Kameshwar Prasad And Others vs The State Of Bihar And Another

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 413 of 1959

Decision Date: 22 February 1962

Coram: N. Rajagopala Ayyangar, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta

In the case titled Kameshwar Prasad and Others versus the State of Bihar and Another, the judgment was delivered on 22 February 1962 by a bench of the Supreme Court of India consisting of Justice N. Rajagopala Ayyangar, Justice P. B. Gajendragadkar, Justice A. K. Sarkar, Justice K. N. Wanchoo, Justice K. C. Das Gupta, and Justice K. N. Gupta. The petitioners, identified as Kamesw​ar Prasad and others, had filed a petition before the Patna High Court invoking article 226 of the Constitution of India, seeking to declare invalid a rule that had been incorporated by a notification dated 16 August 1957 into the Bihar Government Servants’ Conduct Rules, 1956. The rule, designated as Rule 4‑A, expressly stated that no government servant should participate in any demonstration or resort to any form of strike in connection with any matter relating to his conditions of service. The petitioners argued that the rule infringed upon the freedoms guaranteed by sub‑clauses (a), (b) and (c) of article 19 of the Constitution and furthermore exceeded the legislative competence conferred by article 309. The High Court, however, held that the freedoms protected under article 19(1)(a) and article 19(1)(c) did not extend to a right to demonstrate or to strike for government servants, and it concluded that the impugned rule was saved as a reasonable restriction. The Supreme Court, after considering the submissions, held that Rule 4‑A, to the extent that it prohibited any form of demonstration—whether innocent or incapable of disturbing public tranquility—violated articles 19(1)(a) and 19(1)(b) of the Constitution. The Court observed that the language of the rule did not permit a reading that could separate a lawful portion from an unconstitutional portion; consequently, the entire provision relating to participation in any demonstration had to be declared ultra vires. In reaching this conclusion, the Court relied on the precedent set in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, reported in 1960 2 S.C.R. 821. The judgment further noted that article 33 of the Constitution makes a limited exception for two categories of state services, permitting certain restrictions on fundamental rights for members of those services, but it does not permit a blanket exclusion of all government servants from the protection of the rights guaranteed by Part III of the Constitution merely because of their employment status. The Court therefore affirmed that, apart from the services specifically mentioned in article 33, government servants enjoy the same constitutional safeguards as other citizens, and any rule that unduly restricts those safeguards must be struck down.

The Court observed that government servants, because of the nature and the incidents of the duties they perform, may lawfully be subject to certain restrictions on their personal freedoms. It further held that the provision which prohibited government employees from striking was constitutionally valid, on the ground that the Constitution does not guarantee a fundamental right to strike. This view relied upon the decision in All India Bank Employees Association v. National Industrial Tribunal, [1962] 3 S.C.R. 269. The matter before the Court was a civil appeal, numbered 413 of 1959, which arose from a judgment and decree dated 7 July 1958 of the Patna High Court in M.J.C. No. 456 of 1957. counsel for the appellants and respondents were instructed, and intervenors representing the Union of India and another party were also permitted to appear. The judgment was delivered on 22 February 1962 by Justice Ayyangar. The appeal reached the Supreme Court because the Patna High Court had granted a certificate of fitness under Article 132 of the Constitution. The issue, though concise, was of significant public importance and constitutional relevance. It concerned the constitutional validity of Rule 4‑A, which had been inserted into the Bihar Government Servants’ Conduct Rules, 1956, by a notification of the Governor of Bihar dated 16 August 1957. Rule 4‑A stated: “Demonstrations and strikes – No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.” Shortly after the rule’s promulgation, six government employees—one being the President of the Patna Secretariat Ministerial Officers’ Association and the others serving as assistants or clerks in the Bihar State Government—filed a petition on 26 August 1957 under Article 226 of the Constitution in the Patna High Court. They challenged the rule on several grounds, contending that it infringed the rights guaranteed to them by sub‑clauses (a), (b) and (c) of clause (1) of Article 19 of the Constitution of India and that it exceeded the rule‑making authority conferred by Article 309, which is the source of power for framing service rules. The petitioners sought an order restraining the State from enforcing the rule and from interfering with their right to strike or hold demonstrations. The learned Judges of the High Court, after hearing the petition, expressed the view that the freedoms guaranteed by Article 19(1)(a) and Article 19(1)(c) did not extend to a right to strike or to demonstrate for persons employed in Government service. Nevertheless, those Judges continued their analysis by assuming, for the purpose of their reasoning, that the freedoms enumerated in sub‑clauses (a) and (c) of Article 19(1) did indeed include the rights to strike and demonstrate, and assessed the rule accordingly.

The Court noted that the High Court of Patna had held that the freedoms listed in sub‑clauses (a) and (c) of Article 19(1) of the Constitution did include the rights that were alleged to be infringed. On that basis the High Court concluded that the rule challenged was a reasonable restriction on those guaranteed freedoms and therefore could stand. Consequently, the High Court ordered the petition to be dismissed. However, when the appellants applied for a certificate under Article 132 of the Constitution, the High Court granted it so that the appellants could approach this Court. At the same time the Court observed that the High Court of Bombay had arrived at a similar conclusion when it examined the constitutional validity of a rule that was identical to Rule 4‑A of the Bihar Rules. That Bombay judgment was currently under challenge before this Court in S.L.P. (Civil) Nos. 499 and 500 of 1961. The appellants in that proceeding sought permission to intervene in the present appeal, permission that was granted. The Court then heard counsel for the interveners, Mr Chari, who supported the appeal. Before proceeding to the detailed arguments, the Court set out certain points that were agreed by all parties and were not contested.

The first agreed point was that the impugned Rule 4‑A had been framed under Article 309 of the Constitution. The Court quoted the relevant portion of that article, stating: “309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services …………. and provision is made by the proviso to the Article for the Governors of States to make rules until … provision in that behalf is made by or under an Act of the appropriate Legislature.” By drawing attention to this provision, the Court emphasized that the power to make the rule was itself subject to the Constitution, and therefore the rule had to be examined according to the same constitutional criteria that apply to all statutes and subordinate legislation. In other words, any constitutional limitation on law‑making that is relevant to the subject matter of the rule must also apply to the rule. The second agreed point concerned the scope of the prohibition contained in Rule 4‑A. The rule barred two kinds of conduct connected with conditions of service: (i) the holding of public demonstrations, and (ii) the resort to strikes for the purpose of achieving the objectives indicated in the rule. The Court recalled its earlier decision in All India Bank Employees’ Association v. National Industrial Tribunal, where it had considered whether the right to form an association guaranteed by Article 19(1)(c) implied a right to strike, and had held that it did not. Accordingly, counsel for the appellants and Mr Chari for the interveners confined their submissions to the question of whether the provision that prohibited public demonstrations was lawful.

The Court observed that the part of the service rule which forbids strikes was no longer being challenged, and therefore the discussion focused on the remaining provisions. The argument presented on behalf of the appellants was summarized as follows: the service rule, having been framed under Article 309, constituted a “law” within the meaning of Article 13(3) of the Constitution and, consequently, it should be declared invalid to the extent that it conflicted with any provision of Part III of the Constitution, as required by Article 13(2). The appellants further contended that Article 19(1) granted every citizen the right, by sub‑clause (a), to freedom of speech and expression and, by sub‑clause (b), to assemble peaceably and without arms, and that the right to “demonstrate” was encompassed within these two sub‑clauses. They emphasized that merely entering Government service did not strip a person of his status as a citizen of India, nor did it deprive him of the freedoms guaranteed to every citizen. In support of this view, they pointed to Article 33, which provides that Parliament may by law determine the extent to which any of the rights conferred by Part III may be restricted or abrogated in their application to members of the Armed Forces or to forces charged with maintaining public order, so as to ensure the proper discharge of duties and the maintenance of discipline. This article, they argued, rests on the premise that persons employed in Government service are initially entitled to the protection of the fundamental rights guaranteed by Part III, and it was inserted only to permit special provisions for the possible abrogation of those freedoms in the two special services of the army and the police. Accordingly, the correct approach to the constitutional validity of the rule should be to examine whether the prohibition it imposes on demonstrations falls within the permissible limitations on the rights guaranteed by Articles 19(2) and 19(3). The respondent‑State suggested that the only relevant criterion for invoking those limitations was that the rule was framed “in the interest of public order.” The Court noted that a demonstration can be defined as “an expression of one’s feelings by outward signs.” Under the rule, a prohibited demonstration might be as innocent as a peaceful and orderly act, such as a Government servant wearing a badge or participating in a silent gathering outside office hours, actions that would not disturb tranquility nor incite disorder. Conversely, a demonstration that involved incitement or that was capable of leading to disorder would also fall within the prohibition. The appellants argued that had the rule been limited to banning only those demonstrations likely to cause disorder, its validity could have been sustained. However, because the rule imposes a blanket ban on all demonstrations, regardless of whether they are innocent or disruptive, the Court concluded that such a sweeping prohibition could not be upheld. Before addressing these arguments in detail, the Court indicated that it must first consider the submission made by the counsel representing the Union of India.

In this appeal, the counsel representing the Union of India, who intervened, argued that accepting the appellant’s position would undermine the entire basis of the case. He sought to persuade the Court that although the authority to make service rules under Article 309 of the Constitution is subject to the Constitution, and consequently the rules must not be inconsistent with any constitutional provision, this does not automatically entitle a government servant to invoke every fundamental right guaranteed by Part III of the Constitution. He emphasized that a person who voluntarily enters government service does so with the understanding that, by that very act, he has consented to accept reasonable conditions that may be prescribed to ensure the efficient functioning of the administrative machinery and to maintain discipline within the service. He further pointed out that, under Article 310, every office is held, subject to the Constitution, at the pleasure of the President or the Governor, as the case may be. Accordingly, if a rule regulating service conditions is reasonable and is intended to achieve the purposes mentioned, its reasonableness and validity cannot be examined solely by reference to the criteria laid down in clauses (2), (3) and (4) of Article 19. To support this view, he referred the Court to a few decisions of American courts, suggesting that the constitutionality of special rules enacted for the discipline of government personnel should be assessed by criteria different from those applicable to ordinary citizens.

He cited the case of Ex Parte Curtis, in which the constitutionality of a federal law prohibiting United States officers or employees from requesting, giving, or receiving money, property, or any thing of value for political purposes—under a penalty of discharge and a possible fine—was upheld. The majority judgment, delivered by Chief Justice Waite, highlighted the reasonableness of that rule and observed that no fundamental right could be said to have been infringed by the impugned provision. He also referred to United Public Workers v. Mitchell, which concerned the validity of the Hatch Act of 1940. That Act made it unlawful for executive‑branch employees to take part in political campaigns and provided a basis for disciplinary action. The respondents argued that the Act interfered with free speech and political rights. Justice Keed, speaking for the majority, noted that any interference with free expression must be measured against the requirements of orderly management of administrative personnel, and the Court accepted the appellant’s contention that the nature of the political rights reserved to the people is relevant to the analysis.

In this case, the Court observed that the right asserted as absolute could be expressed as the entitlement of a citizen to serve as a party official or worker in order to promote personal political views. Accordingly, the Court recognised that the Hatch Act and its accompanying rules interfered to some extent with the liberty that would otherwise be enjoyed by a civil servant under the First Amendment of the United States Constitution. Moreover, the Court noted that if due‑process guarantees are understood to protect freedom in these areas, then the Hatch Act also impairs a corresponding right protected by the Fifth Amendment. The Court did not find persuasion in the appellant’s contention that political activities undertaken during a civil servant’s free time should fall outside the reach of regulation, even though it is acknowledged that such political activities cannot be performed while the employee is on duty. The Court then explained that the potential harmful effect of political activity by government employees upon the service itself, upon other employees, or upon members of the public who interact with them, is no less significant simply because the activity occurs after ordinary working hours. It was noted that established constitutional doctrine holds that fundamental human rights are not absolute. The essential freedoms guaranteed by the First Amendment must yield to the basic need for order; without such order, the civil‑rights guarantees afforded to others would become meaningless. Counsel for the appellant also referred the Court to the decision in McAuliffe v. New Bedford, reported at page 791 of the 91 Law Ed., to support the proposition that government servants constitute a distinct class and that reasonable conditions of service imposed upon them in order to ensure efficiency and discipline cannot be challenged on the ground that they contravene constitutional guarantees. Counsel highlighted a specific passage from the opinion of Justice Holmes, which stated: “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 of policeman, and making it part of the good conduct required. The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle, the city may impose any reasonable condition upon holding offices within its control. This condition seems to us reasonable, if that be a question open to revision here (The Police Regulation prohibiting members of the department from soliciting money etc. for political purposes).” The Court further noted that, although the First Amendment of the United States Constitution declares that “Congress shall make no law… abridging the freedom of speech…,” this language does not grant Congress unlimited authority to impose restrictions on the exercise of the guaranteed right; historically, the United States Supreme Court has recognized that the freedom guaranteed by the First Amendment is subject to the police power, and that such power may justify reasonable limitations.

It was observed that the liberty of speech guaranteed by the Constitution is nevertheless subject to the police power of the State, and that the exact limits of that police power have never been defined with precision or applied uniformly. On the basis of the police power, the Constitution has allowed the legitimacy of statutes that punish libel, sedition, obscene publications and similar offences. Because the police power permits a flexible range of restrictions, the American judicial decisions that rely on a broad, undefined police power cannot be used to decide questions that arise under Article 19(1)(a) or (b) of our Constitution, where the Constitution itself lists the grounds for limiting those freedoms with clear and precise terms. Counsel also invited the Court to consider the decision in Balakotaiah v. Union of India (1), which reached a comparable conclusion. However, it was pointed out that in the Balakotaiah case the validity of the rule in question had not been contested.

Further, counsel argued that the freedoms guaranteed by Article 19 could not, by their very nature, be extended to persons employed in government service. To support this claim, reference was made to sub‑clauses (d), (e) and (g) of clause (1). It was contended that a government servant who is posted to a particular location would be unable to exercise the freedom of movement throughout India, and that his right to reside and settle anywhere in India would be infringed by his posting, as noted in the citation [1958] S.C.R. 1052. It was also argued that while a person remains in government service, he cannot practice any profession or trade, and therefore applying the freedoms of Article 19 to government servants would make public administration impossible. This argument, however, overlooked the restrictions that may be imposed under clauses (5) and (6), which allow reasonable limitations on the rights conferred by sub‑clauses (d) and (g) in the interest of the general public. Counsel emphasized that special provisions for state service exist in certain provisions of Part III, for example Articles 15, 16 and 18(3) and (4), and suggested that because other articles do not specifically mention government servants, they should not apply to them. He acknowledged that Article 33 might contradict this line of reasoning, but maintained that Article 33 was intended solely to preserve army regulations that permitted detention in a manner not permitted by Article 22 of the Constitution. The Court could not accept the contention that the Constitution excludes government servants as a class from the protection of the various rights guaranteed by the different articles.

In this case the Court observed that Article 33 of the Constitution identified only two categories of State services—members of the armed forces who were tasked with maintaining public order—and insulated the rules governing their conditions of service from being declared void on the ground of infringing any of the fundamental rights enshrined in Part III. The provision further limited any abrogation or restriction of those rights to circumstances that were necessary for the proper performance of duties and for preserving discipline within those services. Because Article 33 expressly singled out these particular services, the Court held that it could not be interpreted as granting a blanket exemption to all government employees from the protections afforded by Part III. Accordingly, other classes of government servants, like any other persons and citizens of the country, remained entitled to the fundamental rights guaranteed by Part III, and the mere fact that they were government employees could not, by itself, remove those protections. The Court further noted that the nature of the duties performed by such servants might inevitably impose some limitations on certain freedoms, as previously discussed with reference to Articles 19(1)(e) and 19(1)(g). The Court then turned to the first issue presented for determination: whether the right to hold a “demonstration” fell within the scope of either or both of the freedoms protected by Articles 19(1)(a) and 19(1)(b). To clarify the term, the Court cited the Concise Oxford Dictionary, which defined a demonstration as “an outward exhibition of feeling, as an exhibition of opinion on a political or other question, especially a public meeting or procession.” Webster’s dictionary was also referenced, describing a demonstration as “a public exhibition by a party, sect or society…such as a parade or mass‑meeting.” The Court explained that, without delving into intricate linguistic analysis, a demonstration could be broadly understood as a visible expression of the sentiments of an individual or a group. It therefore represented a communication of ideas intended to be received by others, and in that sense functioned as a form of speech or expression; speech, the Court noted, need not be vocal, because even non‑verbal signs made by a mute person constituted speech. However, the Court emphasized that the present dispute concerned only the rule that prohibited demonstrations as a form of speech, expression, or mere assembly, and not other types of demonstrations that fell outside the ambit of Articles 19(1)(a) or 19(1)(b). The Court further explained that a demonstration might constitute an assembly, yet the essential purpose of such an assembly was to convey the collective feelings of the participants to the intended audience or authority. Consequently, the Court concluded that certain forms of demonstration would indeed fall within the freedoms guaranteed by Articles 19(1)(a) and 19(1)(b).

In considering whether a demonstration falls within the freedoms guaranteed by Article 19 (1)(a) and Article 19 (1)(b), the Court observed that a demonstration can assume many different forms. It may be noisy and disorderly; for example, a crowd that throws stones could be described as a violent and disorderly demonstration, which would not clearly be protected by Article 19 (1)(a) or (b). Conversely, a demonstration may be peaceful and orderly, such as when participants simply wear a badge to draw attention to their grievances. When certain forms of demonstration are covered by the scope of Article 19 (1)(a) or Article 19 (1)(b), the next issue is whether Rule 4‑A, which prohibits any form of demonstration for the redress of grievances of Government employees, can be sustained as a reasonable restriction under Article 19 (2) and Article 19 (3). The relevant provisions read: “(2) Nothing in sub‑clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub‑clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” and “(3) Nothing in sub‑clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub‑clause.” The learned Judges of the High Court, as noted earlier, upheld the validity of the rule by treating it as a reasonable restriction in the interest of public order. In reaching that conclusion, those Judges had not yet benefited from this Court’s exposition of the meaning of the expression “in the interest of public order” laid down in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia (1). Speaking for the Court, Justice Subba Rao summarized that “Public order (Article 19 (2) and (3)) is synonymous with ‘public safety and tranquillity.’ It denotes the absence of disorder involving breaches of local significance as distinct from national upheavals such as revolution, civil strike, or war affecting the security of the State.” The learned Judge further explained that for legislation to be “in the interests of public order,” a proximate and reasonable nexus must exist between the nature of the speech prohibited and the maintenance of public order. He rejected the contention that the phrase “in the interests of public order,” being broader than the words “for the maintenance of public order” originally found in the Article, could merely justify a law that restricted speech because it had a tendency, however remote, to disturb public order; instead, the connection must be intimate, real and rational.

In this case the Court observed that a rule which prohibited every type of demonstration, even those that were innocent and incapable of disturbing public tranquillity, could not be justified. The Court recalled that for a restriction to be valid it must have an intimate, real and rational connection with the purpose of preserving public order. The Court therefore examined the validity of the impugned rule against the tests it had earlier articulated. It noted that if the rule were intended solely to maintain proper discipline among government servants, and if it were framed within the limits of constitutional authority, there would be little doubt that such a rule could be reasonable and could promote efficiency in the service. The argument advanced on behalf of the State was presented on two grounds. First, it was contended that public order depended directly on a body of government servants who themselves were subject to strict discipline, and that discipline among servants was a necessary condition for public order. Second, the State argued that if government servants were undisciplined and resorted to disorderly agitation to address service grievances, this would demoralise the public and erode public order. The Court found these submissions unpersuasive. It clarified that the matter before it did not concern a rule aimed at ensuring discipline among the police, whose primary function is the maintenance of public order. Rather, the threat to public order must arise from the nature of the demonstration that was prohibited. The Court held that had the rule been limited to demonstrations likely to lead to a disturbance of public tranquillity or those falling within the other limiting criteria of Article 19(2), its validity might have been sustained. However, the defect of the rule, in the Court’s view, lay in its blanket prohibition of all demonstrations, irrespective of their potential to cause disorder. Counsel for the respondent and those supporting the rule’s validity were unable to demonstrate that the wording of the rule allowed any separation between its lawful and unconstitutional portions. Because no such separation was possible, the Court concluded that the entire rule had to be struck down as unconstitutional.

In this case, the Court rejected the sweeping argument that individuals employed by the government constitute a distinct class to which the fundamental rights enumerated in Part III of the Constitution do not generally apply. While the Court affirmed that the freedoms guaranteed by Part III, and in particular the freedom of speech and expression covered by Article 19(1)(a), do extend to government servants, it clarified that this affirmation does not imply that the responsibilities inherent in an official position fail to impose reasonable restrictions on the exercise of those constitutional rights. To illustrate the principle, the Court referred to Section 54(2) of the Income‑Tax Act, 1922, which provides that a public servant who discloses any particulars contained in a statement, return, account, document, evidence, affidavit, deposition or record shall be liable to imprisonment for a term that may extend to six months and shall also be liable to a fine. Similarly, the Court cited Section 128(1) of the Representation of the People Act, 1951, which obliges every officer, clerk, agent or any person performing duties related to the recording or counting of votes in an election to maintain the secrecy of the voting process and prohibits the communication of any information calculated to breach that secrecy, prescribing punishment of imprisonment for a term that may extend to three months or a fine. The Court observed that it cannot be argued that provisions of this character in these statutes or in similar legislation infringe upon the freedom of speech merely because they forbid the communication of information that the officer has obtained in the course of performing official duties. Since the information is acquired by virtue of the officer’s official position, the legal rules that prescribe the circumstances in which such information may be disclosed or used are intended to serve a legitimate purpose and do not violate the constitutional guarantee of freedom of speech. Consequently, the Court allowed the appeal in part, granting the appellants a declaration that Rule 4A, in its present form, which bans “any form of demonstrations,” violates the appellants’ rights under Articles 19(1)(a) and 19(1)(b) and must therefore be struck down. However, the Court noted that the portion of the rule that prohibits a strike cannot be set aside, as there is no fundamental right to resort to a strike recognised under the Constitution. As the appellants succeeded only on part of their claims, the Court ordered that no costs be awarded in the appeal. The appeal was thus allowed in part.