Freedom of Speech and Government Employees

Dr Santosh Kumar Mohapatra*

The authority or right to express one’s opinions without censorship, restraint or legal penalty is known as freedom of speech. In other words, freedom of speech is a principle that buttresses the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction.

The term “freedom of expression” includes any act of seeking, receiving, and imparting information or ideas, regardless of the medium used. One’s opinions may be expressed by words of mouth, in writing, printing, pictures, or any other mode. This freedom includes a person’s right to propagate or publish the views of other people too.

Freedom of speech not only allows people to communicate their feelings, ideas, and opinions to others, rather it serves a bigger purpose as well especially creating a free society. It helps an individual to harness its potential, attain self- fulfillment and support in unraveling truth. It fortifies the capability, competence of an individual to participate in the decision-making process. It provides a mechanism by which it would be possible to establish a meaningful, egalitarian society.

Freedom of expression is the essence of democracy and needs to be safeguarded at all times.  Freedom of speech and of the press lays at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the popular government is possible.

In India, freedom of speech is guaranteed under Article 19 (1) (a) of the Constitution of India. Apart from this, Freedom of expression is recognized as a human right under article 19 of the Universal Declaration of Human Rights (UDHR) and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR).

Article 19 of the UDHR states that “everyone shall have the right to hold opinions without interference” and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

However, freedom of speech and expression may not be recognized as being absolute. The version of Article 19 in the ICCPR later amends this by stating that the exercise of these rights carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary.

The common limitations or boundaries to freedom of speech relate to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, dignity, the right to be forgotten, public security, and perjury.

In India, freedom of speech is one of the six fundamental rights conferred to the citizens of India under Part III of the Constitution. It is one of the most important aspects in the hierarchy of personal liberties provided under Article 19 to Article 22 of the Indian Constitution. Article 19 provides 6 rights like 19(1)(a) to 19(1)(g), earlier there were 7 rights under article 19, but 44^th Constitutional amendment omitted Article 19(1)(f) in 1978.

Article 19(1) (a) states that all citizens shall have the right to freedom of speech and expression. In other words, Article 19(1)(a) of the Indian Constitution grants every individual the fundamental right  to freely speak and express opinions. Every citizen can express his belief and opinions by almost any means possible. Broad interpretation includes: Propagate other’s view, press, commercial advertisements, telecast, RTI, printing, silence, peaceful demonstration, etc. Freedom of expression also includes the right to write articles, speak on the radio and appear on television too.

But this right is subject to limitations imposed under Article 19(2) which empowers the State to put ‘reasonable’ restriction on various grounds, namely, security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement of offence, and integrity and sovereignty of India.

Article 19(1)(b) confers the right to assemble  peacefully and without arms. However, this right is subject to reasonable restrictions under Article 19(3) in the interest of sovereignty and integrity of India, or public order. Under Article 19(1)(c), all citizens are guaranteed the right to form associations or unions. However, under Article 19(4), this right is subject to reasonable restrictions in the interests of sovereignty and integrity of India, public order or morality.

Article 19(1) (d) allows moving freely throughout the territory of India, provided the interests of the general public, protection of the interests of any Scheduled Tribe is not affected. Article 19(1) (e) allows to reside and settle in any part of the territory of India, provided the interests of the general public, protection of the interests of any Scheduled Tribe is not affected. Article 19(1)( g) provides freedom to practise any profession, or to carry on any occupation, trade, or business. Protection under Article 19(1)(g) is available to only the citizens of India.

Recently, a lot of debate is going on whether the Government or any public institution can prohibit an employee from right to disagree or criticising the policies of the Government or a public institution. However, democracy is based on fair criticism; and freedom of speech and expression is highly protected by the Indian Constitution. A blanket prohibition of criticism of the policies of the Government is invalid and void, and it makes no difference if the person criticizing happens to be a government servant or the employee of a public institution.

Government servants in common with other citizens enjoy the protection of fundamental rights under Article 19(1) (a). A series of judgments by Supreme Court or other high courts in different times, had recognized dissent as a “symbol of a vibrant democracy” and government employees have right to dissent. Indian courts have repeatedly held that right to free speech “necessarily includes the right to criticise and dissent.”

In Romesh Thaper vs State of Madras and Brij Bhushan vs State of Delhi, the Supreme Court took it for granted the fact that the freedom of the press was an essential part of the right to freedom of speech and expression. It was observed by Patanjali Sastri J. in Romesh Thaper that freedom of speech and expression included propagation of ideas. It is clear that the right to freedom of speech and expression carries with it the right to publish and circulate one’s ideas, opinions and other views with complete freedom and by resorting to all available means of publication.

In December 2019, Justice Sabyasachi Bhattacharyya  of the Calcutta High Court took note to highlight that people have a right to criticise the ruling government. According to Supreme Court judge Justice Gupta (2019) “The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree”.

In case of Kameswar Prasad vs. State of Bihar (AIR 1962 SC 1166), the Supreme Court had to consider the validity of Rule 4A of the Bihar Government Service Conduct Rules which provided that no government servant shall participate in any demonstration in connection with any matter pertaining to his condition of service. It was sought to be argued that a person who voluntarily entered Government service must be deemed to have consented to such reasonable conditions as might be imposed for maintaining proper discipline in the service.

The Supreme Court rejected the contention and held that the prohibition of participation in any demonstration is invalid as violating Articles 19(1)(a) and 19(1)(b). The Supreme Court held that, as Article 19 applies to all citizens, government servants in common with other citizens enjoy the protection of fundamental rights. 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.”  If an employee agrees to be subject to the rules framed by the Government, they agree to do so because the rules are subject to the provisions of the Constitution. In other words, by agreeing to abide by the rules of the Government, they do not surrender their fundamental rights.

Relying on an earlier decision of the Supreme court in Bala Kotiah’s case (1958 SCR 1052) some have argued that since a person has no fundamental right to be a government servant, there is no question of violating his fundamental right if disciplinary action is taken against him for violating the Government Servant Conduct Rules. This reasoning is not sound. The point is not whether a person has a fundamental right to be a government servant. The point is whether a person exercising his fundamental right can be punished.

Further, Article 13 (2), the state shall not make any law which takes away or abridges fundamental rights and any law made in contravention of this clause shall be void. Hence, if the restrictions imposed are not reasonable restrictions, then the rule contravenes Article 19(1)(a) and hence is void. No punishment can therefore be imposed under a void rule.

Finally, the question which remains to be considered is: given that a person in service cannot be punished under a void rule (which prohibits him from criticising the policies of Government), can a person be prevented from being admitted as a government servant or a servant of a public institution under such a rule? It would logically follow that as the rule is void and therefore non-existent in the eye of the law, it cannot be relied on for refusing employment to a person who criticises the policies of the Government.

According to the Supreme Court, it is clear 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 same as defying the orders of the Government. Democracy is based on fair criticism. That is why the freedom of speech and expression are protected. Day in and day out, parties in Opposition and other persons criticise the policies of the Government and yet they do not lead to public disorder. It makes no difference if the person criticising happens to be a government servant.

The same applies to employees of a public institution. Many such institutions are funded by the Government which also exercises control over the institutions. Such institutions have been held to be “States” within the meaning of Article 13. It has already been noticed that under Article 13(2), any law (law includes notifications, rules, and so on) made by a State in contravention of fundamental rights is void. In other words, Article 13  declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. Hence, a rule made by a public institution also, which is a State within the meaning of Part I II (the chapter on Fundamental Rights), in contravention of fundamental rights is void.

Thus, a general prohibition of an employee of a public institution criticising the policies of the institution or the Government is void. In this matter, there is no difference between the position of conduct rules made by the Government and conduct rules made by a public institution which is a “State” under Article 13.

Article 21 allows, among others, reading, writing and expressing oneself in diverse forms. Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful. In other words, it provides Right to life, and Right to personal liberty.

Articles 14, 19 and 21 are not mutually exclusive. Article 14 of the Constitution of India provides for equality before the law or equal protection of the laws within the territory of India and held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Article 21 provides protection of life and personal liberty.

In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Art. 21 and held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Elaborating the same view, the Court in Francis Coralie v. Union Territory of Delhi observed that: “The right to live includes the right to live with human dignity and all that goes along with it, viz., facilities for reading, writing and expressing oneself in diverse forms.”

So any citizen whether he or she is government employee or not has right to reading, writing and expressing views. The Right to Freedom is one of the most important Fundamental Rights under the Constitution of India. Without freedom of expression, there can’t be any democratic setup. People will not be able to grow and develop if they do not have the freedom to do anything. Research, innovation will be dampened.

The right to dissent or right to criticise government is one of the most important rights guaranteed by our Constitution.  As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power. Success and survival of democracy depends upon freedom of expression and criticism of government policies. The government’s decision is guided by its electoral prospective of ruling dispensation, rather than well-being of masses.  It may ride roughshod on masses to cater to interest of rich and corporates, if there will be no criticism.

 

 

*The author is an Odisha-based eminent columnist/economist and social thinker. He can be
reached through e-mail at [email protected]

DISCLAIMER: The views expressed in the article are solely those of the author and do not in
any way represent the views of  Sambad English.

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