Context

• Can civil servants express their views on law, governance?

Why in news?

• A senior IAS officer, Smita Sabharwal from Telangana, tweeted from her personal account in support of Ms. Bilkis Bano and questioned the Gujarat government’s decision, sparking 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.

Who are civil servants?

• In a modern democracy, a civil servant is an official in the service of the people and is recruited based on predetermined qualifications. Civil servants are bureaucrats who need to be familiar with the laws and regulations of the country and are expected to act in the best interests of the country and its citizens.

What is their expected role?

• They are responsible for managing the resources given to them by the government and making use of them efficiently and effectively. A sound parliamentary system of government requires civil servants to maintain their integrity, fearlessness, and independence.

What are Central Civil Services (Conduct) Rules of 1964?

• Conduct Rules lay down clear principles as to what the Government expects from its employees.
• Conduct rules apply to both official and personal life of the government servant.
• If an official violates conduct rules, he may face warning/disciplinary action/departmental proceedings.

What is rule 9?

• 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.”

What is freedom of expression?         

• The citizens of 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.

What central conduct rules say?

• When you undertake a government service, you subject yourself 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.

How Indian rules are different than others?

• One of the most important functions of the civil service, as stated by the head of the Canadian Public Service, is to “speak truth to power.”
• Which is prohibited in Indian context because this rule is of the British era. There is no doubt that the British were very, very strict and didn’t want their officers to be talking about how bad the governance was. But in a democracy, the right to criticise the government is a fundamental right and nobody can muzzle that.

What judiciary said in Lipika Paul vs The State Of Tripura case

• 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.

Crux of this judgement in simple words

• 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.

Why this judgement is important?

• It abrogated state from exploiting vague terms of the policy of government and government action to punish civil servants who criticize government of the day in any manner harsh or mild.

What Kerala high court said in 2018?

• One cannot be prevented from expressing his views merely because he/she is an government employee. In a democratic society, every institution is governed by democratic norms. Healthy criticism is a better way to govern a public institution.

Why it is highly contextual here?

• This judgement indirectly protected constructive and just criticism by protecting fundamental rights of the civil servants.

Action of IAS officer can be justified?

• Since she added the words ‘civil servant’ in her tweet is because the dharma of the civil servant is to uphold constitutional principles in letter and in spirit, and the rule of law.
• In Bilkis Bano case, both the spirit of the Constitution and the rule of law were being subverted.
• Hence her expression can be justified.

Can we justify rule 9 here in this context?

• The rules don’t violate Article 19. It is a rule, it’s not the law. It’s not in 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.

Conclusion

• Anybody could challenge these rules as they are offending constitutional fundamental rights of civil servant; 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