Karan Kumar

| @CouldBeKaran | July 16,2018

There has been a huge furore surrounding the initiation of departmental action against IAS officer Shah Faesal. Faesal, who shot to fame in 2009 for being the first person from Jammu and Kashmir to top the civil services (UPSC) examination, actively shares his opinion across social media platforms, with one of his posts leading to the ensuing uproar. His tweet from April admonishing various societal ills that plague India, as a response to the Kathua rape case coverage, attracted the Central government’s attention. This led to the Union Government issuing directions to the General Administration Department of Jammu and Kashmir to initiate disciplinary action against him.

Though the question at hand pertains to an alleged violation of The All India Services (Conduct) Rules, 1968, it is reflective of a greater issue about the freedom of speech of government employees.


The rules in question

Faesal’s alleged offence is primarily seen to be in violation of Rules 3 and 7 of the aforementioned statute. The central Government’s ambit to censor under the aforementioned rules is further increased when these Rules are read with Rule 21 which makes it the sole authoritative interpreter of the rules in case of any doubts.

Faesal’s alleged offence is primarily seen to be in violation of Rules 3 and 7 of the aforementioned statute. The central Government’s ambit to censor under the aforementioned rules is further increased when these Rules are read with Rule 21 which makes it the sole authoritative interpreter of the rules in case of any doubts

Rule 7 prohibits any member of the Services to publicly express any fact or opinion which may be construed as “adverse criticism” of any Government (Central or State) via any “public media”.

7. Criticism of Government.—No member of the Service shall, in any radio broadcast or communication over any public media or in any document published anonymously, pseudonymously or in his own name or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or opinion,—

  1. Which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government; or
  2. which is capable of embarrassing the relations between the Central Government and any State Government; or
  3. which is capable of embarrassing the relations between the Central Government and the Government of any Foreign State:Provided that nothing in this rule shall apply to any statement made or views expressed by a member of the Service in his official capacity and in the due performance of the duties assigned to him.

(GOI Instructions: D.P. & A.R. letter No. 11017/9/75—AIS(III), dated the 2nd March, 1976, reproduced under Miscellaneous Executive Instructions at the end of these Rules)

21. Interpretation — If any doubt arises as to the interpretation of these rules, the Central Government shall decide the same.

Prima facie, the contentious tweet cannot be construed to be in line with any of the prohibited grounds. But, Rule 7’s text when read in tandem with Rule 21, allows the State to construct offences where there are none in exercise of its interpretative powers, allowing it to sanction any statement it may see as critical.

Textually, the Government notification expressly invokes Rule 3 of the aforementioned Statute.

3. General — 3(1)Every member of the Service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the Service.

(1A) Every member of the Service shall maintain:-
(i)  high ethical standards, integrity and honesty;

(ii)  political neutrality;

(iii)  promoting of the principles of merit, fairness and impartiality in the discharge of duties;

(iv)  accountability and transparency;

(v)  responsiveness to the public, particularly to the weaker section;

(vi)  courtesy and good behaviour with the public.

3(2) Every member of the Service shall take all possible steps to ensure integrity of, and devotion to duty by, all Government servants for the time being under his control and authority.

(2A)Every member of the service shall in the discharge of his duties act in a courteous manner and shall not adopt dilatory tactics in his dealings with the public or otherwise.

(2B) Every member of the Service shall:-

(i) commit himself to and uphold the supremacy of the Constitution and democratic values;

(ii)  defend and uphold the sovereignty and integrity of India, the security of State, public order, decency and morality;

(iii)  maintain integrity in public service;

(iv)  take decisions solely in public interest and use or cause to use
public resources efficiently, effectively and economically;

(v)  declare any private interests relating to his public duties and take
steps to resolve any conflicts in a way that protects the public interest;

(vi) not place himself under any financial or other obligations to any individual or organisation which may influence him in the performance of his official duties;

(vii) not misuse his position as civil servant and not take decisions in order to derive financial or material benefits for himself, his family or his friends;

(viii) make choices, take decisions and make recommendations on merit alone;

(ix) act with fairness and impartiality and not discriminate against anyone, particularly the poor and the under-privileged sections of society;

(x) refrain from doing anything which is or may be contrary to any law, rules, regulations and established practices

(xi) maintain discipline in the discharge of his duties and be liable to implement the lawful orders duly communicated to him;

(xii) be liable to maintain confidentiality in the performance of his official duties as required by any laws for the time being in force, particularly with regard to information, disclosure of which may prejudicially affect the sovereignty and integrity of India, the security of State, strategic, scientific or economic interests of the State, friendly relation with foreign countries or lead to incitement of an offence or illegal or unlawful gains to any person;

(xiii) perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities.

……

The use of generic, overbroad terms such as “high ethical standards, integrity and honesty” allows the State to ascribe behavioural standards upon the Service’s members, and dictate their conduct and/or expressions or else face sanction. This vagueness avails the State grounds to sanction any act or display of behaviour which it may find counter-intuitive to its agenda, or simply harass anyone it may wish to target.

The use of generic, overbroad terms such as “high ethical standards, integrity and honesty” allows the State to ascribe behavioural standards upon the Service’s members, and dictate their conduct and/or expressions or else face sanction. This vagueness avails the State grounds to sanction any act or display of behaviour which it may find counter-intuitive to its agenda, or simply harass anyone it may wish to target

Rule 6 though, may act as a saving provision in such cases. It provides for members of the Civil Services to participate via “public media”, provided that they explicitly make it clear that the views expressed solely personal and not representative of the Government’s position.

6. Connection with press or radio — Previous sanction of the Government shall not be required when the member of the service, in the bonafide discharge of his duties or otherwise, publishes a book or contributes to or participates in a public media.

Provided that he shall observe the provisions of rules and at all times make it clear that the views expressed, are of his own and not those of the Government.

Usually, this clarification is issued via the “bio” sections of social media handles, and is a common practice among Civil Servants who are vocal on social media.

This though, may not come to the aid of Faesal, as his social media accounts do not carry the requisite disclaimer. This demonstrates the current Government’s wish to wield complete control over its employees, and signifies its draconian intolerance towards commentary upon any occurrence under its regime, no matter how heinous it might be. Further, it is demonstrative of the Central Government’s intent to harass anyone who speaks against it.

These Rules clearly stifle the fundamental freedom of speech and expression granted to every citizen of India guaranteed under Article 19(1)(a), which states:

(1) All citizens shall have the right

(a) to freedom of speech and expression;

Would they therefore stand judicial scrutiny at all? No.

Constitutionality of such laws

Article 13(2) provides for any laws that takes away or abridges fundamental rights to be void to that extent. This provision is attracted by the Rules in question, regardless of the Constitutional mandate granted to the legislature to be the rule making authority of the nation.

Article 13(2) provides for any laws that takes away or abridges fundamental rights to be void to that extent. This provision is attracted by the Rules in question, regardless of the Constitutional mandate granted to the legislature to be the rule making authority of the nation.

Article 13(2) states:

The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void

On the other hand, though Article 33 of the Constitution avails the Parliament powers to modify the application and limit the liberties granted via the fundamental rights, they do not extend to civil servants.

Though Article 33 of the Constitution avails the Parliament powers to modify the application and limit the liberties granted via the fundamental rights, they do not extend to civil servants

Its restrictions are limited to members of the armed forces, or persons involved in operations pertaining to intelligence or counter-intelligence.

Article 33 in The Constitution Of India 1949

Power of Parliament to modify the rights conferred by this Part in their application etc Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or

(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or

(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them

The fact that the Article’s text categorically mentions the people whose rights can be curtailed, establishes that the Constitution extends the freedom of speech to all citizen’s regardless of their nature of employment, and this includes civil servants.

Even Article 309 which authorises the government to regulate recruitment and conditions of service of its employees, does not allow it to curb fundamental rights.

Article 309 in The Constitution Of India 1949

Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act

Rules drafted in exercise of such authority mandatorily have to adhere to the constitutional scheme and and be in line with fundamental right guaranteeing freedom of speech and expression.

Jurisprudential developments guarding freedom of speech

While freedom of speech is subject to reasonable restrictions laid down by Article 19(2), the Rules in question are denied their protection due to a 1962 Supreme Court verdict. In the Kameshwar Prasad v Union of India case, the Court held that any person entering government services does not preclude their fundamental right to freedom of expression, subject to exhaustively enlisted reasonable restrictions.

This legal position is further substantiated by the holding of the Basheshar Nath v CIT case, where a constitutional bench established that fundamental rights cannot be waived off.

Additionally, these rules also contravene the “Doctrine of Unconstitutional Condition”, which establishes that the State cannot force citizens to waive off their fundamental rights in lieu of certain benefits it offers, here it being Faesal’s employment. This was laid down by Re Kerala Education Bill case, and elucidated upon by the Ahmedabad St Xavier’s College vs State of Gujarat case. The relevant tract of Justices YV Chandrachud and Mathew opinion from the St Xavier’s College Case is as follows:

“The doctrine of ‘unconstitutional condition’ means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right.

The doctrine of ‘unconstitutional condition’ means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right

This doctrine takes for granted that ‘the petitioner has no right to be a policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right ‘to talk politics’. The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution… though the state may have privileges within its control which it may withhold, it cannot use I a grant of those privileges to secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its constitutional power.”

Faesal’s position is further bolstered by a seven-judge verdict in the OK Ghosh v EX Joseph case of the Supreme Court. Here, it held Rule 4B of the Bihar Service Rules as unconstitutional, because it restricted government servants from joining associations not recognised by the government. This was held to be unreasonable, as it was not in line with the maintenance of “public order” enlisted as a reasonable restriction Article 19(2).

The aforementioned cases convincingly establish Faesal’s right to voice his opinion and the Central Government’s action as an infringement upon his fundamental right.

A parallel can be drawn with the current scenario at hand as well as the threat posed by the contentious Section 66A of the IT Act which was struck down.

These Rules too have chilling affect similar to the aforementioned section, which was deemed to be “reasonable” in line with those laid down by Article 19(2) by the Shreya Singhal judgment.

Need for discursive change

Shah Faesal’s resolve to not back down has initiated discourse regarding the State being allowed to gag its employees via draconian laws. It also brings forth the importance of Fundamental Rights, and why laws such as those in question need to be struck down as they deprive individuals of their civil liberties.

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