Last week, the Economic Times carried a story about a proposed change to the All India Service (Conduct) Rules, which would prohibit government officials from “criticising” the government on social media. The Rules already prohibit critical statements on radio broadcasts or in the form of public utterances. In that sense, this change is simply expansionary. It does, however, give us a chance to explore a complex – and unresolved – area of constitutional law: the constitutional rights of government employees. The issue is an interesting one, because 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.
The story begins in 1957, with the judgment of a Constitution Bench of the Supreme Court in P. Balakotiah vs Union of India. Certain railway employees were terminated under Section 3 of the Railway Services Rules of 1949. Section 3 stated allowed for termination (in accordance with procedure) of an employee who ” is engaged in or is reasonably suspected to be engaged in subversive activities, or is associated with others in subversive activities in such manner as to raise doubts about his reliability.” There was a further proviso that termination or compulsory retirement could be imposed only if in the view of the authority, retention of the employee was prejudicial towards national security. The case of the government was that the employees in question had been involved with communists, and had carried on agitations resulting in a general strike. The employees challenged both the orders of termination, as well as the Rules, alleging violations of Articles 14, 19 and 311 of the Constitution.
With respect to Article 14, the Court rejected the contention that the phrase “subversive activities” was too vague to provide an intelligible differentium, observing that “subversive activities” in the context of “national security” was precise enough. More importantly, however, the Court rejected the Article 19(1)(c) [freedom of association] argument, in the following terms:
“The argument is that action has been taken against the appellants under the rules, because they are Communists and trade unionists, and the orders terminating their services under R. 3 amount, in substance, to a denial to them of the freedom to form associations, which is guaranteed under Art. 19(1)(c). We have already observed that that is not the true scope of the charges. But apart from that, we do not see how any right of the appellants under Art. 19(1)(c)has been infringed. The orders 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 Art. 311, no infringement of any of their Constitutional rights. The appellants have no doubt a fundamental right to form associations under Art. 19(1)(c), but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of Art. 311 arises.”
The reasoning of the Supreme Court can be divided into two prongs. First, the Court holds that since the employees were terminated because of subversive activities (and not because they were associating with communists), Article 19(1)(c) was not attracted. The Court also holds that Article 19(1)(c) would not have been attracted even if the employees had been terminated for associating with communists. The underlying premise (spelt out only partially) is 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. In this case, therefore, we see that the government qua employer, empowered to determine its own conditions of employment, wins out over the government qua State, which must respect fundamental rights.
The story is then taken up five years later, in 1962, when two Constitution Benches of the Supreme Court decided Kameshwar Prasad vs State of Bihar and O.K. Ghosh vs E.X. Joseph within months of each other. Kameshwar Prasad concerned the constitutional validity of Rule 4A of the Bihar Government Servants’ Rules, which stated that “no Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.” The challenge was only to the prohibition of demonstrations, and not to the prohibition of strikes. On the logic of Balakotiah, this should have been a straightforward dismissal. The Court, however, took a radically different approach, and struck down the Rule as unconstitutional. It started by noting that “the mere fact that a person enters Government service, he does not cease to be “a citizen of India”, nor does that disentitle him to claim the freedoms guaranteed to every citizen.” The Court buttressed this argument by making the textual point that Article 33 of the Constitution specifically allowed the Parliament to modify the application of the fundamental rights chapter to the Armed Forces, forces charged with maintaining public order, and persons involved in intelligence. By omission, therefore, other branches of the government were entitled to the full enjoyment of their Part III rights. Therefore, in order for a restriction upon Article 19(1)(a) or (c) to be valid, it would have to meet the tests of reasonableness under Articles 19(2) and (4).
The State attempted to make the exact argument that had found favour in Balakotiah: that when an employee entered government service, she was deemed to have thereby consented to whatever service conditions the government, qua employer, chose to impose. To press this point, American First Amendment judgments were cited. The Court refused to rely on these judgments, noting that the First Amendment, being framed in absolute terms, had required the US Supreme Court to develop implied limitations to the right to free speech and association over the years, one of which was that of police power. The Indian Constitution, however, specifically stated the conditions under which speech and association could be restricted, and therefore did not allow the Court to traverse beyond the specific sub-clauses of Articles 19(2) and (4) [an aside: this is one of those rare cases where the Indian Supreme Court used the text of Articles 19(2) and (4) to evolve a more speech-protective standard than the American]. Then, Balakotiah was cited before the Court, and the Bench dismissed it in a line, stating that in that case, the validity of the rule had not been challenged. While conceding that the “nature” of the job might require some restrictions upon fundamental rights, such as the right to move freely throughout the territory of India (e.g., if a government servant was posted at a particular place), the Court stressed once more that as a general proposition, government employees had as much right to free speech and association as any other citizen.
Coming to the Rule in question, the Court held that in prohibiting all forms of demonstrations, without showing any proximate link with public disorder, the Rule was over-broad and void. The government’s argument that government servants constituted a specific class of people who needed to be disciplined in order that public order be maintained was also rejected on the ground that there was only one wing of government servants charged with maintaining public order – the police. The Rule, therefore, remained over-broad.
The logic of Kameshwar Prasad was then endorsed in O.K. Ghosh. A government employee was proceeded against for participating in demonstrations “in preparation” of a strike. One of the applicable rules was Rule 4A, which had already been struck down in part in Kameshwar Prasad. The other was Rule 4B, which prohibited government servants from joining associations not recognised by the government. Here, the Court struck down Rule 4B as well, on the same logic. It observed that:
“[Rule 4B] virtually compels a Government servant to withdraw his membership of the Service Association of Government Servants as soon as recognition accorded to the said Association is withdrawn or if, after the Association is formed, no recognition is accorded to it within six months… Can this restriction be. said to be in the interests of public order and can it be said, to be a reasonable restriction ? In our opinion, the only answer to these questions would be in the negative. 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. Similarly, it is difficult to see any connection between recognition and public order.”
Notice once again how this logic is directly contrary to that of Balakotiah. While Balakotiah held that Article 19(1)(c) is not even attracted in cases where government qua employer sets the terms of service, Kameshwar Prasad and O.K. Ghosh, on the other hand, held that government qua employer cannot evade the obligations of government qua State, and that therefore, any restriction upon an Article 19(1)(a) or (c) right must be tested under Articles 19(2) and (4), just like you would do for any other citizen. While in O.K. Ghosh the Court conceded that at certain times, service rules dealing with the conduct of government employees could be justified under the public order prong, that determination would be made on a case to case basis, and the standard Article 19(2) – (4) test of proximity would apply.
The last stop of the journey is 1984, and the two-judge bench decision of the Supreme Court in M.H. Devendrappa vs Karnataka Small State Industries. Here, yet again, the Court changed tack. An employee wrote a letter to the Governor of Karnataka, making various allegations against a state corporation, and also issued a press statement. Disciplinary action was taken against him, and he was dismissed from service. The relevant service rules prohibited employees from doing “anything detrimental to the interests or prestige of the Corporation“, and from assisting “any political movement or activity.” This time, the employee’s invocation of Articles 19(1)(a) and (c) were to no avail. The Supreme Court held:
“Rule 22 of the Service Rules is not meant to curtail freedom of speech or expression or the freedom to form associations or unions. It is clearly meant to maintain discipline within the service, to ensure efficient performance of duty by the employees of the Corporation, and to protect the interests and prestige of the Corporation. 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) or 19(1)(c). In fact, in the present proceedings the constitutional validity of Rule 22 is not under challenge. What is under challenge is the order of dismissal passed for violating Rule 22.”
We can start by noting that this is very obviously an incorrect proposition of law. Ever since Bennett Coleman vs Union of India, the Supreme Court had abandoned the “object and form” test for the violation of fundamental rights, in favour of the “effects” test. Consequently, whether a Rule is “designed” to violate fundamental rights is irrelevant; whether, in effect, it – or executive action taken under its aegis – violates fundamental rights is the necessary enquiry.
The Court was then faced with the conflicting precedents in Balakotiah and Kameshwar Prasad/O.K. Ghosh. It wriggled out of the difficulty by a sleight of hand, quoting the following passage in Kameshwar Prasad:
“… we should not be taken to imply that in relation to this class of citizens the responsibility arising from official position would not be itself impose some limitations on the exercise of their rights as citizens.”
It then held:
“Therefore, in Kameshwar Prasad’s case (supra) this Court made it clear that it was not in any manner affecting by the said Judgment, the Rules of Government service designed for proper discharge of duties and obligations by Government servants, although they may curtail or impose limitations on their rights under Part III of the Constitution.”
What the Court in Devandrappa neglected to do, however, was to quote what came immediately after the cited paragraph in Kameshwar Prasad. There, the Constitution Bench had taken two specific examples: 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 very narrowness and specificity of these examples directly contradicted the broad interpretation that Devandrappa placed upon Kameshwar Prasad, namely that a fundamental rights challenge could be avoided on the ground of requiring “proper discharge of duties by government servants”. The Court performed a similar sleight of hand with O.K. Ghosh, focusing upon its observation about how discipline and efficiency needed to be maintained among government servants, but then refusing to engage in a proximity analysis under Articles 19(2) – (4). Instead, the Court did the exact opposite, endorsing a breathtakingly broad proposition of law, completely at odds with the Supreme Court’s public order jurisprudence:
“In the present case, the restraint is against doing anything which is detrimental to the interests or prestige of the employer. The detrimental action may consist of writing a letter or making a speech. It may consist of holding a violent demonstration or it may consist of joining a political organisation contrary to the Service Rules. Any action which is detrimental to the interests or prestige of the employer clearly underlines discipline within the organisation and also the efficient functioning of that organisation. Such a Rule could be construed as falling under “public order” clause as envisaged by O.K. Ghosh (Supra).”
The Court ended by going back to Balakotiah’s original logic:
“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.”
In sum, therefore, Devendrappa – a two-judge bench – wrongly applied the object-and-form test for fundamental rights violations, and wrongly interpreted Kameshwar Prasad and O.K. Ghosh to uphold far-reaching restrictions upon the free speech of government employees. However, the matter is not so straightforward, because Kameshwar Prasad and O.K. Ghosh themselves changed the law despite being bound by Balakotiah (as a coordinate bench). Kameshwar Prasad – as we have seen – tried to distinguish Balakotiah on the basis that the validity of the rule had not been challenged. However, this was both incorrect and irrelevant. The validity of the relevant rule had been challenged in Balakotiah; and even if it hadn’t, the central logic of Balakotiah – that government qua employer can regulate its terms of service since there is no antecedent fundamental right to government employment – was independent of the vires of any Rule. In other words, therefore, Kameshwar Prasad and O.K. Ghosh incorrectly interpreted Balakotiah, 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.
Here is something, however, that the judgments in Kameshwar Prasad and O.K. Ghosh did not notice. One year after Balakotiah, a seven-judge bench of the Supreme Court decided Re Kerala Education Bill. Re Kerala Education Bill was the first Indian case to lay down the doctrine known elsewhere as the prohibition of “unconstitutional conditions“. The doctrine of unconstitutional conditions 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. This is despite the fact that there is no antecedent right to that benefit in the first place. To take a crude example: the Government cannot require you to access subsidies by taking an Aadhaar Card and thereby sacrificing your private data, even though you have no fundamental right to a subsidy.
The doctrine of unconstitutional conditions clearly knocked the bottom out of Balakotiah’s logic. While there is admittedly no antecedent right to government employment, nor can the government make your employment conditional upon your abstaining from exercising your constitutional rights to free speech and association. And this is exactly what was going on in Balakotiah, in Kameshwar Prasad, in O.K. Ghosh, in Devendrappa and in the proposed social media rules.
As a seven judge bench, Re Kerala Education Bill was well within its rights to impliedly overrule Balakotiah. And as a seven-judge bench, its enunciation of the doctrine of unconstitutional conditions has never been overruled. Consequently, it is my submission that Balakotiah no longer holds the field, that Devendrappa was incorrect in following it, and that Kameshwar Prasad and O.K. Ghosh continue to be good law (although for reasons outside the judgments). Consequently, the proposed social media rules ought to be struck down as unconstitutional.