Friday, May 2, 2014

Copy of petition challenging prohibition of govt criticism by IAS, IPS officers

In the Central Administrative Tribunal, Lucknow Bench, Lucknow
Original Application No-                        of 2014
Application under section 19 of the Administrative Tribunal Act 1985

Amitabh Thakur                                                   Applicant/ Applicant
Versus
Union of India                                                       Respondent

Index


S No
Description of documents relied upon

Page No


From
To
1.
List of Dates and Events (separate)
Separate

2.
Application


3.
Annexure No A1
Copy of the show cause notice issued to the applicant



Lucknow                                                                             (Amitabh Thakur)
Dated-    02/05/2014                                                    Applicant  in Person
                                                                                                # 094155-34525


For use in Tribunal office
Date of filing
Or Date of receipt by post
Registration No-
                                                                                                            Signature
                                                                                                            For Registrar



In the Central Administrative Tribunal, Lucknow Bench, Lucknow

Original Application  No-                                   of 2014


Amitabh Thakur                                                                           Applicant


Versus
Union of India                                                                               Respondent

LIST OF DATES AND EVENTS


S No               Date                                                   Event                       
1.        1968                                     All India Services (Conduct) Rules
Rule 7 of the All India Services (Conduct) Rules 1968, titled “Criticism of Government” is against the right to freedom of speech and expression guaranteed under section 19(1)(a) of the Constitution of India and does not fall under any of the grounds enumerated in reasonable restrictions in Article 19(2), as shall be enumerated in great details in the Original Application. The applicant, as member of the Indian Police Service and hence a member of the All India Services, is personally affected by these Rules and is hence an affected party.
Hence this Original Application.

Lucknow                                                                             (Amitabh Thakur)
Dated-     02/05/2014                                                   Applicant in Person
                                                                                                # 94155-34526






In the Central Administrative Tribunal, Lucknow Bench, Lucknow
Original Application No-                        of 2014

Application under section 19 of the Administrative Tribunal Act 1985


Amitabh Thakur, aged about 45 years, son of Sri Tapeshwar Narayan Thakur, resident of 5/426, Viram Khand, Gomti Nagar, Lucknow
                                    ----------                     Applicant/ Applicant
Versus
Union of India through Secretary, Department of Personnel and Training, Government of India, New Delhi      -------               Respondent
Detail of Application
1.     Particulars of the order against which the application is made
The original Application (OA for short) is being filed to declare Rule 7 of the All India Services (Conduct) rules 1968 (the Rules, for short) as Ultra-vires to Article 19 of the Constitution and to issue a direction s thereby directing the respondent, Union of India and its instrumentalities not to give effects to these provisions so far as they are against the right to various freedom guaranteed under Article 19 of the Constitution of India
2.     Jurisdiction of the Tribunal
The applicant declares that the subject matter regarding which he wants redressal is within the jurisdiction of the Tribunal
3.     Limitation
The applicant further declares that the application is within the limitation period prescribed in section 21 of the Administrative Tribunals Act 1985 because here a Rule affecting the applicant is being challenged which is perennially in operation and hence can be challenged at any given point of time because of permanence of its effect. Moreover only recently the applicant was issued a show cause dated 08/03/2014 under the impugned Rule 7. Though this order is not being challenged through this OA but it gives the applicant the immediate reason for filing this OA challenging the Rule existing in contravention to Article 19 of the Constitution.  
4.     Facts of the case
The facts of the case are given below
4.01      That the applicant is an officer of the Indian Police Service of the 1992 batch, Uttar Pradesh cadre and is hence an officer of the All India Services. He is filing this Original Application in his capacity as an IPS officer and officer of AIS. He is an affected party in this petition because the Rule being challenged is related with the applicant’s service matter where the applicant is a directly affected person.
4.02      That as a member of the All India Services, the applicant is governed by the All India Services Act 1951 and in exercise of the powers conferred by sub-section (1) of section 3 of this Act, the respondent framed the All India Services (Conduct) Rules, 1968 (the Rules, for short)
4.03      That Rule 7 of the Rules says-“Criticism of Government- No member of the Service shall, in any radio broadcast or communication over any public media or in any document published anonymously, pseudonymously or in his own name or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or opinion,— i. Which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government; or ii. which is capable of embarrassing the relations between the Central Government and any State Government; or  iii. which is capable of embarrassing the relations between the Central Government and the Government of any Foreign State:  Provided that nothing in this rule shall apply to any statement made or views expressed by a member of the Service in his official capacity and in the due performance of the duties assigned to him
4.04      That in short, these conduct Rules completely prohibit (and not merely restrict) the applicant among other AIS officers from stating anything in any manner that has the effect of adverse criticism of government’s current policy or action or might embarrass the relation between Central and State government or might embarrass the relation between Central government and a foreign state government except any statement made or views expressed in his official capacity and in the due performance of the duties assigned to him
4.05      That it can be easily seen from the above wordings of Rule 7 that they are extremely vague and wide-ranging. The words are such that almost every word spoken by the member of AIS might be construed to fall under any of the three categories.
4.06      That it needs to be kindly seen that this prohibition is not limited merely to some comments made in the course of one’s official duty or related to documents, facts and knowledge in possession of an AIS officer but is related with any comments not even remotely related with the officer.
4.07      That thus the officer can be held guilty under these Rules for anything stated by him in any context on any issue of public concern, not even remotely linked with his official duty. Thus even a statement showing worry or concern over rise of school fee in government schools or private schools, change of some academic curricula, any environmental policy measure, any agricultural policy or anything in the State or the country can be correlated as being a comment on the current government policy and/or acts and the officer can hence be held guilty under these Rules to be punished as per the wishes of the concerned government.
4.08      That the vagueness and wideness of the words are such that any statement, any word or any expression of the applicant might be twisted to give a colour of being criticism of the government and action initiated against the applicant on such grounds.
4.09      That the extent of misuse of such prohibition was recently suffered by the applicant when he was issued an explanation through a letter dated 08/03/2014 from the Office of DGP, UP which said that the applicant was guilty under Rule 7 of these Rules because he had made the following comment as regards the recovery of buffaloes of a Minister of the State government-“मंत्रीजी की भैंस जो चोरी हुई तत्काल बरामद हुई. इससे मैं व्यक्तिगत रूप से कहूँ तो आशा का एक बड़ा संचार हुआ है. यूपी पुलिस बड़ी ही तत्परता से कार्य कर रही है. जो 2011 में मेरे निवास से एक साइकल चोरी हुई थी वह मेरे बच्चे की थी और 2013 में मेरे 5000 रुपये एक सज्जन ठग कर ले गए, जो गोंडा के सज्जन हैं. जिसके सम्बन्ध में गोमतीनगर थाना में एफआइआर दर्ज है लेकिन कोई पुलिस वाले पूछताछ नहीं किये जबकि मैं एक मौजूदा आईपीएस अफसर हूँ.” A copy of the show cause notice is being attached as Annexure No A1.
4.10      That thus the applicant’s agony and pain at complete inaction of local police in two matters related with him in his personal capacity were treated as criticism of government and a show cause notice was accordingly issued. The reason for such a show-cause must have been extraneous which the applicant is not going into, but it can be easily understood that calling a statement of a member of AIS where he expresses his personal pain and agony as regards the non-recovery of goods and complete inaction of police can also be considered criticism of government, if someone decides so. This can show the extent to which the impugned Rule can be used for any extraneous reason. Hence, it can be seen that the words used in Rule 7 are completely vague and extremely wide-ranging which seem to include everything in its realm which has all the possibility of misconstrued or misused against a particular member of the AIS, including the applicant, by those bestowed power through these Rules.
4.11      That thus it quite obvious to see that such a blanket ban on expression of the member of AIS is a completely improper act and is clearly against the freedom of speech and expression guaranteed under Article 19(1)(a) read along with Article 19(2)
4.12      That Article 19(1)(a) reads as follows-“Protection of certain rights regarding freedom of speech etc.- (1) All citizens shall have the right- (a) to freedom of speech and expression” while Article 19(2) says-“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
4.13      That it is very obvious that the issue related with conduct rules stands juxtaposed to the right to freedom of speech and expression. Right to freedom of speech and expression can have reasonable restrictions imposed on it in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence while Rule 7 of the Rules are associated with adverse criticism of any current or recent policy or action of the Central Government or a State Government; embarrassing the relations between the Central Government and any State Government and embarrassing the relations between the Central Government and the Government of any Foreign State
4.14      That adverse criticism of any current or recent policy or action of the Central Government or a State Government; embarrassing the relations between the Central Government and any State Government and embarrassing the relations between the Central Government and the Government of any Foreign State cannot be said to be directly related either to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence etc stated in Article 19(2) on the basis of which an reasonable restrictions can be imposed on the right to freedom of expression.
4.15      That it would be pertinent here to see what the Hon’ble Supreme Court has said in some of its landmark decisions on the subject of freedom of speech and expression. In L.I.C. vs. Professor Manubhai D. Shah, [(1992) 3 SCC 637], it was observed by the Hon’ble Supreme Court: "5. Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments and feelings to others. Freedom of speech and expression is thus a natural right which a human being acquires on birth. It is, therefore, a basic human right. Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers” and “Freedom to air one's views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship.”
4.16      That in Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal and Others [(1995) 2 SCC 161], the Hon’ble Supreme Court observed:"Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self- fulfilment. It enables people to contribute to debates on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. 45. The burden is on the authority to justify the restrictions. Public order is not the same thing as public safety and hence no restrictions can be placed on the right to freedom of speech and expression on the ground that public safety is endangered. Unlike in the American Constitution, limitations on fundamental rights are specifically spelt out under Article 19(2) of our Constitution. Hence no restrictions can be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19(2)."
4.17      That in Bennett Coleman & Co. vs. Union of India & Ors. [(1972) 2 SCC 788] it was held: "97. Political philosophers and historians have taught us that intellectual advances made by our civilisation would have been impossible without freedom of speech and expression. At any rate, political democracy is based on the assumption that such freedom must be jealously guarded. Voltaire expressed a democrat's faith when he told an adversary in argument : "I do not agree with a word you say, but I will defend to the death your right to say it". Champions of human freedom of thought and expression, throughout the ages, have realised that intellectual paralysis creeps over a Society which denies, is however subtle a form, due freedom of thought and expression to its members."
4.18      That recently in Re-Ramlila Maidan Incident Dt 04/05-06-2011 vs Home Secretary And Others ( Suo motu writ petition (crl.) no. 122 of 2011), the Hon’ble Supreme Court said- “Part III of the Constitution of India although confers rights, still duties and restrictions are inherent thereunder. These rights are basic in nature and are recognized and guaranteed as natural rights, inherent in the status of a citizen of a free country, but are not absolute in nature and uncontrolled in operation. Each one of these rights is to be controlled, curtailed and regulated, to a certain extent, by laws made by the Parliament or the State Legislature. In spite of there being a general presumption in favour of the constitutionality of a legislation under challenge alleging violation of the right to freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation being made out, the onus shifts upon the State to show that the legislation comes within the permissible restrictions set out in clauses (2) to (6) of Article 19 and that the particular restriction is reasonable. It is for the State to place on record appropriate material justifying the restriction and its reasonability. Reasonability of restriction is a matter which squarely falls within the power of judicial review of the Courts. Such limitations, therefore, indicate two purposes; one that the freedom is not absolute and is subject to regulatory measures and the second that there is also a limitation on the power of the legislature to restrict these freedoms. The legislature has to exercise these powers within the ambit of Article 19(2) of the Constitution.”
4.19      That it also said-“22. Further, there is a direct and not merely implied responsibility upon the Government to function openly and in public interest. The Right to Information itself emerges from the right to freedom of speech and expression. Unlike an individual, the State owns a multi-dimensional responsibility. It has to maintain and ensure security of the State as well as the social and public order. It has to give utmost regard to the right to freedom of speech and expression which a citizen or a group of citizens may assert.”
4.20      That in the case of S. Rangarajan v. Jagjivan Ram [(1989) 2 SCC 574], the Hon’ble Supreme Court noticed as under:"Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in power keg. 23. Where the Court applies the test of `proximate and direct nexus with the expression', the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest.”
4.21      That In Re: Ramlila, the Hon’ble Supreme Court said-“25. No person can be divested of his fundamental rights. They are incapable of being taken away or abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests emerge:-a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by exercise of executive power without any law to back it up. b) Each restriction must be reasonable. c) A restriction must be related to the purpose mentioned in Article 19(2). 26. The questions before the Court, thus, are whether the restriction imposed was reasonable and whether the purported purpose of the same squarely fell within the relevant clauses discussed above. The legislative determination of what restriction to impose on a freedom is final and conclusive, as it is not open to judicial review. The judgments of this Court have been consistent in taking the view that it is difficult to define or explain the word "reasonable" with any precision. It will always be dependent on the facts of a given case with reference to the law which has been enacted to create a restriction on the right. It is neither possible  nor advisable to state any abstract standard or general pattern of reasonableness as applicable uniformly to all cases. This Court in the case of State of Madras v. V.G. Row [AIR 1952 SC 196] held :- "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases."  27. For adjudging the reasonableness of a restriction, factors such as the duration and extent of the restrictions, the circumstances under which and the manner in which that imposition has been authorized, the nature of the right infringed, the underlining purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, amongst others, enter into the judicial verdict. [See: Chintamanrao & Anr. v. State of Madhya Pradesh (AIR 1951 SC 118)]. 28. The courts must bear a clear distinction in mind with regard to `restriction' and `prohibition'. They are expressions which cannot be used inter-changeably as they have different connotations and consequences in law. Wherever a `prohibition' is imposed, besides satisfying all the tests of a reasonable `restriction', it must also satisfy the requirement that any lesser alternative would be inadequate. Furthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a question of fact which has to be determined with regard to facts and circumstances of each case. This Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] held as under:- "75. Three propositions are well settled: (i) 'restriction' includes cases of 'prohibition'; (ii) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that right....." 29. The obvious result of the above discussion is that a restriction imposed in any form has to be reasonable and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with the object sought to be achieved. Whenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of the Constitution.”
4.22      That what the above facts imply is that-(a) Freedom of speech and expression is a basic human right (b) Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self- fulfillment (c) The burden is on the authority to justify the restrictions (d) No restrictions can be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19(2) (e) these rights are not absolute in nature but each one of these rights is to be controlled, curtailed and regulated (f) In spite of there being a general presumption in favour of the constitutionality of a legislation under challenge alleging violation of the right to freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation being made out, the onus shifts upon the State to show that the legislation comes within the permissible restrictions set out in clauses (2) to (6) of Article 19 and that the particular restriction is reasonable (g) It is for the State to place on record appropriate material justifying the restriction and its reasonability  (h) Reasonability of restriction is a matter which squarely falls within the power of judicial review of the Courts (i) freedom of expression cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest (j) Where the Court applies the test of `proximate and direct nexus with the expression', the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation (k) The Court should also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest (l) it is difficult to define or explain the word "reasonable" with any precision. It will always be dependent on the facts of a given case  (m) For adjudging the reasonableness of a restriction, factors such as the duration and extent of the restrictions, the circumstances under which and the manner in which that imposition has been authorized, the nature of the right infringed, the underlining purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, amongst others, enter into the judicial verdict (n) there is a distinction between `restriction' and `prohibition' (o) whether a restriction, in effect, amounts to a total prohibition or not, is a question of fact which has to be determined with regard to facts and circumstances of each case (p) a total prohibition must also satisfy the test that a lesser alternative would be inadequate
4.23      That it now seems proper to test Rule 7 of the Rules vis-à-vis the above legal principles.
4.24      That it is very apparent that Rule 7 in the above Rules is not a restriction but a complete prohibition. This is a complete prohibition because the words completely ban any communication to the press or any public utterance or any statement of fact or opinion of certain kinds. This is not restriction but complete prohibition.
4.25      That since Rule 7 is complete prohibition, the first question that arises is-“does it satisfy the test that a lesser alternative would be inadequate?” The answer is a complete No. The fact remains that a member of AIS remains in the complete control of the concerned government- Central or State. The appropriate government has its hold over the AIS member all the time for all its acts. Though it is a mutual agreement but the upper hand remains constantly in the hands of the employer. In such cases, to put a blanket ban, complete prohibition, is not only unwarranted but definitely unnecessary because even some kind of reasonable restriction could have been sufficient. Since the balance of favour remains in the hands of the appropriate government, hence it is always is a position to act against the AIS officer if he fails to go beyond the occasional restriction imposed, instead of having complete prohibition. Thus this complete prohibition is itself against the principle pronounced in In Re:  Ramlila (supra), Chintamanrao & Anr (supra) and Mirzapur Moti (supra)
4.26      That having failed at the very first test, the next issue that arises is- “are the grounds for these prohibitions same or different from those specified under Article 19(2)?”
4.27      That as stated earlier Article 19(2) is as regards interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence while Rule 7 of the Rules are associated with any current or recent policy or action of the Central Government or a State Government; embarrassing the relations between the Central Government and any State Government and embarrassing the relations between the Central Government and the Government of any Foreign State.
4.28      That it can be easily seen that Rule 7 satisfies none of the grounds concerned or raised in Article 19(2). Criticizing current policy or action would not necessarily lead to affect the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. Any relation is not far-fetched and depends from case to case. While it is true that a situation may arise when criticizing current policy or action might lead to direct affect on sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence but such occasions would be rare. On the contrary there would be any number of instances where any such criticism would have no relation of any kind with any of the above mentioned fact/factors stated in Article 19(2). For instance, if the applicant criticizes the government policy of rising the school fees of government schools or criticizes the government policy of having risen the wheat procurement price, how does it affect sovereignty and integrity of India, the security of the State, friendly relations with foreign States? Even public order hardly seems to get affected with these statements? Similarly it does not come to adversely affect decency or morality nor is it stand in relation to contempt of court, defamation. Similarly it has hardly anything to do with incitement to an offence.
4.29      That there would be thousands of such examples where any criticism of the State policy or action would have nothing to do with any of the factors on which restrictions can be imposed under Article 19(2) and yet AIS members, including the applicant, are facing such prohibition.
4.30      That this shows that this prohibition on criticizing the policy and action of the government, having no correlation of any kind with the grounds of restriction stated in Article 19(2) is completely arbitrary and hence the applicant as a member of AIS is being deprived of his fundamental rights on completely improper reasons, against the constitutional mandate
4.31      That similarly embarrassing the relations between the Central Government and any State Government has nothing to do with interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence in most cases. Yet such a prohibition has been imposed, which is completely incorrect.
4.32      That embarrassing the relations between the Central Government and the Government of any Foreign State is a completely different thing vis-à-vis interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States etc and not necessarily the same. At most embarrassing the relations between the Central Government and the Government of any Foreign State and friendly relations with foreign States can be said to have some close correlation, but only in some cases and definitely not in all cases, while the others are completely far-fetched, each of which speak of different things and stand on different wavelength.
4.33      That yet the Rules impose all the above prohibitions which are not at all directly correlated with any of the factors on which restriction can be imposed under Article 19(2). Hence such prohibitions on the applicant’s right to freedom of expression are against the constitutional provisions and do not come under the category of reasonable restrictions that can be imposed under Article 19(2) as they do not relate to the grounds prescribed in Article 19(2) as regards almost all the prohibition imposed on the applicant under Rule 7
4.34      That the applicant’s pleas become all the more apparent and logical when one looks at the direction of the Hon’ble Supreme Court in S. Rangarajan (supra) that freedom of expression cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered where such anticipated danger should not be remote, conjectural or far-fetched but it should have proximate and direct nexus with the expression so that the expression of thought should be intrinsically dangerous to the public interest. As explained in above Paras, the restrictions imposed in Rule 7 have no proximate or direct relation with putting the community interest in danger. Any correlation is only farfetched and varies from the case to case. While it is not impossible that the restrictions imposed in Rule 7 on the applicant might not lead to the grounds stated in Article 19(2) but the possibility and chances are low and the majority of the restrictions are definitely such which will have no effect or impact to the extent stated in the various grounds in Article 19(2). Thus, the total prohibition imposed in the impugned Rule 7 completely fails the golden rules of proximity and direct correction between the cause and the object and being based completely on conjecture, hypothesis and alleged correlations where none directly exists are bad in the eyes of law and hence need to be quashed.
4.35      That the Hon’ble Supreme Court said in S Rangrajan (supra) that where the Court applies the test of `proximate and direct nexus with the expression', it also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. On the contrary, there was no such situation arising here. The fact is that the applicant, as a member of AIS, is already bound to the Government in many ways. He is already in the hands of the government who have almost complete control over his career and also a control over his life to a very large extent. The government can impose its will through transfer, posting, promotion, rewards, punishments, increments and many other favours and disfavours. All these are in addition to the law of the land existing fir all other citizen, who is not the members of AIS. Hence the moment the applicant acts in any manner which is contrary to the laws related with reasonable restrictions that imply to any other citizen of the Nation, the government, being the applicant’s employee as well, can immediately come into picture and initiate all kinds of legal action against him, which would also immediately lead to all kinds of service-related consequences like suspension, departmental enquiry, other punishments, even termination from service if the misconduct is found to be serious and so on. Hence it is pretty obvious that the government, as an employer, is not at all helpless in any manner to need such added weapon as impugned Rule 7 to enforce its mandate, which on the other hand is directly curtailing and threatening the applicant’s fundamental rights against the constitutional mandate as enshrined in Article 19(2) without having any need to actually impose such total prohibition, except a false sense of security and a self-generated assumption that if the applicant is permitted to criticize the government policy, he might misuse it in any particular manner.
4.36      That as stated by the Hon’ble Supreme Court, such conjectures and far-fetched hypothesis can never be the legal grounds to curtail the fundamental rights of the applicant which have been considered completely sacrosanct unless they fall under the category of reasonable restrictions that can be imposed through Article 19(2) and other provisions of Article 19, which as explained in above Para, is not the case and the total prohibition imposed on the applicant’s right to speech and expression is completely uncorrelated with the various grounds provided in Article 19(2). Hence being unreasonable and against the constitutional mandate, the impugned rules need to be quashed
4.37      That the issue of the government servants, like the applicant, being a separate class all together, so to be governed  by completely different yardsticks were raised in Kameshwar Prasad And Others vs The State Of Bihar And Another ( 1962 AIR 1166, 1962 SCR Supl. (3) 369) where the Hon’ble Supreme Court also made it very clear- “We have rejected the broad contention that persons in the service of government form a class apart to whom the rights guaranteed by Part III do not, in general, apply.” Similarly in O. K. Ghosh And Another vs E. X. Joseph (1963 AIR 812, 1963) , the Hon’ble Supreme Court said- “There can be no doubt that Government servants can be subjected to rules which are intended to maintain discipline amongst their ranks and to lead to an efficient discharge of their duties Discipline amount Government employees and their efficiency may, in a sense, be said to be related to public order. But in considering the scope of clause (4), it has to be borne in mind that the rule must be in the interests of public order and must amount to a reasonable restriction”, a test where the above impugned rules completely fail as explained in the above Para.
4.38      That some of these issues, particularly related to the various aspects related with being a government servant vis-à-vis the conduct rules, were discussed by the Hon’ble Karnataka High Court in B. Manmohan And Ors. vs State Of Mysore And Ors. (AIR 1966 Kant 261, AIR 1966 Mys 261, (1966) 1 MysLJ) where the question was about Rule 7(1) of the Mysore Government Servants Conduct Rules 1957, which said “Criticism of Government: (1) No Government Servant shall, in any radio broadcast or in any document published anonymously or in his own name, or in the name of any other person or in any communication to the Press or in any public utterance make any statement of fact or opinion- (i) Which has the effect of any adverse criticism of any decision of his superior officers, or any current or recent policy or action of the Mysore Government or the Central Government or the Government of any other State or a local authority. Or (ii) Which is capable of embarrassing the relations between the Government of Mysore and the Central Government of any other State; (iii) which is capable of embarrassing the relations between the Central Government and the Government of any Foreign State. Provided that nothing in this Rule shall apply to any statements made or views expressed by a Government servant in his official capacity or in the due performance of the duties assigned to him”, being violative of Article 19
4.39      That it can be seen that the above Rules of Mysore Government Servants Conduct Rules 1957 are almost exactly identical to Rule 7 of the Conduct Rules being challenged here.
4.40      That the order said-“There is no doubt and that fact was not disputed before us that the Rule in question puts serious fetters on the freedom of speech of the Government servants. The fact that the said Rule violates the freedom guaranteed to a citizen of this Country, under Article 19(1)(a) cannot be and was not denied before us.”
4.41      That the Hon’ble Karnataka High Court said-“(30) Now coming to the contention of the learned Advocate-General that under Rule 7(1) reasonable restrictions are placed on the Government Servants' right to freedom of speech or expression in the interests of public order, he urged that if the Government servants are permitted to make statements of fact or express opinions in public which have of adverse criticism of any current policy or action of the one or the other authorities mentioned in the Rule, then there will be no discipline in the ranks of the Government servants; lack of discipline will lead to lack of efficiency in work; the two put together would create chaos in administration; indiscipline on the part of the Government servants is likely to lead to ugly situations which in the final analysis may lead to public disorder.”
4.42      That to this contention, the Hon’ble Karnataka High Court said-“(31) A contention similar to this was repelled by the Supreme Court in O.K. Ghosh's Case. Therein it was laid down that a restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct; indirect or far-fetched or unreal connection between the restriction and public order cannot be aid to be reasonable on the ground that its connection with public order cannot be said to be relate on the ground that its connection with public order is remote or far-fetched. Hence, we are unable to agree with the learned Advocate-General that the impugned Rule can be considered as a reasonable restriction in the interests of public order and thus saved by Article 19(2).”
4.43      That the Hon’ble High Court had said-“(32) The next contention of the learned Advocate-General was that the validity of the impugned Rule will have to be judged not merely by the tests provided by Article 19(2) but also by taking into consideration the occupation of the applicants. In that context, the court shall see whether the impugned rule cannot be considered as a reasonable restriction impugned on the Government servants in the interests of the general public and thus falling within sub-article (6) of Article 19. On this branch of the case his arguments proceeded thus; a Government servant, as a citizen of this country, is entitled to freedom of speech and expression, but being a Government servant he has special duties and responsibilities; his occupation requires him to be disciplined and efficient without which there will be chaos in the administration; a public servant who indulges in public criticism of recent policy or action of Government cannot remain disciplined; and consequently his efficiency is bound to suffer. According to him, it would be a sad day for the Country if Government servants are permitted to publicly criticise the Government's policy or action; as Government servants they are expected to loyally implement the policy decisions taken by Government it is through them the Government implements its policy; If the very persons through whom the Government acts are avowedly critical of the policy to be implemented then administration would become well nigh impossible. Hence, he asked us to test the validity of the impugned rule, not merely by the yardstick provided by Article 19(2) but also by that provided by Article 19(6).”
4.44      That the Hon’ble Karnataka High Court said-“(33) There is no doubt that when the constitutionality of an enactment is challenged on the ground of violation of any of the Articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary. In such a case, the Court has to consider the subject matter of the legislation, the area in which it is intended to operate and the purports and intents of the legislation. In order to do so, it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy. See: Hamdard Dawakhana v. Union of India.  As observed in that case, that freedom of speech goes to the heart of the natural right of an organised freedom loving society to "impart and acquire information about the common interest"; if any limitation is placed which results in the society being deprived of such right then no doubt it would be violative of the rights guaranteed under Article 19(1)(a); but if all it does is that it deprives a trader from commending his wares it would not fall within that Article. It is not the form or incidental infringement that determines the constitutionality of a statute, in reference to the rights guaranteed in Article 19(1) but the reality and substance. What we have to see is whether having regard to the scope and object of the Rule, its true nature and character it interferes with the right of freedom of speech or whether it merely places reasonable restrictions in the interests of the general public on as guaranteed by Article 19(1)(g).”
4.45      That the Hon’ble Karnataka High Court said-“(34) No one clause in Article 19 can be looked into in isolation. There is a great deal of overlapping of the rights guaranteed under that Article. Therefore, the impose of every right guaranteed along with restrictions that could be validly imposed on that right on the other guaranteed rights should not be overlooked. A citizen of this country is not merely a citizen, he may have other capacities. In determining the validity of any restriction placed on him, his duties and responsibilities arising from his occupation will have to be considered. That position is made clear by the decisions of the Supreme Court in Kameshwr Prasad's Case. and O.K. Ghosh's case. Therefore, we have to see whether the impugned Rule can be considered as a reasonable restrictions in the interests of general public on the exercise of the rights conferred on the applicants under clause (g) of sub-article (1) of Article 19. As seen earlier, the impugned Rule prohibits the publication of any document or any public utterance by a Government servant which has the effect of any adverse criticism of any current or recent policy or action of the Government.”
4.46      That the Hon’ble Karnataka High Court said-“The Rule in question is so wide as to include all adverse criticism of recent policy or action of the Government whatever that policy or action may be. A rule of this character cannot be said to be a reasonable restriction imposed in public interests, on the rights guaranteed under Article 19(1)(g) and-“(35) As mentioned earlier, the impugned Rule is so wide as to prohibit all adverse criticism of current or recent policy or action of the Government and it is not possible to separate its valid portion from that which is invalid.”
4.47      That the order said that the learned Advocate-General “contended that if we are to consider the Rule in question is being ambiguous, and is capable of two interpretations, then we should place that interpretation which will be consistent with the Constitution”, inviting attention to the decision of the Hon’ble Supreme Court in R.L. Arora vs State of Uttar Pradesh (AIR 1962 SC 764), wherein it was laid down that it is well settled that if certain provisions of law construed in one way will be consistent with the Constitution, and if another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. To this the Hon’ble Karnataka High Court said-“We see no ambiguity in Rule 7(1). It is quite plain. Therefore, no question of interpretation arises. The Rule in question plainly and unambiguously any document or from making any public utterance which has the effect of any adverse criticism of any current or recent policy or action of the Government. That Rule is incapable of being construed in the manner the learned Advocate-General wants us to construe.”
4.48      That having considered all the above facts, the Hon’ble Karnataka High Court contended-“(37) For the reasons mentioned above, we hold that Rule 7(1) is void as being violative of Article 19 of the Constitution.”
4.49      That it is kindly prayed that what the Hon’ble Karnataka High Court said about Rule 7(1) of the Mysore Government Servants Conduct Rules 1957 holds equally true for the impugned Rule 7 of the Rules, applicable to the applicant and hence even the arguments related to the matter being related to government servants and hence different from common citizen do not hold the ground.
4.50      That having seen that firstly these are complete prohibition where even reasonable restrictions would have been sufficient and is hence completely incorrect and unwarranted in the light of the various mandate of the Hon’ble Supreme Court and secondly that these prohibitions do not emanate or correlate to the various grounds prescribed in Article 19(2) on which such reasonable restrictions can be imposed, the burden now shifts on the authority to justify the restrictions because as stated in the various judgements of the Hon’ble Supreme Court including Secretary, Ministry of Information and Broadcasting (supra) and in Re: Ramlila (supra), in spite of there being a general presumption in favour of the constitutionality of a legislation under challenge alleging violation of the right to freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation being made out, the onus shifts upon the State to show that the legislation comes within the permissible restrictions set out in clauses (2) to (6) of Article 19 and that the particular restriction is reasonable.
4.51      That as stated by the Hon’ble Supreme Court in Re:Ramlila  it is now for the State to place on record appropriate material justifying the restriction and its reasonability and the applicant would request before this Hon’ble Tribunal to direct the respondent to explain and justify the total prohibition imposed by them on freedom of speech and expression where they now need to explain the facts and circumstances which mandated them to impose such total prohibition.
4.52      That as stated by the Hon’ble Supreme Court in Re: Ramlila reasonability of restriction is a matter which squarely falls within the power of judicial review of the Courts and hence the applicant, with his constitutional rights having got curtailed, in an improper manner, against the mandate and directions of the constitution, comes before this Hon’ble Tribunal which has the power to judicial review as regards the reasonability of these restrictions imposed upon the applicant in an improper manner, against the provisions of Article 19.
4.53       That it also seems pertinent to present facts as to why and how this Hon’ble Tribunal can and shall entertain this OA. In this regards, the order of the Hon’ble Supreme Court in L. Chandra Kumar vs The Union Of India & others (Equivalent citations: 1995 AIR 1151, 1995 SCC (1) 400) seems to be specifically relevant. There among the questions framed by the Hon’ble Supreme Court was-“(2) Whether the Tribunals, constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule?”  After analyzing the issues in great details, the Hon’ble Supreme Court finally concluded as follow-“The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal”. Thus the matter being raised here not being one related to the vires of the parent statutes of this Hon’ble Tribunal needs to be kindly heard by it “as the only courts of first instance” and hence lies within the jurisdiction of this Hon’ble Tribunal.  
4.54      That based on the above facts and having no any officious and effective alternative remedy in these circumstances, this OA is being filed among other such the following grounds
5.     Grounds for relief with legal provisions
(a) Because freedom of speech and expression is a basic human right and is necessary, for self-expression which is an important means of free conscience and self- fulfillment
(b)Because no restrictions can be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19(2)
(c) Because none of the grounds stated in Rule 7 of the Conduct Rules stand in congruence with the grounds stated in Article 19(2), as explained in details in the OA
(d)                        Because freedom of expression cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered and the anticipated danger should not be remote, conjectural or far-fetched but proximate, where the impugned rule 7 completely fails, as explained in above Para
(e) Because the test of `proximate and direct nexus with the expression' warrants that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation, where again the impugned rule 7 completely fails, as explained in above Para
(f)  Because a total prohibition must satisfy the test that a lesser alternative would be inadequate which the impugned Rule is not capable of, as explained in above Para
(g) Because the Rules are extremely wide and vague
(h)                        Because the vagueness and wideness of the Rules are definitely liable to be misused as happened in the applicant’s case illustrated above
(i)   Because reasonability of restriction is a matter which squarely falls within the power of judicial review of this Hon’ble Tribunal
(j)   Because the burden is on the authority/respondent to justify the restrictions
(k)Because in spite of there being a general presumption in favour of the constitutionality of a legislation under challenge alleging violation of the right to freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation being made out, as in this particular case, the onus shifts upon the State to show that the legislation comes within the permissible restrictions set out in clauses (2) to (6) of Article 19 and that the particular restriction is reasonable
(l)    Because it is now for the State to place on record appropriate material justifying the restriction and its reasonability
6.     Details of the remedies exhausted
The applicant declares that he has availed the remedies available to him because there is no other remedy or any other legal platform available to him that to approach this Hon’ble Tribunal to get the impugned Rule 7 of the Conduct Rules quashed
7.     Matter not previously filed or pending with any other court
The applicant declares that he had filed a Writ petition Misc bench No 4600 of 2013 before the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow, which is pending before the Hon’ble Court, where among other things, he has prayed to issue a writ to decide over the his representations/suggestions as regards need for amendment in Conduct rules presently applicable to various government servants particularly about the blanket restriction imposed on the government servants as regards interaction with Media. This OA has a topic which is related through some distant and weak linkage with the above Writ petition but otherwise the subjects of the two petitions are clearly distinct because while the previous petition is about certain amendments being sought in various conduct rules of different government services in tune with suggestions made by the petitioner or otherwise, this petition is specifically about declaring Rule 7 of the Conduct Rules as being ultra vires to the Constitution. He declares that he has not previously filed any other application, writ petition or suit except the above-mentioned Writ Petition, related with the matter in respect of which this application has been made, before any Court or any other authority or any other Bench of the Tribunal nor any such application, writ petition or suit is pending before any of them.
8.  Relief (s) sought
In view of the facts mentioned in paragraph 4 above, the applicant prays for the following relief(s)—
a.      to kindly declare Rule 7 of the All India Services (Conduct) rules 1968 presented at Para 4.03 of this OA as Ultra-vires to Article 19 of the Constitution and to issue an appropriate direction thereby directing the respondent, Union of India and its instrumentalities not to give effects to these provisions so far as they are against the right to various freedom guaranteed under Article 19 of the Constitution of India
b.     any other order that the Hon’ble Tribunal deems fit in the interest of justice, keeping in view the lawful interest of the applicant
9.  Interim order, if any, prayed                      NONE
10.            In the event of application being sent by registered post, it may be stated whether the applicant desires to have oral hearing at the admission stage and if so, he shall attach a self-addressed Postcard or Inland letter, at which intimation regarding the date of hearing could be sent to him                 Not Applicable
11.                       Particulars of the Bank Draft/ Postal Order filed in respect of the application fee
a.      Name of the Bank/ Post Office                        ,

b.     Bank draft/ Postal Order No              
c.      Date                                                              
d.     Amount                                                        Rs. fifty only
(Rs. 50/-)
12.      List of enclosures          Annexure No.  A1

Lucknow                                                                 (Amitabh Thakur)
Dated-  02/05/2014                                          Signature of the applicant
                                                                                   
VERIFICATION
I, Amitabh Thakur, aged about 45 years, son of Sri Tapeshwar Narayan Thakur, resident of 5/426, Viram Khand, Gomti Nagar, Lucknow, do hereby verify that contents of paragraphs 1, 4 and 6 to 12 are true to my personal knowledge and paragraphs 2, 3 and 5 are believed to be true on legal advice and that I have not suppressed any material fact.

Lucknow                                                                 (Amitabh Thakur)
Dated-  02/05/2014                                          Signature of the applicant






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