*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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[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]2021 WEF Global Gender Gap report, which confirmed its 2016 finding of a decline in worldwide progress towards gender parity.
Over 2.8 billion women are legally restricted from having the same choice of jobs as men. As many as 104 countries still have laws preventing women from working in specific jobs, 59 countries have no laws on sexual harassment in the workplace, and it is astonishing that a handful of countries still allow husbands to legally stop their wives from working.
Globally, women’s participation in the labour force is estimated at 63% (as against 94% of men who participate), but India’s is at a dismal 25% or so currently. Most women are in informal and vulnerable employment—domestic help, agriculture, etc—and are always paid less than men.
Recent reports from Assam suggest that women workers in plantations are paid much less than men and never promoted to supervisory roles. The gender wage gap is about 24% globally, and women have lost far more jobs than men during lockdowns.
The problem of gender disparity is compounded by hurdles put up by governments, society and businesses: unequal access to social security schemes, banking services, education, digital services and so on, even as a glass ceiling has kept leadership roles out of women’s reach.
Yes, many governments and businesses had been working on parity before the pandemic struck. But the global gender gap, defined by differences reflected in the social, political, intellectual, cultural and economic attainments or attitudes of men and women, will not narrow in the near future without all major stakeholders working together on a clear agenda—that of economic growth by inclusion.
The WEF report estimates 135 years to close the gap at our current rate of progress based on four pillars: educational attainment, health, economic participation and political empowerment.
India has slipped from rank 112 to 140 in a single year, confirming how hard women were hit by the pandemic. Pakistan and Afghanistan are the only two Asian countries that fared worse.
Here are a few things we must do:
One, frame policies for equal-opportunity employment. Use technology and artificial intelligence to eliminate biases of gender, caste, etc, and select candidates at all levels on merit. Numerous surveys indicate that women in general have a better chance of landing jobs if their gender is not known to recruiters.
Two, foster a culture of gender sensitivity. Take a review of current policies and move from gender-neutral to gender-sensitive. Encourage and insist on diversity and inclusion at all levels, and promote more women internally to leadership roles. Demolish silos to let women grab potential opportunities in hitherto male-dominant roles. Work-from-home has taught us how efficiently women can manage flex-timings and productivity.
Three, deploy corporate social responsibility (CSR) funds for the education and skilling of women and girls at the bottom of the pyramid. CSR allocations to toilet building, the PM-Cares fund and firms’ own trusts could be re-channelled for this.
Four, get more women into research and development (R&D) roles. A study of over 4,000 companies found that more women in R&D jobs resulted in radical innovation. It appears women score far higher than men in championing change. If you seek growth from affordable products and services for low-income groups, women often have the best ideas.
Five, break barriers to allow progress. Cultural and structural issues must be fixed. Unconscious biases and discrimination are rampant even in highly-esteemed organizations. Establish fair and transparent human resource policies.
Six, get involved in local communities to engage them. As Michael Porter said, it is not possible for businesses to sustain long-term shareholder value without ensuring the welfare of the communities they exist in. It is in the best interest of enterprises to engage with local communities to understand and work towards lowering cultural and other barriers in society. It will also help connect with potential customers, employees and special interest groups driving the gender-equity agenda and achieve better diversity.