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New Govt of India move to harass, persecute 'free-thinking' former officials: Ex-babus

Bureaucrat-turned-activist Harsh Mander
Counterview Desk 
The Constitutional Conduct Group (CCG), consisting of retired civil servants, protesting against the amendments to the All India Services, has said the aim of the Government of India move is to armed itself with “unlimited powers to harass and persecute any pensioner, whose action is not to its liking, whether it be an article, an interview, participation in a protest march or seminar, or any form of criticism.
Without naming Harsh Mander, bureaucrat-turned-activist, who is alleged to be a victim of state harassment for his human rights campaigns, the CCG statement, signed by 94 signatories, said, “In effect, this will totally muzzle and silence anyone who draws a pension from the state, which appears to be the intention behind these amendments.”

Text:

The Constitutional Conduct Group, a collective of former civil servants, has noted with concern the recent amendments by the Ministry of Personnel, Public Grievances and Pensioners, Govt. of India, to the All India Services (Death cum Retirement Benefits) Rules 1958 (hereinafter referred to as the Rules). Through a notification dated 6.7.2023, these amendments have, inter alia, sought to impose a complete ban on the right of retired civil servants to comment on public matters, by threatening them with the withdrawal of their pensions. This would be violative of Article 51A of the Constitution which enjoins upon all citizens to “cherish and follow the noble ideals that inspired the national struggle for freedom.” The right to criticise the government in power is part of these ideals and cannot be termed as “misconduct” .
The original Rules of 1958 (as amended from time to time) did contain a provision in Rule 3 that “future good conduct shall be an implied condition of every grant of pension and its continuation” and that the pension could be withheld or withdrawn, in part or in full, if the pensioner is convicted of a serious crime or is held to be guilty of grave misconduct. However, such action could only be taken by the union government on a reference from the state government (the cadre to which the officer belonged). But now, Rule 3 has been amended to provide that such punitive action can be taken by the union government “either on a reference from the state government concerned or otherwise.” This, we feel, violates the principles of federalism and confers draconian powers of oversight and overrule on the union government which is not in conformity with the duality of control envisaged in the All India Services structure. It will further expose officers in opposition ruled states to intimidation by the party in power at the centre.
We note with apprehension that nowhere in the Rules has the term “good conduct” or “grave misconduct” been defined, other than in sub-rule 8 of Rule 3 which merely “includes” disclosure of any information covered by the Official Secrets Act as a grave misconduct. Other than this, however, the Rules are completely silent on this issue, and everything is left to the decision or interpretation of the central government. Considering the severe penalties prescribed for misconduct, it is legally incumbent on the union government to have provided an exhaustive definition of the term. By leaving this deliberately vague, ambiguous and amorphous, the union government has armed itself with unlimited powers to harass and persecute any pensioner whose action is not to its liking, whether it be an article, an interview, participation in a protest march or seminar, or any form of criticism. In effect, this will totally muzzle and silence anyone who draws a pension from the state, which appears to be the intention behind these amendments.
The withdrawal/withholding of pension for any criminal conviction is equally pernicious and untenable in law as it amounts to double jeopardy, punishing a person twice for the same offence. The pension is something (s)he has already earned by dint of long service. If (s)he commits a crime, (s)he will suffer the consequences of that by the operation of that criminal law: (s)he cannot be penalised a second time for the same offence by withdrawing her/his pension. Furthermore, the law punishes the perpetrator of a crime, not her/his next of kin; by withdrawing/withholding her/his pension the government would be inflicting unjustified tribulations and misery on her/his family too.
Finally, both the original and the amended provision of Rule 3 (except the newly introduced sub-rule 6 about divulging secret and security related information) violate multiple rulings of the Supreme Court and various High Courts which have, over the last 65 years, constantly held that pension is an employee’s right and a kind of deferred payment for service already rendered. It is not largesse or charity bestowed by the government and does not depend upon the discretion of the government (State of Punjab and Another vs Iqbal Singh).
Pensioners are not government servants: they are free citizens of the country like any other citizen, with the same freedom of expression
In DS Nakara vs Union of India (1983), the Supreme Court held that a law cannot discriminate between the same class of people, and that all statutes or laws must have some rational nexus with the object of the law. Rule 3, both the original and the amended versions, do not conform to these legal requirements. Pensioners are no longer government servants: they are free citizens of the country like any other citizen, with the same freedom of expression. By curbing this right under the specious guise of “good conduct” the government is discriminating against them and, therefore, also violating Article 14 of the Constitution. Furthermore, what is the “object” of this rule, if not to silence any form of criticism of the government? This cannot be held to be rational, reasonable or based on some valid principle, as is required in another judgment (Ramana Dayaram Shetty vs The Airport Authority of India and Others).
Rule 3 has become obsolete: it is a legal anachronism which also militates against the right to freedom of speech and dissent. It makes pensioners bonded labourers for life, a separate-and inferior-class of citizens who do not enjoy the freedom of expression. It further seeks to impose the Conduct Rules (which apply only to those in service of the government) on pensioners through the back door, which is abhorrent in law, as the latter are no longer in service. They are free citizens and there exists no employer-employee relationship between them and the government.
Rules governing conditions of service need to be dynamic and in sync with the changes in interpretation of laws, the evolution of jurisprudence on rights and freedoms, the development of the concepts of democracy and an open society. Rule 3 fails to do so, is stuck in a time warp and needs to go.
The Constitutional Conduct Group urges the governments in the states and the union government to review this rule with a view to abolishing it, and not to further build upon it. In the interim we further request the union government to hold in abeyance these amendments in the interests of federalism, fair play, equality of citizens, freedom of expression and a vibrant democracy.
Satyameva Jayate
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Click here for signatories

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