1. These petitions, under Art. 226 of the Constitution, raise and identical question of law, namely, whether rule 7 of the Mysore Government Servants Conduct Rules, 1957, to be hereinafter referred to as the rules is violative of Art. 19 of the Constitution.
2. Writ Petition No. 1248 of 1965 raises an additional contention, namely, that in addition to the aforesaid rule 7, rule 10 is also violative of Art. 19 of the Constitution.
3. The petitioners are members of the executive committee of the Mysore State non-gazette Officers' Association, to be hereinafter referred to as the association. They have been served with notice dated 25 June, 1965, requiring them to show cause as to why disciplinary action should not be taken against them for publishing certain objectionable statements in the pamphlet entitled 'saga of our struggle.' It is said that those statements contravene rule 7(1) of the rules. The passage in the pamphlet objected to, reads :
'To make matters worse, the Government who are embarrassed at the unusual upsurge of non-gazette officers throughout the State in their frantic efforts to curb the movement, have resorted to such unwise and hasty tactics, such as restricting the movements of the association activities, victimizing the president by giving her compulsory retirement under some silly excuse, transferring the officials participating in association works, etc.'
4. In addition to that notice, the petitioner in Writ Petition No. 1248 of 1965 has been served with a memorandum dated 22 June, 1965 which reads :
'B. N. Krishnappa in a speech made on 27 May, 1965 in a public meeting of the non-gazette officers held at Kanakapura has adversely criticized Government. The speech was made in Kannada and the extracts of the speech are enclosed. By adversely criticizing a recent policy or action of Government in a public utterance and by asking for contributions to the raising of money for distress relief fund of the non-gazette officers, Krishnappa has violated rules 7(1) and 10 of the Government Servants Conducts Rules.
B. N. Krishnappa is hereby called upon to show cause within then days from the date of receipt of this communication why departmental proceedings should not be taken against him under the provisions of the Classification, Control and Appeal Rules.
5. As soon as aforementioned notices were received by theses petitioners, they have approached this Court with a prayer that this Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing the notices in question, as they are ultra vires of the Constitution, illegal and were issued without the authority of law.
6. The petitioner in Writ Petition No. 1248 of 1965 has further prayed that this Court may be pleased to quash the memorandum, dated 22 June, 1965, issued by respondent 4 in that petition, at the instance of respondent 2.
7. On the grounds urges, the appropriate prayer would have been to ask for a writ of prohibition prohibiting the respondents from holding the threatened enquires.
8. As mentioned earlier, the petitioners are members of the executive committee of the association. The association is governed by the rules known as 'Rules of the Mysore State non-gazette Officers' Association, Bangalore. The said rules have been approved by the Government of Mysore. The declared objects of the association among others are to promote esprit de crops amongst all non-gazette officers, to advance the social, moral and material welfare of the members and also to consider and suggest improvements in their conditions of service, prospects, pay, pension, provident fund, allowances, etc. According to rule 5 of the rules, all the non-gazette officers employed under the Government of Mysore, except those who are specifically prohibited from being members of any service association and those coming under Class IV Service are eligible to become the members of the association. Under rule 12 of the rules, the general direction and management of the association is vested in an executive committee. The committee membership consists of not more than thirty-five members, of whom twelve shall be elected from among the officials residing and employed in the City of Bangalore, who shall be elected at the annual general meeting of the non-gazette officers of the city and nineteen shall be representatives of the districts, one representing each district. The petitioners had been elected as executive committee members of the association for the current term. The petitioner's case is as follows. The association had placed before the Government a number of demands like pay-scales, dearness allowance as per the Central Government rates, house-rent allowance as per the Madras rate housing facilities, children's education concession, medical benefits and reduction of insurance premium, etc. It has been peacefully agitating before the Government to get those demands conceded. Since the Government failed to concede the reasonable and the legitimate demands of their non-gazette officers the association has constituted a joint council of action in consultation with the other service associations to press their demands on the Government. In the meantime the Government passed orders compulsorily retiring Smt. Mary Davasia who is the president of the association and also the chairman of the joint council of action. Smt. Mary Davasia was compulsorily retired by the order passed by respondent 2 on 30 April, 1965. The association felt strongly against that unjust order of the Government because she was victimized by the Government for her association activities. Therefore, the association demanded the Government that the order compulsorily retiring Smt. Mary Davasia should be rescinded and that she should be reinstated. The association submitted memorandum both to the Governor of Mysore and also the Chief Minister in that connexion. Thereafter, the association held peaceful demonstration and meetings in support of their demands with a view to convince the Government of their just claim. In order to keeps its members informed of all its activities and the steps taken by it, in support of their demands, the association issued a printed booklet known as 'saga of our struggle.' The said booklet has been issued by the association in order to bring to the notice of all its members the activities of the association and not with a view to adversely criticize the Government.
9. As mentioned earlier, the publication of that booklet has resulted in the disciplinary proceedings refereed to earlier. In the show-cause notices issued it is alleged that every member of the central executive committee of the association has violated rule 7(1) of the rules.
10. According to the Government, the passage in question amounts to a criticism of recent policy or action of the Government and hence each member of the central executive committee of the association is guilty of violating rule 7(1) of the rules.
11. The contention of the petitioners is that the booklet in question was issued by the central executive committee of the association on behalf of the association for the benefit of its members to explain the activities of the association. In the writ petitions they have pleaded that every citizen of the country is entitled to form and organize association of his choice under Art. 19(1)(c) of the Constitution. Hence, in exercise of their fundamental rights, the non-gazette officers have formed the association. According to them, the freedom to form an association with any lawful purpose must include the right to carry on its affairs and to do all such acts which are necessary to attain the objects of the association. They submitted that in issuing and publishing the booklet in question, they were well within the rights guaranteed to them under Arts. 19(1)(a) and 19(1)(c). They further pleaded that rule 7(1) has the effect of imposing unreasonable restrictions on the exercise of their fundamental rights and consequently that rule is void.
12. The petitioner in Writ Petition No. 1248 of 1965 pleaded that in addition to rule 7(1), rule 10 is also violative of Art. 19(1)(c) because, the objects of the association cannot be carried out unless the association has sufficient funds to carry on its activities. He asserted that if rule 10 is allowed to stand, then the right guaranteed under Art. 19(1)(c) would become illusory.
13. The respondents, in their counter-affidavit, have taken a preliminary objection as to the maintainability of these petitions. They pleaded that those petitions are premature inasmuch as it is open to the petitioners to put forward and plead their cases before the domestic tribunal and they need approach this Court only if they are not satisfied with the decision of that tribunal. It was further pleaded by the respondents that in view of the declaration of emergency, the petitioners could not invoke the protection of Art. 19(1) of the Constitution. In their counter affidavit the respondents have taken the stand that there is no fundamental right to any citizen to be a Government servant and if accepts Government service, he is bound by the rules framed by the Governor under Art. 309; violation of those rules will be a breach of discipline which would justify the appropriate authority in taking disciplinary action against those guilty of breach of those rules. Their case is that in order to maintain proper discipline in public services and efficiency in administration, it is necessary to place restrictions on the freedom of speech of Government servants. According to them, such restrictions are necessary in the interests of public order and those restrictions are reasonable restrictions imposed in the interest of the general public. Their further case is, Art. 19(1) has no application to the facts of these cases, as no restriction has been placed on the petitioners in the matter of forming associations.
14. Dealing with the criticism of the action taken against Smt. Mary Davasia, the respondents submitted that Smt. Mary Davasia had submitted memorandum both to the Governor of Mysore and to the Chief Minister in the matter of her compulsory retirement; before any orders were passed on those representations, the booklet referred to earlier, had been published criticizing the action taken by the Government and that in a highly objectionable language. According to the respondents, the publication of that booklet was an attempt to coerce the Government and the Governor to accept their demands by characterizing that any other view of the matter was unwise, actuated by collateral motives, hasty and wrong tactics.
15. The respondents contended that both rule 7 as well as rule 10 are valid rules.
16. At the time of the hearing, the learned Advocate-General informed us that he does not press his objection based on Art. 352 read with Art. 358 of the Constitution as the rules impugned were not acted after the emergency was declared. Hence, it is not necessary to go into that objection.
17. There is not force in the preliminary objection that these petitions are premature; nor is it correct to say that the petitioners have any adequate alternative remedy. In these cases, the petitioners are challenging the validity of certain rules framed under Art. 309 of the Constitution. The domestic tribunal which is a creature of those rules cannot go into that contention. That tribunal's jurisdiction is limited to finding out whether there is any contravention of those rules. In these petitions we are not concerned with the merits of these cases. Our task is something different. We are concerned with the vires of the impugned rules. If those rules are void, then there is no point in pursuing a fruitless enquiry. To avoid harassment of the petitioners and waste of public time and money, it is both just and proper to go into the validity of the impugned rules at the earliest stage. Our view in this regard, is supported by several decisions of the Supreme Court - see Bengal Immunity Company, Ltd. v. State of Bihar : 2SCR603 ; Kameshwar Prasad and Others v. State of Bihar and Another [1962 - I L.L.J. 294] and O. K. Ghosh and Another v. E. X. Joseph and vice versa [1962 - II L.L.J. 615].
18. The validity of rules 7(2) was not questioned before us. It is a permissive provision. The petitioners merely challenge the validity of rule 7(1).
19. Now coming to rule 10, the case for the petitioner in Writ Petition No. 1248 of 1965 is that the appealed to the members of the association for contribution and that in accordance with the rules of the association. As seen earlier, those rules had been approved by the Government. Therefore, if his contention is correct, his action is in accordance with rule 10. Hence the question of validity of rule 10 does not arise for consideration. Whether his action is protected by rule 10 or nor is a matter to be enquired into by the domestic tribunal.
20. Sri Mohan Kumaramangalam, the learned counsel for the petitioners, conceded that no Government servant can be permitted to collect funds from the general public; otherwise there would be an end of both discipline and efficiency. He very rightly did not press the contention that rule 10 is an invalid rule.
21. In questioning the validity of rule 7, though in the petitions, reliance had been placed both on Arts. 19(1)(a) and 19(1)(c), Sri Mohan Kumaramangalam did not place any reliance on Art. 19(1)(c) at the time of the hearing. His only contention was that rule 7(1) is violative of Art. 19(1)(a). Hence, there is no need to go into the question whether the said rule infringes Art. 19(1)(c).
22. This leaves us with the question whether rule 7(1) is violative of Art. 19(1)(a).
23. The contention that a Government servant is not entitled to the constitutional guarantee given to the citizens of this country under Art. 19(1)(a) cannot be accepted in view of the decisions of the Supreme Court in Kameshwar Prasad v. State of Bihar [1962 - I L.L.J. 294] (vide supra) and O. K. Ghosh v. E. X. Joseph [1962 - II L.L.J. 615] (vide supra). In those cases, the Supreme Court held that the Constitution of India does not exclude Government servants as a class from the protection of the several rights guaranteed by the several articles in Part III save in those cases where such persons are specifically named. Articles 33 of the Constitution having selected the services, members of which might be deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also having prescribed the limits within which such restrictions or abrogation might take place, other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants though the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedom in relation to Art. 19(1)(e) and 19(1)(g).
24. The plea that no one in this country has a fundamental right to become a Government servant, but if a person chooses to become a Government servant, he must be deemed to have agreed to abide by the conditions of services prescribed and to that extent, he should be held to have waived the rights conferred on him by Art. 19 does not appear to be a tenable plea. On the facts of these cases, it is unnecessary to consider whether the fundamental rights guaranteed under Art. 19 can be waived. Suffice it to say that our attention has not been drawn to any agreement entered into between the Government and the petitioners, whereunder the petitioners had waived the rights conferred on them by Art. 19. Disciplinary proceedings are launched against them on the basis of the rules framed by the Governor under Art. 309 of the Constitution. Those rules have the force of law. If any of those rules is violative of any of the provisions in Part III of the Constitution, it should be held to be void under Art. 13(2) of the Constitution. The rule with which we are concerned in these cases was framed after the Constitution came into force.
25. Rule 7(1) of the rules reads as follows :
'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 of 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 or the Government of any other State; 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 statements made or views expressed by a Government servant in his official capacity or in the due performance of the duties assigned to him.'
26. 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 Art. 19(1)(a) cannot be and was not denied before us.
27. According to Sri Mohan Kumaramangalam, the learned counsel for the petitioners, the impugned rule cannot be saved unless it is held that it imposes reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, in relation to contempt of Court, defamation or incitement to an offence. On behalf of the State, the contention was that the restriction in question is a reasonable restriction imposed in the interest of public order and decency. That being so, it is unnecessary to consider the remaining parts of Clause (2) of Art. 19.
28. We fail to see how any question of decency arises in these cases. The expression 'decency' in Art. 19(2) is not used in the sense of correct behaviour. What Art. 19(2) means, is that it is competent for the State to make any law in the interest of 'decency' though such a law may impose reasonable restrictions on freedom of speech and expression. What can be prohibited under that provision is indecent speech and expression. We are unable to agree with the learned Advocate-General that every inappropriate speech or expression is in law an incident one. The term 'decency' in the context means, avoidance of obscene language and gestures.
29. Now turning our attention to the passage objected to in the pamphlet 'saga of our struggle,' we do not think that it could be said with any justification that that passage is an indecent one. Whether one could object to the propriety of the statements contained therein or not, it cannot be said that those statements are indecent statements. Even if we accept the contention of the learned Advocate-General that the term 'decency' found in Art. 19(2) includes also inappropriate statements, rule 7(1) is wide enough to bring within its net all statements of facts and expressions of opinion whether decent or not. Hence the entire rule must be held to be violative of Art. 19(1)(a) as it is not possible to dissect the rule and remove the invalid portion from the valid portion.
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 opinion in public which have the effect of adverse criticism of any current or recent 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.
31. A contention similar to this was repelled by the Supreme Court in O. K. Ghosh case [1962 - II L.L.J. 615] (vide supra). Therein it was laid down that a restriction can be said to be in the interest of public order only if the connexion between the restriction and the public order is proximate and direct; indirect or far-fetched or unreal connexion between the restriction and public order would not fall within the purview of the expression 'in the interest of public order'; restriction which does not directly relate to public order cannot be said to be reasonable on the ground that its connexion 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 Art. 19(2).
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 Art. 19(2) but also by taking into consideration the occupation of the petitioners. In that context, the Court should see whether the impugned rule cannot be considered as a reasonable restriction imposed on the Government servants in the interests of the general public and thus falling within Sub-art. (6) of Art. 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 criticizes the Government's policy or action; as Government servants they are expected to loyally implement the policy decisions taken by the 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 Art. 19(2) but also by that provided by Art. 19(6).
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 purport and intent 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 for the disease which the law wants to cure and the true reason for the remedy - see Hamdard Dawakhana v. Union of India : 1960CriLJ671 . As observed in that case, that freedom of speech goes to the heart of the natural right of an organized freedom-loving society to 'impart and acquire information about that 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 Art. 19(1)(a); but it all it does is that it deprives a trader from commending his wares it would not all 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 Art. 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 weather it merely places reasonable restrictions in the interests of the general public on the petitioners' right to carry on any occupation as guaranteed by Art. 19(1)(g).
34. No one clause in Art. 19 can be looked into in isolation. There is a great deal of overlapping of the rights guaranteed under that article. Therefore, the impact 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 of this country is not merely a citizen; in addition to being 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 decision of the Supreme Court in Kameshwar Prasad case [1962 - I L.L.J. 294] (vide supra) and O. K. Ghosh case [1962 - II L.L.J. 615] (vide supra). Therefore, we have to see whether the impugned rule can be considered as a reasonable restriction in the interests of general public, on the exercise of the right conferred on the petitioners under Clause (g) of Sub-art. (1) of Art. 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. Unlike the Central Civil Services (conduct) Rules, 1964, not even bona fide expression of views by any Government servant as an office-bearer of a trade union of such Government servants, for the purpose of safeguarding the conditions of service of such Government servants or for securing an improvement thereof is allowed by the rules. A blanket restriction is placed on the Government servants prohibiting them from making any public utterance even if it be an utterance relating to their conditions of service and that at a meeting of an association of Government servants, if it has the effect of any adverse criticism of any current or recent policy or action of the Government. 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 Art. 19(1)(g). We fail to see how public interest will be served by requiring a Government servant to refrain from criticizing the Government's policy or action, relating to his conditions of service or matters connected with them, even if it be only in the presence of his colleagues. Public interest requires that Government servants should be contented, efficient and disciplined. This cannot be achieved by gagging their mouths. No useful purpose will be served by forming an association of theirs if the Government servants are deprived of the opportunity of discussing the Government's policy or action relating to their conditions of service, which process may necessarily involve criticism of the policy or action of the Government. It may be that a Government servant cannot be permitted to go to the general public and denounce any of the Government's policy or action. He may be deprived of that liberty because of his status in life and the duties that he has to perform. But, if he is restrained from criticizing the Government's policy or action regarding his conditions of service in his own association meetings or if he is prohibited from circulating any document among the members of his own association criticizing the Government's policy or action relating to his conditions of service or about matters connected with them, the same cannot be said to be a reasonable restriction in the interest of the general public.
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.
36. The learned Advocate-General wanted us to so construe the impugned rule as to confine its operation only to the objectionable activities of Government servants. In that connexion he invited our attention to the fact that the first thing the rule prohibits is a radio broadcast which could only mean a broadcast to the general public; therefore, according to him what the rule prohibits is the public denunciation of Government's policy or action, the public in the context meaning the general public and not a section thereof. He urged that if that interpretation is accepted then criticism by Government servants of any Government's policy or action relating to their conditions of service in their own association meetings will not fall within the vice of that rule. He contended that if we are to consider the rule in question as being ambiguous and is capable of two interpretation, then we should place that interpretation which will be consistent with the Constitution. In this connexion he invited our attention to the decision of the Supreme Court in N. L. Arora v. State of Uttar Pradesh : 6SCR784 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 be lean in favour of the former construction. 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 prohibits Government servants from publishing 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. As observed by the Supreme Court in State of Rajasthan v. Smt. Leela Jain : 1SCR276 , unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court. No doubt, if there are other provisions in the statute which conflict with them, the Court may prefer the one and reject the other on the ground of repugnance. Again when the words in the statute are reasonably capable of more than one interpretation, the object and purpose of the statute, a general conspectus of its provisions and the context in which they occur might induce a Court to adopt a more liberal or a more strict view of the provisions, as the case may be, as being more consonant with the underlying purpose. But, it is not possible to reject words used in an enactment merely for the reason that they do not accord with the context in which they occur, or with the purpose of the legislation as gathered from the preamble or long title. The same principle holds good in the case of interpretation of a rule framed under Art. 309 of the Constitution. The contention of the learned Advocate-General runs counter to the principle enunciated in the above decision.
37. For the reasons mentioned above, we hold that rule 7(1) is void as being violative of Art. 19 of the Constitution.
38. In the result, Writ Petitions Nos. 1212, 1231 to 1234 and 2021 of 1965 are allowed in full and a writ of prohibition will be issued to the respondents prohibiting them from holding any enquiry against the petitioners herein for the alleged violation of rule 7(1). So far as Writ Petition No. 1248 of 1965 is concerned, that petition is partly allowed and a writ of prohibition will be issued to the respondents prohibiting them from holding any enquiry against the petitioner therein under rule 7(1). But, that petition to the extent it challenges the validity of rule 10 fails and to that extent it is dismissed.
39. The petitioners are entitled to their costs of these petitions from the respondents. Advocate's fee Rs. 100.