This article was first published on: https://www.firstpost.com/tech/news-analysis/shah-faesal-tweet-row-conduct-rules-for-employees-shouldnt-gag-free-speech-4750281.html.
The gagging of free speech and its direct fallout in the form of self-censorship are slowly but steadily moving from being exceptions to becoming the norm in India. Proof of this downward spiral has been the recent backlash following a tweet from IAS officer Shah Faesal of the Jammu and Kashmir (J&K) cadre. The tweet which seemed to reference the rape and murder of a minor in Jammu announced:
Patriarchy+Population+Illiteracy+Alcohol+Porn+Technology+Anarchy = Rapistan!
— Shah Faesal (@shahfaesal) April 22, 2018
Following a directive from the Centre, the J&K Government initiated departmental action against Faesal. The order for action states that the tweets in question are “prima-facie in contravention of the extant provisions of the All India Services (Conduct Rules), 1968/All India Services (Discipline and Appeal) Rules, 1969.”
Conduct rules and the colonial hangover
The grounds on which the decision to initiate action contends that Faesal “failed to maintain absolute honesty and integrity in discharge” of his official duty “and thus acted in a manner unbecoming of a public servant.”
The order, however, does not specify particular conduct rules that Faesal allegedly violated. A reading of the All India Services (Conduct Rules), 1968 (Conduct Rules) indicates that in all likelihood the rule invoked is Rule 9 ‘criticism of government’.
The Rule states:
“No member of the Service shall, in any radio broadcast or communication over any public media or in any document published anonymously, pseudonymously or in his own name or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or opinion:
i. which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government;
ii. which is capable of embarrassing the relations between the Central Government and any State Government...”
It goes on to explain that such a restriction will not apply to statements made by the official in his/her official capacity and while carrying out the duties assigned to her/him, meaning that such restrictions apply to members of the All India Service speaking in their private capacity.
Many, including Faesal, have argued that the Conduct Rules echo a colonial mindset that requires government employees to pledge absolute allegiance to the ‘crown’.
The Department of Electronics and Information Technology recently introduced ‘framework guidelines for the use of social media by government organisations’. In December 2017, the Government of J&K adopted these guidelines with the intention of regulating the use of social media by government employees in their personal capacities. The guidelines state that employees must avoid giving the impression that “they are communicating in an official capacity” on personal social media accounts. Employees are also not to engage in any social media activity that tends to propagate anything which is anti-social, anti-national or illegal. These guidelines betray the government’s deep fear of social media, cautioning employees of the permanence of such communications and their propensity for virality. The J&K guidelines, in fact, go a step further from the Conduct Rules by prohibiting employees from even discussing on social media any policy pursued or action taken by the government.
While these guidelines try to establish a clear demarcation between the personal and the public life of the official, rarely has this distinction been upheld. In February this year, the government took disciplinary action against Basant Kumar Rath from the Indian Police Force (IPS) of J&K, for publishing articles in media outlets like The Wire and the Indian Express. Even though these articles were well researched and dealt only with broad policy issues related to security and policing, and even carried a standard disclaimer in the end that “views expressed are personal”, his writings were still termed “dangerously critical of government policy” and in “brazen violation of the IPS service conduct rules” by the Union home ministry.
The use of loose phrases like “capable of embarrassing” or “adverse criticism” has given the government enough rope to unreasonably discipline employees, forcing courts to rein in the government. In Krishna Chandra Chatterjee v. Chief Superintendent, Central Telegraph Office, Calcutta, the Calcutta High Court observed that the word ‘embarrass’ was too vague and uncertain, giving the authorities wide discretion to interpret the phrase. It explained that in such a situation, one of two things might occur (although to the same effect); either the rule will completely take away the rights of a government servant, or it would render it difficult for her/him to ensure compliance with that rule. In Joseph D Kunnappalli vs Superintendent Of Post Offices, the Kerala High Court held that the “mere ventilation of the grievances of the employees or a request for raising the pay-scale” does not amount to adverse criticism.
Touchstone of reasonable restrictions on free speech
The Constitution, via Articles 19(2) to 19(6), allows the state to impose ‘reasonable restrictions’ on a citizen’s fundamental rights. To be considered ‘reasonable’, the restriction should not be arbitrary or excessive. There must be a “direct or proximate nexus or a reasonable connection between the restrictions and the object sought to be achieved”. The restriction must also be proportional to the evil sought to be remedied by the State.
The point of contention is whether these safeguards apply the same measure to a civil servant for whom the government is also an employer. The Courts have in no uncertain terms held that individuals do not surrender their fundamental rights upon taking public office. The government cannot also demand that fundamental rights be waived in exchange for gainful employment, in effect sandwiching the employee between a rock and hard place. In other words, government employees are subjected to the same constitutional tests that apply to a private citizen.
Other countries also have codes of conduct for government employees that restrict speech critical of government policies.
In Australia, the Immigration Department dismissed one of its employees for pseudonymously posting tweets ‘highly critical’ of the department’s detention policies. The Australian Public Service (APS) Code of Conduct, however, takes a more contemporary approach to public duty. The Code allows employees to make public comments in their personal capacity recognising upfront that APS employees are citizens, but at the same time emphasising the responsibilities attached to the position they occupy. It carves an exception to free speech in case of comments critical of the government but sets the bar high. Section 6.2.7 states that the comment must be “so harsh or extreme in its criticism of the Government, a Member of Parliament from any political party, or their respective policies, that the employee is no longer able to work professionally, efficiently or impartially.”
In Faesal’s case, a plain reading of the content of the impugned tweet shows that he is neither criticising any policy or action of the government, nor ‘embarrassing’ the relations between state and centre. Even if the government used the argument that such restrictions on social media are necessary to maintain public order, in this particular case there is no proximate nexus between the stated object and government action. To make the assumption that criticism is indiscipline is to restrict healthy debate, which is the lifeline of a robust democracy.
Free speech in the private sector
Employee rights in times of social media are an equally important consideration in the private sector. To a limited extent, the Industrial Disputes Act, 1947, protects a “workman’s right to free speech” by allowing employees to constitute a committee to comment on matters of common interest. The Trade Unions Act, 1926, also permits unions to set aside funds to maintain periodicals to discuss issues affecting workmen and/or promote civil and political interests amongst its members.
In the gig-economy, these labour legislations do not apply, and gig-workers’ rights are tenuously held by contract. The Indian Contract Act, 1872, does make reference to the fact that contracts cannot violate public policy. However, with no conclusive opinion on whether this includes constitutionally guaranteed free-speech, one is hard-pressed to find instances where Article (19)(1)(a) is enforced against non-state actors. There is, it seems, no limit on how a private company can restrict the free-speech rights of its employees. For instance, in the US an Uber driver’s account was deactivated for his ‘hateful sentiments’ against the company on social media. The sentiment in question was traced back to a media-article the driver had shared on social media regarding the lack of safety for those driving for ride-sharing apps.
Corporations also exercise tacit power over employees and potential employees using social media to screen candidates, inadvertently forcing those seeking employment to sanitise their accounts. The EU has come down on these snooping practices in light of the General Data Protection Regulation directive. Non-binding guidelines from Article 29 Working Party (an advisory body of the EU on data protection) suggests that “any data collected from an internet search of potential candidates must be necessary and relevant to the performance of the job.”
With our data protection law around the corner, powerful precedents such as this, provide us with a roadmap for how we can keep our policies relevant so that citizen rights in the digital age are not dismantled expediently. The oppression of structurelessness that gig-work culture epitomises, behooves us to consider enforcement of fundamental rights, not only against the state but also the private sector.
Social change catalysts are often insiders. They hold the powerful states and big corporations accountable and need to be protected from the unreasonable restrictions on their fundamental rights.