V.K. Javali (Dr.) vs State Of Mysore and Anr

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Original Suite 55 of 1960

Decision Date: 07 August 1961

Coram: M. Hidayatullah, J.C. Shah, P.B. Gajendragadkar, K. Subbarao, R. Dayal

In the matter titled V.K. Javali (Dr.) versus State of Mysore and another, the Supreme Court of India delivered its judgment on 7 August 1961. The bench comprised Chief Justice P.B. Gajendragadkar, Justice K. Subbarao, Justice M. Hidayatullah, Justice J.C. Shah and Justice R. Dayal. The petitioner, Dr. V. K. Javali, was then serving as Deputy Director of Public Instruction (Headquarters) in Bangalore, employed by the State of Mysore. Earlier, the Public Service Commission had selected him for appointment to the Bombay Educational Service, Class I (Administrative Branch). In June 1953 he was transferred to Dharwar as an Educational Inspector. During the last week of June, the Secretary of the Wardha Hindi Prachar Sabha in Dharwar invited him to distribute prizes and certificates to candidates who had passed the Hindi examinations for that year. Dr. Javali attended the ceremony on 5 July 1953, handed out the prizes and certificates, and delivered a brief address in Kannada to the assembled candidates.

Subsequently, on 7 July 1953 a summary of his address was published in two newspapers: the Samyukta Karnatak, a Kannada daily of Hubli, and the Times of India, Bombay. Dr. Javali asserted that the published summary was inaccurate and distorted his remarks. On the same day he wrote a letter of protest to the editor of the Samyukta Karnatak, objecting to the erroneous version, but the newspaper declined to print his letter. Also on 7 July 1953, the Director of Education at Poona sent him a demi‑official letter requesting an explanation regarding the report of his speech that appeared in the Times of India. On 10 July 1953, the Under‑Secretary of the Government of Bombay, Education Department, issued a separate communication directing Dr. Javali to forward his explanation within three days, alleging that he had criticized the Government’s Hindi language policy. In response, Dr. Javali dated his reply 13 July 1953, denied the allegation, and enclosed an authorized version of his speech, which the Samyukta Karnatak subsequently published on 12 July 1953. Despite his explanations, on 22 September 1953 Dr. Javali was suspended on the ground that he had allegedly criticized the “Hindi language policy of the Government.” This suspension was followed by a formal charge‑sheet served to him on 16 November 1953 by the Collector of Dharwar, who had been appointed as the enquiry officer. The charge‑sheet listed several allegations, including delivering the speech without prior approval of the Director of Education, contravening specific government circulars dated 27 September 1950, 28 September 1951, and 31 December 1949, and expressing views that Kannada should be the medium of instruction at university level and that Hindi should occupy a secondary position—positions the Government claimed were contrary to its official language policy. Dr. Javali submitted his comprehensive explanation to the authorities on 31 December 1953.

The enquiry officer issued a charge‑sheet to the petitioner, and the document listed four specific allegations. The first allegation stated that the petitioner had delivered his speech without first obtaining the required approval of the Director of Education for the text of the speech, thereby violating the governmental instructions that had been issued to him in August 1952. The second allegation asserted that the petitioner had expressed views on the language controversy in direct contravention of the orders contained in Government Circular No. P. & S.D. 1581/34 dated 27 September 1950. The third allegation claimed that the petitioner had maintained that Kannada should be the medium of instruction at the university level in Karnatak and that Hindi should occupy a secondary position, a view that was said to be inconsistent with the intention of the Government as clarified in Press Note No. 1294 dated 28 September 1951. The fourth allegation contended that the petitioner’s statements that Kannada should be the Court and official language of Karnatak were contrary to Government policy as set out in No. G.C.P. & S.D. 1581/34 of 31 December 1949 and of 9 May 1950.

On 31 December 1953 the petitioner submitted a written explanation in response to the charge‑sheet. In that explanation he denied each of the four charges and argued that the reasons given for his suspension differed from the reasons enumerated in the charge‑sheet. He pointed out that the prosecution had not examined any witness to support the allegations. In contrast, the petitioner had examined several witnesses on his own behalf, and each of those witnesses refuted the accuracy of the version of the speech that had been printed by the newspapers. The petitioner therefore maintained that the material on which the charges were based was unreliable.

After hearing the evidence, the enquiry officer prepared a report in which he concluded that the charges framed against the petitioner had not been proved. Nevertheless, the officer added a comment that, in delivering the impugned speech, the petitioner had been guilty of indiscretion. This observation was included in the report even though the officer found no substantive proof to sustain the four specific allegations.

Subsequently, on 19 April 1954 the petitioner appealed to the Government for permission to institute a civil suit against the newspapers that had published what he described as an incorrect and distorted version of his speech. The Government refused this request. The petitioner then sought to explain his position directly to the Minister of Education during an interview that took place on 24 June 1954, and he further supplemented his defence by submitting an additional statement on 30 June 1954.

The next procedural step occurred on 2 July 1954 when the petitioner was served with a notice to show cause why he should not be compulsorily retired from service. The notice set out three grounds for retirement. The first ground alleged that the petitioner had made a public speech on controversial matters without obtaining prior approval of the text from the Director of Education, despite a warning that had been issued to him in August 1952. The second ground repeated the accusation that he had expressed his views on the language controversy. The third ground stated that the Government’s intention, as expressed in a press note dated 28 September 1951, was that Hindi should be the medium of instruction at the Post S.S.C. examination stage, and that the petitioner had contrary statements indicating that the medium of instruction in schools and colleges should be Kannada.

In response to the notice that required him to show cause why he should not be compulsorily retired, the petitioner filed a written reply. He contended that the charges set out in the notice were vague and indefinite and that they differed from the allegations originally enumerated in the charge‑sheet that had been served on him. The petitioner’s principal objection was that the disciplinary proceedings were based on an incorrect and garbled version of a speech that had been printed in newspapers. He asserted that he had previously obtained a general permission from the Director of Education to deliver speeches on matters of education, and therefore it was not necessary for him to obtain the Director’s prior approval each time he spoke. According to the petitioner, the address he had delivered was merely an academic lecture; he maintained that he had not expressed any opinion on the language controversy and had not suggested that Kannada should be the medium of instruction at the university level. He further expressed a fear that the proceedings had been initiated as part of a conspiracy against him. To support his position, the petitioner informed the enquiry officer that the educational views he had expressed were in harmony with those of eminent figures such as the Prime Minister of India, the Chief Minister of Bombay and the Minister of Education of Bombay. He also denied that the Bombay Government had formulated a definite policy on the use of Hindi, a policy which the notice alleged he had criticised.

Despite the petitioner’s representations, on 14 October 1954 he was reinstated in the service as Professor of Education in S. T. College, Belgaum, but simultaneously an order of punishment was issued against him. The order directed that his salary increments be withheld for a period of three years without any permanent effect, that he should not be appointed as an Educational Inspector or as Principal of a Secondary Training College during that three‑year period, and that on 12 November 1954 the Government would not grant him full pay for the period of his suspension. The petitioner thereafter made several representations seeking modification of the punishment order, but all such attempts were rejected. He then preferred an appeal to the Governor of Bombay under the applicable provision of the Bombay Educational Service Rules; however, no reply was received to that appeal. Consequently, on 28 September 1956 the petitioner instituted a writ petition before the Bombay High Court under Article 226 of the Constitution, praying that the order of punishment be set aside. The High Court admitted the petition on 11 October 1956. While the petition was pending, the erstwhile State of Bombay was reorganised, resulting in the petitioner’s services being transferred to respondent 1.

The petitioner was transferred to the jurisdiction of respondent 1, the State of Mysore, after the reorganisation of the former State of Bombay. When the writ petition was first listed before the Bombay High Court, the Court considered it appropriate to join respondent 1 as a party so that the matter could be fully resolved before final determination, and accordingly ordered that respondent 1 be impleaded in the proceedings. Later, as the petition approached final disposal, the High Court was confronted with a preliminary objection raised by respondent 1. The objection asserted that because the petitioner had already filed an appeal to the Governor of Bombay, the writ petition was premature and could not be entertained. The High Court accepted this objection, upheld it, and consequently dismissed the writ petition on the ground of prematurity. Subsequently, on 21 January 1959, the petitioner received notice that his appeal to the Governor of Mysore had been rejected on the ground that it was not maintainable. In view of these developments, the petitioner filed the present writ petition under article 32 of the Constitution on 28 November 1959. By means of this petition, the petitioner contended that the punitive order issued by the State of Bombay and communicated to him on 14 October 1954 was unconstitutional, unreasonable, arbitrary and motivated by mala fides, and therefore should be set aside. He further alleged that the regulations authorising such punishment for the exercise of his fundamental right to freedom of speech and expression imposed an unreasonable restriction on that right and were consequently unconstitutional. On the basis of these two grounds, the petitioner prayed for the issuance of an appropriate writ or order by this Court quashing the impugned order of punishment. During the hearing, the learned Solicitor‑General, appearing for respondent 2 (the State of Bombay), stated that respondent 2 no longer wished to continue in the proceedings and that the petitioner could not obtain any relief against it. This position was conceded by the petitioner’s counsel, and it was evident that, following the reorganisation, the former State of Bombay, now the State of Maharashtra, was no longer a proper or necessary party to the case. Accordingly, the Court granted the Solicitor‑General’s request, struck the name of respondent 2 from the record, and ordered that no costs be awarded against respondent 2. Respondent 1, the State of Mysore, denied the petitioner’s allegations. It argued that the rules under which the disciplinary action was taken were valid and constitutional, and that the punishment imposed was likewise valid and constitutional. Respondent 1 contended that the petitioner’s disputed speech dealt with the question of official language and the language used in the courts of Bombay State, and that “any expression of opinion by a Government official directly tends to embarrass the relations between the Government and the people of India or different sections of the people.” It further observed that, in the enquiry conducted against the petitioner, the authorised version of his speech supplied by the petitioner formed the basis of consideration, whereas the version published in newspapers, which the petitioner claimed to be inaccurate, was not taken into account. Respondent 1 admitted that the enquiry officer had found none of the charges proved against the petitioner, but it added that the Bombay Government had not accepted that report. Consequently, respondent 1 maintained that the petitioner had contravened rule 26 of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules, and that the punishment therefore was valid, constitutional and reasonable. Rule 26 formed part of the regulations framed by the Government of Bombay pursuant to the powers delegated under clause (2) of rule 48 and rule 54 of the Civil Services (Classification, Control and Appeal) Rules, and applied to members of the provincial specialist and subordinate services, governing their discipline, conduct and appeals. These rules had come into force on 1 September 1932.

In the proceedings, the version of the petitioner’s speech that he himself had submitted was taken as the sole basis for examination, while the version that had appeared in newspapers and which the petitioner alleged to be inaccurate was disregarded. The State of Mysore acknowledged that the enquiry officer had concluded that none of the charges against the petitioner had been proved; however, it added that the Government of Bombay had refused to accept that enquiry report. Consequently, the State urged that the petitioner had breached rule 26 of the Bombay Civil Services (Conduct, Discipline and Appeal) Regulations, and therefore the punishment imposed on him was not only valid and constitutional but also reasonable. Rule 26 is part of a set of regulations framed by the Government of Bombay pursuant to the powers delegated under clause (2) of rule 48 and rule 54 of the Civil Services (Classification, Control and Appeal) Rules. These regulations govern members of the provincial specialist and subordinate services, including matters of discipline, conduct and appeals, and they became effective on 1 September 1932. Both parties accepted that the regulations applied to the petitioner. Rule 26 stipulates that a government servant must not, in his own name, (a) publish any statement of fact or opinion that could embarrass the relationship between the Government and the people of India or any section of the people, and (b) publish any statement of fact or opinion concerning the policy, affairs, or negotiations of a foreign country that could embarrass the relations between that country and the British or Indian Government. The rule further requires that a servant who intends to publish a statement that may fall within this prohibition must first submit proof of the statement and obtain prior permission from the Government. In the present petition the Court was concerned with sub‑clause 26(a) and, for the purposes of the petition, assumed that the restriction applied not only to written publications but also to the delivery of a speech containing such a statement. It appeared that, relying on this rule, an instruction had been issued requiring government servants in the educational department to obtain the Director of Education’s prior approval of the text of any speech they intended to deliver. For the present petition it was noted, however, that neither that instruction nor the orders issued in Circular No. P.& S.D. 1581/34 dated 27 September 1950, which were alleged to have been produced in these proceedings, were on record. On behalf of the petitioner, counsel argued that a government servant, like any other citizen of India, is entitled to the fundamental rights guaranteed by Article 19, and that his freedom of speech and expression under Article 19(1)(a) may be curtailed only in the manner authorized by Article 19(2). The counsel maintained that any restriction must be founded on a law made by a competent legislature or on rules framed under delegated legislative authority, and that a purely administrative or executive rule cannot satisfy the requirement of Article 19(2).

In this case, the petitioner’s counsel argued that any restriction on a citizen’s freedom of speech and expression must be based on a law enacted by a competent legislature and on rules made under authority that has been delegated by that legislature. He maintained that a rule issued solely by the executive or an administrative authority could not fall within the meaning of Article 19(2) of the Constitution. Consequently, he asserted that a restriction imposed merely by an executive or administrative order, without any legislative backing, would be unconstitutional and invalid. He identified the rule that formed the basis of the disciplinary proceedings against the petitioner as being nothing more than an administrative or executive order, and therefore incapable of satisfying the requirements of Article 19(2). While advancing this position, he cited authorities and emphasized that the issue was of general importance and had not yet been expressly considered and decided by this Court. In addition to this broad argument, he raised a narrower ground, contending that even if Rule 26, the circular, and the order issued under that rule were valid and within legislative power, the specific punishment order was not supported by the rule and was so patently unreasonable that it fell outside the protection of Article 19(2). He indicated that he was prepared to rely on this narrower ground even if his broader contention failed.

The respondent’s counsel vigorously challenged the petitioner’s first contention. He argued that, in interpreting the word “law” in Article 19(2), one must refer to the definition clause provided in Article 19(3), which makes clear that an executive or administrative order also falls within the scope of “law.” He further asserted that Rule 26 was a statutory rule and that the impugned order and the circular issued under it were likewise statutory, and thus could not be described as purely administrative or executive directives. Moreover, he maintained that there was no substance to the petitioner’s narrower argument because the impugned order was consistent with Rule 26, was justified by that rule, and was neither irrational nor unreasonable. While he did not dispute the proposition that, if the impugned order were found to be outside the purview of the rule or manifestly unreasonable and irrational, the petitioner would be entitled to the relief sought even if his primary argument failed, he contended that such a scenario did not arise. The Court indicated that it would not address the broader issue raised by the petitioner because it considered the petitioner capable of succeeding on the narrower ground he had alternatively advanced. Before turning to this point, the Court noted that it would be appropriate to briefly describe the nature of the speech delivered by the petitioner, which had given rise to the disciplinary proceedings.

The Court described that the disciplinary proceedings against the petitioner arose from a speech he delivered at a prize‑distribution function organised by the Secretary of the Wardha Hindi Prachar Sabha in Dharwar. The occasion involved awarding prizes and certificates to candidates who had passed Hindi examinations, and the petitioner had been invited to preside over the event and to give a customary address. In his address he expressed the opinion that each province should arrange for the teaching of its own provincial language in schools, and he added that, in the overall view, the language spoken by the people should occupy the foremost position, a principle that he said corresponded with the new Constitution. He further advocated that studies in schools and colleges should be conducted in the mother‑tongue, that commercial accounts should be kept in regional languages, and that the language used in courts and offices should also be the regional language. Specifically for Karnataka he stated that Kannada should be given priority and Hindi should follow it. In effect the petitioner made two points: first, that provinces should promote instruction in their respective provincial languages; second, that the medium of instruction ought to be the mother‑tongue while Hindi should still be learned by everyone. The Court noted that the Kannada phrase in the last clause had been translated as indicating that Kannada should precede and Hindi should follow, and observed that these two propositions have largely been accepted by a majority of universities and educationists in the country. However, the Court clarified that it was not concerned with evaluating the merits of the speech itself. The issue before the Court was whether the impugned order of punishment could be justified under rule 26 in light of the general tenor of the petitioner’s speech. The Court recalled that the enquiry conducted by the Collector of Dharwar had recorded findings in favour of the petitioner, and although the Government of Bombay was entitled to a different view, the Collector was satisfied that the charges framed against the petitioner lacked substance. The Court then listed the grounds on which the punishment order had been based. The first ground alleged that the petitioner had delivered the speech without obtaining prior sanction from the Director of Education, despite a warning issued to him in August 1952. The requirement of obtaining such prior approval was characterised by counsel as a purely executive order without legal validity.

The argument that the requirement of prior sanction of the Director of Education lacked any legal force was supported by Sri Ayyangar through reference to two decisions, namely S. Ramakrishnaiah v. The President, District Board, Nellore and others 1952 AIR (Mad) 253 and Krishna Chandra Chatterjee v. Chief Superintendent, Central Telegraph Office, Calcutta [58 C.W.N. 1026]. The Court, however, declined to accept a proposition that the petitioner had specifically averred that he possessed a general permission to address educational topics and that the warning issued in August 1952 had not affected that permission. Consequently, the first ground asserted by the respondent was found to be entirely without substance. Describing the petitioner’s address as a speech on “controversial matters” does not change its true nature, for the address was made on the occasion of a prize‑distribution ceremony and dealt exclusively with an educational subject. The opinions expressed were those generally accepted in the field of education. The respondent’s contention that the petitioner should have obtained prior approval is untenable because a general permission to deliver speeches on educational matters had already been granted to the petitioner.

The second ground alleged that the petitioner had voiced his views on the language controversy and required examination in the light of rule 26(a). Rule 26(a) applies when a government servant makes a statement of fact or opinion that may embarrass relations between the Government and the people of India or any section thereof. The Court questioned whether the speech could realistically have such an effect. The address in question was delivered on 5 July 1953 in Dharwar, then part of the former State of Bombay, a region where Marathi, Gujarati and Kannada were the three principal languages spoken. The affidavit filed by respondent 1 contained no material averment or allegation suggesting that the speech could have embarrassed the Government or disturbed communal harmony. The affidavit was deemed unsatisfactory and offered no assistance in favor of respondent 1. On the basis of the materials before the Court, it was concluded that the broad allegation that the petitioner expressed views on the language controversy could not, rationally or reasonably, bring the case within the ambit of rule 26(a). The third ground, set out in the notice, claimed that the petitioner’s views were inconsistent with a policy statement issued by the Government of Bombay in a press note dated 20 September 1951. Again, the only evidence offered by respondent 1 was an affidavit; the press note itself had not been produced, nor was any explanation given as to how, when or by whom the policy was formulated. Prima facie, the Court found the material insufficient to substantiate this ground.

The Court considered the question of what language was to be used as the medium of instruction for the Post‑S.S.C. examination stage within the jurisdiction of the different universities. The Post‑S.S.C. stage is normally the stage of collegiate education, and, as a general principle, all matters relating to collegiate education are left to the autonomy of the respective universities. The affidavit filed by respondent 1 did not allege that any of the universities having jurisdiction over the area where the speech was delivered had reached any conclusion regarding the medium of instruction in college education. Accordingly, apart from the fact that material and satisfactory evidence of an alleged Government decision had not been produced before the Court, it appeared prima facie very doubtful that the Government could have arrived at any such conclusion concerning the medium of college instruction. In those circumstances the Court held that it was clearly the duty of respondent 1 to produce before the Court more satisfactory evidence in support of its case. Respondent 1 did, however, make a bare statement in its affidavit that any expression of opinion by a Government official on the language controversy directly tends to embarrass the relations between the Government and the people of India or the different sections of the people. It was significant that the affidavit employed the verb “tends” and did not even purport to say that such an expression had actually tended to lead to any such consequence in 1953, the year in which the speech was delivered. Moreover, the affidavit of respondent 1 failed to refer to the relevant facts as they existed in 1953 in the region where the speech was delivered; consequently a bare assertion that rule 26(a) was satisfied could hardly be regarded as sufficient or satisfactory for dealing with the present case. In the Court’s opinion, having regard to the time and place of the speech, the surrounding circumstances and the material produced before it, it was impossible to escape the conclusion that the grounds set out in support of the impugned order passed against the petitioner could not, by any stretch of imagination, be said to bring his case within rule 26(a). It was further significant that the case against the petitioner had changed from stage to stage; disagreeing with the conclusion of the enquiry officer, the respondent was driven to set out three separate grounds in support of the impugned order of punishment, none of which could rationally or reasonably bring his case within the mischief of rule 26(a). Finally, even if the expression “public order” used in Article 19(2) at the time the speech was delivered were invoked, the petitioner, Sri Gopalakrishnan, had sought to place his case under the public‑order requirement of Article 19(2); nevertheless, the Court had no hesitation in holding that the impugned order could not be rationally justified on that ground and must be said to

In this case, the Court observed that the order that imposed any punitive measure on the petitioner fell completely outside the protection afforded by Article 19(2) of the Constitution. The Court therefore reasoned that the challenged order could not be sustained on the basis of rule 26(a), because the rule required a clear and direct connection between the restriction and a permissible ground, which the order lacked. Moreover, the Court emphasized that even if rule 26(a) were ignored, the order still did not fall within any of the exceptions contemplated by Article 19(2), which permits only reasonable restrictions in the interest of public order, security, and similar matters. Since the order was neither supported by rule 26(a) nor fell within the limited scope of Article 19(2), the Court declared it to be without constitutional foundation, consequently unconstitutional and void. On the basis of this conclusion, the Court held that the petitioner was entitled to the relief he had specifically sought on this narrow ground. Accordingly, the writ petition was granted, the order issued by the former Government of Bombay in October 1954 was set aside, and the petitioner was awarded costs against the first respondent. The decision thus restored the petitioner's rights and removed the invalid order from the records.