A senior IAS officer from Telangana, tweeted from her personal account in support of Ms. Bano (Bilkis Bano case) 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 and what is their expected role?
In a modern democracy, a civil servant is an official in the service of the people and is recruited based on predetermined qualifications.
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. 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.”
The crisis of ethics and accountability in civil servants exposes many issues related to the structure of the code of conduct, constitutional protection, the politician-bureaucratic nexus, and their political victimisation.
To address these issues and maintain integrity and discipline amongst civil servants, various reform committees such as the Santhanam Committee (1964), Hota Committee (2004), and the most recent Second Administrative Reform Committee Report (2005) have been formed.
Code of conduct for civil servants
A legally enforceable code of conduct sets out the standards of behaviour expected of those working in the public service.
The Civil Service code outlines the Civil Service’s core values, and the standards of behaviour expected of all civil servants in upholding these values.
In India, the current set of ethical norms are the Conduct Rules, contained in the Central Services (Conduct) Rules, 1964 and analogous rules applicable to members of the All India Services or employees of various State Governments.
The code of behaviour as enunciated in the Conduct Rules contain general norms like ‘maintaining integrity and absolute devotion to duty’
Freedom of speech and expression:
Article 19 is recognized as a Fundamental Right which provides an individual or a community, the freedom to articulate their thoughts and opinions without the fear of a legal sanction or retaliation.
Article 19(1) (a) of the Constitution of India states that “all citizens shall have the right to freedom of speech and expression”.
The exercise of this right is subservient to “reasonable restrictions” being imposed under Article 19(2) of the Constitution of India.
Article 19 (2) contains the grounds on which restrictions on the freedom of speech and expression can be imposed:
Security of State
Friendly relations with foreign states
Public Order
Decency or morality
Contempt of Court
Defamation
Incitement to an offence
To what extent do the Service Conduct Rules impose restrictions on the Freedom of Speech of Government employees?
Freedom of speech and expression is a Fundamental Right, however, it is not absolute in nature, as there are reasonable restrictions which can be imposed.
This is to ensure that the Indian bureaucracy, which has been perceived as a non-political organization, maintains neutrality.
The restrictions are placed to ensure that there is space for healthy criticism. However, emotional outbursts, which could turn into criticism is governed, as these could lead to the public losing faith in the Government.
Recent judgements by Tripura High court and Kerala High court gave a different direction to this debate
In its judgment, the Tripura High Court has mentioned that government servants are entitled to hold and express their political beliefs, subject to the restrictions laid under Rule 5 of the Tripura Civil Services (Conduct) Rules, 1988.
In its judgment, the Kerala High Court has mentioned, 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.
Restrictions applied through the service rule, that come in conflict with Article 19 (1)(a), right to free speech shall override unless the rules in question are covered under Article 19 (2), the framework that provides for reasonable restrictions.
In a nutshell, any restriction imposed even through the conduct rules will have to qualify the requirements of Article 19(2). The conduct rules are flexible enough to accommodate certain kinds of expression which may not necessarily be political in nature.
The right to Freedom of Speech and Expression plays a key role in the formation of public opinion on the political, social and economic matters. It is, therefore, quintessential for the functioning of democratic processes. Hence, a fair and constructive criticism is a welcome step even if it comes from the civil servant. But, the criticism should be in consonance with the principle enshrined in the Constitution of India.
