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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: RAMASHANKAR RAGHUVANSHI & ANOTHER

DATE OF JUDGMENT21/02/1983

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA REDDY, O. CHINNAPPA (J)

CITATION:  1983 AIR  374            1983 SCR  (2) 393  1983 SCC  (2) 145        1983 SCALE  (1)134

ACT:      Constitution of  India,  1950-Art.  311-Seeking  police report on  past political activity and faith of a person for public employment-Whether  offends articles 14 and 16 of the Constitution.

HEADNOTE:      Consequent upon  the taking  over by  the Government of the municipal  school in  which the  respondent worked  as a teacher, he  was absorbed  in Government  service. The order stated that his absorption in Government service was subject to verification  of his  antecedents. Sometime later, on the basis of  the report  of the  Superintendent of  Police that before being  absorbed in  Government service the respondent had taken  part in RSS and Jan Sangh activities his services were terminated  on the  ground that he was not a fit person to be entertained in Government service.      On the  view that  the  order  of  termination  of  his service  was   of  a   punitive  character,  passed  without complying  with   the  provisions   of  Art.   311  of   the Constitution, the High Court quashed that order.      Dismissing the special leave petition under Art. 136 of the Constitution, ^      HELD: per S. Murtaza Fazal Ali, J.      The special  leave  petition  should  be  dismissed  in limine. [394 H] per o. Chinnappa Reddy, J.      The respondent  cannot  be  turned  back  at  the  very threshold on  the ground  of his  past political activities. Once he  becomes a  Government servant, a he becomes subject to  the   various  rules  regulating  his  conduct  and  his activities must  naturally be  subject to  all rules made in conformity with the Constitution. [402 E-P]      The determination  of the  people of  this  country  to constitute India into a democratic republic and to secure to all its  citizens "liberty  of thought,  expression. belief, faith and  worship; Equality  of status and opportunity" has been written  into the  articles of  the Constitution in the shape of fundamental 394

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rights and  they are  what makes India a democratic republic and what  marks India  from authoritarian  or police states. The right  to form  associations  and  unions,  among  other rights, is  declared as  a fundamental  right; yet the State Government sought  to deny  employment to  him on the ground that the  report of  a police  officer stated  that he  once belonged to some political organisation.           [395 F-H]      The action  sought to  be taken  against the respondent was not any disciplinary action on the ground of his present involvement in political activities contrary to some service conduct rule  nor was  there any  allegation  that  he  ever participated in  any illegal  or subversive activity or that he was a perpetrator of violent deeds. All that was said was that before  he was  absorbed in  Government service  he had taken part  of RSS  and Jan  Sangh  activities.  What  those activities were  had never  been disclosed.  Neither the RSS nor  the  Jan  Sangh  was  alleged  to  be  engaged  in  any subversive or other illegal activities, nor were they banned organisations. Most  people may not agree with the programme and  philosophy  of  the  Jan  Sangh  or  RSS  but  that  is irrelevent. Everyone  is entitled  to his thought and views. Members of  these organisations  continue to  be members  of Parliament and State legislatures. They are heard often with respect both  inside and outside the Parliament. [395 H; 396 A-D]      The whole  idea of  seeking  a  police  report  on  the political  faith  and  the  past  political  activity  of  a candidate for  public employment  appears to cut at the very root of the fundamental rights of equality of opportunity in the matter  of employment  and freedom  of  association.  It offends the fundamental rights guaranteed by articles 14 and 16 of  the Constitution  to deny employment to an individual because  of  his  past  political  affinities,  unless  such affinities are considered likely to affect the integrity and efficiency of the individual’s service.           [397 D-E]      Wieman v. Updegraff, 344 U.S. 183 & Speisar v. Randall, 357 U.S. 573, referred to.

JUDGMENT:      CIV1L  APPELLATE  JURISDICTION:  Petition  for  Special Leave to Appeal (Civil) No. 4679 of 1980,.      From the  Judgment and  order dated the 24th July, 1979 of the  High Court  of Madhya  Pradesh at  Jabalpur in Misc. Petition No. 119 of 1975.      Gopal Subramaniam and D. P. Mohanty for the Petitioner.      The Judgment of the Court was delivered by      FAZAL ALI.  J., Since  we are  clearly of the view that the special  leave petition  should be  dismissed in 1975 on merits, I  would not like to go any further into the details of the  facts of  the case. r would, therefore, refrain from expressing any  opinion  on  the  observations  made  by  my learned brother Chinnappa Reddy, J. 395      CHINNAPPA REDDY,  J. This special leave petition has to be dismissed.  There is no merit in it. The respondent was a teacher employed in a municipal school. The school was taken over by  the Government  in June  1971. The  respondent  was absorbed in  Government service  by an  order dated February 28, 1972.  The order recited that the absorption was subject to ’verification  of antecedents’  and medical  fitness  The services of  the respondent  were terminated  on November S,

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1974. Though  the order  terminating  the  services  of  the respondent did  not purport to stigmatise him in any manner, it was  not disputed  before the  High Court  and it  is  no longer disputed  before us  that the  order was founded on a report made  by the  Superintendent of  Police,  Raigarh  on October 31,  1974, to the effect that the respondent was not a fit  person to be entertained in Government service, as he had taken  part in  ’RSS and Jan Sangh activities’. The High Court held that the order of termination of service was of a punitive character  and quashed  it on  the ground  that the provisions of  Art. 311  of the  Constitution had  not  been complied with.  The State of Madhya Pradesh has sought leave to appeal to this court under Art. 136 of the Constitution.      India is  not a  police state.  India Is  a  democratic republic. More  than 30  years ago, on January 26, 1950, the people  of   India  resolved  to  constitute  India  into  a democratic republic  and  to  secure  to  all  its  citizens "Liberty of  thought, expression, belief, faith and worship; Equality  of   status  and   opportunity",  and  to  promote "Fraternity, assuring  the dignity  of the individual". This determination of the people, let us hope, is not a forgotten chapter of  history. The determination has been written into the articles of the Constitution in the shape of Fundamental Rights and  they are  what makes India a democratic republic and what  marks India  from authoritarian  or police States. The right  to freedom of speech and expression, the right to form  associations   and  unions,   the  right  to  assemble peaceably and without arms. the right to equality before the law and the equal protection of the right laws, the right to equality of opportunity in matters relating to employment or appointment to  any office  under  the  State  are  declared Fundamental Rights.  Yet the  Government of  Madhya  Pradesh seeks to  deny employment  to the  respondent on  the ground that the  report of  a Police  officer stated  that he  once belonged to  some political organisation. It is important to note  that  the  action  sought  to  be  taken  against  the respondent is  not any  disciplinary action on the ground of his present involvement in 396 political  activity   after  entering  the  service  of  the Government, contrary  to some  Service Conduct  Rule. It  is further to  be  noted  that  it  is  not  alleged  that  the respondent ever  participated in  any  illegal,  vicious  or subversive activity.  There is  no hint  that the respondent was or is a perpetrator of violent deeds or that he exhorted anyone to commit violent deeds. There is no reference to any addition to  violence or  vice  or  any  incident  involving violence, vice  or other  crime. All  that is  said is  that before he  was absorbed  in Government service, he had taken part in  some ’RSS  or Jan  Sangh  activities.’  What  those activities were  has never  been disclosed.  Neither the RSS nor tho  Jan Sangh  is  alleged  to  be  engaged  in  any  , subversive  or   other  illegal   activity;  nor   are   the organisations banned.  Most people, including intellectuals, may not  agree with the program me and philosophy of the Jan Sangh and  the  RSS  or,  for  that  matter  of  many  other political  parties   and  organisations   of  an  altogether different hue.  But that is irrelevant. Everyone is entitled to his  thoughts and  views.  There  are  no  barriers.  Our Constitution guarantees  that.  In  fact  members  of  these organisations continue to be members of Parliament and State Legislatures. They  are heard, often with respect inside and outside the  Parliament. What  then was  the  sin  that  the respondent committed  in  participating  in  some  political activity before his absorption into Government service. What

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was wrong  in his being a member of an organisation which is not even  alleged to  be devoted  to subversive  or  illegal activities. The whole idea of seeking a Police report on the political  faith  and  the  past  political  activity  of  a candidate for  public employment  appears to our mind to cut at the  very root  of the  Fundamental Rights of equality of opportunity  in   the  matter   of  employment,  freedom  of expression and  freedom of  association. It  is a  different matter altogether  if a  police  report  is  sought  on  the question of the involvement of the candidate in any criminal or subversive  activity in order to find out his suitability for public  employment. But  why seek a police report on the political faith  of a candidate and act upon it. Politics is no crime.  Does it  mean that  only True  Believers  in  the political faith of the party in power for the time being are entitled to  public  employment  ?  Would  it  not  lead  to devastating results,  if such a policy is pursued by each of the Governments  of the  constituent States  of India  where different political  parties may  happen to wield power, for the time  being ?  Is public  employment reserved  for  "the cringing and  the craven"  in the words of Mr. Justice Black of the  United States  Supreme Court ? Is it not destructive of the dignity of the 397 individual mentioned  in the  preamble of the Constitution ? Is it  to be  put against  a youngman  that before  the cold climate of  age and  office freezes  him into immobility, he takes part in some political activity in a mild manner. Most students and  most youngmen are exhorted by national leaders to take  part in  political activities  and if  they do  get involved in some form of agitation or the other, is it to be to  their   ever-lasting  discredit  i  Sometimes  they  get involved  because   they  feel   strongly  and  badly  about injustice, because  they  are  possessed  of  integrity  and because they  are  fired  by  idealism.  They  get  involved because they  are  pushed  into  the  forefront  by  elderly leaders who  lead and  occasionally mislead them. Should all these youngmen  be debarred  from  public  employment  ?  Is Government service  such a  heaven that  only angels  should seek entry  into it  ? a We. do not have the slightest doubt that the whole business of seeking police reports, about the political  faith,   belief  and  association  and  the  past political activity  of a  candidate for public employment is repugnant to the basic rights guaranteed by the Constitution and entirely misplaced in a democratic republic dedicated to the ideals set forth in the preamble of the Constitution. We think it  offends the Fundamental Rights guaranteed by Arts. 14 and  16 of  the Constitution  to deny  employment  to  an individual because  of his past political affinities, unless such  affinities   are  considered   likely  to  affect  the integrity and  efficiency of  the individual’s  service.  To hold otherwise  would be  to  introduce  ’McCarthysim’  into India.   ’McCarthyism’ is  obnoxious to the whole philosophy of our constitution. We do not want it.      In the  fifties the  practice of baiting and crucifying teachers, public servants and a host of others in the United States, as  Communists came to be known as ’McCarthyism. Its baleful effects were described by late President Eisenhower, himself an anticommunist as follows :-           ’McCarthyism took its toll on many individuals and      on the  Nation. No one was safe from charges recklessly      made from  inside the  walls of congressional immunity.      Teachers,  Government  employees,  and  even  ministers      became vulnerable. Innocent people accused of Communist      associations or  party membership  have not to this day

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    been able  to clear  their names  fully. For  a few, of      course, the  cost was  little-where the  accused was  a      figure who  stood high  in public  trust  and  respect,      personal damage,  if any  could be  ignored or  laughed      away. But where, without 398      proof cf guilt, or because of some accidental or early-      in life  association with  suspected persons,  a man or      woman had  lost a  job or  the confidence  and trust of      superiors and  associates, the  cost was  often tragic,      both emotionally and occupationally" . The late President also said,           "They...fear other  people’s ideas-every new idea.      They...    talk  about censoring  tho sources  and  the      communication of  ideas... without  exhaustive  debate-      even  heated   debate-of  ideas  and  programmes,  free      Government would  weaken and  wither. But  if we  allow      ourselves to  be persuaded  that every  individual,  or      party, that  takes issue  with our  own convictions  is      necessarily   wicked    or   treasonous-then   we   are      approaching the end of freedom’s road..."      In Wieman  V. Updegraff  (1), Black  J. said, in one of the notorious loyalty oath cases and, it is worth quoting in full.           "History  indicates  that  individual  liberty  is      intermittently subjected  to extraordinary perils. Even      Countries dedicated to government by the people are not      free from such cyclical dangers. The first years of our      Republic marked such a period. Enforcement of the Alien      - and  Sedition Laws  by zealous  patriots  who  feared      ideas made  it highly  dangerous for  people to  think,      speak,  or   write  critically  about  government,  its      agents, or its policies, either foreign or domestic our      Constitutional liberties  survived the  ordeal of  this      regrettable period  because there  were influential men      and powerful  organized groups  bold enough to champion      the undiluted right of individuals to publish and argue      for their  beliefs  however  unorthodox  or  loathsome.      Today however,  few individuals  and  organizations  of      power and  influence argue  that unpopular advocacy has      this same wholly unqualified immunity from governmental      interference. For  this and  other reasons  the present      period of-fear  sees more ominously dangerous to speech      and press than was that of the Alien and Sedition Laws,      Suppressive laws  and practices  are the  fashion.  The      Oklahoma 399      oath statute  is but  one manifestation  of a  national      network A of laws aimed at coercing and controlling the      minds  of  men.  Test  oaths  are  notorious  tools  of      tyranny. When  used to shackle the mind they are, or at      least they  should be,  unspeakably odious  to  a  free      people. Test  oaths are  made still more dangerous when      combined  with  bills  of  attainder  which  like  this      Oklahoma statute  impose pains  and penalties  for past      lawful associations and utterances.      "Governments  need  and  have  ample  power  to  punish      treasonable acts  But it does not follow that they must      have a  further power  to punish  thought and speech as      distinguished from  acts. Our  own free  society should      never forget  that laws  which stigmatize  and penalize      thought and  speech of  the unorthodox  have a  way  of      reaching, ensnaring and silencing many more people than      at first  intended. We  must have freedom of speech for      all or we will in the long run have it for none but the

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    cringing and  the craven. And I cannot too often repeat      my belief  that the right to speak on matters of public      concern must be wholly lost.      "It seems  self-evident  that  all  speech  criticizing      government rulers  and challenging  current beliefs may      be dangerous  to the status quo. With full knowledge of      this danger  the Framers  rested our First Amendment on      the premise  that the slightest suppression of thought,      speech,  press,   or  public  assembly  is  still  more      dangerous. This  means that  individuals are guaranteed      an  undiluted   and  unequivocal  P  right  to  express      themselves on  questions of current public interest. It      means that Americans discuss such questions as of right      and not  on sufferance  of legislatures,  courts or any      other governmental  agencies. It  means that courts are      without power  to appraise and penalize utterances upon      their notion  that these utterances are G dangerous. In      my view  this uncompromising interpretation of the Bill      of Rights  is the one that must prevail if its freedoms      are to  be saved.  Tyrannical totalitarian  governments      cannot safely allow their people to speak with complete 400      freedom. I  believe with  the  Framers  that  our  free      Government can".      In another loyalty oath case, Garner v. Board of Public Works, (l) Douglas, J had this to say:           "Here the  past conduct  for which  punishment  is      exacted is  single-advocacy within  the past five years      of  the  overthrow  of  the  Government  by  force  and      violence.  In  the  other  cases  the  acts  for  which      Cummings and  Garland stood  condemned covered  a wider      range and  involved some  conduct which  might be vague      and uncertain. But those differences, seized on here in      hostility to  the constitutional provisions, are wholly      irrelevant. Deprivation  of a man’s means of livelihood      by reason  of past conduct, not subject to this penalty      when  committed,   is  punishment   whether  he   is  a      professional man,  a day labourer who works for private      industry, or  a Government employee. The deprivation is      nonetheless unconstitutional  whether  it  be  for  one      single past act or a series of past acts ... ... ...           "Petitioners were disqualified from office not for      what they  are today,  not because  of any program they      currently espouse  (cf. Grende  v. Board of Supervisors      341 U.  S. 56)  not because  of  standards  related  to      fitness for  the office,  cf: Dcnt v. West Virginia 129      U.S. 114;  Hawker v.  New York,  170 U.S.  189, but for      what they once advocated...............      In the same case, Frankfurter, J. Observed:           "The needs  of security  do not require such curbs      on  what   may   well   be   innocuous   feelings   and      associations. Such  curbs  are  indeed  self-defeating.      They  are   not  merely   unjustifiable  restraints  on      individuals. They  are  not  merely  productive  of  an      atmosphere of  repression uncongenial  to the spiritual      vitality of a democratic society. The inhibitions which      they engender  are hostile  to the  best conditions for      securing  a   high-minded  and   high-spirited   public      service."           In Lerner v. Casey, (a) Douglas, J. said: 401           "We deal  here only  with a  matter of  belief. We      have no  evidence in  either case  that the employee in      question  ever   committed  a   crime,  ever  moved  in      treasonable opposition  against this  country. The only

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    mark against them-if it can be called such-is a refusal      to  answer   questions   concerning   Communist   Party      membership.  This  is  said  to  give  rise  to  doubts      concerning the  competence of the teacher in the Beilan      case  and   doubts  as   to  the   trustworthiness  and      reliability of  the  subway  conductor  in  the  Lerner      case..."           "There are  areas where  government may  not probe      But government  has no  business penalizing  a  citizen      merely  for-his   beliefs  or   associations.   It   is      government action  that we  have here. It is government      action that the Fourteenth and First Amendments protect      against ...  ... ...  Many join association, societies,      and fraternities with less than full endorsement of all      their aims."           In Speiser v. Randall, (1) Black, J said:           "This case  offers just another example of a wide-      scale effort  by Government  in this  country to impose      penalities and  disabilities on  everyone who  is or is      suspected of being a ’Communist’ or who is not ready at      all times  and all places to swear his loyalty to State      and Nation.  .  I  am  convinced  that  this  whole  of      business of  penalizing people  because of  their views      and expressions  concerning  Government  is  hopelessly      repugnant to  the principles of Freedom upon which this      Nation was  founded ..  Loyalty oaths, as well as other      contemporary ’security  measures,’ tend  to stifle  all      forms of unorthodox or unpopular thinking or expression      -the kind  of thought  and expression  which has played      such a vital and beneficial role in the History of this      Nation. The result is a stultifying conformity which in      the end may well turn out to be more destructive to our      free society  than foreign  agents could  ever hope  to      be."      In the same case, Douglas, J., said: 402           "Advocacy which  is in no way brigaded with action      should always be protected by the First Amendment. That      protection should  extend even to the ideas we despise.      As Mr.  Justice Holmes,  wrote in dissent in Gitlow. v.      New York. (l) ’If in the long run the beliefs expressed      in proletarian dictatorship are destined to be accepted      by the  dominant forces  of  the  community,  the  only      meaning of  free speech  is that  they should  be given      their chance  and have  their  way’.  It  is  time  for      government-state or  federal-to become  concerned  with      the citizen’s  advocacy when his ideas and beliefs move      into the realm of action".      We may  end our  excursion  to  the  United  States  of America with  a reference  to the words of wisdom uttered by Thomas Jefferson more than two centuries ago:           ".. the  opinions of  men are  not the  object  of      civil government,  nor under  its jurisdiction;.. it is      time  enough   for  the   rightful  purposes  of  civil      government  for   its  officers   to   interfere   when      principles break  out into overt acts against peace and      good order."      We are  not for  a moment  suggesting that  even  after entry into  Government service,  a person may engage himself in political  activities. All  that we say is that he cannot be turned  back at  the very  threshold on the ground of his past political  activities. Once  he  becomes  a  Government servant, he  becomes subject to the various rules regulating his conduct  and his activities must naturally be subject to all rules made in conformity with the Constitution.

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    Let us  once more  remained ourselves  of what  Gurudev Rabindranath Tagore said:           "Where the  mind is  without fear  and the head is      held high: where knowledge is free,...... 403           Where the  clear stream of reason has not lost its      way into the dreary desert sand of dead habit:           Where the  mind is  led forward  by thee into ever      widening thought and action           let my country awake".                The application is dismissed. P.B.R                                    Petition dismissed. 404