Tag Archives: freedom of association

The Free Speech of Government Employees

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 BillRe 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.



Filed under Free Speech, Freedom of Association, Government Employees

The New Maharashtra Social Boycott Law: Key Constitutional Issues

The final version of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016 contains a few key departures from the draft bill (available here) The most important is the scope of the word “victim” under the definitional clause (S. 2(h)). The Draft Bill defines a “victim” as “any individual who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of social boycott.” The Act limits the definition to “any individual who has suffered or experienced physical or monetary harm or harm to his property as a result of the commission of social boycott.” The removal of the words “mental, psychological, emotional” has the potential to severely restrict the scope of the Act. The primary harm of a boycott is dignitarian in nature – it harms by stigamatising and excluding the boycotted person, and blocking off his access to community resources. In many cases, it will be difficult to show actual “physical” or “monetary” harm, if one was to take these terms literally.

In my view, however, there is enough reason for the Courts to interpret “physical harm” broadly, so as to include dignitarian harms. This is because many of the instances of social boycott that are expressly set out under S. 3 of the Act have nothing to do with physical or monetary harms. Section 3(i), for instance, deals with obstructing an individual from practicing any social observance or custom; 3(iii) deals with social ostracism; 3(iv) talks about shunning a community member “resulting in making the life of such member miserable.”; 3(viiii), inter alia, deals with severance of social relations; 3(xi) deals with preventing the children of the community from playing together with children of specific other families; 3(xv) deals with community expulsion. It therefore seems clear to me that if “physical harm” under S. 2(h) was to be restricted to bodily harm, large sections of the Act would become redundant. Such an interpretation is to be avoided. Consequently, a broader interpretation of the term “physical harm” is to be preferred, one that includes within its scope the kind of harm that all these sub-sections are aiming at curtailing – which is, essentially, harm to dignity.

With that out of the way, let us now examine some key constitutional issues with the Act.

(i) The Relationship between the Act and the Supreme Court ruling in Sardar Syedna Saifuddin

On this blog, we have extensively discussed the judgment of the Supreme Court in Sardar Syedna Saifuddin v State of Bombay (the Dawoodi Bohra case). Recall that in that case, a Constitution Bench of the Supreme Court struck down the 1949 Bombay Prevention of Excommunication Act. The Bombay Act defined “excommunication” as “the expulsion of a person from any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature”, and went on to add that these rights included “the right to office or property or to worship in any religious place or a right of burial or cremation.” The majority held that the Act violated right of religious denominations to manage their own affairs under Article 26(b) of the Constitution, and was not saved by Article 25(2)(b)‘s social welfare or reform exception, since it outlawed even those excommunications that were made purely on religious grounds.

Now, the Maharashtra Social Boycott Act defines a “community” as “a group, the members of which are connected together by reason of the fact that by birth, conversion or the performance of any religious rites or ceremonies, they belong to the same religion or religious creed and includes a caste, sub-caste…” The focus on “religious creed” as an addendum to “religion” (notwithstanding the absence of the word “denomination”) seems to suggest that groups like the Dawoodi Bohras will fall within the definition of “community”. Now, if that’s the case, then there are a number of provisions under Section 3 that rather clearly appear to speak to precisely those situations which, the Supreme Court held in Saifuddin, fell within the protected ambit of Article 26(b). 3(i) penalises obstructing a person from observing any religious custom; 3(ii) does the same for religious rites; 3(v) deals with preventing a person from accessing religious buildings, and 3(vi) does the same for cemetaries and burial grounds (an example that was specifically taken in Saifuddin); and 3(xv), as an omnibus clause, prohibits community expulsion (read: excommunication).

It appears, therefore, that unless one were to hold that a religious creed is not a religious denomination (and thus open the floodgates to threshold litigation over whether a particular group constitutes a creed or a denomination), a significant section of the Boycott Act is unconstitutional under the interpretation of Articles 25 and 26 advanced by the Saifuddin Court. One might argue that the problem of unconstitutionality can be got around in two ways: one, by excluding from the scope of the Act instances of boycotts that are imposed purely on religious grounds. That, however, appears to do violence to the plain language of many of Section 3’s sub-clauses, which are clearly meant to deal with religion-based community exclusion. The second is a similar move – i.e., to limit the operation of the Act to instances that may properly be characterised as a “social boycott” (as the name suggests). Here again, it is doubtful whether this interpretive move is possible, since in the scheme of the Act, the social and religious boycotts are inextricably linked (See Sections 3(i), 3(ii), 3(iii) and 3(viii).

This does not mean that I am arguing for the Act to be struck down – far from it. On this blog, I’ve argued on more than one occasion that the majority in Sardar Saifuddin is incorrect, that Chief Justice Sinha’s opinion is truer to the constitutional scheme, and that the decision should be reversed. A petition asking for just that has been pending with the Supreme Court for the last thirty years. Perhaps a challenge to the Maharashtra Anti-Boycott Act will finally compel the Court to reconsider (what I consider to be) one of its most damaging precedents.

(ii) Implications for the Freedom of Assembly, Association, and the Freedom of Speech and Expression

Clearly, the Act prima facie infringes Articles 19(1)(a), (b), and (c). It is a rather trite proposition that the freedom to associate includes the freedom not to associate. Undeniably, the Act affects the freedom not to associate – in fact, that is the point! Section 3(iv) prohibits the cutting off of social or commercial ties, 3(viii) prohibits instigating others from social, religious, professional or business relations with the boycotted member – and of course, 3(xv) prohibits expulsion. The Explanation II to Section V states that persons who participate in a meeting with a view to impose a social boycott, or who vote for imposing a social boycott, are deemed to have committed an offence. This is a prima facie infringement of Articles 19(1)(a) and 19(1)(b).

There are two possible responses to this. One is to go down the route traveled by the Supreme Court in Venkataramana Devaru and by Chief Justice Sinha in Sardar Saifuddin: i.e., to view the law as furthering the mandate of Article 17’s prohibition of “untouchability”. Previously on this blog, I have argued that Justice Sinha was right in Saifuddin to read “untouchability” in a broad sense, and to include social ostracism and expulsion within its meaning. The issue then becomes a clash between rights under Article 19(1)(a) – (c) and Article 17.

The other response – and one that I am sympathetic to – is to read the “morality” restriction under Articles 19(2) – (4) as referring to constitutional morality. Previously on this blog, I have argued that a combined reading of Articles 15(2), 17 and 25(2) yield something that we can call the “anti-exclusion” principle: the Constitution respects the autonomy of groups and communities until the point (and no further) that their actions lead the exclusion of individuals from access to basic goods (including cultural goods) that are required to lead a dignified life. The Maharashtra Social Boycott law is based upon the anti-exclusion principle, and is therefore a reasonable restriction upon the Article 19 freedoms. I do feel, however, that a few of the sub-clauses of Section 3 will fail this test. For instance, I am not sure whether Section 3(xi) – dealing with preventing or obstructing children of the community from playing with children of specific families – will meet the constitutional threshold.

I do not think that anyone will actually challenge the Social Boycott Law. If that does happen though, it will certainly be an interesting situation!

PS. One interesting aspect is the reference in the Preamble to “fraternity” as a constitutional goal.

PPS. The history of anti-boycott legislation is a long one, of course. It goes back to the 1921 Burma Anti-Boycott Law, and was also proposed by Ambedkar to the Minority Rights Commission. Part of Ambedkar’s proposals were incorporated into the 1955 Protection of Civil Rights Act. Ambedkar discusses the anti-boycott law in Chapter 3 of What Congress and Gandhi Have Done to the Untouchables. 


Filed under Excommunication, Free Speech, Freedom of Association, Freedom of Religion, Horizontal Rights, Non-discrimination

Oral arguments in ACLU v Clapper – II: How Surveillance affects Free Speech and the Freedom of Association

(As an addendum to the previous post, this piece explains exactly how much information can be gleaned from metadata surveillance.)

Recall that we are discussing the American Union for Civil Liberties’ challenge to the NSA’s bulk surveillance program, something that is directly relevant to India, in light of our own central monitoring system (CMS), that goes much further. In the last post, we discussed the implications of bulk surveillance upon privacy. But in addition to making the privacy argument, ACLU also argued that bulk surveillance violates the freedom of association, implicit in the American First Amendment, and upheld by a long line of cases. In India, of course, that right is expressly guaranteed by the Constitution.

In order to understand ACLU’s freedom of association argument, we must first look to the 1958 American Supreme Court decision of NAACP Alabama. Recall that the deep South in the 1950s practiced large-scale and widespread de facto discrimination against coloured people. The National Association for the Advancement of Coloured People (NAACP) had opened an office in the southern state of Alabama, and had “given financial support and furnished legal assistance to Negro students seeking admission to the state university; and had supported a Negro boycott of the bus lines in Montgomery to compel the seating of passengers without regard to race.” Arguing that this was causing “irreparable injury to the property and civil rights” of the citizens of Alabama, the state imposed various requirements upon the NAACP, one of which was a requirement to disclose its membership lists. NAACP refused. The state filed a restraining order. NAACP challenged. The Court’s opinion, upholding the claims of the NAACP on behalf of its members, deserves to be quoted in full:

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective a restraint on freedom of association… this Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said… “a requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.” Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

In constitutional law, NAACP’s argument is invoking a doctrine known as the “chilling effect“. Basically, the idea is that if certain pre-existing burdens – legal or otherwise – are attached to exercising certain rights in certain broadly-specified ways, then people, out of caution, fear or prudence – will simply refrain from effectively exercising those rights altogether. The classic example is – unsurprisingly – that of free speech. This (somewhat real) hypothetical ought to drive home the point: suppose there is a law that bans “offensive” speech. The government might be motivated by the lawful and legitimate interest in protecting historically ostracized communities from continuous, vituperative hate speech. Nonetheless, the word “offensive” is so inherently subjective and open to manipulation, that it will lead people – fearing prosecution – to self-censor and to stop engaging even in perfectly legal speech not contemplated by the statute.

The situation is not always as clear-cut as the one outlined above, and often needs an investigation of various social factors, combined with a fair-sized helping of judicial common sense. For instance, in Shelton v Tucker, an Arkansas law required all publicly-employed teachers to disclose the organizations which they had been part of over the previous five years. The state argued that the schools needed the information to make judgments on the competence of teachers before hiring or extending their contracts – certainly, a legitimate objective. There was nothing on the record to suggest that the information would be missed. Nonetheless, the Court held:

“Such interference with personal freedom is conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made — those who any year can terminate the teacher’s employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain… the statute does not provide that the information it requires be kept confidential. Each school board is left free to deal with the information as it wishes. The record contains evidence to indicate that fear of public disclosure is neither theoretical nor groundless. Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy.”

Investigating whether or not there was a compelling state interest, the Court applied the familiar strict scrutiny test, and held:

“The statute requires a teacher to reveal the church to which he belongs, or to which he has given financial support. It requires him to disclose his political party, and every political organization to which he may have contributed over a five-year period. It requires him to list, without number, every conceivable kind of associational tie — social, professional, political, avocational, or religious. Many such relationships could have no possible bearing upon the teacher’s occupational competence or fitness… in a series of decisions, this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”

And in Local 1814 v The Waterfront Commission, the question was whether there could be compelled disclosure of all of a labour union’s members who had authorized payroll deductions for contributions to a political action committee, for the purposes of investigating coercion. The Court of Appeals held:

“We believe that compelled disclosure of the Fund’s contributors under the circumstances of this case would give rise to a chilling effect similar to the one recognized by the Supreme Court in Shelton v. Tucker, supra. The Waterfront Commission has undeniably broad powers of control over waterfront labor. It has the responsibility of supervising the hiring and assignment of all longshoremen. The Commission has the power to cause longshoremen to lose their jobs by removing or suspending them from the longshoremen’s register… Refusal to answer questions or produce evidence in a Commission investigation may be grounds for revocation or suspension from the register… we agree with the District Court that there is a substantial danger that longshoremen will perceive a connection between contributing to the Fund and being called before the all-powerful Commission. Some chilling effect on some contributors would be inevitable.”

Each of these three cases were cited and relied on by ACLU before the District Court. The argument is now self-evident: bulk surveillance of telephony metadata, as we discussed in the previous post, over time reveals patterns of data that, in turn, reveal associational information about people. The government did not deny this – in fact, it could not deny it, considering that its entire case was based on just how effectively bulk surveillance did reveal associational patterns! The question then, was two-pronged: whether there was a chilling effect, and whether a compelling state interest justified the consequent violation of the First Amendment’s freedom of association.

The judge asked ACLU what evidence there was to demonstrate a chill (and indeed, the government, in its response, would contend that there was no evidence demonstrating that anybody had been chilled). ACLU argued that none of the cited cases had relied upon evidence demonstrating a chill – in fact, bringing forth such evidence would essentially involve proving a negative. You would have to effectively prove that someone who would have otherwise spoken to you didn’t speak to you because of the chilling effect – and how could you ever do that? This was why the Supreme Court and the Court of Appeals had adopted the common sense approach – and surely, if the entire society was subjected to surveillance, that would certainly involve the unpopular, dissident (yet perfectly legal) groups that are the inevitable victims of any chilling effect. That is to say, if I know that all my associational patterns are known to the government, I might well consciously or subconsciously refrain from associating with unpopular  or dissident groups.

The government also argued that the First Amendment wasn’t implicated in this case, because it wasn’t directed at ACLU. The purpose was’t to penalize expressive activity. The judge nonetheless enquired whether a good faith investigation could – nonetheless – impair the freedom of association (the state responded that it couldn’t, in this case); and in its reply, ACLU argued that even an indirect burden on an expressive activity, or an associational activity, requires exacting scrutiny. As Alexander Abdo, counsel for ACLU, ended by observing:

Imagine that the government comes to your house each night and compels you to hand in all your call records for that day. Is that not a clear violation of the Fourth and First Amendments?”

By corollary, of course, this entire argument applies with equal force to free expression (19(1)(a)). There are, therefore, two questions that we must consider: to what extent do Articles 19(1)(a) and 19(1)(c) embody the doctrine of the chilling effect; and what standard of scrutiny is applicable under 19(2) and 19(4). There is a substantial amount of case law on how to interpret the “reasonable restrictions in the interests of… the sovereignty and integrity of India…” limitations, and most of it points towards a general proportionality test. Once again, though, it is at least arguable that the sheer scale and extent of bulk surveillance calls for more exacting scrutiny; and in any event, even under the proportionality test, the government would need to produce at least substantial evidence to show that it cannot achieve its objectives through less intrusive surveillance.

To sum up, then: bulk surveillance implicates three crucial constitutional rights: privacy (21), expression (19(1)(a)) and association (19(1)(c)). The oral arguments in ACLU Clapper reveal the numerous complexities involved, and point the way forward towards the debate that must be had in India: what conception of privacy does our Constitution commit us to? Does bulk surveillance serve a compelling state interest? Could the same objectives be achieved by a narrower tailoring? Does bulk surveillance cause a chilling effect upon expression and association? And if it does, when and how – if ever – can it be justified?


Filed under Chilling effect, Freedom of Association, Surveillance