Skip to main content

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shall be an implied condition of every grant of pension and its continuation” and that the pension could be withheld or withdrawn, in part or in full, if the pensioner is convicted of a serious crime or is held to be guilty of grave misconduct.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
---
Click here for signatories

Comments

TRENDING

'Flawed' argument: Gandhi had minimal role, naval mutinies alone led to Independence

Counterview Desk Reacting to a Counterview  story , "Rewiring history? Bose, not Gandhi, was real Father of Nation: British PM Attlee 'cited'" (January 26, 2016), an avid reader has forwarded  reaction  in the form of a  link , which carries the article "Did Atlee say Gandhi had minimal role in Independence? #FactCheck", published in the site satyagrahis.in. The satyagraha.in article seeks to debunk the view, reported in the Counterview story, taken by retired army officer GD Bakshi in his book, “Bose: An Indian Samurai”, which claims that Gandhiji had a minimal role to play in India's freedom struggle, and that it was Netaji who played the crucial role. We reproduce the satyagraha.in article here. Text: Nowadays it is said by many MK Gandhi critics that Clement Atlee made a statement in which he said Gandhi has ‘minimal’ role in India's independence and gave credit to naval mutinies and with this statement, they concluded the whole freedom struggle.

BSF should take full responsibility for death of 4 kids in West Bengal: Rights defender

By Kirity Roy*  One is deeply disturbed and appalled by the callous trench-digging by BSF in Chetnagachh village under Daspara Gram Panchayat, Chopra, North Dinajpur District, West Bengal that has claimed the lives of four children. Along the entire stretch of Indo-Bangladesh border of West Bengal instead of guarding the actual border delineated by the international border pillars, BSF builds fences and digs trenches well inside the Indian territory, passing through villages and encroaching on private lands, often without due clearance or consent. 

A Hindu alternative to Valentine's Day? 'Shiv-Parvati was first love marriage in Universe'

By Rajiv Shah*   The other day, I was searching on Google a quote on Maha Shivratri which I wanted to send to someone, a confirmed Shiv Bhakt, quite close to me -- with an underlying message to act positively instead of being negative. On top of the search, I chanced upon an article in, imagine!, a Nashik Corporation site which offered me something very unusual. 

Students, lawyers, professors detained in Delhi for demonstrating in support of farmers

By Our Representative  About 25 protestors, belonging to the civil rights network, Campaign Against State Repression (CASR), a coalition of over 40 organisations, were detained at Jantar Mantar for holding a demonstration in support of the farmers' stir on Friday. Those detained included students, lawyers and professors, including Prof Nandita Narain and Prof N Sachin. 

Social justice day amidst 'official neglect' of salt pan workers in Little Rann of Kutch

By Prerana Pamkar*  In India’s struggle for Independence, the Salt Satyagraha stands as a landmark movement and a powerful symbol of nonviolent resistance. Led by Mahatma Gandhi, countless determined citizens walked from Sabarmati Ashram to Dandi in Gujarat. However, the Gujarat which witnessed the power of the common Indian during the freedom struggle is now in the throes of another significant movement: this time it is seeking to free salt pan workers from untenable working conditions in the Little Rann of Kutch (LRK).

How GMOs would destroy non-GMO crops: Aruna Rodrigues' key submissions in SC

Counterview Desk The introduction of Bt and HT crops will harm the health of 1 billion Indians and their animals, believes Aruna Rodrigues, who has made some 60 submissions to the Supreme Court (SC) during the last 20 years. As lead petitioner who filed Public Interest Litigation in 2005, during a spate of intense hearings, which ended on 18 January 2024, she fought in the Apex Court to prevent the commercialization of genetically modified organisms (GMOs) in Indian agriculture. 

Jallianwala massacre: Why Indian govt hasn't ever officially sought apology from UK

By Manjari Chatterjee Miller*  The king of the Netherlands, Willem-Alexander, apologized in July 2023 for his ancestors’ role in the colonial slave trade. He is not alone in expressing remorse for past wrongs. In 2021, France returned 26 works of art seized by French colonial soldiers in Africa – the largest restitution France has ever made to a former colony. In the same year, Germany officially apologized for its 1904-08 genocide of the Herero and Nama people of Namibia and agreed to fund reconstruction and development projects in Namibia. .

Will Budget 2024 help empower city govts, make them India's growth engines?

By Soumyadip Chattopadhyay, Arjun Kumar* Cities in India are envisioned as engines of growth. Any meaningful long-term vision for India would be incomplete without planning for the cities and quite rightly, urbanization is considered as one of the country’s top developmental challenges. Realization of full potential of cities depends crucially on their ability to provide ‘enabling’ environment especially in terms of sustained provision of a wide range of urban infrastructure and services.

Interpreting UAPA bail provisions: Is Supreme Court setting the clock back?

By Kavita Srivastava*, Dr V Suresh** The Supreme Court in its ruling on 7th February, 2024 in   `Gurvinder Singh v State of Punjab’ held that its own well-developed jurisprudence that "Bail is the rule and jail the exception" will not apply to those charged under the UAPA.

A 'distorted narrative' of Indian politics: Congress failing to look beyond LS polls

By Prem Singh*  About 15 days ago, I told a senior journalist friend that there are not even two   months left for the Lok Sabha elections, Rahul Gandhi is roaming around on a delectation (tafreeh). The friend probably found my comment exasperating and replied that he is not on a delectation trip. The conversation between us on this topic ended there.