*The article is published as-is from The Hindu and by reading one can gain insight in to the matter.
Story So Far :
In the Bilkis Bano case, a senior IAS officer, Smita Sabharwal from Telangana, tweeted from her personal account in support of Ms. Bano and questioned the Gujarat government’s decision, sparking off a row over whether she was in breach of the Central Civil Services (Conduct) Rules of 1964 and reviving the debate on the freedom of civil servants to express their personal views on matters of law and governance. In an interview Justice B.N. Srikrishna and K. Sujatha Rao discuss the issue.
On August 17, Ms. Sabharwal quoted Ms. Bano’s statement and tweeted, “As a woman and a civil servant I sit in disbelief, on reading the news on the #BilkisBanoCase. We cannot snuff out her Right to breathe free without fear, again and call ourselves a free nation. #JusticeForBilkisBano”. As a bureaucrat, was she wrong in tweeting this?
B.N. Srikrishna: The citizens of this country have the fundamental right of free speech guaranteed to them under the Constitution, which is subject to reasonable restrictions in the interest of securing the state’s sovereignty, international relations, health, morality, etc. She has the right to tweet. But when you undertake a government service, you subject yourself to certain disciplinary rules. That prevents a government servant from becoming a member of a political organisation, or any organisation of such a nature, or expressing herself freely with regard to anything that has to do with the governance of the country.
This rule is of the British era. There is no doubt that the British were very, very strict and didn’t want their officers to be talking about how bad the governance was. But in a democracy, the right to criticise the government is a fundamental right and nobody can muzzle that. Unfortunately, I didn’t have an opportunity to express myself by sitting on the bench either in Bombay or in Kerala or in the Supreme Court, but I would have said this very loudly and without hesitation.
There is a recent judgment of then Tripura High Court Chief Justice Akil Kureshi, one of the best judges I have come across, who did not get enough due because of obvious reasons. He said something very interesting in a (2020) judgment ( Lipika Paul v. The State Of Tripura), “As a Government servant the petitioner is not devoid of her right of free speech, a fundamental right which can be curtailed only by a valid law.” She (the petitioner) was entitled to hold her own beliefs and express them in the manner she desired, subject to not crossing the borders laid down in the Conduct Rules which were applicable in Tripura. A fundamental right cannot be curtailed except by a valid law made by a legislature. In 2018, the Kerala High Court had said, “One cannot be prevented from expressing his views merely because he is an employee. In a democratic society, every institution is governed by democratic norms. Healthy criticism is a better way to govern a public institution.” I think the trend is that judges are taking the view that IAS officers have a right to express themselves in a legitimate and decent manner.
Sujatha Rao: There are two views in this case. Most colleagues, particularly those who are serving in the government, would take exception and not be very supportive — because the general belief is that as IAS officers, we should not talk against government actions or government policies in public fora. And if at all we feel very strongly about something that is being done or acted upon, we can at best, if it is such a serious situation, approach the associations.
Rule 9 of the Rules of the Central Civil Services (Conduct) Rules states, “No Government servant shall… make any statement of fact or opinion… which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government.” Isn’t this in violation of Article 19 (freedom of speech and expression) of the Constitution?
B.N. Srikrishna: The courts are now veering towards the view that this rule is too stringent and cannot be applied in this manner. I agree that once you take up government service, you surrender and allow some restrictions on your fundamental rights. You are to operate within bounds. The rule says you cannot criticise a policy judgment. This is a very vague expression and needs to be carefully scrutinised. Releasing criminals who had committed heinous crimes prematurely, without application of mind… is that a policy? I hope that someday the Supreme Court will sit down and thrash out these issues carefully.
Sujatha Rao: No, I don’t think the rules violate Article 19. It is a rule, it’s not the law. It’s not in the Constitution. Freedom of speech is given in the Constitution, but these are Conduct Rules and they are imposed because there has to be some discipline in an organisation for that organisation to function. There is a process of decision-making. Right from below, the matter is examined, the pros and cons are taken up, the bureaucracy is given an opportunity to examine all the aspects, write their notes of objection or support, and finally it reaches the political executive. When a policy is decided, it has to be obeyed and complied with by the bureaucracy.
So, do you think that there was a problem with the medium through which the officer shared her opinion? Would it have been better if she had simply done it behind closed doors?
B.N. Srikrishna: Whether she had written an op-ed in The Hindu or tweeted or posted about it on Facebook, the bounds are the same, the bounds don’t change the game, the rules of the game remain the same. Ultimately, it’s your fundamental right which has to be reasonably restricted. The reasonableness of the restriction is not in the medium, it is in the manner in which you’re restricted, the purpose for which your right is restricted and the method by which it is restricted, namely, by legislation made in accordance with the Supreme Court in the Puttaswamy case (which holds that the right to privacy is protected as a fundamental right under the Constitution) in connection with data protection law. I think it is time that this country encourages its democratic principles.
Sujatha Rao: No, she (Ms. Sabharwal) has no authority to express her opinion behind closed doors. What authority does she have? This is happening in Gujarat. She is not a stakeholder in the decision-making process. These rules were made way back during the British time. The scene has changed today. We have social media and there are no laws that say that because I am serving the government, I cannot use Twitter. If I can tweet about my holidays, I can also share my views with my followers saying, ‘I’m very pained by what’s happened today.’ She has not given a speech about it; it is just a private communication on Twitter. She chose to express her own anguish.
Nowadays, many government officers and ministers are encouraged to communicate government policies to the general public through social media. So, isn’t it time to ‘un-gag’ civil servants when it comes to commenting on such decisions?
B.N. Srikrishna: Unfortunately, government officers are given only one way of encouragement: say good things in the media. Do they have the liberty as of today to say what is bad? The only problem I see is, if you are going to implement a policy, let’s understand one thing: in democracy, everybody has a right to express his or her opinion, a right to object, a right to dissent. The same thing could be said for an IAS officer; he or she may have a right to dissent. Once a resolution has been adopted, it’s your job to implement it. If you don’t implement it, you are not being true to yourself. That is the problem that arises. That is a very, very thin line, and also a question of how to balance the two interests.
Sujatha Rao: Creating more transparency about policies through social media is the duty of a government officer. This has to be taken on a case-by-case basis. I have supported Smita only because it was the Bilkis case. We need to make a differentiation between what is something that’s going to hurt society, hurt the Constitution, and the rule of law. This is not a government policy (decision to release convicts on remission). This is an action, which is ordained by the Supreme Court, executed by the government of Gujarat, and the (question is over the) manner in which it has been done. This was an exception.
Do you then think that we need to challenge these rules?
B.N. Srikrishna: Yes, somebody could challenge it as offending constitutional fundamental rights; then the Supreme Court would be forced to come down and say either it is good, or it is bad, and give good reasons for that.
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The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.