Anmol Rathore
In December, 2017, the J&K Government, in exercise of its powers under S. 124 of the Constitution of Jammu and Kashmir, added sub-rule (4) to Rule 13 of the Jammu and Kashmir Government Employees Conduct Rules, 1971, which prohibits Government employees from engaging in any criminal, dishonest, immoral or notoriously disgraceful conduct on social media which may be prejudicial to the Government. The rule also prohibits them from using their personal social media accounts for any political activity or endorse the posts or tweets or blogs of any political figure and also shall not use their accounts in a manner that could reasonably be construed to imply that the Government endorses or sanctions their personal activities in any matter whatsoever. The order was accompanied with a comprehensive Social media policy that requires the public employees to abide by certain rules while posting anything on social media.
In most of the cases where Government rules restricting free speech of public employees have been challenged, a major argument of the Government has been that the rules were made in the interest of public order. On a perusal of the Social media policy, 2017, it can be reasonably ascertained that the government has tried to defend the policy by bringing it within the ambit of two heads under Ar. 19(2)- in the interest of public order, decency or morality and defamation or defamation or incitement to an offence. The Government has acknowledged that through the directions, it “may restrict” the speech of its employees when they are speaking on matters of public concern or when the “Government’s interests in maintaining law and order outweighs its employees’ interests of freedom of speech”. This, the policy justifies, is intended to remind them about the limitations in communication derived from their status as government employees, adding that the move is a means to provide guidance on the “correct use of social media” by Government employees in conformity with applicable conduct rules and civil service rules. By way of amendment carried out with the consent of the Governor, a new proviso has been added under Rule 13 -“No Government employee shall engage in any criminal, dishonest, immoral and notoriously disgraceful conduct on social media which may be prejudicial to the Government”.
Therefore, it becomes pertinent to determine the free speech rights of the public employees and evaluate whether they have the same rights as their fellow citizens not in Government service or does the Government employment impose certain rigors on their free speech. This requires a careful analysis of various judgments of the Supreme Court where the free speech of public employees has been extensively discussed.
First in the list is P. Balkotiah v. UOI. In a first of its kind matter, S.3 of the Railway Service rules of 1949, which provided for the termination of employees who whether participated in or associated themselves with subversive activities was challenged. There was a further proviso that termination could be imposed only if in the view of the authority, retaining them would be a threat to national security.
Some railway employees had been terminated on the ground that they were suspected communists, and had carried out agitations resulting in a general strike. The workers challenged the impugned provision on the grounds of violating Article 14, claiming that the phrase “subversive activities” was too vague to provide an intelligible differentia, and more importantly, that the rule violated Article 19(1)(c) of the constitution.
The SC however rejected both the arguments. It claimed that the order did not terminate their services for being communists, but only for involving in subversive activities. Further, even if the order terminated the employees on the ground that they were communists, the rule would still be valid as the government is free to make employment conditional on such requirements.
Next is the decision in Kameshwar Prasad v. State of Bihar, wherein the constitutional validity of Rule 4A, which prohibited a Government servant from participating in any demonstration in connection with any matter pertaining to his condition of service of the Bihar Government Servants’ Rules was challenged. The court struck down that part of the rule 4A which prohibited “any form of demonstration” by the government servants on the ground that a demonstration is a visible manifestation of the feelings of an individual or a group-a communication of one’s idea to others to whom it is intended to be conveyed, is in effect a form of speech and expression which falls within the freedom guaranteed by Article 19(l)(a) and 19(1)(6) of the Constitution. The Supreme Court noted that 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.” This argument was fortified by stating that Art 33, Constitution of India 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 of other branches of the government, they were entitled to the full enjoyment of their fundamental rights. Therefore, in order for a restriction upon Article 19(1)(a) to be valid, it would have to meet the tests of reasonableness under Articles 19(2). This raises an important question. Whether a rule prohibiting a government servant from criticising the policies of the Government imposes a reasonable restriction in the interest of public order within the meaning of Article 19(2)?
This was answered in Superintendent of Central Prison vs. Ram Manohar Lohia, where it was held that “public order is synonymous with public safety and tranquillity. It is the absence of disorder involving breaches of local significance…”
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The outcome of Kameshwer Prasad v. State of Bihar, therefore, was that, a civil service rule cannot impose blanket restriction on demonstrations. The rule was struck down because it was overbroad and prohibited all types of demonstrations even if they had no proximate link with public disorder. However, it may be submitted that, had not the rule 4A put the blanket prohibition on demonstrations by government employees or had the rules were so framed as to single out those types of demonstrations which are likely to lead to disturbances of public tranquillity or which would have fallen under the other limiting criteria specified in article 19(2) of the Constitution, the Supreme Court, in most probability, would have sustained the validity of the rule on the ground of reasonable restriction.
However, this doesn’t imply that public employees can abuse this freedom of speech and expression to openly criticise the policies of the government or engage in activities that are unbecoming of them and detrimental to their employer’s prestige. The SC has held in O.K. Ghosh that at certain times, service rules dealing with the conduct of government employees could be justified under the public order provided, that determination would be made on a case to case basis, and the standard Article 19(2) – (4) test of proximity would apply.
Lastly, in M.H. Devendrappa, the Supreme Court was dealing with a case where the employee made allegations of corruption and maladministration, and expressed the hope that the Chairman of the Corporation be removed. In this particular case, the Court held that his conduct would not be in the interest of public order, as any action which would be detrimental to the interests or prestige of an employer clearly undermines discipline and the efficient performance of the organisation.
It held that “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.”
It can been considered to be an incorrect proposition of law for two reasons. Firstly, since the rule had the effect of violating fundamental right of free speech, the objective with which it was made is rendered irrelevant.
Secondly, it cannot be said that every criticism of the policy of the Government would be detrimental to the interests and prestige of the Government and would undermine discipline and efficient performance of the Government. On the other hand, well-meaning and constructive criticism may help in its efficient performance.
In light of the aforementioned it can be argued that a blanket rule that prohibits criticism of the policies of the Government is not a valid rule. There is no real and proximate connection between public order and criticism of the Government’s policy. The reasoning that if every employee begins to criticise the policies of the Government, it will lead to indiscipline and affect public order is too far-fetched. Criticising the policies of the Government is not equivalent to disobeying the orders of the Government. Democracy is based on fair criticism. That is why the freedom of speech and expression are protected. It makes no difference if the person criticising happens to be a Government servant. What the Jammu and Kashmir government has done here is that it has imposed an overbroad muzzle on its employees that prevents them from speaking out at all. Social Media Usage Policy makes it amply clear to employees that they are not to engage in discussions by way of tweets, status updates or blog posts that are political or on “contentious issues that are violative” of applicable service conduct rules. This implies that any criticism of the government or its policies on social networking sites like Twitter and Facebook or on social networking groups like WhatsApp will also attract disciplinary action under the Conduct Rules. The Government can invoke the J&K Service Conduct rules to dismiss, pre-maturely retire, withhold the promotion or salary increments and even demote the erring employees to lower positions.
The legal alibis that the State employed to justify this infringement of the free speech of employees are numerous and range from public interest, maintenance of a reasonable and decent conduct in the lives of employees to preventing a disgrace to the services. Though the policy states that the guidelines have been framed to make a distinction between the professional and personal lives of the public employees, this intention doesn’t seem to materialise in the words of the guidelines, since there is a blanket prohibition on all sorts of contested or political communications by public employees even in their personal capacity. There is a point at which a person’s speech is considered to be entirely his or her own and not representative of the government. A public employee speaking on matters of public concern is allowed to express his or her opinion. When an employee posts something on social media as a private citizen on a matter of public concern or a contentious matter, any sort of adverse employment action should be subject to a balance between the interests of the employee as a citizen, his rights under Ar. 19(1)(a) in commenting upon matters of public concern and the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees and protecting its interests.
(The author is a IIIrd year B.A. LL.B. (Hons.) Gujarat National Law University.)
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