Can civil servants express their views on law, governance? (GS Paper 2, Governance)
Context:
- Recently, a senior IAS officer, Smita Sabharwal from Telangana, tweeted from her personal account in support of Ms. Bano and questioned the Gujarat government’s decision in BilkisBano rape case.
This sparked off a row over whether she was in breach of the Central Civil Services (Conduct) Rules of 1964 and reviving the debate on the freedom of civil servants to express their personal views on matters of law and governance.
Background:
- On India’s 75th Independence Day, the Gujarat government released 11 men convicted on charges of gang-raping BilkisBano, who was 21 years old and five months pregnant at that time, and murdering seven members of her family, including her three-year-old daughter, during the 2002 riots.
- The convicts, once released, were felicitated with garlands and sweets. Two days later, Ms. Bano issued a statement saying, “the trauma of the past 20 years washed over me again.”
Bureaucrats right to speech:
- The citizens of this country have the fundamental right of free speech guaranteed to them under the Constitution, which is subject to reasonable restrictions in the interest of securing the state’s sovereignty, international relations, health, morality, etc. She has the right to tweet.
- But when one undertakes a government service, one subject oneself to certain disciplinary rules.
- That prevents a government servant from becoming a member of a political organisation, or any organisation of such a nature, or expressing herself freely with regard to anything that has to do with the governance of the country.
- This rule is of the British era. There is no doubt that the British were very strict and didn’t want their officers to be talking about how bad the governance was. Butin a democracy, the right to criticise the government is a fundamental right and nobody can muzzle that.
Example of Tripura High Court Chief Justice:
- There is a recent judgment of then Tripura High Court Chief Justice AkilKureshi, who did not get enough due because of obvious reasons.
- He said something very interesting in a (2020) judgment (Lipika Paul v. The State Of Tripura), “As a Government servant the petitioner is not devoid of her right of free speech, a fundamental right which can be curtailed only by a valid law.”
- She (the petitioner) was entitled to hold her own beliefs and express them in the manner she desired, subject to not crossing the borders laid down in the Conduct Rules which were applicable in Tripura. A fundamental right cannot be curtailed except by a valid law made by a legislature.
Judgement of Kerala High Court:
- In 2018, the Kerala High Court had said, “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.”
How an IAS officer should react?
- Most colleagues, particularly those who are serving in the government, would take exception and not be very supportive because the general belief is that as IAS officers, should not talk against government actions or government policies in public fora.
- And if at all one feel very strongly about something that is being done or acted upon, he/she can at best, if it is such a serious situation, approach the associations.
How recent tweet of IAS officer is in line with job of a civil servant?
- The Bilkis case was a travesty of justice. It crossed all borders of fairness and humanism. The gang rape and the murder of the child were horrific. Despite that, one find the convicts are not even in jail for life.
- A committee was constituted so casually and a 1992 remission policy was invoked even though there are new laws. And the committee had five members of the ruling party. They just released them and there was a celebration about it, it’s a mockery of justice.
- In such a situation, Smita tweeted as a woman. She added the words ‘civil servant’ is because the dharma of the civil servant is to uphold constitutional principles in letter and in spirit, and the rule of law. In this case, both the spirit of the Constitution and the rule of law were being subverted.
- This could be a very dangerous precedent, as seen recently when the Andhra Pradesh government released eight murder convicts (on remission, despite them not completing the mandatory 14 years in jail). If murderers are going to be released by executive action, what is the point of having courts?
- Wind up the courts and let just the collector, the ruling party, decide who should be in jail and who should not be in jail. For some actions if civil servants, whether retired or in service, speak up, that would have some kind of a deterrenton the arbitrary abuse of bureaucratic power.
Isn’t Rule 9 of the Rules of the Central Civil Services (Conduct) Rules in violation of Article 19 (freedom of speech and expression) of the Constitution?
- Rule 9 of the Rules of the Central Civil Services (Conduct) Rules states, “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.”
- But the rule does not violate Article 19. It is a rule, it’s not the law under the Constitution. Freedom of speech is given in the Constitution, but these are Conduct Rules and they are imposed because there has to be some discipline in an organisation for that organisation to function.
- There is a process of decision-making. Right from below, the matter is examined, the pros and cons are taken up, the bureaucracy is given an opportunity to examine all the aspects, write their notes of objection or support, and finally it reaches the political executive. When a policy is decided, it has to be obeyed and complied with by the bureaucracy.
- The courts are now veering towards the view that this rule is too stringent and cannot be applied in this manner. The rule says you cannot criticise a policy judgment. This is a very vague expression and needs to be carefully scrutinized.
Medium through which the officer can share his/ her opinion:
- Whether she had written an op-ed in The Hindu or tweeted or posted about it on Facebook, the bounds are the same, the bounds don’t change the game, the rules of the game remain the same.
- The reasonableness of the restriction is not in the medium, it is in the manner in which you’re restricted, the purpose for which your right is restricted and the method by which it is restricted, namely, by legislation made in accordance with the Supreme Court in the Puttaswamy case (which holds that the right to privacy is protected as a fundamental right under the Constitution) in connection with data protection law.
- An IAS has no authority to express her opinion behind closed doors. She has not given a speech about it; it is just a private communication on Twitter. She chose to express her own anguish.
Recent tweet an exception:
- The government officers are given only one way of encouragement: say good things in the media.
- Creating more transparency about policies through social media is the duty of a government officer.
- This has to be taken on a case-by-case basis. There is need to make a differentiation between what is something that’s going to hurt society, hurt the Constitution, and the rule of law. This is not a government policy (decision to release convicts on remission).
- This is an action, which is ordained by the Supreme Court, executed by the government of Gujarat, and the (question is over the) manner in which it has been done. This was an exception.
Conclusion:
- In democracy, everybody has a right to express his or her opinion, a right to object, a right to dissent. The same thing could be said for an IAS officer; he or she may have a right to dissent.
Somebody could challenge it as offending constitutional fundamental rights; then the Supreme Court would be forced to come down and say either it is good, or it is bad, and give good reasons for that.
