State of Madhya Pradesh Vs.
Ramashankar Raghuvanshi & ANR [1983] INSC 16 (21 February 1983)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
REDDY, O. CHINNAPPA (J)
CITATION: 1983 AIR 374 1983 SCR (2) 393 1983
SCC (2) 145 1983 SCALE (1)134
ACT:
Constitution of India, 1950-Art. 311-Seeking
police report on past political activity and faith of a person for public
employment-Whether offends articles 14 and 16 of the Constitution.
HEADNOTE:
Consequent upon the taking over by the
Government of the municipal school in which the respondent worked as a teacher,
he was absorbed in Government service. The order stated that his absorption in
Government service was subject to verification of his antecedents. Sometime
later, on the basis of the report of the Superintendent of Police that before
being absorbed in Government service the respondent had taken part in RSS and
Jan Sangh activities his services were terminated on the ground that he was not
a fit person to be entertained in Government service.
On the view that the order of termination of
his service was of a punitive character, passed without complying with the
provisions of Art. 311 of the Constitution, the High Court quashed that order.
Dismissing the special leave petition under
Art. 136 of the Constitution, HELD: per
S. Murtaza Fazal Ali, J.
The special leave petition should be
dismissed in limine. [394 H] per o. Chinnappa Reddy, J. The respondent cannot
be turned back at the very threshold on the ground of his past political
activities.
Once he becomes a Government servant, a he
becomes subject to the various rules regulating his conduct and his activities
must naturally be subject to all rules made in conformity with the
Constitution. [402 E-P] The determination of the people of this country to constitute
India into a democratic republic and to secure to all its citizens
"liberty of thought, expression. belief, faith and worship; Equality of
status and opportunity" has been written into the articles of the
Constitution in the shape of fundamental 394 rights and they are what makes
India a democratic republic and what marks India from authoritarian or police
states.
The right to form associations and unions,
among other rights, is declared as a fundamental right; yet the State
Government sought to deny employment to him on the ground that the report of a
police officer stated that he once belonged to some political organisation.
[395 F-H] The action sought to be taken
against the respondent was not any disciplinary action on the ground of his
present involvement in political activities contrary to some service conduct
rule nor was there any allegation that he ever participated in any illegal or
subversive activity or that he was a perpetrator of violent deeds. All that was
said was that before he was absorbed in Government service he had taken part of
RSS and Jan Sangh activities. What those activities were had never been
disclosed. Neither the RSS nor the Jan Sangh was alleged to be engaged in any
subversive or other illegal activities, nor were they banned organisations.
Most people may not agree with the programme and philosophy of the Jan Sangh or
RSS but that is irrelevent. Everyone is entitled to his thought and views.
Members of these organisations continue to be
members of Parliament and State legislatures. They are heard often with respect
both inside and outside the Parliament. [395 H; 396 A-D] The whole idea of
seeking a police report on the political faith and the past political activity
of a candidate for public employment appears to cut at the very root of the
fundamental rights of equality of opportunity in the matter of employment and
freedom of association. It offends the fundamental rights guaranteed by
articles 14 and 16 of the Constitution to deny employment to an individual
because of his past political affinities, unless such affinities are considered
likely to affect the integrity and efficiency of the individual's service.
[397 D-E] Wieman v. Updegraff, 344 U.S. 183
& Speisar v. Randall, 357 U.S. 573, referred to.
CIV1L APPELLATE JURISDICTION: Petition for
Special Leave to Appeal (Civil) No. 4679 of 1980,.
From the Judgment and order dated the 24th
July, 1979 of the High Court of Madhya Pradesh at Jabalpur in Misc. Petition
No. 119 of 1975.
Gopal Subramaniam and D. P. Mohanty for the
Petitioner.
The Judgment of the Court was delivered by
FAZAL ALI. J., Since we are clearly of the view that the special leave petition
should be dismissed in 1975 on merits, I would not like to go any further into
the details of the facts of the case. r would, therefore, refrain from
expressing any opinion on the observations made by my learned brother Chinnappa
Reddy, J.
395 CHINNAPPA REDDY, J. This special leave
petition has to be dismissed. There is no merit in it. The respondent was a
teacher employed in a municipal school. The school was taken over by the
Government in June 1971. The respondent was absorbed in Government service by
an order dated February 28, 1972. The order recited that the absorption was
subject to 'verification of antecedents' and medical fitness The services of
the respondent were terminated on November S, 1974. Though the order
terminating the services of the respondent did not purport to stigmatise him in
any manner, it was not disputed before the High Court and it is no longer
disputed before us that the order was founded on a report made by the
Superintendent of Police, Raigarh on October 31, 1974, to the effect that the
respondent was not a fit person to be entertained in Government service, as he
had taken part in 'RSS and Jan Sangh activities'. The High Court held that the
order of termination of service was of a punitive character and quashed it on
the ground that the provisions of Art. 311 of the Constitution had not been
complied with. The State of Madhya Pradesh has sought leave to appeal to this
court under Art. 136 of the Constitution.
India is not a police state. India Is a
democratic republic. More than 30 years ago, on January 26, 1950, the people of
India resolved to constitute India into a democratic republic and to secure to
all its citizens "Liberty of thought, expression, belief, faith and
worship;
Equality of status and opportunity", and
to promote "Fraternity, assuring the dignity of the individual". This
determination of the people, let us hope, is not a forgotten chapter of
history. The determination has been written into the articles of the
Constitution in the shape of Fundamental Rights and they are what makes India a
democratic republic and what marks India from authoritarian or police States.
The right to freedom of speech and
expression, the right to form associations and unions, the right to assemble
peaceably and without arms. the right to equality before the law and the equal
protection of the right laws, the right to equality of opportunity in matters
relating to employment or appointment to any office under the State are
declared Fundamental Rights. Yet the Government of Madhya Pradesh seeks to deny
employment to the respondent on the ground that the report of a Police officer
stated that he once belonged to some political organisation. It is important to
note that the action sought to be taken against the respondent is not any
disciplinary action on the ground of his present involvement in 396 political
activity after entering the service of the Government, contrary to some Service
Conduct Rule. It is further to be noted that it is not alleged that the
respondent ever participated in any illegal, vicious or subversive activity.
There is no hint that the respondent was or is a perpetrator of violent deeds
or that he exhorted anyone to commit violent deeds. There is no reference to
any addition to violence or vice or any incident involving violence, vice or
other crime. All that is said is that before he was absorbed in Government
service, he had taken part in some 'RSS or Jan Sangh activities.' What those
activities were has never been disclosed. Neither the RSS nor tho Jan Sangh is
alleged to be engaged in any , subversive or other illegal activity; nor are
the organisations banned. Most people, including intellectuals, may not agree
with the program me and philosophy of the Jan Sangh and the RSS or, for that
matter of many other political parties and organisations of an altogether
different hue. But that is irrelevant. Everyone is entitled to his thoughts and
views. There are no barriers. Our Constitution guarantees that. In fact members
of these organisations continue to be members of Parliament and State
Legislatures. They are heard, often with respect inside and outside the
Parliament. What then was the sin that the respondent committed in
participating in some political activity before his absorption into Government
service. What was wrong in his being a member of an organisation which is not
even alleged to be devoted to subversive or illegal activities. The whole idea
of seeking a Police report on the political faith and the past political
activity of a candidate for public employment appears to our mind to cut at the
very root of the Fundamental Rights of equality of opportunity in the matter of
employment, freedom of expression and freedom of association. It is a different
matter altogether if a police report is sought on the question of the
involvement of the candidate in any criminal or subversive activity in order to
find out his suitability for public employment. But why seek a police report on
the political faith of a candidate and act upon it. Politics is no crime. Does
it mean that only True Believers in the political faith of the party in power
for the time being are entitled to public employment ? Would it not lead to
devastating results, if such a policy is pursued by each of the Governments of
the constituent States of India where different political parties may happen to
wield power, for the time being ? Is public employment reserved for "the
cringing and the craven" in the words of Mr. Justice Black of the United
States Supreme Court ? Is it not destructive of the dignity of the 397
individual mentioned in the preamble of the Constitution ? Is it to be put
against a youngman that before the cold climate of age and office freezes him
into immobility, he takes part in some political activity in a mild manner.
Most students and most youngmen are exhorted by national leaders to take part
in political activities and if they do get involved in some form of agitation
or the other, is it to be to their ever-lasting discredit i Sometimes they get
involved because they feel strongly and badly about injustice, because they are
possessed of integrity and because they are fired by idealism. They get involved
because they are pushed into the forefront by elderly leaders who lead and
occasionally mislead them. Should all these youngmen be debarred from public
employment ? Is Government service such a heaven that only angels should seek
entry into it ? a We. do not have the slightest doubt that the whole business
of seeking police reports, about the political faith, belief and association
and the past political activity of a candidate for public employment is
repugnant to the basic rights guaranteed by the Constitution and entirely
misplaced in a democratic republic dedicated to the ideals set forth in the
preamble of the Constitution. We think it offends the Fundamental Rights
guaranteed by Arts.
14 and 16 of the Constitution to deny
employment to an individual because of his past political affinities, unless
such affinities are considered likely to affect the integrity and efficiency of
the individual's service. To hold otherwise would be to introduce 'McCarthysim'
into India. 'McCarthyism' is obnoxious to the whole philosophy of our
constitution. We do not want it.
In the fifties the practice of baiting and
crucifying teachers, public servants and a host of others in the United States,
as Communists came to be known as 'McCarthyism. Its baleful effects were
described by late President Eisenhower, himself an anticommunist as follows :-
'McCarthyism took its toll on many individuals and on the Nation. No one was
safe from charges recklessly made from inside the walls of congressional
immunity.
Teachers, Government employees, and even
ministers became vulnerable. Innocent people accused of Communist associations
or party membership have not to this day been able to clear their names fully.
For a few, of course, the cost was little-where the accused was a figure who
stood high in public trust and respect, personal damage, if any could be
ignored or laughed away. But where, without 398 proof cf guilt, or because of
some accidental or early- in life association with suspected persons, a man or
woman had lost a job or the confidence and trust of superiors and associates,
the cost was often tragic, both emotionally and occupationally" .
The late President also said,
"They...fear other people's ideas-every new idea.
They... talk about censoring the sources and
the communication of ideas... without exhaustive debate- even heated debate-of
ideas and programmes, free Government would weaken and wither. But if we allow
ourselves to be persuaded that every individual, or party, that takes issue
with our own convictions is necessarily wicked or treasonous-then we are
approaching the end of freedom's road..." In Wieman V. Updegraff (1),
Black J. said, in one of the notorious loyalty oath cases and, it is worth
quoting in full.
"History indicates that individual
liberty is intermittently subjected to extraordinary perils. Even Countries
dedicated to government by the people are not free from such cyclical dangers.
The first years of our Republic marked such a period. Enforcement of the Alien
- and Sedition Laws by zealous patriots who feared ideas made it highly
dangerous for people to think, speak, or write critically about government, its
agents, or its policies, either foreign or domestic our Constitutional
liberties survived the ordeal of this regrettable period because there were
influential men and powerful organized groups bold enough to champion the
undiluted right of individuals to publish and argue for their beliefs however
unorthodox or loathsome.
Today however, few individuals and
organizations of power and influence argue that unpopular advocacy has this
same wholly unqualified immunity from governmental interference. For this and
other reasons the present period of-fear sees more ominously dangerous to
speech and press than was that of the Alien and Sedition Laws, Suppressive laws
and practices are the fashion. The Oklahoma 399 oath statute is but one
manifestation of a national network A of laws aimed at coercing and controlling
the minds of men. Test oaths are notorious tools of tyranny. When used to
shackle the mind they are, or at least they should be, unspeakably odious to a
free people. Test oaths are made still more dangerous when combined with bills
of attainder which like this Oklahoma statute impose pains and penalties for
past lawful associations and utterances.
"Governments need and have ample power
to punish treasonable acts But it does not follow that they must have a further
power to punish thought and speech as distinguished from acts. Our own free
society should never forget that laws which stigmatize and penalize thought and
speech of the unorthodox have a way of reaching, ensnaring and silencing many
more people than at first intended. We must have freedom of speech for all or
we will in the long run have it for none but the cringing and the craven. And I
cannot too often repeat my belief that the right to speak on matters of public
concern must be wholly lost.
"It seems self-evident that all speech
criticizing government rulers and challenging current beliefs may be dangerous
to the status quo. With full knowledge of this danger the Framers rested our
First Amendment on the premise that the slightest suppression of thought,
speech, press, or public assembly is still more dangerous. This means that
individuals are guaranteed an undiluted and unequivocal P right to express
themselves on questions of current public interest. It means that Americans
discuss such questions as of right and not on sufferance of legislatures,
courts or any other governmental agencies. It means that courts are without power
to appraise and penalize utterances upon their notion that these utterances are
G dangerous. In my view this uncompromising interpretation of the Bill of
Rights is the one that must prevail if its freedoms are to be saved. Tyrannical
totalitarian governments cannot safely allow their people to speak with
complete 400 freedoms. I believe with the Framers that our free Government
can".
In another loyalty oath case, Garner v. Board
of Public Works, (l) Douglas, J had this to say:
"Here the past conduct for which
punishment is exacted is single-advocacy within the past five years of the
overthrow of the Government by force and violence. In the other cases the acts
for which Cummings and Garland stood condemned covered a wider range and
involved some conduct which might be vague and uncertain. But those
differences, seized on here in hostility to the constitutional provisions, are
wholly irrelevant. Deprivation of a man's means of livelihood by reason of past
conduct, not subject to this penalty when committed, is punishment whether he
is a professional man, a day labourer who works for private industry, or a
Government employee. The deprivation is nonetheless unconstitutional whether it
be for one single past act or a series of past acts ... ... ...
"Petitioners were disqualified from
office not for what they are today, not because of any program they currently
espouse (cf. Grende v. Board of Supervisors 341 U. S. 56) not because of
standards related to fitness for the office, of: Dcnt v. West Virginia 129 U.S.
114; Hawker v. New York, 170 U.S. 189, but for what they once
advocated...............
In the same case, Frankfurter, J. Observed:
"The needs of security do not require
such curbs on what may well be innocuous feelings and associations. Such curbs
are indeed self-defeating.
They are not merely unjustifiable restraints
on individuals. They are not merely productive of an atmosphere of repression
uncongenial to the spiritual vitality of a democratic society. The inhibitions
which they engender are hostile to the best conditions for securing a
high-minded and high-spirited public service." In Lerner v. Casey, (a)
Douglas, J. said:
401 "We deal here only with a matter of
belief. We have no evidence in either case that the employee in question ever
committed a crime, ever moved in treasonable opposition against this country.
The only mark against them-if it can be called such-is a refusal to answer
questions concerning Communist Party membership. This is said to give rise to
doubts concerning the competence of the teacher in the Beilan case and doubts
as to the trustworthiness and reliability of the subway conductor in the Lerner
case..." "There are areas where government may not probe But
government has no business penalizing a citizen merely for-his beliefs or
associations. It is government action that we have here. It is government
action that the Fourteenth and First Amendments protect against ... ... ...
Many join association, societies, and fraternities with less than full
endorsement of all their aims." In Speiser v. Randall, (1) Black, J said:
"This case offers just another example
of a wide- scale effort by Government in this country to impose penalities and
disabilities on everyone who is or is suspected of being a 'Communist' or who
is not ready at all times and all places to swear his loyalty to State and
Nation. . I am convinced that this whole of business of penalizing people
because of their views and expressions concerning Government is hopelessly
repugnant to the principles of Freedom upon which this Nation was founded ..
Loyalty oaths, as well as other contemporary 'security measures,' tend to
stifle all forms of unorthodox or unpopular thinking or expression -the kind of
thought and expression which has played such a vital and beneficial role in the
History of this Nation. The result is a stultifying conformity which in the end
may well turn out to be more destructive to our free society than foreign
agents could ever hope to be." In the same case, Douglas, J., said:
402 "Advocacy which is in no way
brigaded with action should always be protected by the First Amendment. That
protection should extend even to the ideas we despise.
As Mr. Justice Holmes, wrote in dissent in
Gitlow. v. New York. (l) 'If in the long run the beliefs expressed in proletarian
dictatorship are destined to be accepted by the dominant forces of the
community, the only meaning of free speech is that they should be given their
chance and have their way'. It is time for government-state or federal-to
become concerned with the citizen's advocacy when his ideas and beliefs move
into the realm of action".
We may end our excursion to the United States
of America with a reference to the words of wisdom uttered by Thomas Jefferson
more than two centuries ago:
".. the opinions of men are not the
object of civil government, nor under its jurisdiction;.. it is time enough for
the rightful purposes of civil government for its officers to interfere when
principles break out into overt acts against peace and good order." We are
not for a moment suggesting that even after entry into Government service, a
person may engage himself in political activities. All that we say is that he
cannot be turned back at the very threshold on the ground of his past political
activities. Once he becomes a Government servant, he becomes subject to the
various rules regulating his conduct and his activities must naturally be
subject to all rules made in conformity with the Constitution.
Let us once more remained ourselves of what
Gurudev Rabindranath Tagore said:
"Where the mind is without fear and the
head is held high: where knowledge is free,......
403 Where the clear stream of reason has not
lost its way into the dreary desert sand of dead habit:
Where the mind is led forward by thee into
ever widening thought and action let my country awake".
The application is dismissed.
P.B.R Petition dismissed.
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