Delhi HC: High Courts Under Article 266 Cannot Determine Matters of National Security

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In the present case, the Division Bench consisted of Justice Rajiv Sahai Endlaw and Justice Asha Menon. After analysing the circumstances of the case, the Court refused to interfere in the government’s direction over issues about national security.

Brief Facts of the Case

The Indian Army directed the army personnel to uninstall 89 social media applications including Facebook and Instagram. The petitioner uses Facebook and Instagram to connect with his family members who stay in different locations of the world. Also, these platforms help him parenting his daughter through knowledge sharing. He also maintains his social relationships with acquaintances with the help of these tools.

He states that the direction violates his fundamental rights under the Constitution of India. This includes the right to freedom of speech and expression and right to privacy. He has hence, filed this petition under Article 226 of the Constitution. He seeks a writ of mandamus to withdraw the policy circulated.

Petitioner’s Arguments

Article 33 of the Constitution of India permits fundamental rights of the armed forces to be curtailed, only by law. The counsel contends that the impugned policy issued by executive order is not law. Also, no notification or rules were framed by the Government about such a ban, which is a need of Section 21 of the Army Act. It is also stated that such a ban, shows the distrust of the country for its army officials.

Moreover, the army personnel have no social connectivity or bonding with their family, friends, acquaintances. Living in very difficult terrain and situations affects their mental well-being and such directions may lead to depression. The counsel suggested that instead of putting a blanket ban, the social media accounts of all the army personnel can be monitored. Also, the counsel states that he urges to clarify a pure question of law. That is, the fundamental rights of the personnel of armed forces can be permitted to be restricted only by law and not by executive order.

Respondent’s Arguments

The policy issued is only clarificatory. The Additional Solicitor General states that the restrictions on the use of social media platforms were existing. This curtailment of rights is in line with Rule 19, 20 and 21 of the Army Rules, 1950. A similar ban on social media interactions are existent in the Navy and also in several other countries.

He also contends that all social media platforms have been not been banned. Restricted usage of sites like Skype, WhatsApp, Telegram, Signal, YouTube, LinkedIn etc. has been permitted. He also shared the printouts of the Twitter and Facebook accounts of the petitioner. It demonstrated his violation of the earlier issued Regulations on the use of social networking sites by the army personnel. Barred activities, such as photographs of his places of duty were seen to be posted on these platforms.

Court’s View

The Bench examined that policy issued to the Armed Forces and stated that directions were not made. It is rather a result of a prolonged study on the vulnerabilities of different social media platforms.

The Court deliberated on its powers under Article 226 of the Constitution of India to consider adjudication of the present petition. It stated that such powers under Article 226 are discretionary. “It will be exercised only in furtherance of the interest of justice and not on making out of a legal point.” It referred to Ex-Armymen’s Protection Services Pvt. Ltd. Vs. Union of India (2014) 5 SCC 409, to opine that the government alone has access to the necessary information on national security. The judicial process is unsuitable for reaching decisions on the same.

The Court also mentioned the case of exemption of Chief Justices and Judges of the High Court from pre-embarkation security checks at airports. Supreme Court’s decision in Union of India Vs. Rajasthan High Court (2017) 2 SCC 599 set aside such exemption order issued by the High Court.

The Apex Court stated that authorities of the government vested with the duty and obligation are to decide the matters of security. Courts alone lack expertise in the gathering of intelligence information and the formulation of policies of security. The Bench also considered the decision in the procurement of Rafale Fighter Jets for Indian Air Force. Certain areas of governmental activity where national security is pertinent, the Courts are to regard themselves as incompetent to investigate.

Also, The Secretary, Ministry of Defence Vs. Babita Puniya AIR 2020 SC 1000, the grant of permanent commission to women in the Indian Army was brought up. The Supreme Court reiterated that the Courts have limitations in issues of national security and policy. Such restraints are imposed on the judicial evolution of doctrine in matters relating to armed forces. The Bench also noted that other means of communication is available with the petitioner for use. The present ban is directed to certain networking websites only.

Court’s Decision

The Court held that the exercise of discretion under article 226 is not possible in the present case. The policy letter issued to the army personnel is a restricted document made with the adequate application of mind. No grounds of intervention in the restrictions imposed is required.


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