, the
petitioner through a news article learnt that Indian Army had passed an order
requiring the petitioner and other personnel of Indian Army to delete
W.P.(C) No.4181/2020 Page 3 of 19
Facebook, Instagram and 87 other applications, by 15th July, 2020; (vii)
subsequently, on 10th July, 2020 the petitioner received a letter titled
"POLICY ON USE OF SOCIAL MEDIA PLATFORMS AND MOBILE
PHONES IN IA" issued by the respondent no.2 Director General of Military
Intelligence on 6th June, 2020, inter alia banning usage of 89 applications
and websites listed therein and directing deletion of accounts on the said
websites and applications - the ban and direction for deletion, was applicable
to all ranks of Indian Army; (viii) the policy and the direction violate
fundamental rights of the petitioner under the Constitution of India,
including the right to freedom of speech and expression and right to privacy;
(ix) the remote areas, extreme weather conditions, difficult terrain, lingering
threat of an enemy attack at all times, where the Indian Army soldiers are
posted, take a great toll on the physical and mental health of the soldiers and
the said conditions have to be borne by the soldiers being far away from their
family, friends and loved ones; (x) the soldiers rely on social networking
platforms like Facebook, to address various issues arising in their families
and often use the virtual connect to compensate for the physical distance
existing between themselves and their families; (xi) with the advent of the
internet age, in particular high speed internet, in connectivity over mobile
networks, the soldiers have found an effective way to come closer to their
friends, family and loved ones, in the virtual world, easing the stress
otherwise suffered by the soldiers; (xii) websites and applications like
Facebook and Instagram have become more popular modes of
communication than the traditional modes; (xiii) India has the largest
number of users on Facebook, in the world; soldiers can view pictures,
videos of events such as weddings, birthdays and other events of cultural
W.P.(C) No.4181/2020 Page 4 of 19
significance, in real time or even on a later date, as per their convenience and
need; (xiv) the impugned policy and direction thus is not only violative of
the fundamental right to freedom of speech and expression but also the right
of life and right to privacy and the restrictions imposed vide the impugned
policy violate Article 14 of the Constitution of India; (xv) the impugned
policy is draconian in nature; (xvi) the purported security concerns and risk
of data breach, forming the basis of the impugned policy and direction, are
not limited to soldiers only; several members of the civil administration and
political class who possess information of a much higher level of sensitivity
than a regular soldier but the restrictions as imposed on the soldiers do not
extend to them, making the policy arbitrary; (xvii) the fundamental rights of
the soldiers are sought to be abrogated by an executive order, in blatant
abuse of authority; (xviii) the respondent no.2 Director General of Military
Intelligence is not empowered to impose any restrictions on fundamental
rights of the soldiers; (xix) the policy has an entire section dedicated to
measures such as sensitization and training of army personnel, to avoid
breach of security and data - this gives rise to a glaring absurdity; on one
hand soldiers are ordered to stop using all major social media platforms and
directed to delete their user profiles and on the other hand the policy seeks to
sensitize the soldiers and train them in proper and safe conduct over social
networking platforms; (xx) such contradictions are a testament to non-
application of mind while formulating the policy; (xxi) the treatment meted
out to the soldiers vide the impugned policy is akin to treating them as slaves
and is an insult to the integrity of the soldiers; (xxii) the policy assumes that
all soldiers are vulnerable to be lured by honey traps and bribes and which is
an insult to all the soldiers; (xxiii) the direction to delete the accounts from
W.P.(C) No.4181/2020 Page 5 of 19
Facebook and other social media platforms violates the right to privacy;
(xxiv) such abrogation or restriction on fundamental rights of soldiers cannot
be done by way of executive order; Article 33 of the Constitution of India
and Section 21 of the Army Act, 1950 are reproduced in the petition itself;
(xxv) the restrictions contained in the policy, particularly relating to ban on
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 reproduced in the petition itself; and, (xxvi) reference in the
petition itself is made to K.S. Puttaswamy Vs. Union of India (2019) 1 SCC
1, Union of India Vs. L.D. Balam Singh (2002) 9 SCC 73, Prithi Pal Singh
Vs. Union of India AIR 1982 SC 1413, Sakal Papers (P) Ltd. Vs. Union of
India AIR 1962 SC 305, LIC Vs. Manubhai D. Shah (Prof.) (1992) 3 SCC
637 & Lipika Pual Vs. State of Tripura 2020 SCC OnLine Tri 17.
6. The senior counsel for the petitioner has argued on the same lines as
pleaded i.e. (i) that vide the impugned policy, the fundamental right of the
petitioner of freedom of speech and expression has been curtailed; (ii) that
though 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; (iii) that the law contained in this regard being Section 21 of
the Army Act also does not curtail the right which has been curtailed by the
impugned policy issued by an executive order and which is not law; (iv)
Section 21 of the Army Act also requires the Government to act by
notification or by making Rules and which has also not been done; (v) that
the impugned policy absolutely banning the personnel of the Indian Army
from using social media sites, also does not satisfy the test of proportionality,
W.P.(C) No.4181/2020 Page 6 of 19
fairness and the duty to impose the least restrictive ban, to curb the menace
even if any; (vi) that there is no such ban on the armies of USA and UK; (vii)
that Indian Army, which is 18 lacs strong, has a rigorous course of conduct;
(viii) the recruitment to the Indian Army also is very rigorous and Indian
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; (ix) that the ban imposed on the personnel of the Indian Army
shows the distrust of the country for its own army officials; (x) that the army
personnel, owing to the nature of their duty, have no social connectivity or
bonding with their family, friends, acquaintances and are also mostly living
in very difficult terrain and situations and all of which has effect on their
mental well being and causes depression; (x) that even if the authorities had
any cause, issuing a advisory or an alert would serve the purpose; (xi) that
instead of putting a blanket ban, the social media accounts of all the army
personnel can be monitored; (xii) that no such ban has been imposed on
others similarly placed as army personnel and similarly possessed of
confidential / sensitive information and thus the army personnel are being
discriminated against; (xiii) that in the 15 years of existence of Facebook,
there have been hardly any cases of honey trapping of army officials; (xiv)
that it is necessary to allow army personnel use of social media platform, for
integration with the society and to enable them to, sitting far, from where
they do not have a choice to move, explore other places / persons; and, (xv)
attention is drawn to Dalbir Singh Vs. The State of Punjab AIR 1962 SC
1106 (paras 6 and 7) and to R. Viswan Vs. Union of India (1983) 3 SCC 401
(para 7).
W.P.(C) No.4181/2020 Page 7 of 19
7. We have perused the policy as well as other voluminous documents
containing the background of and the material on which impugned policy is
based. Suffice it is to state, that the policy is, (i) an outcome of constantly
evolving intelligence of security threats and assessment of security
safeguards needed; (ii) to plug the gaps and meet the ever threatening
electronic and cyber infrastructure; (iii) 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;
(iv) 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; (v) virtual impossibility to keep track of
lacs of online profiles or to identify the fictitious enemy profiles; (vi) on
assessment of the different modes adopted to honey trap, not necessarily in
the conventional sense; and, (vii) an outcome of the assessment of
vulnerability of different social media platforms.
8. We also find that the impugned policy has not been issued impulsively
but is preceded by 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.
9. To be fair to the senior counsel for the petitioner, he also has argued
the matter not only as a responsible officer of the Court but as a concerned
citizen of the country, concerned not blindly with the case of his client but in
the light of the sensitivity of the issue and not with the exuberance and
W.P.(C) No.4181/2020 Page 8 of 19
without care for consequences attitude displayed by the counsel for the
petitioner during the hearing on 14th July, 2020.
10. Per contra, the learned ASG (a) has drawn attention to Rules 19, 20
and 21 of the Army Rules, 1950 prohibiting persons, subject to the Army
Act, from taking active part in any society, institution or organization not
recognized as part of the armed forces of the Union unless it be of
recreational or religious nature or from publishing in any form whatsoever or
communicating directly or indirectly to the press any matter in relation to a
political question or on a service subject and containing any service
information or from delivering a lecture or wireless address on a matter
relating to political question or on a service subject, without prior sanction;
(b) placed reliance on 63 Moons Technologies Ltd. Vs. Union of India 2019
SCC OnLine SC 624 (paras 54 and 59) to contend that the same lays down
the test of judicial interference with the subjective satisfaction of the
government; (c) contended that in none of the judgments referred to by the
petitioner in the petition, Rule 21 supra issued in pursuance to Section 21 of
the Army Act has been referred to; (d) invited attention to Defence Services
Regulations issued on 5th December, 1986 prescribing the procedure for
obtaining permission for communication to the press or to give lecture, by
prior submission of the content; (e) drawn attention to Special Army Order-
III issued on 9th April, 2001 to show 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 and to show that
the expression "press" includes all non-military audio visual, visual print
electronic media, internet, non-military e-mail, non-military Wide / Local
Area Networks and general public; (f) contended that thus the policy
W.P.(C) No.4181/2020 Page 9 of 19
impugning which this petition has been filed is only clarificatory and the
restrictions on the use of social media platforms was already restricted /
banned; (g) that there is a similar ban in Navy also and in several other
countries; (h) such bans have become essential on perception of threat posed
by use of certain social media platforms; (i) it is not as if all social media
platforms have been banned; and, (j) a list of social media sites, of which
restricted usage is permitted viz. Skype, WhatsApp, Telegram, Signal,
YouTube, LinkedIn etc., is handed over.
11. The learned ASG has also shared with us the printouts of the Twitter
and Facebook accounts of the petitioner, to demonstrate violation by the
petitioner in particular, of the Regulations earlier issued qua use of social
networking sites on the internet by the army personnel; particular attention is
drawn to the posts by the petitioner, on matters which are barred including
photographs of the places of his duty.
12. The senior counsel for the petitioner, in rejoinder contended that he
has no instructions qua the printouts of the Facebook and Twitter account of
the petitioner, shared by the ASG and has fairly contended that he is not
supporting any violations if committed by the petitioner and is only urging a
pure question of law, of the fundamental rights of the personnel of armed
forces being permitted to be curtailed only by law and not by executive fiat.
13. The ASG stated that the army authorities will consider taking action
against the petitioner for the violations committed by the petitioner, of the
advisories and guidelines in force from time to time, as have surfaced on
perusal of the Facebook and Twitter accounts of the petitioner.
W.P.(C) No.4181/2020 Page 10 of 19
14. We have considered the controversy for the stage of admission only.
15. A Division Bench of this Court, of which one of us (Rajiv Sahai
Endlaw, J.) was a part, in Pradeep Oil Corporation Vs. Union of India AIR
2012 Delhi 56, relying on past precedents, held that the power under Article
226 of the Constitution of India is discretionary and will be exercised only in
furtherance of interest of justice and not merely on making out of a legal
point; the Courts have to weigh public interest vis-à-vis the private interest
while exercising the powers under Article 226 of the Constitution of India.
Mention may also be made of Master Marine Services Pvt. Ltd. Vs.
Metcalfe and Hodgkinson Pvt. Ltd. (2005) 6 SCC 138, laying down that
even when some defect is found in the decision making process, the Court
must exercise its discretionary powers under Article 226 with great caution
and only in furtherance of a public interest and not merely on the making out
of a legal point; the Court should always keep the larger public interest in
mind in order to decide whether its intervention is called for or not; only
when it comes to a conclusion that overwhelming public interest requires
interference, the Court should interfere. An earlier Division Bench of this
Court also, in Anil Kumar Khurana Vs. Municipal Corporation of Delhi
MANU/DE/0420/1996 held that (i) exercise of jurisdiction under Article 226
is purely discretionary; (ii) seldom can a petitioner ask for it as of right; (iii)
writs are not issued as a matter of course; (iv) while deciding a writ petition,
the Court can see which way the justice lies; (v) the Court is not obliged or
bound to interfere in writ jurisdiction in every case where the order of the
authorities may be without jurisdiction; (vi) in an equitable jurisdiction, it is
the duty of the Court to preserve the public good - the writ court cannot
protect the wrong; (vii) a person who seeks equity must do equity; (viii) no
W.P.(C) No.4181/2020 Page 11 of 19
one can be allowed to take advantage of own wrong; (ix) a person who has
committed a wrong may not be heard by a writ court in support of the plea
that the authority which is taking action against him has no power or
jurisdiction and such power vests in another statutory authority; and, (x) the
law breakers can be refused equitable relief assuming they may have some
case on merits - the writ Court can deny hearing to such law breakers.
16. We have enquired from the senior counsel for the petitioner, why,
having been shown the posts and tweets of petitioner (and which prima facie
do not appear to have been responsibly issued) and why inspite of being
shown the elaborate process and material preceding the decision making of
the policy impugned, should we proceed to adjudicate the legal contention
urged of the impugned policy being not in compliance of Article 33 of the
Constitution of India and Section 21 of the Army Act. It is also not as if
such non-compliance is writ large. It will have to be adjudicated, whether
the impugned policy is merely in pursuance to and clarificatory of the
Regulations and the Army Orders to which attention is drawn by the ASG
and to which there is no challenge. We also enquired from the senior
counsel for the petitioner, whether not it is a settled principle of
interpretation, that laws made for all times, are to be interpreted to apply
with changing times, especially fast developing technology and whether not
so interpreted, the existing laws are enough for issuance of the policy
impugned in this petition and no fresh law is required. It is evident from the
records produced that the earlier advisories and directives qua conduct and
behavior of army personnel on social networking sites have not been abided
by some. The material produced shows certain army personnel to be
unsuspectingly answering all kinds of questions relating to their postings and
W.P.(C) No.4181/2020 Page 12 of 19
whereabouts and postings and whereabouts of others merely on being told by
a person befriended on social networking sites, of a defence background and
which information when collated from a number of sources can easily
convey a full picture to an expert espionage eye.
17. 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
W.P.(C) No.4181/2020 Page 13 of 19
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.
18. 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 matter 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
W.P.(C) No.4181/2020 Page 14 of 19
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 recently in Digi Cable Network (India) Pvt. Ltd. Vs.
Union of India (2019) 4 SCC 451.
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19. Supreme Court in Union of India Vs. Rajasthan High Court (2017) 2
SCC 599 was concerned with the directions issued by a High Court, to
include the Chief Justices and Judges of the High Court in the list of persons
exempted from pre-embarkation security checks at airports. While setting
aside the said order of the High Court, it was held that (i) the High Court had
evidently transgressed the wise and self-imposed restraint on the power of
judicial review; matters of security ought to be determined by the authorities
of the government vested with the duty and obligation to do so; (ii) gathering
of intelligence information, formulation of policies of security, deciding on
steps to be taken to meet threats originating both internally and externally,
are matters on which Courts singularly lack expertise; (iii) it was not for the
Court, in the exercise of its power of judicial review, to suggest a policy
which it considered fit and the formulation of suggestions by the High Court
for framing a National Security Policy travelled far beyond the legitimate
domain of judicial review; (iv) formulation of such a policy is based on
information and inputs which are not available to the Court; and, (v) the
Court is not an expert in such matters.
20. More contemporaneously, in the context of procurement of Rafale
Fighter Jets for Indian Air Force, it was reiterated that though there is a
general presumption against ousting the jurisdiction of the Courts, there are
however certain areas of governmental activity, national security being the
paradigm, which the Courts regard themselves as incompetent to investigate,
beyond an initial decision as to whether the government's claim is bona fide.
Comparatively recently, in Central Public Information Officer, Supreme
Court of India Vs. Subhash Chandra Agarwal MANU/SC/1561/2019, in
the context of disclosure under the Right to Information Act, 2005, the
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proceedings of the Collegium System for appointment and elevation of
Judges to the Supreme Court and High Court, the Supreme Court held (i) if
the inner working of the government machinery is needlessly exposed to
public, it would hamper frank and forthright views, thoughts or options on
sensitive matters; (ii) therefore the level of deliberations of that class or
category of documents get protection, in particular, on policy matters; (iii)
the Court would be willing to respond to the executive public interest
immunity to disclose such documents where national security or high policy,
high sensitivity is involved; (iii) there are several limitations on complete
disclosure of governmental information, especially in matters relating to
national security; and, (iv) there is also a need to accept and trust the
government's decision makers. Yet again in The Secretary, Ministry of
Defence Vs. Babita Puniya AIR 2020 SC 1000, in the context of grant of
permanent commission to women in the Indian Army, it was reiterated that
the Courts are indeed conscious of the limitations viz. issues of national
security and policy, imposed on the judicial evolution of doctrine in matters
relating to armed forces.
21. The Division Bench of this Court also in Esab India Ltd. Vs. Special
Director of Enforcement 178 (2011) DLT 569, again in the context of arms
procurement, held that when a question of national security is involved, the
Court may not be the proper forum to weigh the matter and that as the
Executive is solely responsible for national security, no other organ could
judge so well such matters and the documents in relation to these matters fall
in a class which per se requires protection. It was further held that Article
19(2) of the Constitution of India also carves out exception in the matters
relating to interests of sovereignty and integrity of India and the security of
W.P.(C) No.4181/2020 Page 17 of 19
the State. Another Division Bench in Mehmood Pracha Vs. Intelligence
Bureau MANU/DE/2187/2018, in the context of writ petition seeking
mandamus to constitute a special investigation team to investigate all aspects
of the hostage crisis, observed that national security is not a question of law
but a matter of policy and it is not for the Court to decide whether something
is in the interest of the State or not - it should be left to the Executive and
that the decision on, whether the requirements of national security outweigh
duty of fairness in any particular case is for the government and not for the
Court. Finding no right or justification for seeking divulgence of more
information, it was held that the Court could not grant the relief sought.
22. 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 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
W.P.(C) No.4181/2020 Page 18 of 19
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.
23. 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.
24. In the circumstances, no case for interference is made out.
25. Dismissed.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. AUGUST 05, 2020 'gsr'..
W.P.(C) No.4181/2020 Page 19 of 19