9911796707
TMI Blog1962 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants, the first of whom is the President of the Patna Secretariat Ministerial Officers' Association and the others are Assistants or Clerks under the Bihar State Government, filed on August 26, 1957, a petition before the High Court of Patna under Art. 226 of the Constitution challenging the validity of the rule on various grounds including inter alia that it interfered with the rights guaranteed to the petitioners by sub-cls. (a), (b) and (c) of cl. (1) of Art. 19 of the Constitution of India and that in consequence the rule was in excess of the rulemaking power conferred by Art. 309 of the Constitution which was the source of the authority enabling service-rules to be framed. They prayed for an order restraining the respondent-State from giving effect to the rule and to desist from interfering with the petitioners' right to go on strike or to hold demonstrations. The learned Judges of the High Court who heard the petition were of the opinion that the freedom guaranteed under Art. 19(1)(a) and 19(1)(c) of the Constitution did not include a right to resort to a strike or the right to demonstrate so far as servants of Government were concerned. The learned Judges however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations, and (ii) resort to strikes to achieve the purpose indicated. This -Court had, in All India Bank Employees' Association v. National Industrial Tribunal (1) (Bank disputes Bombay etc.), to consider the question as to whether the right to form an association guaranteed by Art. 19(1) (c) involved or implied the right to resort to a strike and answered it in the negative. In view of this decision learned Counsel for the appellants, as also Mr. Chari for. the interveners confined their arguments to the question of the legality of the provision as regards the right ,,,to hold demonstrations . The validity of the rule therefore in so far as it prohibits strikes, is no longer under challenge. The argument addressed to us on behalf of the appellants may be shortly stated thus : The servicerule being one framed under Art. 309 is a law within the definition of Art. 13(3) of the Constitution and it would have to be pronounced invalid to the extent that it is inconsistent with the provisions of Part III of the Constitution . Art. 13(2). Article 19(1) confers on all citizens the right by sub-cl. (a) to freedom of speech and expression, and by sub-cl. (b) to assemble peacefully and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ened in this appeal which, if accepted, would cut at the root of the entire argument for the appellant. He endeavoured to persuade us to hold that though the power to frame Service Rules under Art. 309 was subject to the Constitution with. the result that the rules so framed ought not to -be contrary to any constitutional provision, still it did not follow that every one of the fundamental rights guaranteed by Part III could be claimed by a Government servant. He urged that as a person voluntarily entered Government service he must by that very act be demeed to have consented to enter that service in such reasonable conditions as might be framed for ensuring the proper working of the administrative machinery of the Government and for the proper maintenance of discipline in the Service itself. Under Art. 310 every office is held, subject to the provisions of the Constitution, at the pleasure of the President or of the Governor as the case may be, and provided a rule regulating the conditions of service was reasonable and was calculated to ensure the purposes abovenamed he submitted that its reasonableness and validity could not be tested solely by reference to the criteria laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly political activites cannot be indulged in during working hours. The influence of political activity by government employees, if evil in its effects on the service, the employees or people dealing with them, is hardly less so because that activity takes place after hours............ It is accepted constitutional doctrine that these fundamental human rights are not absolutes............ The essential rights of the First Amendment are subject to the elemental need for order without which the guarantees, of civil rights to others would be a mockery . Mr. Sen also referred us to Mc Auliffe v. New Bedford ((1892) 155 Mass. 216.) which is cited at p.791 in 91' Law. Ed. in support of the position that servants of Government formed a class and that conditions of service imposed upon them which are reasonable and necessary to ensure efficiency and discipline cannot be questioned on the ground of their contravening any constitutional guarantees. Mr. Sen drew our attention in particular to the following passage in. the judgment of Holmes, J.: There is nothing in the Constitution or the statute to prevent the city from attaching obedience to this rule as a condition to the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant who was posted to a particular place could obviously riot exercise the freedom to move throughout the territory of India and similarly, his right to reside and settle in any part of India could be said to be violated by his being posted to any particular place. Similarly, so long as he was in government service he would not be entitled to practicise any profession or trade and it was therefore urged that to hold that these freedoms guaranteed under Art. 19 were applicable to government servants would render public service or administration impossible. This line of argument, however, does not take into account the limitations which might be imposed on the exercise of these rights by cls. (5) and (6) under which res' trictions on the exercise of the rights conferred by sub-cls. (d) and (g) may be imposed if reasonable in the interest of the general public. In this connection he laid stress on the fact that speial provision had been made in regard to Service underthe State in some of the Articles in Partlll-such as for instance Arts. 15, 16 and 18(3) and (4)-and he desired us therefrom to draw the inference that the other Articles in which there was no specific reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by a party, sect or society......... as by a parade or mass-meeting . Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. 19(1)(a) and 19(1) (b). It is needless to add that from the very nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that a legislation may be in the interests of public order there must be a proximate and reasonable nexus between the nature of the speech prohibited and public order. The learned Judge rejected the argument that the phrase in the interests of public order which is wider than the words ',for the maintenance of public order which were found in the Article as originally enacted-thereby sanctioned the enactment of a law which restricted the right merely because the speech had a tendency however remote to disturb public order. The connection has to be intimate, real and rational. The validity of the rule now impugned has to be judged with reference to tests here propounded. If one had to consider the propriety of the rule as one intended to ensure proper discipline apart from the limitations on law-making, in a Government servant and in the context of the other provisions made for the making of representations and for the redress of services, grievances, and apart from the limitiations imposed by the Constitution there could be very little doubt nor would it be even open to argument that the rule now impugned was both reasonable and calculated to ensure discipline in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in particular those in Art. 19(1)(a) apply to the servants of government we should not be taken to imply that in, relation to this class of citizen 'the ,responsibility arising from official position would not by itself impose some limitations on the exercise of their rights as citizens. For instance, s.54(2) of the Income-tax Act, 1922, enacts: If a public servant discloses any particulars . contained in any such statement, return, accounts, documents, evidence affidavit, deposition or record, he shall be punishable 'with imprisonment which may extend to six months, and shall also be liable to fine. Section 128(1) of the Representation of the People Act, 1951, enjoins on every officer, clerk, agent etc. Who performs any duty in connection, with the recording or counting of votes at an election shall maintain the secrecy of the voting and shall not communicate to any person any information calouluted to violate such secrecy, and visits the breach of the rule by punishment with imprisonment for a term which may extend to three. months or with fine. It cannot be contended that provisions on these or similar lines in these or other enactments restrict the freedom of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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