Guest Post: The New Pension Rules 2021 and the Freedom of Speech of Government Employees – II

[This is Part Two of a two-part series by Harsh Jain and Eeshan Sonak. Part One may be found here.]

---

On 31st May 2021, the Central Government notified an amendment to Rule 8(3A) of the Central Civil Services (Pension) Rules, 1972, that restricts retired officials in intelligence/security related organizations from critically commenting on issues relating to current policy that fall within the ‘domain’ of the organizations they served. Failing to seek prior clearance could result in the withdrawal or withholding of the official’s pension. Rule 8 of the CCS Pension Rules relates to officials’ “pension subject to future good conduct.” Previously, ‘good conduct’ meant that the official must not be convicted of a serious crime by a court of law, or be found guilty of grave misconduct. The explanation to the rule clarifies that grave misconduct would mean the disclosure of a secret obtained while holding office under the government, as mentioned in Section 5 of the Official Secrets Act, 1923. The amendment is an attempt to transgress these accepted restrictions, and punish retired officials who use their expertise to criticize the government and point out the flaws in its governance.

In the previous part of this article, we have argued depending on the nature of their work, the government can, in the interests of discipline, efficiency, and confidentiality, impose certain reasonable restrictions on its employees above and beyond those applicable to other citizens. However, what constitutions ‘reasonable restrictions’ is left open for the courts to adjudicate depending on the facts and circumstances of each case. We now argue that the amendment imposes an unconstitutional restriction to free speech for it is unreasonable, disproportionate, vague,  and overbroad. But before moving into these arguments, we wish to make two preliminary submissions that shall have a bearing on the rest of our arguments.

Firstly, pension is not a bounty, charity or a gratuitous payment, but an indefeasible right of every employee. It not an ex-gratia payment that depends on the sweet will of the employer, but a staggered form of payment for the past service rendered. Such was the view taken in D.S. Nakara v. Union of India (1982).

Secondly, restrictions on free speech must pass a higher threshold of reasonability vis-à-vis other rights. Justice Nariman in Shreya Singhal v. Union of India (2015), noted that “restrictions on freedom of speech must be couched in the narrowest possible terms.” Justice V.S. Deshpande, writing extra-judicially, discussed how the liberal wing of US Supreme Court judges advocated a doctrine that the freedom of speech and expression is preferred to the less important rights such as the right to property. According to them, a restraint on the freedom of speech and expression is prima facie unconstitutional unless the state can justify it. The Supreme Court of Colombia has also held that any limitation on freedom of expression “is presumed to be suspect, and therefore must be subject to a strict constitutional analysis” (see also a report by the Special Rapporteur for Freedom of Expression by the Inter-American Commission on Human Rights). Justice Deshpande was of the firm view that these principles are applicable in India as well.

On the subject of the constitutionality of the New Pension Rules, 2021: the Indian jurisprudence when it comes to the Article 19 rights of government employees is clear. Any restrictions of the Article 19(1) rights of government officials must pass the test of reasonableness laid down in Articles 19(2) to 19(6). As we have argued previously, the threshold of reasonableness for restrictions on the rights of government employees might be lesser than that of ordinary citizens and must be decided by the courts depending on the facts and circumstances of each case. It is our submission that the new amendment to Section 8(3A) of the Central Civil Services (Pension) Rules, 1972 does not pass the test of reasonableness laid down in Article 19(2).

In Sakal Papers v. Union of India (1961), the Supreme Court held that the State cannot place restrictions on the freedom of speech and expression in the general interest of the public. Free speech restrictions are permissible only on any of the eight subject matters contained in Article 19(2). Further, in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia (1960), the Supreme Court held that the restriction must have a ‘proximate’ or ‘imminent’ connection with one of the grounds under Article 19(2). This ‘proximity’ test was strengthened in Shreya Singhal v. Union of India (2015), where the Supreme Court struck down Section 66A of the Information Technology Act by distinguishing between ‘advocacy’ and ‘incitement’ and holding that only the latter could be constitutionally prohibited (more on the proximity test here).

The unamended Rule 8(3A) which was introduced by way of an amendment in 2008, prohibited the publication of materials without prior clearance only when it related to subjects that might affect the sovereignty and integrity of India, the interests of the State, relations with a foreign State, or might lead to incitement of an offence, i.e., most of the recognised grounds in Article 19(2). The amended Rule 8(3A), however, restricts publication of any material which might fall under the domain of the official’s organization, including any expertise or knowledge gained by virtue of working in that organization. Such a restriction goes beyond the subject matters specified in Article 19(2).

Furthermore, it goes against the doctrine of proportionality. The Supreme Court, in cases like Modern Dental College v. State of Madhya Pradesh (2016) and K.S. Puttaswamy v. Union of India (2018), endorsed a four-limb test of proportionality conceptualised by Aharon Barak, the former President of the Supreme Court of Israel. According to the test, a measure restricting a constitutional right must, first, have a legitimate goal; second, it must be a suitable means of furthering the goal; third, there must not be any less restrictive but equally effective alternative; and fourth, the measure must not have a disproportionate impact on the rights holder. It is the third limb or the “least restrictive measure” test that is of relevance in the present context. It requires that the State assess all possible alternatives and use the least restrictive method in pursuance of its goals. The State must factually demonstrate with evidence that the alternatives do not achieve the goal in a more effective manner than the restriction it proposes or else the restriction would be ruled unconstitutional (previously discussed here). A similar standard was used by the Supreme Court in Internet Mobile Association of India v. Reserve Bank of India (2020).

The purported aim of the amendment to Rule 8(3A) was to prevent sensitive information from being put in the public domain by retired intelligence/security officials. As discussed earlier, the unamended rule already prevented the publication of any material pertaining to the security of the State, relations with a foreign State, interests of the nation, etc. Such a limited restriction balanced the right to freedom of speech and expression of the officials and the social importance of effectively restricting such a right. The new rule puts a blanket restriction on the publication of any material within the domain of an official’s organization. The State must factually demonstrate with evidence that the new rule protects sensitive information more effectively than the alternative previously in place. In case it fails to do so, the rule must be held to be unconstitutional for being disproportionate.

The amendment also suffers from the vices of vagueness, overbreadth, and of producing a chilling effect. As was held in Chintaman Rao v State of MP (1950), “so long as the possibility of [a statute] being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.” In State of Bombay v. F.N. Balsara (1951), the Court struck down sections of the Bombay prohibition law that criminalized “frustrating or defeating the provisions of the Act” by, inter alia, noting that the impugned words “are so wide and vague that it is difficult to define or limit their scope.” This is believed to be the origin of the vagueness doctrine and also the first time the Supreme Court gave a nod to the concept of overbreadth (see more on the roots of vagueness here).

Similarly, in Kartar Singh v. State of Punjab (1994), the Court held that “laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly” and said that if the provisions are not clearly defined, the enactment is void for vagueness. Furthermore, the Supreme Court has incorporated the concept of ‘chilling effect’ into Indian jurisprudence through cases such as Kameshwar Prasad, Khushboo v. Kanniammal (2010), and most recently in Shreya Singhal, where it applied all the three doctrines of vagueness, overbreadth, and chilling effect to strike down Section 66A of the IT Act. It said: “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total… therefore, [it would] have to be struck down on the ground of overbreadth.”

The newly amended rule fails to precisely define the expression “domain of the organization” and gives it an open-ended definition: “including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organisation.” As was the case with Section 66A, the amendment is likely to be misused in selectively censoring any opinions that portray the government in bad light. Alternatively, it would result in self-censorship of retired officials as, in the words of Lt. Gen. H.S. Panag (retd.), “which self-respecting retired government official would like to seek permission from her/his former junior or fight a prolonged legal battle to get his pension restored?”

An article written by Siddharth Varadarajan that interviews retired officials captures the sheer overbreadth of the new rules. Varadarajan writes that the amendment would prohibit former R&AW officials from writing on foreign policy, or former Intelligence Bureau officials from writing on communal violence or mishandling of internal security issues or even domestic politics since the IB’s domain includes those. Retired officials, by their years of experience, are best suited to comment on policy matters and convey this information to the general public. They are equipped with the requisite knowledge to call out the government’s mishandling of issues or to suggest ways of improvement through open letters. The amendment prohibiting them from expressing themselves on areas in which they have special expertise is clearly hit by the test of overbreadth.

For these reasons, the courts must recognize that the amendment is unreasonable, disproportionate, vague, and overbroad, and must therefore declare it to be unconstitutional.