This article has been written by Divyansh Morolia.
A gazette notification dated 1 May, 2021 has been issued by the Ministry of Personnel, Public Grievances and Pensions amending the clause 8(3)(a) of the CCS Pension Rules, 1972. The said rule is amended to add to the section of ‘pension subject to good conduct’ a condition wherein any government servant, having worked in any Intelligence and security organisation is barred from making publication related to a topic, without prior clearance from the head of the organisation, which pertains to the domain of the organisation, including any reference or information about any personnel and his designation, as well as expertise or knowledge gained as a result of working in that organisation; or sensitive information, the disclosure of which would jeopardise India’s sovereignty and integrity, security, strategic, scientific, or economic interests, or relations with a foreign state, or lead to incitement of an offence.
Through this article, I would like to challenge the constitutionality of the amendment by highlighting that the amendment violates the right to freedom of speech and expression of the retired government servants guaranteed under Article 19(1)(a) of the constitution, it lays down an arbitrary law which violates the Article 14 of the constitution, it violates the right to pension, the amendment is vague and it is contrary to the doctrine of unconditional conditions.
The said amendment violates right to freedom of speech and expression
Article 19(1)(a) of the constitution guarantees to all the citizens the freedom of speech and expression.
In Kameshwar Prasad v. the State of Bihar, the honourable Patna High court struck down rule 4(A) of the Bihar Government Servants Conduct Rules,which prohibited the government servants from participating in demonstrations or strikes concerning the condition of service. The Court noted that entering government service does not disentitle a person from claiming the freedoms guaranteed to every citizen and this judgement was subsequently upheld by the honourable Supreme Court. In O.K. Ghosh v. E.X Joseph, the honourable Bombay High Court held that the Rule 4(B) of the Central Civil Service (Conduct) Rule,which prohibited the government servants from being a member of any service association recognition to which has been withdrawn by the government, was violative of Article 19(1)(c) which provides for the right to form an association. This judgement was also upheld by the honourable supreme court. Both these judgements by the honourable SC demonstrate that the right to freedom under Article 19(1) is equally applicable to the government servants and cannot be arbitrarily infringed upon. The said amendment prohibits without clearance publication of any material including expertise or knowledge gained by virtue of working in that organisation and hence, violates the right to freedom and expression under Article 19(1)(a).
Article 19(2) provides for eight reasonable restrictions which can be imposed on the rights guaranteed under Article 19(1) and the said amendment claims the exception based on protecting the ‘sovereignty and integrity of the state’, however, the said exceptions cannot be invoked in the instant case. The Supreme Court, in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia has held that restriction under Article 19(2) must have a proximate and imminent connection with the ground on which it is being imposed. In this amendment, there can be no proximate relation established between the steps taken as provided in the amendment and the object sought to be achieved, i.e, the sovereignty and integrity of the nation.
The test of proportionality as introduced by honourable justice D.Y.Chandrachud in K.S Puttaswamy v Union of India provides for a four limb test to justify a restriction on a fundamental right as being ‘proportional’. The third test among these is that there must not be present any less restrictive and equally effective alternative with the government. The amendment in the instant case fails on this ground as prohibiting all publications by government servants without clearance from the head of the organisation is not the ‘least restrictive measure to uphold the ‘sovereignty and integrity of the state’.
In Bennet Coleman and Co. v. UOI, the honourable supreme court applied the ‘direct effect test’ as per which if the direct consequence/effect of the impugned state action is the violation of the fundamental rights, then irrespective of the object of the act, it is to be considered unconstitutional. This test was applied by the supreme court in other cases such as the Meneka Gandhi v. UOI, and the Sakal Papers Ltd. v. UOI. In the present case, a direct consequence of this amendment can be established to be the violation of freedom of speech and expression of the retired government servants and hence, applying the ‘direct effect’ rule, this amendment should be declared unconstitutional.
In Shreya Singhal v Union of India, honourable justice R.F. Nariman, J has stated that “restrictions on freedom of speech must be couched in the narrowest possible terms.” Furthermore, Justice Deshpande in his paper, ‘Right and duties under the constitution’, has linked an observation made by the supreme court of the United States to the Indian scenario that the freedom of speech and expression is considered to be a ‘preferred freedom’ and any restriction on it must be believed to be prima facie unconstitutional till the state can justify it. These observations further strengthen the point that the restriction imposed by the said amendment is unjustified and unconstitutional.
Looking at these contentions, it can be concluded that the said amendment violates Article 19(1)(a) of the constitution and does not qualify as a reasonable restriction under Article 19(2).
The said amendment violates Article 14
Article 14 of the constitution deals with “equality before the law and equal protection of the law”. The ‘equal protection of law’ entails that any act/amendment leading to arbitrary classification is held to violate Article 14. The word ‘arbitrary means an act done unreasonably and without adequate determining principle. It was held in Meneka Gandhi v. UOI by the honourable justice M.H. Beg that Article 14 strikes at arbitrariness in State action and ensures fairness and equality, of treatment.” The amendment in the instant case creates distinct conditions for the retired servants from the intelligence and security organisations and the other citizens in respect to freedom of publication. Moreover, the retired personnel were not aware of this condition during their service and hence there is no lawful justification for the same and the differentiation is arbitrary.
The honourable Supreme Court has stated in various judgements that classification made by the legislature must be in nexus with the objects sought to be achieved. The said amendment makes the differentiation between the common citizens and the retired government servants with a view of safeguarding the sovereignty and integrity of the state. In P Gunasekaran v. UOI, it was held by the SC that the word ‘integrity’ means moral uprightness and honesty and it takes into account openness and cleanness. The amendment seeks to prohibit the freedom of publication which goes against the concept of openness and cannot be said to be safeguarding the integrity of the state.
Therefore, it can be concluded that the impugned amendment creates an un-intelligible differentia and can be classified as an ‘arbitrary state action’ and is violative of Article 14.
The said amendment is vague
I has been upheld by the SC that the legislations being vague and capable of being misused are void. In-State of Bombay v. F.N. Balsara, the Supreme court struck down sections of the Bombay prohibition law that criminalized “frustrating or defeating the provisions of the Act” by, inter alia, noting that the impugned words “are so wide and vague that it is difficult to define or limit their scope”. Also, in Shreya Singhal v. Union of India, the supreme court struck down the section 66A of the Information Technology Act, 2000 and stated that it creates an offence which is ‘vague’ and the court also points out the words like “menace”, “offensive”, “annoy” etc which were based on open-ended interpretations to be vague.
The newly amended rule fails to precisely define the expression “domain of the organization” and gives it an open-ended definition: “including any reference or information about any personnel and his designation, and expertise or knowledge gained under working in that organisation.” and is hence vague. The amendment is likely to be misused in selectively censoring any opinions that portray the government in a bad light.
The said amendment violates right to pension
The right to pension has been recognised as a fundamental right to have a dignified livelihood under article 21of the constitution. It has also been recognised as a statutory right under Article 300A of the constitution as a right to property. Furthermore, ‘property’ has been defined under the Benami Transaction (Prohibition) Act 1988 as “any sort of property, whether movable or immovable, tangible or intangible and includes any right or interest in such property” This definition of the property supports the inclusion of pension under ‘right to property as recognised by the honourable SC.
The original Central Civil Services Pension Rules, 1972, under section 8 restricted the payment of pension only on the grounds of ‘serious crime’ or ‘grave misconduct’. However, the current amendment makes provision for restriction of the payment of the pension on the grounds of publication without clearance from the head of the organisation by the retired government servants related to any material relating to the domain of the organisation and hence, violates the right to the pension of the retired government employees of the intelligence and security organisations.
In DS Nakara v Union of India, the honourable Supreme court had stated that “pension is not a bounty, charity or a gratuitous payment, but an indefeasible right of every employee. It not an ex-gratia payment that depends on the sweet will of the employer, but a staggered form of payment for the past service rendered.” In Deokinandan Prasad v. the State of Bihar, the supreme court held that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim a pension. It was further held that the grant of pension does not depend upon anyone’s discretion. These judgements strengthen the recognition of the right to pension and it can be concluded that the said amendment violates the right to pension.
The said amendment violates the doctrine of unconditional conditions
The ‘doctrine of unconditional conditions’ states that the government cannot condition the availability of a government benefit on an individual agreement to forego his fundamental right. This doctrine was developed in the US courts and was applied in cases such as Elrod v. Burns This doctrine was subsequently also accepted by the Supreme court of India in the cases ‘Kerela education bill v. unknown’ and ‘Ahemdabad St Xaviers v. the state of Gujrat.’
Through the recent amendment, the government has conditioned the payment of pension, which is a government benefit that the government servant is entitled to receive, on the forgiving of the right to freedom of speech and expression. Hence, the impugned amendment violates the doctrine of unconditional conditions.
Any democratic system is based on the balance between power and justice, and when the people in power make attempts to give themselves arbitrary authorities, it impugns this balance and affects the democratic structure of the system. Lord Acton has rightly stated that “Power corrupts, and absolute power corrupts absolutely”. Legislative actions like these are an attempt to silence the dissent against the ruling class and it creates a chilling effect by censoring any potential opinion that might try to highlight the inadequacies in the functioning of the government.
For the above-mentioned reasons, the court must recognize this amendment as unreasonable and arbitrary and should declare it unconstitutional.
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