In an unusual move, Lieutenant Colonel PK Choudhary of the Indian Army has approached the Delhi High Court to challenge the Army’s new policy banning the use of social media platforms like Facebook and Instagram.
The Army had sent out a notice to all personnel around 10 July banning the use of 89 apps and websites – including Chinese ones like TikTok as well as non-Chinese social media platforms – requiring them to delete their existing accounts by 15 July. Despite this deadline, the high court has not granted him interim relief at this point.
Lt Col Choudhary’s petition argues that this move, based on a policy formulated by the Centre on 6 June, violates his fundamental rights under the Constitution, including the right to freedom of speech and the right to privacy. As a result, he has asked the court to direct the Army to withdraw the policy.
But how has he made this argument, when there are laws that say that the fundamental rights of members of the Armed Forces can be restricted or abrogated?
Here’s what his petition has to say, along with the legal issues that the court will need to look at.
Officer Questions Indian Army Ban On Social Media Apps: Here’s Why
1. IMPORTANCE OF SOCIAL MEDIA FOR SOLDIERS
Lt Col Choudhary notes right at the outset of his petition that he is “an active user of Facebook”, and then goes on to explain what it means to him, as someone serving in the Army, given postings away from his family in remote and forward locations.
He explains that social media platforms, particularly Facebook, are “an important tool to connect with his family.” Much of his family lives abroad, including his elder daughter, while his younger daughter is in a boarding school, his wife works in Lucknow, and his father also spends time outside the country.
He says that he has found Facebook
“to be an effective means through which he can maintain his social relationships with friends, family and other acquaintances in the absence of opportunities to physically interact with them.”
In his petition, Lt Col Choudhary goes into some more detail about how social media is a crucial tool for soldiers, whose conditions of life take a great physical and mental toll on them. According to him, social media has provided soldiers a medium to stay connected and informed about the lives of family and friends, including being able to view pictures and videos of events like weddings and birthdays that they would otherwise miss.
Expand2. WHAT ABOUT SECURITY CONSIDERATIONS?
The petition clarifies that he uses his account responsibly and follows the guidelines issued by the Indian Army, and that he has never shared any classified or sensitive information regarding his role and duties on social media.
This is a key issue when it comes to the recent policy of the Centre and the Army, as photos posted to social media can be used to obtain military information, and social media ‘honey traps’ have been identified as a security threat. The Indian Navy made a similar decision to ban social media sites for their officers back in February this year, following the revelation that several officers had fallen for honey traps that led to them passing information to Pakistan.
Choudhary acknowledges the risk, but suggests that a mechanism can be put in place to ensure there is no misuse of social media platforms.
He also takes exception to the fact that the government is citing concerns of honey traps and bribes for the policy given the impeccable record of service of the soldiers of the Indian Army, saying:
“With this background, to assume that all Soldiers are vulnerable to be lured by honey traps and bribes is no less than an insult to all serving and retired Soldiers of the Indian Army. It is respectfully submitted that training, sensitizing, and spreading awareness regarding the risks of social media platforms will be more than adequate to address the risks of possible security and data breach.”
He argues that no other professional army in a constitutional democracy has put such “unreasonable and mindless restrictions” on its soldiers.
The US Army’s Social Media Policy
The US Army, for instance, allows its soldiers to use social media, but has detailed guidelines for such usage. Soldiers are given specific instructions on how to ensure they don’t give away military information inadvertently, for instance, by enabling geotagging on photographs, or mentioning details of their units on social media posts. The US Army also monitors social media activity of its soldiers, especially in warzones, to make sure there are no slip-ups.
Interestingly, the US Army acknowledges the importance of social media in modern life in similar terms to what Lt Col Choudhary has observed, and encourages soldiers to use it, saying:
“It helps us learn, share experiences with others and stay connected to things we care about. The Army encourages soldiers and their families to use social media to stay connected and tell the Army’s story.”
NOTE: These observations about the US Army are not part of the petition.
Expand3. WHY DOES LT COL CHOUDHARY SAY THE POLICY IS UNCONSTITUTIONAL?
The petition does not argue that the whole policy adopted by the Centre and the Army is illegal – just the provisions for banning social networking platforms and deletion of accounts. These aspects, he claims, are “illegal, arbitrary, disproportionate” and violate the fundamental rights of soldiers.
Freedom of Speech
The petition notes that there have been cases including a judgment of the Tripura High Court which acknowledge that being able to post opinions on social media like Facebook is part of the fundamental right to expression and freedom of speech.
Privacy
The petition suggests that the order to delete existing accounts of soldiers is a violation of informational privacy, which the Supreme Court in its landmark Puttaswamy judgment, had specifically noted to be part of the right to privacy. The ban and deletion instructions also affect the soldiers’ ability to have a social life, which is a key aspect of the rule of law, according to the Supreme Court.
Equality
It is also alleged that the restrictions under the policy are a violation of Article 14 of the Constitution (the right to equality and equal treatment of laws), as the soldiers are being deprived of their rights to use social media unlike others.
It is argued that security concerns and the risk of data breaches are cited by the Army as the basis for imposing these restrictions – but these are not restricted only to members of the Armed Forces.
Members of the civil administration and politicians also have regular access to information “of a much higher level of sensitivity than a regular soldier”, yet no restrictions are imposed on them, he notes.
Expand4. BUT WHAT ABOUT THE LAWS WHICH ALLOW RESTRICTION OF SOLDIERS' RIGHTS?
Article 33 of the Constitution
One of the rather obvious stumbling blocks for any attempt by an Army officer to claim that his fundamental rights are being violated because they are being treated differently from other citizens, is Article 33 of the Constitution. After all, the conditions in which members of the Armed Forces operate are never going to be ideal, and things which might be possible and permissible in civilian life may not be an option in military life.
Article 33 of the Constitution expressly recognises this, and states that the fundamental rights of members of the Armed Forces can be
“restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them”.
Lt Col Choudhary seeks to argue around this obstacle by observing that under Article 33, it is Parliament that has the power to restrict/abrogate the fundamental rights of soldiers, in the form of a law.
However, the policy in question here was not issued by Parliament, but by the executive branch of government (the Ministry of Defence) – who lacked the authority to do so, according to the senior officer.
The Army Act/Rules
An obvious counter to this argument is that Parliament has already passed a law under which the fundamental rights of soldiers can be restricted, ie, the Army Act 1950. The Act allows the Central Government to create rules, such as the Army Rules 1954. These rules can then be used to impose the social media ban, and direct soldiers to delete their accounts.
However, Lt Col Choudhary points out that Section 21 of the Army Act, which allows the ‘Central Government’ to create rules to restrict the fundamental rights of soldiers, is not a wide open power. It allows restrictions on the rights to:
- Be a member of a trade union or labour union.
- Attend or address any meeting or take part in a demonstration for political or other purposes.
- Communicate with the press or to publish or cause to be published any book, letter or other document.
It is the wording of third possible restriction, mentioned above, that would be a key legal issue, if the Delhi High Court agrees to take up this case. On the face of it, it seems to be worded broadly enough to allow the restrictions. After all, a statement on social media can be picked up by the press, and a post on Facebook or other platforms could even be argued to constitute 'publication' of a document.
Lt Col Choudhary’s attempts to argue around this are hit and miss. First, he tries to say that the term ‘Central Government’ in Section 21 doesn’t include the Ministry of Defence, but this is not substantiated in any way, and will not stand up to scrutiny. After all, the Army Rules were notified by the Ministry of Defence itself – this particular argument is therefore dead in the water.
Secondly, and far more persuasively, he points to Rules 19, 20 and 21 of the Army Rules 1954, which flesh out what is mentioned in Section 21 of the Act. From a reading of these, it is clear that the communications/publications referred to in the third restriction have to be in connection with “a political question or on a service subject or containing any service information”.
Thus, under the existing laws, the Centre has the power to restrict the kind of posts put up by a soldier on social media, but placing a blanket ban against accessing social media, or against simply having a social media account, could be contentious. This is where Lt Col Choudhary's reference to guidelines comes back into play.
Expand5. WHAT HAS HAPPENED IN COURT TILL NOW?
The petition came up for a brief hearing on Tuesday, 14 July. Lt Col Choudhary had asked for an interim order saying he didn’t have to delete his social media accounts till the court took a final decision on the matter – remember that the deadline for this specified by the Army is 15 July.
The high court bench of Justices Rajiv Sahai Endlaw and Asha Menon declined his request, on the basis that they had not yet decided if the high court should entertain the petition in the first place, PTI reported.
The Lt Col argued that once he deleted his account, all his data, contacts, etc would be “irretrievably lost”. However, this did not persuade the judges, who told him that he could make a new account later, and that if his Facebook account was so dear to him, he could put in his papers, according to PTI.
Additional Solicitor General Chetan Sharma, on behalf of the Centre, explained that the decision had been taken as the government had found that Facebook was being used as a bug. The government considered this to be cyber warfare, with instances of many personnel being targeted.
The case has been adjourned for now, without the judges issuing notice (ie, deciding whether to take the case up or not).
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
IMPORTANCE OF SOCIAL MEDIA FOR SOLDIERS
Lt Col Choudhary notes right at the outset of his petition that he is “an active user of Facebook”, and then goes on to explain what it means to him, as someone serving in the Army, given postings away from his family in remote and forward locations.
He explains that social media platforms, particularly Facebook, are “an important tool to connect with his family.” Much of his family lives abroad, including his elder daughter, while his younger daughter is in a boarding school, his wife works in Lucknow, and his father also spends time outside the country.
He says that he has found Facebook
“to be an effective means through which he can maintain his social relationships with friends, family and other acquaintances in the absence of opportunities to physically interact with them.”
In his petition, Lt Col Choudhary goes into some more detail about how social media is a crucial tool for soldiers, whose conditions of life take a great physical and mental toll on them. According to him, social media has provided soldiers a medium to stay connected and informed about the lives of family and friends, including being able to view pictures and videos of events like weddings and birthdays that they would otherwise miss.
WHAT ABOUT SECURITY CONSIDERATIONS?
The petition clarifies that he uses his account responsibly and follows the guidelines issued by the Indian Army, and that he has never shared any classified or sensitive information regarding his role and duties on social media.
This is a key issue when it comes to the recent policy of the Centre and the Army, as photos posted to social media can be used to obtain military information, and social media ‘honey traps’ have been identified as a security threat. The Indian Navy made a similar decision to ban social media sites for their officers back in February this year, following the revelation that several officers had fallen for honey traps that led to them passing information to Pakistan.
Choudhary acknowledges the risk, but suggests that a mechanism can be put in place to ensure there is no misuse of social media platforms.
He also takes exception to the fact that the government is citing concerns of honey traps and bribes for the policy given the impeccable record of service of the soldiers of the Indian Army, saying:
“With this background, to assume that all Soldiers are vulnerable to be lured by honey traps and bribes is no less than an insult to all serving and retired Soldiers of the Indian Army. It is respectfully submitted that training, sensitizing, and spreading awareness regarding the risks of social media platforms will be more than adequate to address the risks of possible security and data breach.”
He argues that no other professional army in a constitutional democracy has put such “unreasonable and mindless restrictions” on its soldiers.
The US Army’s Social Media Policy
The US Army, for instance, allows its soldiers to use social media, but has detailed guidelines for such usage. Soldiers are given specific instructions on how to ensure they don’t give away military information inadvertently, for instance, by enabling geotagging on photographs, or mentioning details of their units on social media posts. The US Army also monitors social media activity of its soldiers, especially in warzones, to make sure there are no slip-ups.
Interestingly, the US Army acknowledges the importance of social media in modern life in similar terms to what Lt Col Choudhary has observed, and encourages soldiers to use it, saying:
“It helps us learn, share experiences with others and stay connected to things we care about. The Army encourages soldiers and their families to use social media to stay connected and tell the Army’s story.”
NOTE: These observations about the US Army are not part of the petition.
WHY DOES LT COL CHOUDHARY SAY THE POLICY IS UNCONSTITUTIONAL?
The petition does not argue that the whole policy adopted by the Centre and the Army is illegal – just the provisions for banning social networking platforms and deletion of accounts. These aspects, he claims, are “illegal, arbitrary, disproportionate” and violate the fundamental rights of soldiers.
Freedom of Speech
The petition notes that there have been cases including a judgment of the Tripura High Court which acknowledge that being able to post opinions on social media like Facebook is part of the fundamental right to expression and freedom of speech.
Privacy
The petition suggests that the order to delete existing accounts of soldiers is a violation of informational privacy, which the Supreme Court in its landmark Puttaswamy judgment, had specifically noted to be part of the right to privacy. The ban and deletion instructions also affect the soldiers’ ability to have a social life, which is a key aspect of the rule of law, according to the Supreme Court.
Equality
It is also alleged that the restrictions under the policy are a violation of Article 14 of the Constitution (the right to equality and equal treatment of laws), as the soldiers are being deprived of their rights to use social media unlike others.
It is argued that security concerns and the risk of data breaches are cited by the Army as the basis for imposing these restrictions – but these are not restricted only to members of the Armed Forces.
Members of the civil administration and politicians also have regular access to information “of a much higher level of sensitivity than a regular soldier”, yet no restrictions are imposed on them, he notes.
BUT WHAT ABOUT THE LAWS WHICH ALLOW RESTRICTION OF SOLDIERS' RIGHTS?
Article 33 of the Constitution
One of the rather obvious stumbling blocks for any attempt by an Army officer to claim that his fundamental rights are being violated because they are being treated differently from other citizens, is Article 33 of the Constitution. After all, the conditions in which members of the Armed Forces operate are never going to be ideal, and things which might be possible and permissible in civilian life may not be an option in military life.
Article 33 of the Constitution expressly recognises this, and states that the fundamental rights of members of the Armed Forces can be
“restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them”.
Lt Col Choudhary seeks to argue around this obstacle by observing that under Article 33, it is Parliament that has the power to restrict/abrogate the fundamental rights of soldiers, in the form of a law.
However, the policy in question here was not issued by Parliament, but by the executive branch of government (the Ministry of Defence) – who lacked the authority to do so, according to the senior officer.
The Army Act/Rules
An obvious counter to this argument is that Parliament has already passed a law under which the fundamental rights of soldiers can be restricted, ie, the Army Act 1950. The Act allows the Central Government to create rules, such as the Army Rules 1954. These rules can then be used to impose the social media ban, and direct soldiers to delete their accounts.
However, Lt Col Choudhary points out that Section 21 of the Army Act, which allows the ‘Central Government’ to create rules to restrict the fundamental rights of soldiers, is not a wide open power. It allows restrictions on the rights to:
- Be a member of a trade union or labour union.
- Attend or address any meeting or take part in a demonstration for political or other purposes.
- Communicate with the press or to publish or cause to be published any book, letter or other document.
It is the wording of third possible restriction, mentioned above, that would be a key legal issue, if the Delhi High Court agrees to take up this case. On the face of it, it seems to be worded broadly enough to allow the restrictions. After all, a statement on social media can be picked up by the press, and a post on Facebook or other platforms could even be argued to constitute 'publication' of a document.
Lt Col Choudhary’s attempts to argue around this are hit and miss. First, he tries to say that the term ‘Central Government’ in Section 21 doesn’t include the Ministry of Defence, but this is not substantiated in any way, and will not stand up to scrutiny. After all, the Army Rules were notified by the Ministry of Defence itself – this particular argument is therefore dead in the water.
Secondly, and far more persuasively, he points to Rules 19, 20 and 21 of the Army Rules 1954, which flesh out what is mentioned in Section 21 of the Act. From a reading of these, it is clear that the communications/publications referred to in the third restriction have to be in connection with “a political question or on a service subject or containing any service information”.
Thus, under the existing laws, the Centre has the power to restrict the kind of posts put up by a soldier on social media, but placing a blanket ban against accessing social media, or against simply having a social media account, could be contentious. This is where Lt Col Choudhary's reference to guidelines comes back into play.
WHAT HAS HAPPENED IN COURT TILL NOW?
The petition came up for a brief hearing on Tuesday, 14 July. Lt Col Choudhary had asked for an interim order saying he didn’t have to delete his social media accounts till the court took a final decision on the matter – remember that the deadline for this specified by the Army is 15 July.
The high court bench of Justices Rajiv Sahai Endlaw and Asha Menon declined his request, on the basis that they had not yet decided if the high court should entertain the petition in the first place, PTI reported.
The Lt Col argued that once he deleted his account, all his data, contacts, etc would be “irretrievably lost”. However, this did not persuade the judges, who told him that he could make a new account later, and that if his Facebook account was so dear to him, he could put in his papers, according to PTI.
Additional Solicitor General Chetan Sharma, on behalf of the Centre, explained that the decision had been taken as the government had found that Facebook was being used as a bug. The government considered this to be cyber warfare, with instances of many personnel being targeted.
The case has been adjourned for now, without the judges issuing notice (ie, deciding whether to take the case up or not).
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)