Allegations of fraternising with a Pakistani Intelligence Operative (PIO), being on a WhatsApp group where immoral activities (including sexually inappropriate) took place, and violating the army’s cybersecurity policy are some prominent aspects of a case recently argued before the Supreme Court regarding the right to privacy, among other things, of army officers. The petition, filed on 26th May, challenges suspension orders issued against three Army officers.
A copy of the petition, viewed by MediaNama, makes arguments against the suspension orders on grounds that the right to privacy has been violated by the Army as it has looked through the officers’ personal phones, seized the same without following due process as outlined in the Code of Criminal Procedure (CrPC), issued the orders without following due process, and so on.
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Why it matters? While the Right to Privacy has been recognised as a fundamental right for civilians, the issue becomes interesting when looked at from the point of view of military personnel. The petition articulates the arguments for the same.
It also must be noted July 14th the petition was reportedly dismissed by the Supreme Court. However, Col. Amit Kumar, advocate for the petitioners told MediaNama that they would be challenging the Court’s order on grounds that it ignores key provisions of the Army Rules and Army Act- according to a draft review petition viewed by MediaNama. In its order, the SC had dismissed the petition on grounds that the an individual’s reputation and dignity takes secondary place to the country’s integrity and security and in consideration of Tushar Mehta, Solicitor General of India’s submission that the army had conducted an investigation into the matter. Below we have summarised the content of the first petition that make the case for a right to privacy for Army personnel.
Facts of the case
1.Personal phones of the petitioners are asked to be handed over to their superior officers after it is found by the Director General of Military Intelligence that the officers were a part of a WhatsApp group with a PIO.
2. The Board of Officers, which investigates such cases, then informs the officers that to check their role and involvement in the same context, all digital assets belonging to the petitioners have to be inspected.
3. Petitioners hand over their personal phones, according to the petition, in compliance with the “Chetwood Credo” (sic) which says that personal ease and comfort come after the honour, welfare of your country, and the men you command.
4. The petition says that the petitioners were willing to give their phones for forensic examination so long as the Board of Officers:
- Gave a written assurance that no personal information related to the petitioners, or their family members will be leaked or used against them.
- Sifts through them only for the purpose of inquiring about any espionage related activities undertaken by the petitioners
5. The petition says that Board of Officers did not respond to the petitioners’ request to obtain the order under which their mobile phones were seized
6. Between 8th to 17th May, the three officers receive suspension orders. The petition says that these orders did not mention the reason for the suspension. Further, the officers were also not given a chance to defend themselves before a Court of Inquiry which has to be instituted, according to the Army Rules 1954, in such cases.
7. In May, the officers move the Supreme Court asking for quashing of their suspension orders and:
- Direction(s) for the digital assets of the Petitioners to be returned
- Direction(s) for a ‘certificate of privacy’ to be issued in favour of the Applicant ‘stating that no-information/report will be disclosed in public domain’
- Direction(s) for compensation to be paid for mental agony and embarrassment faced by petitioners, as well as to cover their litigation expenses- the petition says.
How the right to privacy applies to army personnel
“That the actions of the respective Superior officers of the Petitioners have violated right to privacy of the Petitioners. The superior officers of the Petitioners sift through personal information of the Petitioners and his family without any legitimate cause or reason. There were no conveying orders in this regards demanding confiscation of the mobile phones of the Petitioners,” – the petition
- Fundamental rights extend to army officers: The petition cites an older SC judgement to say that fundamental rights are available to Army personnel. According to it, the Court had held that if such rights needs to be taken away ‘the same needs to be done through parliament under Article 33 and has to be included under Army rules 19/20/21’.
- Supreme Court established privacy as fundamental right: “In K/S. Puttaswamy vs Union of India (2017) 10 SCC 1, right to privacy was explicitly recognised as an intrinsic right under Article 21 of the Constitution,” the petition says.
- Government needs to abide by law in war and peace: The petition cites another older judgement to assert that the officials are entitled to a right to privacy:
“In HLH. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur & Ors. v. Union of India, AIR 1971 SC 530, this Court held that even in civil commotion or even in war or peace, the State cannot act catastrophically outside the ordinary law and there is legal remedy for its wrongful acts against its own subjects or even a friendly alien within the State. In M/S Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. &.Ors., AIR 1979 SC 621, this Court held that rule of law means, no one, however, high or low is above he (sic) law. Everyone is subject to the law fully and completely as any other and the Government is’ no exception, Therefore, the State authorities are under a legal obligation to act in a manner that is fair and just,” the petition says.
Seizure of phones did not follow CrPC
The petition says that seizure of the personal smartphones of the army officials did not take place following due procedure as laid down under the CrPC.
“It is pertinent to mention here that there are no such provisions in the Army Act 1950 or the Army Rules 1954 for carrying out such investigation, seizure of article. Accordingly, legal provisions specified in the CrPC for search and seizure have to be followed when a reasonable apprehension, suspicion of involvement of any such officers are found, authenticated by some verifiable facts, substance or material. No such provision was ever followed to seize and search personal digital gadgets of the Petitioners,” the petition says.
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