THE LANDMARK Allahabad High Court order quashing the National Security Act (‘NSA’) slapped on a 25-year-old Delhi University student Akriti Chaudhary by the NOIDA district magistrate on the ground that continued incarceration of the petitioner under the provisions of the NSA is violative of her rights under Article 21 of the Constitution of India is of extraordinary significance in every sense of the term. Apart from declaring the employment of NSA as a flagrant violation of the law and Constitution, the order assumes enormous significance not only in the context of the constitutionally mandated fundamental right to agitate peacefully, but also in the context of the role of civil servants to act in tune with the Constitution and not on the basis of the dictates of their political masters.
Orwellian Dystopia if Civil Servants Negate Constitution
The order of the said court employed very strong language because the District Magistrate, NOIDA, a civil servant, invoked NSA on a peaceful agitator without application of mind. It is worthwhile to quote from the order in which the learned judges Justice Achal Sachdev and Justice Atul Sreedharan reminded the concerned civil servants that before they entered service they took “...oath affirming that they shall bear true allegiance to India and to the Constitution of India as by law established, that they will uphold the sovereignty and integrity of India, and that they will carry out the duties of their office loyally, honestly and with impartiality.”
“They (civil servants),” the Judges observed, “should realise that their loyalty is towards the Constitution and not the political executive, and that honesty and impartiality are towards the people whom they serve, while bearing in mind at all times that they are the servants who serve the people, the masters in a democracy.”
They then warned that any of their actions infringing that solemn oath would cause havoc to the State of Uttar Pradesh, and its people would painfully "...view them as an oppressive vestige of the British Empire." The court, in its order, very sharply noted that the actions of civil servants in gross violation of the Constitution and the standards of integrity would create an environment of civil unrest unless those excesses and/or illegalities and despotic conduct, impinging upon the civil liberties of the citizens, are corrected and aggrieved citizens get justice and compensation, in which case the State of Uttar Pradesh would be reduced to an Orwellian Dystopia because of the errants in bureaucracy.
The fact that the learned judges of the Allahabad High Court seriously apprehended that due to errant civil servants there could be an Orwellian Dystopia raises grave concerns regarding the extremely deplorable standards of civil servants in twenty-first-century India.
Sardar Patel’s Vision
In the aforementioned sharp observations of the judges resonate the apprehensions of Sardar Vallabhbhai Patel, who founded the Indian Administrative Service (‘IAS’), and what he said in the Constituent Assembly on the vital role of All India Services was quoted by the Sarkaria Commission in its 1988 report in the chapter on All India Services. Patel had said, “The Union will go—you will not have a united India, if you have not a good all-India service which has the independence to speak out its mind, which has a sense of security that you will stand by your word and that after all there is the Parliament, of which we can be proud where the rights and privileges are secure.... This Constitution is meant to be worked by a ring of Service which will keep the country intact.”
Every word of the last line of Patel’s statement, that "This Constitution is meant to be worked by a ring of Service which will keep the country intact," is echoed in the order of the Court flagging the unflinching loyalty of civil servants to the Constitution and not to the political executive.
It is worthwhile, yet again, to quote Patel, who, as the first Home Minister of India, while addressing the first batch of IAS probationers on April 21, 1947, urged them to be guided by the spirit of public service in day-to-day administration and to remain wedded to the ideals of impartiality and incorruptibility. “A civil servant cannot afford to, and must not, take part in politics. Nor must he involve himself in communal wrangles. To depart from the path of rectitude in either of these respects is to debase public service and to lower its dignity," he warned. Those thoughts he articulated in the context of the vision that civil servants should usher in Swarajya, or good governance, through their conduct and administrative efficiency.
Ambedkar’s Vision
That is why several Articles of the Constitution, including Article 311, provide an architecture to ensure security of tenure to civil servants. On September 1949, B R Ambedkar, the Chairman of the drafting committee of the Constituent Assembly, while replying to the debates of the Constituent Assembly on Article 311 (288A of the draft Constitution), said that for civil servants it was the “best provision … for the safety and security of the civil service, because it contains a fundamental limitation upon the authority to dismiss.”
In Defence of the Right to Protest
It is against this backdrop of the allegiance of civil servants to the Constitution that the Allahabad High Court, in its judgement, examined whether the District Magistrate employed robust reasoning based on substantive material to invoke the NSA against the accused. To its horror, it found that the discretion to impose the NSA, which violates a person’s rights under Article 21 of the Constitution of India, was exercised by the DM on grounds which, in the words of the Court, are “repetitive, speculative and are only opinion based, without referring to a shred of evidence/material in support of sustaining those opinions.” The Court therefore observed, “In this case, the conduct of the District Magistrate, Gautam Buddha Nagar, who passed the impugned order, is worthy of derision.”
It stated very categorically that the DM was bent on making an “example out of the Petitioner and deter[ring] others from exercising their right to freedom of speech and expression in public spaces in support of the labourers.” “The District Magistrate, Gautam Buddha Nagar,” it emphatically stated, “is guilty of violating her oath of allegiance (to the Constitution), making this a fit case for the imposition of compensation to the petitioner.”
It is instructive to note that, while awarding compensation of Rs. 5 lakhs to the petitioner, the Court ordered that the amount be recovered from the salary of the DM and such other officers who may have been responsible, right down to the SHO, and that the Court’s displeasure be noted in the service records of all officials, including the DM.
Such exemplary decisions of the Allahabad High Court against officials of the State were taken because they attempted to stifle the constitutional rights of citizens to protest in favour of NOIDA workers who agitated to demand a hike in their wages. The protest and agitation were peaceful, and no violence was employed by the protesters. Yet the no-holds-barred coercive power of the State was brutally applied by the DM to teach the protesters a lesson: that they should refrain from taking recourse to agitation, regardless of the Constitution mandating them to exercise their fundamental right to assemble and freely and peacefully express their speech and opinion in favour of their demands to hike their wages.
The Court’s defence of people’s right to agitate by exercising their constitutional right is extremely significant against the backdrop of the Prime Minister of India derisively describing protesters as “andolan jeevis,” and, more recently, of Dharmendra Pradhan, as Union Education Minister, calling those agitating at Jantar Mantar against NEET paper leaks and demanding his resignation, “a B team of terrorists.”
The Allahabad High Court, while noting that the female activist charged with NSA had called for citizens to support the labourers and to agitate for their rights, observed that there was no material to support the State's claim that the agitation would lead to violence or challenge the authority of the State. It noted, “The freedom of speech and expression extends to coming out on the streets and agitating a cause, and gathering peacefully without arms or without threat to public order.” “However,” it also very prudently noted, “the State must also realise that a peaceful agitation where people collect without arms or ammunition can still be scuttled by mischievous elements, who may be sent by parties who are interested in ensuring that such an agitation is broken, and also where such elements may indulge in acts of violence, which thereafter gets attributed to the entire group, which is patently unjust.” “Preventing people from gathering in public spaces or agitating their rights on the grounds of assumed breach of peace would be throwing the baby out with the bathwater,” it proceeded to remark. “If such a view is taken by the State and approved of by the Courts,” it sharply remarked, “it would lead to a cessation of the collective expression of opinion in public spaces.”
The words “cessation of the collective expression of opinion in public spaces” signal that the State, by using pellet guns or brutal powers, as happened on July 20th in Delhi to deal with protests organised by the Cockroach Janata Party, cannot afford to suppress the right of people to engage in dissent, which protests and agitations unequivocally represent. Very appropriately, the Allahabad High Court observed in its order that “the Constitution protects such a right, and the same cannot be trifled with merely on the subjective opinion of the State.” “The State,” it said, “must also realise that it has a strong and powerful police force, which must be trained in ensuring public order in such large gatherings, and also resort to videography of the gathering and the manner in which it is conducted, so that accountability may be affixed in the event of an outbreak of violence.”
In defence of peaceful protest, it made refreshing observations that “the State must also realise that every society has its own tensions and its share of disagreements with the Government in the manner in which it functions, and that allowing agitations is like the safety valve in a pressure cooker, which ensures that the build-up of pressure is released rather than preventing such agitations and bottling up feelings accumulated to such an extent that, when people do spill out onto the streets, violence becomes inevitable and difficult for law enforcement agencies to control and contain.”
Stifling Protest Causes Grammar of Anarchy
Such an order in support of constitutional rights is evocative of the words uttered by Ambedkar in his last speech in the Constituent Assembly on November 25, 1949. He had warned of a "grammar of anarchy" if people were to abandon constitutional methods to pursue the objectives enshrined in the Constitution. The fact is that people in UP adopted the constitutional method to protest. It is rather tragic that civil servants like the DM of Gautam Buddha Nagar, representing the State, unleashed stringent laws such as the NSA, stifling their right to life covered under Article 21 of the Constitution, and created conditions to generate fear in the minds of citizens against protesting and questioning the Government. It is in this context that the Allahabad High Court judgement is very significant in defence of the constitutional rights of citizens, who are now far more conscious than ever before of the need to save the Constitution and the idea of India.