CONSTITUTIONAL LAW

Conduct Rules and Fundamental Rights

Democracy is based on fair criticism; and freedom of speech and expression is highly protected by the Indian Constitution. A blanket prohibition of criticism of the policies of the Government is invalid and void, and it makes no difference if th e person criticising happens to be a government servant or the employee of a public institution.

ALLADI KUPPUSWAMI

CAN the Government or any public institution prohibit an employee from criticising the policies of the Government or a public institution, as the case may be?

Under Article 19(1)(a) of the Constitution, all citizens have freedom of speech and expression. (Freedom of expression includes the right to write articles, speak on the radio and appear on television.) Article 19(1)(b) confers the right to assemble peac ably and without arms. Under Article 19(1)(c), all citizens are guaranteed the right to form associations or unions. But these rights are subject to certain restrictions. The right of free speech and expression is subject to reasonable restrictions in th e interests of the sovereignty and integrity of India, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (Article 19(2)). The right of assembly is subjec t to reasonable restrictions in the interest of sovereignty and integrity of India, or public order (Article 19(3)). The right to form associations is subject to reasonable restrictions in the interests of sovereignty and integrity of India, public order or morality (Article 19(4)). Issues such as sovereignty and integrity of India, morality, and so on, are not particularly relevant for discussion, since most often the rule forbidding a government servant is sought to be justified on the ground that it is a reasonable restriction in the interest of public order. In most cases that have come up for consideration before the Supreme Court, the Court had to decide whether the restriction imposed can be said to be a reasonable restriction in the interest of public order. Hence, the discussion in this article is mainly confined to restriction on that ground, although there is also a brief discussion of Article 19(1)(g) and Article 19(5).

In Kameswar Prasad vs. State of Bihar (AIR 1962 SC 1166), the Supreme Court had to consider the validity of Rule 4A of the Bihar Government Service Conduct Rules which provided that no government servant shall participate in any demonstration in c onnection with any matter pertaining to his condition of service. The Supreme Court held that the prohibition of participation in any demonstration is invalid as violating Articles 19(1)(a) and 19(1)(b). It was sought to be argued that a person wh o voluntarily entered Government service must be deemed to have consented to such reasonable conditions as might be imposed for maintaining proper discipline in the service. Hence, the reasonableness and validity of the Government Servant Conduct Rules c ould not be tested solely by reference to the criteria laid down in Article 19. The Supreme Court rejected this contention, and held that, as Article 19 applies to all citizens, government servants in common with other citizens enjoy the protection of fu ndamental rights.

Further, Rule 4A was framed under Article 309 which enacts, "Subject to the Provisions of the Constitution, Acts of the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to public service..." Hence, if an employee agrees to be subject to the rules framed by the Government, they agree to do so because the rules are subject to the provisions of the Constitution. In other words, by agreeing to abide by the rules of the Government, they do not surrender thei r fundamental rights.

Relying on an earlier decision of the Supreme court in Bala Kotiah's case (1958 SCR 1052) some have argued that since a person has no fundamental right to be a government servant, there is no question of violating his fundamental right if disciplinary ac tion is taken against him for violating the Government Servant Conduct Rules. This reasoning is not sound. The point is not whether a person has a fundamental right to be a government servant. The point is whether a person exercising his fundamental righ t can be punished. Under Article 13, the state shall not make any law which takes away or abridges fundamental rights and any law made in contravention of this clause shall be void. Hence, if the restrictions imposed are not reasonable restrictions, then the rule contravenes Article 19(1)(a) and hence is void. No punishment can therefore be imposed under a void rule!

THE next question is whether a rule prohibiting a government servant from criticising the policies of the Government imposes a reasonable restriction in the interest of public order within the meaning of Article 19(2). In (1960) 2 SCR 821 Superintende nt of Central Prison vs. Ram Manohar Lohia, it was held that "public order is synonymous with public safety and tranquility. It is the absence of disorder involving breaches of local significance..." In Kameswar Prasad's case, the Court observed that there must be a proximate and reasonable nexus between the nature of the speech prohibited and public disorder. The connection has to be intimate, real and rational. After referring to the above observation, the Supreme Court in Kameswar Prasad's case c onsidered whether the prohibition of demonstrations could be said to be a reasonable restriction in the interest of public order. As the rule lays a ban on every type of demonstration, however innocent and however incapable of causing a breach of public tranquility, and does not confine itself to those forms of demonstrations which may lead to that result, the Court held that the rule was invalid. It was argued that the maintenance of discipline among government servants is necessary to maintain public order. If government servants were indisciplined and allowed to agitate in a disorderly manner for the redress of their grievances, it would lead to a demoralisation of the public and would be reflected in the disappearance of public order. This contenti on was rejected by stating that threat to public order should arise from the nature of the demonstration prohibited. This decision was followed in O.K. Ghosh vs. Joseph (1963 SC 812) which had to deal with Rule 4 of the Central Services Conduct Ru les prohibiting any form of demonstration. The Supreme Court had also to consider the validity of a rule prohibiting the right to form associations under certain circumstances. This was also held to be invalid as the restriction in that case could not be said to be in the interests of public order. It relied on the following observation of Justice Patanjali Sastri in Rex vs. Basudev: "The connection between the restriction and public order must be real and proximate, not far-fetched or problemati cal."

Although the Supreme Court in Kedaranath vs. State of Bihar (AIR 1962 S.C. 955) held that Section 124A of the Indian Penal Code does not infringe Article 19(1)(a) and is valid, the reasoning in the judgment supports the view that freedom of exp ression can be restrained only if it results in public disorder.

Section 124A of the IPC along with the explanatory clauses is in the following terms (note the unambiguous nature of explanations 2 and 3):

Whoever by words, either spoken or written or by signs or by visible representation or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with transportation for life or another term to which fine may be added or with imprisonment which may extend to three years to which fine may be added, or with fine.

In the light of illiberal restrictions on freedom of expression sought to be placed or enforced by scientific research institutions funded by the Department of Atomic Energy (DAE), the question has arisen: Can the Government or any public institution, th rough Conduct Rules, prohibit an employee from criticising the policies of the Government or a public institution? A distinguished jurist, Alladi Kuppuswami, retired Chief Justice of Andhra Pradesh, addresses this important question, basing himse lf on the Constitution, fundamental principles, and the law as expounded by the Supreme Court of India.

Explanation 1: The expression disaffection includes disloyalty and all feelings of enmity.

Explanation 2: Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section.

Explanation 3: Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section.

In the course of the judgment, the Supreme Court observed: "... The provisions of the sections read as a whole, along with explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental rights of freedom of speech and expression. It is only the words, written or spoken, etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order..."

In 1998 (3) SCC Devendrappa vs. Karnataka State Small Industries Development Corporation, the Supreme Court was dealing with a case where the employee made allegations of corruption and maladministration, and expressed the hope that the Chairman o f the Corporation be removed. In this particular case, the Court held that his conduct would not be in the interest of public order, as any action which would be detrimental to the interests or prestige of an employer clearly undermines discipline and th e efficient performance of the organisation.

However, it cannot be said that every criticism of the policy of the Government would be detrimental to the interests and prestige of the Government and would undermine discipline and efficient performance of the Government! On the other hand, well-inten tioned criticism may help in its efficient performance.

THE Supreme court also relied on Article 19(1)(g), which deals with the right of a person to carry on his occupation. Under Article 19(5), reasonable restrictions can be imposed on this right in the interests of the general public. The Court held that an y rule that imposes such a restriction has to be read harmoniously with other freedoms such as the rights to freedom of speech and freedom to form associations. Service rules which are directly linked to and are essential for the duties of public office are protected by Article 19(1)(g) (read with Article 19(5)). The restrictions imposed by Article 19(5) cannot be questioned by exercise of freedom of speech. The Court, however, added, "Of course, the Courts will be vigilant to see that the code is not s o widely framed as to unreasonably restrict fundamental freedoms."

At a rally by Central Government employees outside South Block in New Delhi. It is clear from various rulings of the Supreme Court that a blanket prohibition on criticism of the policies of the government is not valid, and it makes no difference if th e person criticising happens to be a government servant.

Certainly, a rule which places a blanket ban on criticism of the Government's policy is widely framed as to restrict freedom of speech unreasonably!

In view of the above discussion related to various decisions of the Supreme Court, it is clear that a blanket rule that prohibits criticism of the policies of the Government is not a valid rule. There is no real and proximate connection between pu blic order and criticism of the Government's policy. The reasoning that if every employee begins to criticise the policies of the Government, it will lead to indiscipline and affect public order is too far-fetched. Criticising the policies of the Governm ent is not equivalent to disobeying the orders of the Government. Democracy is based on fair criticism. That is why the freedom of speech and expression are protected. Day in and day out, parties in Opposition and other persons criticise the policies of the Government and yet they do not lead to public disorder. It makes no difference if the person criticising happens to be a government servant.

The same applies to employees of a public institution. Many such institutions are funded by the Government which also exercises control over the institutions. Such institutions have been held to be "States" within the meaning of Article 13. It has alread y been noticed that under Article 13(2), any law (law includes notifications, rules, and so on) made by a State in contravention of fundamental rights is void. Hence, a rule made by a public institution also, which is a State within the meaning of Part I II (the chapter on Fundamental Rights), in contravention of fundamental rights is void. Thus, a general prohibition of an employee of a public institution criticising the policies of the institution or the Government is void. In this matter, there is no difference between the position of conduct rules made by the Government and conduct rules made by a public institution which is a "State" under Article 13.

It is also relevant to note the provisions of Article 33. Under this article, Parliament is empowered to modify, restrict or even abrogate any of the fundamental rights in their application to the armed forces, members of the forces charged with the main tenance of public order, persons employed in the intelligence department, or those employed in the telecommunication system set up for the purpose of any force. From this article it is clear that while Parliament is empowered to restrict or abrogate the fundamental rights of persons belonging to any of the above classes, no such power is conferred on Parliament to pass a law imposing restrictions on any other person or class of persons and any restriction on their fundamental rights must fall squarely w ithin the terms of Article 19(2) to Article 19(5) of the Constitution.

Finally, the question which remains to be considered is: given that a person in service cannot be punished under a void rule (which prohibits him from criticising the policies of Government), can a person be prevented from being admitted as a government servant or a servant of a public institution under such a rule? It would logically follow that as the rule is void and therefore non-existent in the eye of the law, it cannot be relied on for refusing employment to a person who criticises the policies of the Government. But in practice, this is a matter difficult to prove unless it is noted in the records that his criticising the policies of the Government was the reason for refusing employment, though he is otherwise qualified!

This is an expanded (and updated) version of an article that appeared in The Hindu a few months ago.