Great Power, Great Responsibility, Not ‘Great’ Restrictions: SC Verdict On Freedom Of Speech For Govt Functionaries

They say with great power comes great responsibility. Public functionaries in a large democratic nation like India become repositories of both at once. But Power and Responsibility entrusted to government employees have time and again come in conflict with their entitlements that the state endows upon its citizens i.e their Fundamental Rights. 

It is in this light that the Supreme court’s verdict today holds special significance. A five judge Constitution bench on Tuesday delivered a landmark judgment on whether the freedom of speech guaranteed to all citizens of India under Article 19 (1) of the Indian Constitution can be specifically restricted for those in government services. 

Court’s Observations on Plea against Azam Khan

The ruling upheld that “A statement made by a minister even if traceable to any affairs of state or protecting the government cannot be attributed vicariously to the government even applying the principle of collective responsibility.” The bench, lead by Justice A S Nazeer unequivocally stated that Freedom of Speech is a Fundamental Right that can be “exercised even against  other instrumentalities other than the state” and “no additional restrictions” beyond the reasonable restrictions mentioned under Article 19 (2) can be deployed to curtail this freedom.

The court was hearing a plea filed by a man whose wife and daughter were allegedly gang-raped in July, 2016 on a highway near Bulandshahr seeking transfer of the case to Delhi and lodging of an FIR against then Uttar Pradesh minister Azam Khan for his controversial statement that the gang-rape case was a "political conspiracy by opponents who want to defame the government.”

The minister’s controversial statements were condemned as hate speech by Justice B V Nagarathna, who stated that they struck the nation’s foundational values by making society unequal and also attacking citizens from diverse backgrounds. 

But this verdict does more than to address the minister’s misconduct, it has thrown light on the right to freedom of speech and expression for public functionaries, a debate that has long unfolded in the country. Here’s all about the perpetual tussle between fundamental rights and service conduct rules for government employees:

Is there a need to restrict free speech for public functionaries?

Earlier in November, the apex court had reserved its judgment on the said plea, but noted that “any person holding a public office or is public servant, there is an unwritten rule and it is part of constitutional culture that they impose a self restriction and not blabber things which are very disparaging or insulting to our other countrymen.” 

The need to preserve these “unwritten rules” and “constitutional culture” inherent to societal well being have led to calls for those in positions of great power to assume great responsibility for their public comments. 

In fact, time and again, the views of many public servants have triggered a row, with one section of voices arguing that public servants are bound by service rules and codes of conduct that disallow them from expressing their personal views on matters of law and governance, or voice adverse criticism to government policies.  

In recent times, many such incidents have sparked intense debate. In August 2022, an IAS Officer from Telangana, Smita Sabharwal, tweeted about her “disbelief” over the premature release of Blikis Bano case convicts. Speaking on the Gujarat government’s decision to grant remission to the case convicts, accused of rape and murder, Sabharwal wrote, “As a woman and as a civil servant I sit in disbelief on reading the news on the #BilkisBano case.” 

On another occasion, the Madhya Pradesh government issued a disciplinary notice to IAS Officer Niyaz Khan for allegedly “violating the lakshman rekha (limit) set for (government) officials” with his tweets on the movie Kashmir Files. Expressing displeasure over the anti-Muslim propaganda shown in the film, Khan wrote, “The producer must also make a movie to show the killings of a large number of Muslims across several states. Muslims are not insects, but human beings and citizens of the country.” 

The two cases highlighted above proved divisive among netizens. While same lauded the officers’ brave and courageous stand to voice their opinions, others joined a furore, accusing them of acting in a “biased” manner and “talking selectively like a politician.”  

What do the service rules say?

In an interview with The Hindu, retired Justice B N Srikrishna spoke on the row over Sabharwal’s tweets, and opined that while she had the right to tweet as a means to exercise her freedom of speech but at the same time, certain disciplinary rules prevent a government servant from becoming a member of a political organization or expressing herself freely with regard to anything that has to do with the governance of the country.    

In this regard, certain service rules and codes of conduct have been put in place that seek to restrict the exercise of certain liberties by government employees:

Rule 9 of the Central Civil Services (Conduct) Rules states that no Government servant shall make any statement of fact or opinion which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government. It follows the idea that once a person voluntarily joins the services, s/he agrees to operate within certain bounds and surrenders and allows some restrictions on his/her fundamental rights. 

Likewise, Rule 5 of the All India Services (Conduct) Rules, 1968 prohibits “government servants from being members of or being associated with any political party or political activity.” It also holds that “no member of the Service shall canvass or otherwise interfere with, or use his influence in connection with, or take part in, an election to any legislature or local authority.” These rules seek to instate the principle of neutrality among public functionaries, that demand employees to remain politically aloof. 

Is this the first time the conflict between service rules and fundamental rights reached the court?

The matter has knocked the gates of the judiciary multiple times over the years for a sustainable resolution. A multiplicity of central and state-level rules on the matter have often aroused frustrations in the exercise of fundamental rights. 

As early as 1962, in the Kameswar Prasad vs. State of Bihar case, the Supreme Court adjudicated upon the validity of Rule 4A of the Bihar Government Service Conduct Rules, and upheld 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.”

In fact, courts across the country have recurrently declared that any restriction to the fundamental rights of government employees has to be backed by a law framed by the legislature, and has to pass the test of reasonability. 

More recently, in 2020, the Tripura High Court in Lipika Paul vs. State of Tripura, stated that “As a Government servant, the petitioner is not devoid of her right to free speech, a Fundamental Right which can be curtailed only by a valid law. She was entitled to hold her own beliefs and express them in the manner she desired, of course, subject to not crossing the borders laid down in sub-rule (4) of Rule 5 of the Conduct Rules.”

In the case, a public servant had been suspended from duty for attending a political programme. To this end, Chief Justice Akil Kureshi held that, “one cannot be prevented from expressing his views merely because he is an employee. In a democratic society, every institution is governed by democratic norms. Healthy criticism is a better way to govern a public institution.” 

In a similar vein, the Kerala High Court had in 2018 taken a mirroring stand and said that government employees are empowered to voice healthy criticism in a “legitimate and decent manner.”

These judgments have sufficiently drawn a distinction between “blabbering” and “healthy criticism” and have in fact backed the latter as means to promote fair, transparent, and just governance. It is reiterated that mere criticism does not amount to defiance of orders or indiscipline, and is not linked to disruptions of public order. While acknowledging their great power and great responsibility, the judiciary has advocated exercising restraint in the kind of restrictions that are imposed on public functionaries. 

(With inputs from PTI)