Can the right to communication under Article 19 (1)(a) outweigh National Security Concerns.

INTRODUCTION

Power exercised by media can aptly be summarized by this quote of Allen Ginsberg “whosoever controls the media, the images, controls the culture”. It would be a conventional and a non progressive approach if the cardinal forums of internet community which form a seamless web of social networking are excluded from this definition of media. It is truly said that free media is often more desired than the freedom of speech and expression itself. However certain organizations both governmental and non-governmental by the virtue of their modus operandi curtail the right to use these social media platforms for expressing ones opinions or even giving media appearances in person due to many institutional policies. Recently a notice titled as “Policy On Use Of Social Media Platforms And Mobile Phones In IA” issued by the Director General of Military Intelligence was circulated to the members of the Indian Army on around the 10th of July 2020, banning the use of 89 applications, websites and directing the deletion of the respective social media handles. The issuance of this notice is a classic example of infringement of fundamental rights on the prerogative of the State to satisfy an ulterior national interest. This notice threw open a new dimension in the ongoing discussion of the scope of both the right to freedom of speech and expression guaranteed by Art. 19(1) (a) [1]as well as its harmoniously constructed restrictions in 19(2)[2]

CIRCUMSTANCES LEADING TO THE ISSUANCES OF THIS ORDER

The recently escalated military activities and tensions on the Indo-China border in the Galwan Valley were followed by news channels flooding, with detailed discussions and tabulations anticipating the strategic moves of the Indian Armed Forces. These media houses were seen inviting Retd. army officers as defense analyst in order to know about the intricacies of the issue. However since the country is experiencing lockdown at several places so these discussions were held mostly through personal social media accounts that facilitated such connectivity . Keeping the contemporary situation in mind the Ministry of Information Technology on 29 JUNE 2020 invoked it’s power under section 69A[3] along with the relevant provisions[4] and decided to block 59 apps as they were prejudicial to sovereignty and integrity of India, defence of India, security of state and public order. This was followed by the aforesaid order of the Director General of Military Intelligence.

QUESTION OF LAW INVOKED IN THE PRESENT MATTER-

DOES THIS ORDER INFRINGING UPON THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION GURANTEED BY ART. 19(1) (a)?

The right to speech expression has been envisaged in Art. 19(1) (a), Part III of the Constitution of India. It makes up the cornerstone of a democratic government. It is does not just guarantee a right but it guarantees a Freedom to the citizens to express their ideas through the act of speech or any expression. Freedom of Speech and expression is an essential part for a government to discharge it’s functions democratically. The Right to freedom of speech and expression is the essence of ‘Liberty’ stated in the Preamble of our constitution.

The Supreme Court of India have time and again have upheld this Right to freedom of speech and expression in many instances to safeguard the democratic machinery of the nation. The Supreme Court has also called this right as a ‘Basic Human Right’ and a ‘Natural Right’. Art. 19 (1) (a) includes the right to express one’s views and opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture, film, movie, etc. It thus includes the freedom of communication and the right to propagate or publish opinion.[5]

The Right to freedom of speech and expression is subject to the restrictions laid down in Art. 19 (2). All the freedoms given in Art. 19 (1) are not absolute as they are subject to limitations laid down from clauses to (2) to (6) so that there is no abuse of freedom. Art. 19 (2) states various ‘reasonable’ restrictions through which the state has the power to curtail the right to freedom of speech and expression. These reasonable restrictions are security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement to offence and integrity and sovereignty of India. Any constraint hampering the exercise of Art. 19 (1) (a) which are not part of the above-mentioned ground cannot be held valid.

· “If you reveal your secrets to the wind, you should not blame the wind for revealing them to the trees.”

-Kahil Gibran

The courts have been very cautious in curtailing the right to freedom of speech and expression on the grounds of National security or security of State. But the courts have also reiterated the fact that this extreme step could be taken by the state if there is any war like situation. The right to freedom of speech and expression also includes the right to communication and this right can only be curtailed on the basis of the any of the grounds mentioned in the clause 2 of Art. 19.

In the case Lt. Col. PK Choudhary v. Union of India[6], the Delhi court refused to pass any interim relief regarding the notification of the Government of India which banned the use of social media apps by the armed the officers. The petitioner contended that he uses social media apps to connect to his family which is based in abroad. The court said that the matter has the potential of concerning the safety and security of the country.

The high court said he has a choice to make and asked him to delete his FB account as the policy to ban the use of social networking platforms for army personnel was taken keeping in view the security of the nation[7]

With continuous tensions on India’s borders, many disputes are being solved at Commander level meetings. In the past three years war like situations have occurred twice between India and China. Very sensitive information is being handled by these officers and there has been instances where these officers have been ‘honey-trapped’ and sensitive information has been leaked. To curb situations like these the above notification was released

NUMEROUS ORDERS HAVE BEEN PASSED BY THE CONCEREND AUTHORITIES IN THE PAST CURTAILING THIS RIGHT

The members of the armed forces have to operate in various hostile situations and in their whole service life they have to follow certain rules. The Constitution of India has also recognized this point and has given power to the state to treat the soldiers in a different way. This power is envisaged in Art. 33, which states that the fundamental rights of the 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. The respective offices of the armed forces have taken cognizance and have issued various orders in the recent past curtailing the right to freedom of speech and expression. Some of them are:

November 2019- The Indian Army’s advisory board has announced a ban on all the popular social media messaging applications, particularly Facebook and WhatsApp, for officers holding crucial posts and others who are vulnerable to hacks and leakage of confidential data.[8]

December 2019 - Indian Navy banned smart phones, and all social networking platforms including Face book, Instagram, WhatsApp and other messengers. Use of these would not be allowed at the naval bases and ships.

February 2020 – Navy issued fresh guidelines that altogether affected 85 apps. It also said that time that additional safeguards, including bans on messaging apps, blogging, content sharing, and e-commerce sites, were also under consideration.

CONCLUSION

National security is a concern for every state. Parliament's Standing Committee on Defence has said that the "cooling off" period for officers of the rank of Brigadiers and above (equivalent of the other three services) be increased to five years instead of the current arrangement.[9] India’s neighboring state Pakistan has issued restrictive directions too. The Inter-Services Public Relations (ISPR) has allowed only 26 retired officers of the armed forces to appear on media as defense analysts. To conclude it is safe to say that the freedom of speech and expression can be effectively curtailed if national security, integrity and sovereignty of India are on the receiving end.

Endnotes :

[1] Constitution of India, 1950 [2] Constitution of India, 1950 [3] Information Technology Act, 2000 [4] Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009 [5] Jain MP, Indian Constitution Law 6th Edition 2013, Page no. 1193 [6] W.P.(C) 4181/2020 & CM No.15050/2020 (for interim directions) [7] https://economictimes.indiatimes.com/news/defence/abide-by-armys-mandate-delete-your-fb-account-you-can-make-new-one-later-high-court/articleshow/76960884.cms Visited on 15 July 2020. [8] https://inc42.com/buzz/indian-army-tells-officers-to-log-out-of-facebook-whatsapp-ban/ Visited on 16 July 2020. [9] https://www.ndtv.com/india-news/standing-committee-on-defence-wants-army-officers-cooling-off-period-increased-479698 Visited on 16 July 2020.