[This is a guest post by Harsh Jain and Eeshan Sonak.]
In an earlier post on this blog, Gautam Bhatia discussed in depth the right to free speech of government employees. The post was written in 2016 in the backdrop of a proposed change to the All India Service (Conduct) Rules, 1968, which would prohibit government officials from ‘criticising’ the government on social media. Five years later, we now see an amendment to the Central Civil Services (Pension) Rules, 1972, which goes even further in its effect: it prohibits retired officials in intelligence/security related organizations from publishing anything that falls within the ‘domain’ of the organization they served. A failure to seek prior clearance can lead to an official’s pension being withheld or withdrawn.
In this article, we present a challenge to the constitutionality of the amendment on the anvil of Article 19(1)(a), by examining whether, and to what extent, it is permissible to place greater restrictions on the freedom of speech and expression of retired officials vis-à-vis other citizens. To do so, we trace the decisions of the Supreme Court on the constitutional rights of government employees, and somewhat differ from Bhatia in our conclusion.
Bhatia writes that “in its relationship with its employees, the government assumes two faces: as an employer, with the power to enforce discipline and unity, and as the State, which must respect fundamental rights. The scope of government employees’ rights to freedom of expression and association, therefore, depends upon which of those faces the courts have considered to be the dominant one, and to what extent.” While adhering to this framework, we argue that unlike the narrative of a vacillating Supreme Court presented by Bhatia, its decisions can be read as being consistent in substance and reasoning, though questionable in their conclusions.
Constitutional Rights of Government Employees
The Supreme Court decided on the validity of terms of service that restrict government employees’ rights for the first time in P Balakotaiah v. Union of India (1957). A few railway employees, who had been terminated for engaging in “subversive activities” by organizing a general strike in association with communists, challenged their termination before the Supreme Court as a violation of their fundamental right to form associations. A Constitution Bench of the Supreme Court upheld their termination and stated that the orders of termination:
… do not prevent them from continuing to be communists or trade unionists. Their rights in that behalf remain after the impugned orders precisely what they were before. The real complaint of the appellants is that their services have been terminated; but that involves, apart from Article 311, no infringement of any of their constitutional rights.” As Bhatia puts it, the underlying premise behind the Supreme Court’s refusal to invoke Article 19(1)(c) was that “since there is no antecedent fundamental right to government employment, the government is free to make employment conditional on the requirement that employees do not associate with communists.
Five years later, in 1962, two Constitution Benches of the Supreme Court took a radically different approach from Balakotaiah. In Kameshwar Prasad v. State of Bihar the Court struck down a rule that prohibited government servants from participating in demonstrations or strikes concerning their conditions of service. The Court noted that entering government service does not disentitle a person from claiming the freedoms guaranteed to every citizen, and therefore, any restriction on Article 19(1)(a) or (c) would have to satisfy the reasonableness test under Articles 19(2) or (4) respectively. It held that in prohibiting all forms of demonstrations, without showing any proximate link with public disorder, the rule was overbroad and hence, void. Similarly, a few months later in O.K. Ghosh v. E.X. Joseph, the Supreme Court struck down a rule prohibiting government servants from joining associations not recognized by the government.
However, in 1998, a two-judge bench of the Supreme Court yet again changed tack. In M.H. Devendrappa v. Karnataka Small State Industries, the Court upheld the dismissal of an employee on the basis of a rule which prohibited employees from doing “anything detrimental to the interests or prestige of the Corporation.” The Court reasoned that “a rule which is not primarily designed to restrict any of the fundamental rights cannot be called in question as violating Article 19(1)(a).” To this extent, as Bhatia notes, it is an incorrect position of law as the Supreme Court, in Bennett Coleman v. Union of India, abandoned the “object and form” test for the violation of fundamental rights in favour of the “effects” test.
Bhatia then goes on to discuss how the Court in Devendrappa wriggled out of the difficulty when faced with the “conflicting precedents” in Balakotaiah and Kameshwar Prasad/O.K. Ghosh. Describing the complexity involved, Bhatia says that “Kameshwar Prasad and O.K. Ghosh incorrectly interpreted Balakotaiah, and were then themselves incorrectly interpreted by Devendrappa, giving us, at the end of the day, an initial Constitution Bench decision and a later two-judge bench decision on one side, and two Constitution Bench decisions in the middle on the other.”
It is this part of Bhatia’s criticism that we disagree with, for reasons that will shortly become clear. To clarify, we do not seek to defend Balakotaiah or Devendrappa, and in fact, believe – as Bhatia points out – that they are strewn with glaring errors. Instead, we seek to focus on those aspects of the judgments that lie at the very core of the constitutional rights of government employees and argue that Kameshwar Prasad and Balakotaiah are not entirely “conflicting precedents” and that there is scope to reconcile them when looking at their core aspects. Amidst the numerous differences in reasoning and conclusions, there runs a commonality that is consistent through all four judgments. The following three principles consistently emerge from them:
- Government employees cannot be said to form a class apart to whom the rights guaranteed by Part III do not, in general, apply.
- Depending on the nature of their work, duties they are required to discharge, and information they are privy to, reasonable restrictions above and beyond those applicable to other citizens may be placed on Government employees in the interest of discipline, efficiency, and confidentiality.
- The question as to what constitutes ‘reasonable restrictions’ is subjective, and is left open for the courts to determine on a case-by-case basis.
So far as the first principle is concerned, Kameshwar Prasad (para 18) and O.K. Ghosh (para 11) unequivocally say in no uncertain terms that government servants can claim fundamental rights. We believe that this principle is also implicit in Balakotaiah and Devendrappa. Balakotaiah took the view that the appellant’s rights under Article 19(1)(c) have not been infringed since they can continue to be communists or trade unionists, but they have no fundamental right to be continued in employment by the State. Whatever be the correctness of this view, there is, arguably, a tacit recognition that the State cannot infringe upon the fundamental rights of government employees.
Now coming to Devendrappa, we believe that its emphasis and repeated re-iteration of the second principle impliedly affirms the first principle. Devendrappa focuses on the reasonableness of the restrictions and says:
Proper exercise of rights may have, implicit in them, certain restrictions. The rights must be harmoniously construed so that they are properly promoted with the minimum of such implied and necessary restrictions. In the present case, joining government service has, implicit in it, if not explicitly so laid down, the observance of a certain code of conduce necessary for the proper discharge of functions as a government servant. That code cannot be flouted in the name of other freedoms. Of course, the courts will be vigilant to see that the code is not so widely framed as to unreasonably restrict fundamental freedom. But a reasonable code designed to promote discipline and efficiency can be enforced by the government organisation in the sense that those who flout it can be subjected to disciplinary action.
Contrary to Bhatia’s claim that the Court in Devendrappa tried to wriggle out of the difficulty of “conflicting precedents,” it highlighted Kameshwar Prasad and O.K. Ghosh as shining examples of how the courts have made sure that the impingement on the fundamental rights of Government employees is minimal. It concluded that “a proper balancing of interests of an individual as a citizen and the right of the State to frame a code of conduct for its employees in the interest of proper functioning of the State, is required.” In our opinion, this iteration alone captures all three principles that we culled out.
Kameshwar Prasad and O.K. Ghosh also advance a similar proposition. Kameshwar Prasad says that “if the rule had confined itself to demonstrations of a type which would lead to disorder, or which would fall under the other limiting criteria specified in Article 19(2) the validity of the rule could have been sustained.” This means that government employees may have special rules or restrictions as long those restrictions fall within Article 19(2). If certain actions by government employees may lead to disorder, which if done by ordinary citizens would not lead to the same, then those rules can be sustained under a 19(2) enquiry. Kameshwar Prasad then goes on to give specific two instances where such rules would be sustained: that of an income tax officer mandated to maintain secrecy of documents under the Income Tax Act and an election officer mandated to do the same under the Representation of the People Act. The Court held that rules regulating the use of information obtained by such employees in the course of their duties by virtue of their official position do not infringe the right to free speech.
Bhatia argues that the very narrowness and specificity of these examples directly contradict the broad interpretation that Devendrappa placed upon Kameshwar Prasad, namely that “fundamental rights challenge could be avoided on the ground of requiring proper discharge of duties by government servants.” We believe that Devendrappa did not hold that a fundamental rights challenge could be avoided on this ground, but that it would have to be tested on a different threshold of ‘reasonableness’ by taking into consideration the interests of discipline, efficiency, and confidentiality in the discharge of their duties.
Similarly, O.K. Ghosh also held that “there can be no doubt that government servants can be subjected to rules which are intended to maintain discipline amongst their ranks and to lead to an efficient discharge of their duties. Discipline amongst government employees and their efficiency may in a sense, be said to be related to public order.” It added, however, that “a restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct.” In the particular facts of that case, the Court struck down the law as unconstitutional holding that “it is difficult to see any direct or proximate or reasonable connection between the recognition by the government of the association and the discipline amongst, and the efficiency of, the members of the said association.”
Thus, the first two principles establish that owing to the nature of their work, which may entail consuming sensitive information, government employees can be subjected to stricter regulations vis-à-vis other citizens. It is also established that these regulations must be ‘reasonable’ in line with Article 19(2). What is left unanswered is the question of what constitutes ‘reasonable restrictions.’ We believe that it is this question that the courts have answered inconsistently, if at all. Balakotaiah did not undertake any reasonability enquiry and went too far in holding that the government can terminate its employee even for the proper exercise of her fundamental right. Devendrappa too, in our opinion, erred in upholding the dismissal on the ground of proper functioning of the government organisation. In contrast, we believe that Kameshwar Prasad and O.K. Ghosh reflect the correct exposition of law. Regardless, an undeniable observation that arises from this analysis is that the courts have adopted different standards of reasonability when testing the constitutionality of the law or when applying it to different cases.
Hence, we conclude that what constitutes a reasonable restriction in the special circumstances of government employees is left undecided. It is up to the discretion of the courts to determine whether a restriction is reasonable after considering the particular factors of a given case like the nature of employment and the extent to which the law restricts one’s fundamental right. It is this subjectivity that we grapple with in the next part of this article, where we present a challenge to the constitutionality of the amendment to the Central Civil Services (Pension) Rules, 1972. We call this amendment the ‘New Pension Rules, 2021’ because of how drastically it expands the requirement of good conduct after retirement; so much so that it is not a stretch to say that it introduces a new code in itself for availing pension.
However, before we proceed to discuss the New Pension Rules, there remains unaddressed one last argument by Bhatia: the doctrine of unconstitutional conditions. Bhatia places the incipience of this doctrine into Indian jurisprudence in the case of Re Kerala Education Bill (1958). The doctrine prohibits the State from denying citizens a benefit by making access to that benefit conditional upon citizens’ abstaining from exercising any or all of their fundamental rights (discussed in greater depth in another post by Bhatia; available here). Bhatia argues that this pronouncement impliedly overruled Balakotaiah because though there is no antecedent right to government employment, making one’s employment conditional upon her abstaining from exercising her constitutional rights to free speech and association would no more be permissible.
While we agree that the reasoning advanced in Balakotaiah would not stand the test of the unconstitutional conditions doctrine, we believe that it is important to clarify that this doctrine cannot be held as absolute, and is itself subject to implied limits of reasonable restrictions. Since the unconstitutional conditions doctrine originated in the United States, let us see some of the US Supreme Court decisions relating to this doctrine.
Professor Emeritus Thomas McCoy of Vanderbilt University discusses the limitations and proper application of the unconstitutional conditions doctrine. He says that if a restriction is reasonably necessary for the effective performance of the contract, the unconstitutional conditions doctrine will not apply, and the court will uphold the contractual restriction on speech. For example, a position with the Central Intelligence Agency is routinely conditioned on an individual’s acceptance of significant restrictions on her freedom to speak about classified information to which she will have access. In Snepp v. United States (1980), the Supreme Court upheld the speech-restrictive condition in the CIA employment contract saying that the unconstitutional conditions doctrine will not apply since such restrictions are essential to the effective performance of the CIA agent’s duties. Similarly, in Rust v. Sullivan (1991), the Court refused to apply the doctrine holding that a government employee engaged in family counselling using government-specified speech, contractually agrees to forego the advocacy of her own viewpoints during the counselling time. However, the Court has also ruled that the Government cannot discourage unfavourable speech unrelated to contract performance. In Elrod v. Burns (1976), the Court held that a city government cannot offer employment as a police officer on the condition that the employee refrains from making speeches in her spare time that are critical of the mayor’s political views.
In India as well, secrecy and non-disclosure are essential requirements of certain positions. Kameshwar Prasad itself gives two such positions: income tax officers and election officers. Thus, we see that it is permissible to restrict free speech to the extent it involves classified information. Therefore, the doctrine of unconstitutional conditions does not affect the application of the three principles we culled out as commonalities in all four judgments.
(Part Two to follow.)