*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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Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.