In the Central Administrative Tribunal,
Lucknow Bench, Lucknow
Original Application No- of 2014
Application under section 19 of the Administrative Tribunal Act 1985
Amitabh Thakur Applicant/
Applicant
Versus
Union of India Respondent
Index
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S No
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Description of documents relied upon
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Page No
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From
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To
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1.
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List of Dates and Events (separate)
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Separate
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2.
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Application
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3.
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Annexure No A1
Copy of the show cause notice issued to the applicant |
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Lucknow (Amitabh
Thakur)
Dated- 02/05/2014 Applicant in Person
# 094155-34525
Dated- 02/05/2014 Applicant in Person
# 094155-34525
For use in Tribunal
office
Date of filing
Or Date of receipt
by post
Registration No-
Signature
For
Registrar
In
the Central Administrative Tribunal, Lucknow Bench, Lucknow
Original Application No- of 2014
Amitabh Thakur Applicant
Versus
Union of India Respondent
LIST OF DATES AND EVENTS
S No Date Event
1. 1968 All
India Services (Conduct) Rules
Rule 7 of the All India Services (Conduct) Rules 1968, titled “Criticism of Government” is against the right to freedom of
speech and expression guaranteed under section 19(1)(a) of the Constitution of
India and does not fall under any of the grounds enumerated in reasonable
restrictions in Article 19(2), as shall be enumerated in great details in the Original
Application. The applicant, as member of the Indian Police Service and hence a
member of the All India Services, is personally affected by these Rules and is
hence an affected party.
Hence this Original Application.
Lucknow (Amitabh
Thakur)
Dated- 02/05/2014 Applicant in Person
# 94155-34526
Dated- 02/05/2014 Applicant in Person
# 94155-34526
In
the Central Administrative Tribunal, Lucknow Bench, Lucknow
Original Application No- of 2014
Application under section 19 of the Administrative
Tribunal Act 1985
Amitabh Thakur, aged about 45 years, son of Sri Tapeshwar Narayan Thakur,
resident of 5/426, Viram Khand, Gomti Nagar, Lucknow
---------- Applicant/ Applicant
Versus
Union of India through Secretary, Department of Personnel and Training,
Government of India, New Delhi ------- Respondent
Detail of Application
1.
Particulars
of the order against which the application is made
The original Application (OA for short) is being filed to declare Rule 7
of the All India Services (Conduct) rules 1968 (the Rules, for short) as
Ultra-vires to Article 19 of the Constitution and to issue a direction s
thereby directing the respondent, Union of India and its instrumentalities not
to give effects to these provisions so far as they are against the right to
various freedom guaranteed under Article 19 of the Constitution of India
2.
Jurisdiction
of the Tribunal
The applicant declares that the subject matter regarding which he wants
redressal is within the jurisdiction of the Tribunal
3.
Limitation
The applicant further declares that the application is within the
limitation period prescribed in section 21 of the Administrative Tribunals Act
1985 because here
a Rule affecting the applicant is being challenged which is perennially in
operation and hence can be challenged at any given point of time because of
permanence of its effect. Moreover only recently the applicant was issued a
show cause dated 08/03/2014 under the impugned Rule 7. Though this order is not
being challenged through this OA but it gives the applicant the immediate
reason for filing this OA challenging the Rule existing in contravention to
Article 19 of the Constitution.
4.
Facts of the
case
The facts of the case are given below
4.01
That the applicant is an officer of the
Indian Police Service of the 1992 batch, Uttar Pradesh cadre and is hence an
officer of the All India Services. He is filing this Original Application in
his capacity as an IPS officer and officer of AIS. He is an affected party in
this petition because the Rule being challenged is related with the applicant’s
service matter where the applicant is a directly affected person.
4.02
That as a member of the All India
Services, the applicant is governed by the All India Services Act 1951 and in exercise of the powers conferred by sub-section (1) of section 3 of this
Act, the respondent framed the All India Services (Conduct) Rules, 1968 (the Rules, for short)
4.03
That Rule 7 of the Rules says-“Criticism of
Government- No member of the Service shall, in any radio broadcast or
communication over any public media or in any document published anonymously,
pseudonymously or in his own name or in the name of any other person or in any
communication to the press or in any public utterance, make any statement of
fact or opinion,— i. Which has the effect of an adverse criticism of any
current or recent policy or action of the Central Government or a State
Government; or ii. which is capable of embarrassing the relations between the
Central Government and any State Government; or
iii. which is capable of embarrassing the relations between the Central
Government and the Government of any Foreign State: Provided that nothing in this rule shall
apply to any statement made or views expressed by a member of the Service in
his official capacity and in the due performance of the duties assigned to him
4.04
That in short, these conduct Rules completely prohibit (and not merely restrict)
the applicant among other AIS officers from stating anything in any manner that
has the effect of adverse criticism of government’s current policy or action or
might embarrass the relation between Central and State government or might
embarrass the relation between Central government and a foreign state
government except any statement made or views expressed in his official capacity and
in the due performance of the duties assigned to him
4.05
That it can
be easily seen from the above wordings of Rule 7 that they are extremely vague
and wide-ranging. The words are such that almost every word spoken by the
member of AIS might be construed to fall under any of the three categories.
4.06
That it
needs to be kindly seen that this prohibition is not limited merely to some
comments made in the course of one’s official duty or related to documents,
facts and knowledge in possession of an AIS officer but is related with any
comments not even remotely related with the officer.
4.07
That thus
the officer can be held guilty under these Rules for anything stated by him in
any context on any issue of public concern, not even remotely linked with his
official duty. Thus even a statement showing worry or concern over rise of
school fee in government schools or private schools, change of some academic
curricula, any environmental policy measure, any agricultural policy or
anything in the State or the country can be correlated as being a comment on
the current government policy and/or acts and the officer can hence be held
guilty under these Rules to be punished as per the wishes of the concerned
government.
4.08
That the
vagueness and wideness of the words are such that any statement, any word or
any expression of the applicant might be twisted to give a colour of being
criticism of the government and action initiated against the applicant on such
grounds.
4.09
That the
extent of misuse of such prohibition was recently suffered by the applicant
when he was issued an explanation through a letter dated 08/03/2014 from the
Office of DGP, UP which said that the applicant was guilty under Rule 7 of
these Rules because he had made the following comment as regards the recovery
of buffaloes of a Minister of the State government-“मंत्रीजी की भैंस जो चोरी हुई तत्काल बरामद हुई. इससे मैं व्यक्तिगत रूप से कहूँ तो आशा का एक बड़ा संचार हुआ है. यूपी पुलिस बड़ी ही तत्परता से कार्य कर रही है. जो 2011 में मेरे निवास से एक साइकल चोरी हुई थी वह मेरे बच्चे की थी और 2013 में मेरे 5000 रुपये एक सज्जन ठग कर ले गए, जो गोंडा के सज्जन हैं. जिसके सम्बन्ध में गोमतीनगर थाना में एफआइआर दर्ज है लेकिन कोई पुलिस वाले पूछताछ नहीं किये जबकि मैं एक मौजूदा आईपीएस अफसर हूँ.” A copy of the show cause notice is being attached as Annexure No A1.
4.10
That thus
the applicant’s agony and pain at complete inaction of local police in two
matters related with him in his personal capacity were treated as criticism of
government and a show cause notice was accordingly issued. The reason for such
a show-cause must have been extraneous which the applicant is not going into,
but it can be easily understood that calling a statement of a member of AIS
where he expresses his personal pain and agony as regards the non-recovery of
goods and complete inaction of police can also be considered criticism of
government, if someone decides so. This can show the extent to which the
impugned Rule can be used for any extraneous reason. Hence, it can be seen that the words used in Rule 7 are completely vague and
extremely wide-ranging which seem to include everything in its realm which has
all the possibility of misconstrued or misused against a particular member of
the AIS, including the applicant, by those bestowed power through these Rules.
4.11
That thus it
quite obvious to see that such a blanket ban on expression of the member of AIS
is a completely improper act and is clearly against the freedom of
speech and expression guaranteed
under Article 19(1)(a) read along with Article 19(2)
4.12
That Article
19(1)(a) reads as follows-“Protection of certain rights regarding freedom
of speech etc.-
(1) All citizens shall have the right- (a) to freedom of speech and
expression” while Article 19(2) says-“Nothing in sub-clause (a) of clause (1)
shall affect the operation of any existing law, or prevent the State from making
any law, in so far as such law imposes reasonable restrictions on the exercise
of the right conferred by the said sub-clause in the interests of the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence.”
4.13
That it is very obvious that the issue related with conduct rules
stands juxtaposed to the right to freedom of speech and expression. Right to
freedom of speech and expression can have reasonable restrictions imposed on it
in the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an
offence while Rule 7 of the Rules are associated with adverse criticism of any current
or recent policy or action of the Central Government or a State Government;
embarrassing the relations between the Central Government and any State
Government and embarrassing the relations between the Central Government and the
Government of any Foreign State
4.14
That adverse criticism of any current or recent
policy or action of the Central Government or a State Government; embarrassing
the relations between the Central Government and any State Government and
embarrassing the relations between the Central Government and the Government of
any Foreign State cannot be said to be directly related either to the interests
of the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence etc stated in
Article 19(2) on the basis of which an reasonable restrictions can be imposed
on the right to freedom of expression.
4.15
That it would be pertinent here to see what the Hon’ble Supreme
Court has said in some of its landmark decisions on the subject of freedom of
speech and expression. In L.I.C. vs. Professor Manubhai D. Shah, [(1992) 3 SCC
637], it was observed by the Hon’ble Supreme Court: "5. Speech is God's
gift to mankind. Through speech a human being conveys his thoughts, sentiments
and feelings to others. Freedom of speech and expression is thus a natural
right which a human being acquires on birth. It is, therefore, a basic human
right. Everyone has the right to freedom of opinion and expression; the right
includes freedom to hold opinions without interference and to seek and receive
and impart information and ideas through any media and regardless of frontiers”
and “Freedom to air one's views is the lifeline of any democratic institution
and any attempt to stifle, suffocate or gag this right would sound a
death-knell to democracy and would help usher in autocracy or dictatorship.”
4.16
That in Secretary, Ministry of Information and Broadcasting vs.
Cricket Association of Bengal and Others [(1995) 2 SCC 161], the Hon’ble
Supreme Court observed:"Freedom of speech and expression is necessary, for
self-expression which is an important means of free conscience and self-
fulfilment. It enables people to contribute to debates on social and moral
issues. It is the best way to find a truest model of anything, since it is only
through it that the widest possible range of ideas can circulate. It is the
only vehicle of political discourse so essential to democracy. Equally
important is the role it plays in facilitating artistic and scholarly
endeavours of all sorts. 45. The burden is on the authority to justify the
restrictions. Public order is not the same thing as public safety and hence no
restrictions can be placed on the right to freedom of speech and expression on
the ground that public safety is endangered. Unlike in the American
Constitution, limitations on fundamental rights are specifically spelt out
under Article 19(2) of our Constitution. Hence no restrictions can be placed on
the right to freedom of speech and expression on grounds other than those
specified under Article 19(2)."
4.17
That in Bennett Coleman & Co. vs. Union of India
& Ors. [(1972) 2 SCC 788] it was held: "97. Political philosophers and
historians have taught us that intellectual advances made by our civilisation
would have been impossible without freedom of speech and expression. At any
rate, political democracy is based on the assumption that such freedom must be
jealously guarded. Voltaire expressed a democrat's faith when he told an
adversary in argument : "I do not agree with a word you say, but I will
defend to the death your right to say it". Champions of human freedom of
thought and expression, throughout the ages, have realised that intellectual
paralysis creeps over a Society which denies, is however subtle a form, due
freedom of thought and expression to its members."
4.18
That recently in Re-Ramlila Maidan Incident Dt 04/05-06-2011 vs
Home Secretary And Others ( Suo motu writ petition (crl.) no. 122 of 2011), the
Hon’ble Supreme Court said- “Part III of the Constitution of India although
confers rights, still duties and restrictions are inherent thereunder. These
rights are basic in nature and are recognized and guaranteed as natural rights,
inherent in the status of a citizen of a free country, but are not absolute in
nature and uncontrolled in operation. Each one of these rights is to be
controlled, curtailed and regulated, to a certain extent, by laws made by the
Parliament or the State Legislature. In spite of there being a general
presumption in favour of the constitutionality of a legislation under challenge
alleging violation of the right to freedom guaranteed by clause (1) of Article
19 of the Constitution, on a prima facie case of such violation being made out,
the onus shifts upon the State to show that the legislation comes within the
permissible restrictions set out in clauses (2) to (6) of Article 19 and that
the particular restriction is reasonable. It is for the State to place on
record appropriate material justifying the restriction and its reasonability.
Reasonability of restriction is a matter which squarely falls within the power
of judicial review of the Courts. Such limitations, therefore, indicate two
purposes; one that the freedom is not absolute and is subject to regulatory
measures and the second that there is also a limitation on the power of the
legislature to restrict these freedoms. The legislature has to exercise these
powers within the ambit of Article 19(2) of the Constitution.”
4.19
That it also said-“22. Further, there is a direct and not merely
implied responsibility upon the Government to function openly and in public
interest. The Right to Information itself emerges from the right to freedom of
speech and expression. Unlike an individual, the State owns a multi-dimensional
responsibility. It has to maintain and ensure security of the State as well as
the social and public order. It has to give utmost regard to the right to
freedom of speech and expression which a citizen or a group of citizens may
assert.”
4.20
That in the case of S. Rangarajan v. Jagjivan Ram [(1989) 2 SCC
574], the Hon’ble Supreme Court noticed as under:"Our commitment of
freedom of expression demands that it cannot be suppressed unless the
situations created by allowing the freedom are pressing and the community
interest is endangered. The anticipated danger should not be remote,
conjectural or far-fetched. It should have proximate and direct nexus with the
expression. The expression of thought should be intrinsically dangerous to the
public interest. In other words, the expression should be inseparably locked up
with the action contemplated like the equivalent of a "spark in power keg.
23. Where the Court applies the test of `proximate and direct nexus with the
expression', the Court also has to keep in mind that the restriction should be
founded on the principle of least invasiveness i.e. the restriction should be
imposed in a manner and to the extent which is unavoidable in a given
situation. The Court would also take into consideration whether the anticipated
event would or would not be intrinsically dangerous to public interest.”
4.21
That In Re: Ramlila, the Hon’ble Supreme Court said-“25. No person
can be divested of his fundamental rights. They are incapable of being taken
away or abridged. All that the State can do, by exercise of its legislative
power, is to regulate these rights by imposition of reasonable restrictions on
them. Upon an analysis of the law, the following tests emerge:-a) The restriction
can be imposed only by or under the authority of law. It cannot be imposed by
exercise of executive power without any law to back it up. b) Each restriction
must be reasonable. c) A restriction must be related to the purpose mentioned
in Article 19(2). 26. The questions before the Court, thus, are whether the
restriction imposed was reasonable and whether the purported purpose of the
same squarely fell within the relevant clauses discussed above. The legislative
determination of what restriction to impose on a freedom is final and
conclusive, as it is not open to judicial review. The judgments of this Court
have been consistent in taking the view that it is difficult to define or
explain the word "reasonable" with any precision. It will always be
dependent on the facts of a given case with reference to the law which has been
enacted to create a restriction on the right. It is neither possible nor advisable to state any abstract standard
or general pattern of reasonableness as applicable uniformly to all cases. This
Court in the case of State of Madras v. V.G. Row [AIR 1952 SC 196] held :-
"It is important in this context to bear in mind that the test of
reasonableness, wherever prescribed, should be applied to each individual
statute impugned, and no abstract standard or general pattern of
reasonableness, can be laid down as applicable to all cases." 27. For adjudging the reasonableness of a
restriction, factors such as the duration and extent of the restrictions, the
circumstances under which and the manner in which that imposition has been
authorized, the nature of the right infringed, the underlining purpose of the
restrictions imposed, the extent and urgency of the evil sought to be remedied
thereby, the disproportion of the imposition, the prevailing conditions at the
time, amongst others, enter into the judicial verdict. [See: Chintamanrao &
Anr. v. State of Madhya Pradesh (AIR 1951 SC 118)]. 28. The courts must bear a
clear distinction in mind with regard to `restriction' and `prohibition'. They
are expressions which cannot be used inter-changeably as they have different
connotations and consequences in law. Wherever a `prohibition' is imposed,
besides satisfying all the tests of a reasonable `restriction', it must also
satisfy the requirement that any lesser alternative would be inadequate.
Furthermore, whether a restriction, in effect, amounts to a total prohibition
or not, is a question of fact which has to be determined with regard to facts
and circumstances of each case. This Court in the case of State of Gujarat v.
Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] held as
under:- "75. Three propositions are well settled: (i) 'restriction'
includes cases of 'prohibition'; (ii) the standard for judging reasonability of
restriction or restriction amounting to prohibition remains the same, excepting
that a total prohibition must also satisfy the test that a lesser alternative
would be inadequate; and (iii) whether a restriction in effect amounts to a
total prohibition is a question of fact which shall have to be determined with
regard to the facts and circumstances of each case, the ambit of the right and
the effect of the restriction upon the exercise of that right....." 29.
The obvious result of the above discussion is that a restriction imposed in any
form has to be reasonable and to that extent, it must stand the scrutiny of
judicial review. It cannot be arbitrary or excessive. It must possess a direct
and proximate nexus with the object sought to be achieved. Whenever and
wherever any restriction is imposed upon the right to freedom of speech and
expression, it must be within the framework of the prescribed law, as
subscribed by Article 19(2) of the Constitution.”
4.22
That what the above facts imply is that-(a) Freedom of speech and
expression is a basic human right (b) Freedom of speech and expression is
necessary, for self-expression which is an important means of free conscience
and self- fulfillment (c) The burden is on the authority to justify the
restrictions (d) No restrictions can be placed on the right to freedom of
speech and expression on grounds other than those specified under Article 19(2)
(e) these rights are not absolute in nature but each one of these rights is to
be controlled, curtailed and regulated (f) In spite of there being a general
presumption in favour of the constitutionality of a legislation under challenge
alleging violation of the right to freedom guaranteed by clause (1) of Article
19 of the Constitution, on a prima facie case of such violation being made out,
the onus shifts upon the State to show that the legislation comes within the
permissible restrictions set out in clauses (2) to (6) of Article 19 and that
the particular restriction is reasonable (g) It is for the State to place on
record appropriate material justifying the restriction and its
reasonability (h) Reasonability of
restriction is a matter which squarely falls within the power of judicial
review of the Courts (i) freedom of expression cannot be suppressed unless the
situations created by allowing the freedom are pressing and the community
interest is endangered. The anticipated danger should not be remote,
conjectural or far-fetched. It should have proximate and direct nexus with the
expression. The expression of thought should be intrinsically dangerous to the
public interest (j) Where the Court applies the test of `proximate and direct
nexus with the expression', the Court also has to keep in mind that the
restriction should be founded on the principle of least invasiveness i.e. the
restriction should be imposed in a manner and to the extent which is
unavoidable in a given situation (k) The Court should also take into
consideration whether the anticipated event would or would not be intrinsically
dangerous to public interest (l) it is difficult to define or explain the word
"reasonable" with any precision. It will always be dependent on the
facts of a given case (m) For adjudging
the reasonableness of a restriction, factors such as the duration and extent of
the restrictions, the circumstances under which and the manner in which that
imposition has been authorized, the nature of the right infringed, the
underlining purpose of the restrictions imposed, the extent and urgency of the
evil sought to be remedied thereby, the disproportion of the imposition, the
prevailing conditions at the time, amongst others, enter into the judicial
verdict (n) there is a distinction between `restriction' and `prohibition' (o)
whether a restriction, in effect, amounts to a total prohibition or not, is a
question of fact which has to be determined with regard to facts and
circumstances of each case (p) a total prohibition must also satisfy the test
that a lesser alternative would be inadequate
4.23
That it now seems proper to test Rule 7 of the Rules vis-à-vis the
above legal principles.
4.24
That it is very apparent that Rule 7 in the above Rules is not a
restriction but a complete prohibition. This is a complete prohibition because
the words completely ban any communication to the press or any public utterance
or any statement of fact or opinion of certain kinds. This is not restriction
but complete prohibition.
4.25
That since Rule 7 is complete prohibition, the first question that
arises is-“does it satisfy the test that a lesser alternative would be
inadequate?” The answer is a complete No. The fact remains that a member of AIS
remains in the complete control of the concerned government- Central or State.
The appropriate government has its hold over the AIS member all the time for
all its acts. Though it is a mutual agreement but the upper hand remains
constantly in the hands of the employer. In such cases, to put a blanket ban,
complete prohibition, is not only unwarranted but definitely unnecessary
because even some kind of reasonable restriction could have been sufficient.
Since the balance of favour remains in the hands of the appropriate government,
hence it is always is a position to act against the AIS officer if he fails to
go beyond the occasional restriction imposed, instead of having complete
prohibition. Thus this complete prohibition is itself against the principle
pronounced in In Re: Ramlila (supra),
Chintamanrao & Anr (supra) and Mirzapur Moti (supra)
4.26
That having failed at the very first test, the next issue that
arises is- “are the grounds for these prohibitions same or different from those
specified under Article 19(2)?”
4.27
That as stated earlier Article 19(2) is as regards interests of
the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence while Rule 7 of the
Rules are associated with any current or recent policy or action of the Central Government
or a State Government; embarrassing the relations between the Central
Government and any State Government and embarrassing the relations between the
Central Government and the Government of any Foreign State.
4.28
That it can be easily seen that Rule 7 satisfies
none of the grounds concerned or raised in Article 19(2). Criticizing current
policy or action would not necessarily lead to affect the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence. Any relation is
not far-fetched and depends from case to case. While it is true that a
situation may arise when criticizing current policy or action might lead to
direct affect on sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence but such
occasions would be rare. On the contrary there would be any number of instances
where any such criticism would have no relation of any kind with any of the
above mentioned fact/factors stated in Article 19(2). For instance, if the applicant
criticizes the government policy of rising the school fees of government
schools or criticizes the government policy of having risen the wheat
procurement price, how does it affect sovereignty and integrity of India, the
security of the State, friendly relations with foreign States? Even public
order hardly seems to get affected with these statements? Similarly it does not
come to adversely affect decency or morality nor is it stand in relation to
contempt of court, defamation. Similarly it has hardly anything to do with
incitement to an offence.
4.29
That there would be thousands of such examples where any criticism
of the State policy or action would have nothing to do with any of the factors
on which restrictions can be imposed under Article 19(2) and yet AIS members,
including the applicant, are facing such prohibition.
4.30
That this shows that this prohibition on criticizing the policy
and action of the government, having no correlation of any kind with the
grounds of restriction stated in Article 19(2) is completely arbitrary and
hence the applicant as a member of AIS is being deprived of his fundamental
rights on completely improper reasons, against the constitutional mandate
4.31
That similarly embarrassing the relations between the Central
Government and any State Government has nothing to do with interests of the
sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence in most cases. Yet
such a prohibition has been imposed, which is completely incorrect.
4.32
That embarrassing the relations between the Central Government and
the Government of any Foreign State is a completely different thing vis-à-vis
interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States etc and not necessarily the same. At
most embarrassing the relations between the Central Government and the
Government of any Foreign State and friendly relations with foreign States can
be said to have some close correlation, but only in some cases and definitely
not in all cases, while the others are completely far-fetched, each of which
speak of different things and stand on different wavelength.
4.33
That yet the Rules impose all the above prohibitions which are not
at all directly correlated with any of the factors on which restriction can be
imposed under Article 19(2). Hence such prohibitions on the applicant’s right
to freedom of expression are against the constitutional provisions and do not
come under the category of reasonable restrictions that can be imposed under
Article 19(2) as they do not relate to the grounds prescribed in Article 19(2)
as regards almost all the prohibition imposed on the applicant under Rule 7
4.34
That the applicant’s pleas become all the more apparent and
logical when one looks at the direction of the Hon’ble Supreme Court in S.
Rangarajan (supra) that freedom of expression cannot be suppressed unless the
situations created by allowing the freedom are pressing and the community
interest is endangered where such anticipated danger should not be remote,
conjectural or far-fetched but it should have proximate and direct nexus with
the expression so that the expression of thought should be intrinsically
dangerous to the public interest. As explained in above Paras, the restrictions
imposed in Rule 7 have no proximate or direct relation with putting the
community interest in danger. Any correlation is only farfetched and varies
from the case to case. While it is not impossible that the restrictions imposed
in Rule 7 on the applicant might not lead to the grounds stated in Article
19(2) but the possibility and chances are low and the majority of the
restrictions are definitely such which will have no effect or impact to the
extent stated in the various grounds in Article 19(2). Thus, the total
prohibition imposed in the impugned Rule 7 completely fails the golden rules of
proximity and direct correction between the cause and the object and being
based completely on conjecture, hypothesis and alleged correlations where none
directly exists are bad in the eyes of law and hence need to be quashed.
4.35
That the Hon’ble Supreme Court said in S Rangrajan (supra) that
where the Court applies the test of `proximate and direct nexus with the
expression', it also has to keep in mind that the restriction should be founded
on the principle of least invasiveness i.e. the restriction should be imposed
in a manner and to the extent which is unavoidable in a given situation. On the
contrary, there was no such situation arising here. The fact is that the applicant,
as a member of AIS, is already bound to the Government in many ways. He is
already in the hands of the government who have almost complete control over
his career and also a control over his life to a very large extent. The
government can impose its will through transfer, posting, promotion, rewards,
punishments, increments and many other favours and disfavours. All these are in
addition to the law of the land existing fir all other citizen, who is not the
members of AIS. Hence the moment the applicant acts in any manner which is
contrary to the laws related with reasonable restrictions that imply to any
other citizen of the Nation, the government, being the applicant’s employee as
well, can immediately come into picture and initiate all kinds of legal action
against him, which would also immediately lead to all kinds of service-related
consequences like suspension, departmental enquiry, other punishments, even
termination from service if the misconduct is found to be serious and so on.
Hence it is pretty obvious that the government, as an employer, is not at all
helpless in any manner to need such added weapon as impugned Rule 7 to enforce
its mandate, which on the other hand is directly curtailing and threatening the
applicant’s fundamental rights against the constitutional mandate as enshrined
in Article 19(2) without having any need to actually impose such total
prohibition, except a false sense of security and a self-generated assumption
that if the applicant is permitted to criticize the government policy, he might
misuse it in any particular manner.
4.36
That as stated by the Hon’ble Supreme Court, such conjectures and
far-fetched hypothesis can never be the legal grounds to curtail the
fundamental rights of the applicant which have been considered completely
sacrosanct unless they fall under the category of reasonable restrictions that
can be imposed through Article 19(2) and other provisions of Article 19, which
as explained in above Para, is not the case and the total prohibition imposed
on the applicant’s right to speech and expression is completely uncorrelated
with the various grounds provided in Article 19(2). Hence being unreasonable
and against the constitutional mandate, the impugned rules need to be quashed
4.37
That the issue of the government servants, like the applicant,
being a separate class all together, so to be governed by completely different yardsticks were
raised in Kameshwar Prasad And Others vs The State Of Bihar And Another ( 1962
AIR 1166, 1962 SCR Supl. (3) 369) where the Hon’ble Supreme Court also made it
very clear- “We have rejected the broad contention that persons in the service
of government form a class apart to whom the rights guaranteed by Part III do
not, in general, apply.” Similarly in O. K. Ghosh And Another vs E. X. Joseph (1963 AIR 812, 1963) , the Hon’ble Supreme Court said- “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 amount Government employees and their
efficiency may, in a sense, be said to be related to public order. But in
considering the scope of clause (4), it has to be borne in mind that the rule
must be in the interests of public order and must amount to a reasonable
restriction”, a test where the above impugned rules completely fail as
explained in the above Para.
4.38
That some of these issues, particularly
related to the various aspects related with being a government servant
vis-à-vis the conduct rules, were discussed by the Hon’ble Karnataka High Court
in B. Manmohan
And Ors. vs State Of Mysore And Ors. (AIR 1966 Kant 261, AIR 1966 Mys 261,
(1966) 1 MysLJ) where the question was about Rule 7(1) of the Mysore Government
Servants Conduct Rules 1957, which said “Criticism of Government: (1) No
Government Servant shall, in any radio broadcast or in any document published anonymously
or in his own name, or in the name of any other person or in any communication
to the Press or in any public utterance make any statement of fact or opinion-
(i) Which has the effect of any adverse criticism of any decision of his
superior officers, or any current or recent policy or action of the Mysore
Government or the Central Government or the Government of any other State or a
local authority. Or (ii) Which is capable of embarrassing the relations between
the Government of Mysore and the Central Government of any other State; (iii)
which is capable of embarrassing the relations between the Central Government
and the Government of any Foreign State. Provided that nothing in this Rule
shall apply to any statements made or views expressed by a Government servant
in his official capacity or in the due performance of the duties assigned to
him”, being violative of Article 19
4.39
That it can be seen that the above Rules of Mysore Government
Servants Conduct Rules 1957 are almost exactly identical to Rule 7 of the
Conduct Rules being challenged here.
4.40
That the order said-“There is no doubt and that fact was not
disputed before us that the Rule in question puts serious fetters on the
freedom of speech of the Government servants. The fact that the said Rule
violates the freedom guaranteed to a citizen of this Country, under Article
19(1)(a) cannot be and was not denied before us.”
4.41
That the Hon’ble Karnataka High Court said-“(30)
Now coming to the contention of the learned Advocate-General that under Rule
7(1) reasonable restrictions are placed on the Government Servants' right to
freedom of speech or expression in the interests of public order, he urged that
if the Government servants are permitted to make statements of fact or express
opinions in public which have of adverse criticism of any current policy or
action of the one or the other authorities mentioned in the Rule, then there
will be no discipline in the ranks of the Government servants; lack of
discipline will lead to lack of efficiency in work; the two put together would
create chaos in administration; indiscipline on the part of the Government
servants is likely to lead to ugly situations which in the final analysis may
lead to public disorder.”
4.42
That to this contention, the Hon’ble Karnataka High Court
said-“(31) A contention similar to this was repelled by the Supreme Court in
O.K. Ghosh's Case. Therein it was laid down 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; indirect or
far-fetched or unreal connection between the restriction and public order
cannot be aid to be reasonable on the ground that its connection with public
order cannot be said to be relate on the ground that its connection with public
order is remote or far-fetched. Hence, we are unable to agree with the learned
Advocate-General that the impugned Rule can be considered as a reasonable
restriction in the interests of public order and thus saved by Article 19(2).”
4.43
That the Hon’ble High Court had said-“(32) The next contention of
the learned Advocate-General was that the validity of the impugned Rule will
have to be judged not merely by the tests provided by Article 19(2) but also by
taking into consideration the occupation of the applicants. In that context,
the court shall see whether the impugned rule cannot be considered as a
reasonable restriction impugned on the Government servants in the interests of
the general public and thus falling within sub-article (6) of Article 19. On
this branch of the case his arguments proceeded thus; a Government servant, as
a citizen of this country, is entitled to freedom of speech and expression, but
being a Government servant he has special duties and responsibilities; his
occupation requires him to be disciplined and efficient without which there
will be chaos in the administration; a public servant who indulges in public
criticism of recent policy or action of Government cannot remain disciplined;
and consequently his efficiency is bound to suffer. According to him, it would
be a sad day for the Country if Government servants are permitted to publicly
criticise the Government's policy or action; as Government servants they are
expected to loyally implement the policy decisions taken by Government it is
through them the Government implements its policy; If the very persons through
whom the Government acts are avowedly critical of the policy to be implemented
then administration would become well nigh impossible. Hence, he asked us to test
the validity of the impugned rule, not merely by the yardstick provided by
Article 19(2) but also by that provided by Article 19(6).”
4.44
That the Hon’ble Karnataka High Court said-“(33) There is no doubt
that when the constitutionality of an enactment is challenged on the ground of
violation of any of the Articles in Part III of the Constitution, the
ascertainment of its true nature and character becomes necessary. In such a
case, the Court has to consider the subject matter of the legislation, the area
in which it is intended to operate and the purports and intents of the
legislation. In order to do so, it is legitimate to take into consideration all
the factors such as history of the legislation, the purpose thereof, the
surrounding circumstances and conditions, the mischief which it intended to
suppress, the remedy. See: Hamdard Dawakhana v. Union of India. As observed in that case, that freedom of
speech goes to the heart of the natural right of an organised freedom loving
society to "impart and acquire information about the common
interest"; if any limitation is placed which results in the society being
deprived of such right then no doubt it would be violative of the rights
guaranteed under Article 19(1)(a); but if all it does is that it deprives a trader
from commending his wares it would not fall within that Article. It is not the
form or incidental infringement that determines the constitutionality of a
statute, in reference to the rights guaranteed in Article 19(1) but the reality
and substance. What we have to see is whether having regard to the scope and
object of the Rule, its true nature and character it interferes with the right
of freedom of speech or whether it merely places reasonable restrictions in the
interests of the general public on as guaranteed by Article 19(1)(g).”
4.45
That the Hon’ble Karnataka High Court said-“(34) No one clause in
Article 19 can be looked into in isolation. There is a great deal of
overlapping of the rights guaranteed under that Article. Therefore, the impose
of every right guaranteed along with restrictions that could be validly imposed
on that right on the other guaranteed rights should not be overlooked. A
citizen of this country is not merely a citizen, he may have other capacities.
In determining the validity of any restriction placed on him, his duties and
responsibilities arising from his occupation will have to be considered. That
position is made clear by the decisions of the Supreme Court in Kameshwr
Prasad's Case. and O.K. Ghosh's case. Therefore, we have to see whether the
impugned Rule can be considered as a reasonable restrictions in the interests
of general public on the exercise of the rights conferred on the applicants
under clause (g) of sub-article (1) of Article 19. As seen earlier, the
impugned Rule prohibits the publication of any document or any public utterance
by a Government servant which has the effect of any adverse criticism of any
current or recent policy or action of the Government.”
4.46
That the Hon’ble Karnataka High Court said-“The Rule in question
is so wide as to include all adverse criticism of recent policy or action of
the Government whatever that policy or action may be. A rule of this character
cannot be said to be a reasonable restriction imposed in public interests, on
the rights guaranteed under Article 19(1)(g) and-“(35) As mentioned earlier,
the impugned Rule is so wide as to prohibit all adverse criticism of current or
recent policy or action of the Government and it is not possible to separate
its valid portion from that which is invalid.”
4.47
That the order said that the learned Advocate-General “contended
that if we are to consider the Rule in question is being ambiguous, and is
capable of two interpretations, then we should place that interpretation which
will be consistent with the Constitution”, inviting attention to the decision
of the Hon’ble Supreme Court in R.L. Arora vs State of Uttar Pradesh (AIR 1962 SC 764), wherein it was laid down that it is well
settled that if certain provisions of law construed in one way will be
consistent with the Constitution, and if another interpretation would render
them unconstitutional, the Court would lean in favour of the former
construction. To this the Hon’ble Karnataka High Court said-“We see no
ambiguity in Rule 7(1). It is quite plain. Therefore, no question of
interpretation arises. The Rule in question plainly and unambiguously any
document or from making any public utterance which has the effect of any
adverse criticism of any current or recent policy or action of the Government.
That Rule is incapable of being construed in the manner the learned
Advocate-General wants us to construe.”
4.48
That having considered all the above facts, the Hon’ble Karnataka
High Court contended-“(37) For the reasons mentioned above, we hold that Rule
7(1) is void as being violative of Article 19 of the Constitution.”
4.49
That it is kindly prayed that what the Hon’ble Karnataka High
Court said about Rule 7(1) of the Mysore Government Servants Conduct Rules 1957
holds equally true for the impugned Rule 7 of the Rules, applicable to the applicant
and hence even the arguments related to the matter being related to government
servants and hence different from common citizen do not hold the ground.
4.50
That having seen that firstly these are complete prohibition where
even reasonable restrictions would have been sufficient and is hence completely
incorrect and unwarranted in the light of the various mandate of the Hon’ble
Supreme Court and secondly that these prohibitions do not emanate or correlate
to the various grounds prescribed in Article 19(2) on which such reasonable
restrictions can be imposed, the burden now shifts on the authority to justify
the restrictions because as stated in the various judgements of the Hon’ble
Supreme Court including Secretary, Ministry of Information and Broadcasting
(supra) and in Re: Ramlila (supra), in spite of there being a general
presumption in favour of the constitutionality of a legislation under challenge
alleging violation of the right to freedom guaranteed by clause (1) of Article
19 of the Constitution, on a prima facie case of such violation being made out,
the onus shifts upon the State to show that the legislation comes within the
permissible restrictions set out in clauses (2) to (6) of Article 19 and that
the particular restriction is reasonable.
4.51
That as stated by the Hon’ble Supreme Court in Re:Ramlila it is now for the State to place on record
appropriate material justifying the restriction and its reasonability and the applicant
would request before this Hon’ble Tribunal to direct the respondent to explain
and justify the total prohibition imposed by them on freedom of speech and
expression where they now need to explain the facts and circumstances which
mandated them to impose such total prohibition.
4.52
That as stated by the Hon’ble Supreme Court in Re: Ramlila
reasonability of restriction is a matter which squarely falls within the power
of judicial review of the Courts and hence the applicant, with his
constitutional rights having got curtailed, in an improper manner, against the
mandate and directions of the constitution, comes before this Hon’ble Tribunal
which has the power to judicial review as regards the reasonability of these
restrictions imposed upon the applicant in an improper manner, against the
provisions of Article 19.
4.53
That it also seems
pertinent to present facts as to why and how this Hon’ble Tribunal can and
shall entertain this OA. In this regards, the order of the Hon’ble Supreme
Court in L. Chandra Kumar vs The Union Of India
& others (Equivalent citations: 1995 AIR 1151, 1995 SCC (1) 400) seems to
be specifically relevant. There among the questions framed by the Hon’ble
Supreme Court was-“(2) Whether the Tribunals, constituted either under Article 323A
or under Article 323B of the Constitution, possess the competence to test the
constitutional validity of a statutory provision/rule?” After analyzing the issues in great
details, the Hon’ble Supreme Court finally concluded as follow-“The Tribunals
are competent to hear matters where the vires of statutory provisions are
questioned. However, in discharging this duty, they cannot act as substitutes
for the High Courts and the Supreme Court which have, under our constitutional
setup, been specifically entrusted with such an obligation. Their function in
this respect is only supplementary and all such decisions of the Tribunals will
be subject to scrutiny before a Division Bench of the respective High Courts.
The Tribunals will consequently also have the power to test the vires of
subordinate legislations and rules. However, this power of the Tribunals will
be subject to one important exception. The Tribunals shall not entertain any
question regarding the vires of their parent statutes following the settled
principle that a Tribunal which is a creature of an Act cannot declare that
very Act to be unconstitutional. In such cases alone, the concerned High Court
may be approached directly. All other decisions of these Tribunals, rendered in
cases that they are specifically empowered to adjudicate upon by virtue of
their parent statutes, will also be subject to scrutiny before a Division Bench
of their respective High Courts. We may add that the Tribunals will, however,
continue to act as the only courts of first instance in respect of the areas of
law for which they have been constituted. By this, we mean that it will not be
open for litigants to directly approach the High Courts even in cases where they
question the vires of statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is challenged) by overlooking
the jurisdiction of the concerned Tribunal”. Thus the matter being raised here
not being one related to the vires of the parent statutes of this Hon’ble
Tribunal needs to be kindly heard by it “as the only courts of first instance” and
hence lies within the jurisdiction of this Hon’ble Tribunal.
4.54
That based on the above facts and having no any officious and effective alternative remedy in these
circumstances, this OA is being filed among other such the following grounds
5.
Grounds for
relief with legal provisions
(a) Because freedom of speech and expression is a basic human right and is necessary, for self-expression
which is an important means of free conscience and self- fulfillment
(b)Because no
restrictions can be placed on the right to freedom of speech and expression on
grounds other than those specified under Article 19(2)
(c) Because none of the grounds stated in Rule 7 of the Conduct Rules stand
in congruence with the grounds stated in Article 19(2), as explained in details
in the OA
(d)
Because freedom of expression cannot be suppressed unless the
situations created by allowing the freedom are pressing and the community
interest is endangered and the anticipated danger should not be remote,
conjectural or far-fetched but proximate, where the impugned rule 7 completely
fails, as explained in above Para
(e) Because the
test of `proximate and direct nexus with the expression' warrants that the
restriction should be founded on the principle of least invasiveness i.e. the
restriction should be imposed in a manner and to the extent which is
unavoidable in a given situation, where again the impugned rule 7 completely
fails, as explained in above Para
(f) Because a
total prohibition must satisfy the test that a lesser alternative would be
inadequate which the impugned Rule is not capable of, as explained in above
Para
(g) Because the Rules are extremely wide and vague
(h)
Because the vagueness and wideness of
the Rules are definitely liable to be misused as happened in the applicant’s
case illustrated above
(i) Because
reasonability of restriction is a matter which squarely falls within the power
of judicial review of this Hon’ble Tribunal
(j) Because the
burden is on the authority/respondent to justify the restrictions
(k)Because in
spite of there being a general presumption in favour of the constitutionality
of a legislation under challenge alleging violation of the right to freedom
guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie
case of such violation being made out, as in this particular case, the onus
shifts upon the State to show that the legislation comes within the permissible
restrictions set out in clauses (2) to (6) of Article 19 and that the
particular restriction is reasonable
(l) Because it is now for the State to place on
record appropriate material justifying the restriction and its reasonability
6.
Details of
the remedies exhausted
The applicant declares that he has availed the remedies available to him because
there is no other remedy or any other legal platform available to him that to
approach this Hon’ble Tribunal to get the impugned Rule 7 of the Conduct Rules
quashed
7.
Matter not
previously filed or pending with any other court
The applicant declares that he had filed a Writ
petition Misc bench No 4600 of 2013 before the Hon’ble High Court of Judicature
at Allahabad, Lucknow Bench, Lucknow, which is pending before the Hon’ble Court,
where among other things, he has prayed to issue a writ to decide over the his representations/suggestions as
regards need for amendment in Conduct rules presently applicable to various
government servants particularly about the blanket restriction imposed on the
government servants as regards interaction with Media. This OA has a topic which is
related through some distant and weak linkage with the above Writ petition but
otherwise the subjects of the two petitions are clearly distinct because while the previous petition is about certain amendments being
sought in various conduct rules of different government services in tune with
suggestions made by the petitioner or otherwise, this petition is specifically
about declaring Rule 7 of the Conduct Rules as being ultra vires to the
Constitution. He declares that he has
not previously filed any other application, writ petition or suit except the
above-mentioned Writ Petition, related with the matter in respect of which this
application has been made, before any Court or any other authority or any other
Bench of the Tribunal nor any such application, writ petition or suit is
pending before any of them.
8. Relief (s)
sought
In view of the facts mentioned in paragraph 4 above, the applicant prays
for the following relief(s)—
a.
to kindly declare Rule 7 of the All
India Services (Conduct) rules 1968 presented at Para 4.03 of this OA as
Ultra-vires to Article 19 of the Constitution and to issue an appropriate
direction thereby directing the respondent, Union of India and its
instrumentalities not to give effects to these provisions so far as they are
against the right to various freedom guaranteed under Article 19 of the
Constitution of India
b.
any other order that the Hon’ble Tribunal
deems fit in the interest of justice, keeping in view the lawful interest of
the applicant
9. Interim
order, if any, prayed NONE
10. In the event of application being sent by
registered post, it may be stated whether the applicant
desires to have oral hearing at the admission stage and if so, he shall attach
a self-addressed Postcard or Inland letter, at which intimation regarding the
date of hearing could be sent to him Not
Applicable
11.
Particulars
of the Bank Draft/ Postal Order filed in respect
of the application fee
a.
Name of the Bank/ Post Office ,
b.
Bank draft/ Postal Order No
c.
Date
d.
Amount Rs.
fifty only
(Rs. 50/-)
12. List of
enclosures Annexure
No. A1
Lucknow (Amitabh
Thakur)
Dated- 02/05/2014 Signature of the applicant
Dated- 02/05/2014 Signature of the applicant
VERIFICATION
I, Amitabh Thakur, aged about 45 years, son of Sri Tapeshwar Narayan
Thakur, resident of 5/426, Viram Khand, Gomti Nagar, Lucknow, do hereby verify
that contents of paragraphs 1, 4 and 6 to 12 are true to my personal knowledge
and paragraphs 2, 3 and 5 are believed to be true on legal advice and that I
have not suppressed any material fact.
Lucknow (Amitabh
Thakur)
Dated- 02/05/2014 Signature of the applicant
Dated- 02/05/2014 Signature of the applicant
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