Saturday, August 29, 2009

"Fundamental Rights" and the "Chill and Distant Heights"

Barack Obama’s op-ed piece in the New York Times on August 15, 2009, reminded me that government servants do not lose their individual rights when they assume office. Imagine a Congressional law which prohibits the President from appearing in popular television shows like the Tonight Show, or from writing for newspapers – wouldn’t the law be invalidated under first amendment scrutiny? The interesting point here is that although (that which we in India term) “fundamental rights” are protections primarily available against the government, you don’t lose those rights even though you may become a part of the government. Similarly, an officer of (say) the Life Insurance Corporation of India is still entitled to ‘natural justice’ when removed from office. Of course, there are good reasons why visible members of the executive government/legislature should be able to communicate ideas/information publicly.

But then again, appointment to the Indian judiciary does involve a significant sacrifice in terms of speech and associational rights. One of us has highlighted elsewhere the 1997 'Restatement of Values of Judicial Life' which mandates judicial reticence on some issues - while there seems to exist a wider convention of judicial silence on many issues which seems only recently to have been broken in blogs/newspaper articles written by judges in the context of the assets controversy (see article) [after all, who knows what questions may come up in litigation tomorrow?]. It would be interesting to situate the question of judicial propriety within a wider free speech debate.

1 comment:

P.Venu said...

The legal position in our country leaves no doubt that the service laws certainly provides ample leeway to the public servants to exprees their private thoughts. The public servants are governed by the laws enacted or notified under the provisions of Art.309. There are specific rules for different services. As far as the CCS(Conduct)Rules, 1964 governing the Central Governmet servants are concerned, Rule 9 permits them to publish articles,books etc. subject to their makig it known that hose are their personal views. However,there are restrictions on persoal appearance in the media etc.

So also, there are restrictions on criticising public policy. But the restrction is qualified in that there is uninhibited freedom while expreesing the views in official communication.

A public servant does not cease to be a citizen. On the contrar he becomes an 'oathed' citizen, with some reasonable restriction on his fundamental rights but a precise obligation towards the duties as a citizen. The basic rules of coduct madates te public servants to:
- maintain absolute integrity;
- maintain absolute devotion to duty;
- do nothig which is unbecomig of a Government servant;
- take every possible step in ensuring the integrity and devtion to duty of those who are under their charge; and
- act in their best judgement unlee they are directed to the contrary by their official superiors.

Last among the above conditions is so far an untested ground,partly. It is well settled that instructions from the official superiors should be in writing and requires to be lawful and reasonable. The provisions of Article 311 ensures that conscientious public servants are not penalised for expressing their inability to comply with directios contrary to the rules. But the Judgements on such cases are only sdverserial in that such public servants suffers no legal wrong.

But it appears to be a judicially untested premise whether such public servants have a right to approach the judicial forums for enforcement of conduct rules even though they themselves have not sufferred or threatened of any penal action. It has been the personal experence of this writer that at least the Central Administrative Tribunals are reluctant to accept pleas - it has been held that challenge to of vires palpably wrong instructions would trigger chaos. However, a careful reading of the provisions of the Constitution and the service rules points to the contrary. The preamble to the Constitution guarantees dignity of the individual. It is certainly below the dignity of a public servant to compromise integrity or do any thing unbecoming of a Government servant or to be less than fully devoted to duty or to coerce their subordiates for non-patriotic acts. if they are directed to such illegality action challenging the vires certainly forma a 'service matter';it is rather a churning proces.