July 6, 2022

Kameshwar Prasad v. State of Bihar- An analysis

The case of ‘Kameshwar Prasad’ is considered as a major judgement on the ‘Right to Strike’ where supreme court refused to declared ‘Right to strike’ as a fundamental right but also struck down a rule of government service that imposed blanket ban on any kind of demonstration by government servant.

The judgment was delivered by ‘Justice Ayyangar’.

The facts of the case

The case reached to supreme court by way of appeal from Patna High Court and the issue was related to Constitutional validity of Rule 4-A, which was introduced into the Bihar Government Servants’ Conduct Rules, 1956, by a notification of the Governor of Bihar dated August 16, 1957 and reads:

4-A. Demonstrations and strikes. – No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.”

The rule prohibits the government servant from participating in any

  • Demonstration
  • Strike
  • In connection with any matter of the conditions of their services.

Writ Petition in High Court of Patna

Very soon after this rule was notified the six appellants, the first of whom was the President of the Patna Secretariat Ministerial Officers’ Association and the others were Assistants or Clerks under the Bihar State Government,

  • filed on August 26, 1957, a petition before the High Court of Patna
  • under Art. 226 of the Constitution
  • challenging the validity of the rule on various grounds including inter alia that it interfered with the rights guaranteed to the petitioners by sub-cls. (a), (b) and (c) of cl. (1) of Art. 19 of the Constitution of India and that
  • in consequence the rule was in excess of the rulemaking power conferred by Art. 309 of the Constitution which was the source of the authority enabling service-rules to be framed.

They prayed for an order restraining the Respondent-State from giving effect to the rule and to desist from interfering with the petitioners’ right to go on strike or to hold demonstrations.

But the Patna High Court considered that rule as reasonable restraint to the freedom under Article 19. The Judges therefore directed the petition to be dismissed, but on application by the appellants they granted a certificate under Art. 132 of the Constitution to enable them to approach supreme Court.

Similar issue of Bombay High Court

When this issue of Bihar Service Rule reached to supreme court, a similar service rule of Maharashtra government was also under consideration in the supreme court, in that case also, Bombay high court reached the same conclusion as showed by Patna High court.

Arguments on behalf of Appellants

The argument addressed on behalf of the appellants may be shortly stated thus:

  • The service rule being one framed under Art. 309 is a “law” within the definition of Art. 13(3) of the Constitution and it would have to be pronounced invalid to the extent that it is inconsistent with the provisions of Part III of the Constitution.
  • Article 19(1) confers on all citizens the right by sub-cl. (a) to freedom of speech and expression, and by sub-cl. (b) to assemble peacefully and without arms, and the right to “demonstrate” would be covered by these two sub-clauses.
  • By the mere fact that a person enters Government service, be does not cease to be “a citizen of India”, nor does that disentitle him to claim the freedoms guaranteed to every citizen.
  • In fact, Art. 33 which enacts:

Parliament may by law determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or the Forces charged with maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.”

obviously proceeds on the basis of persons in the service of Government being entitled to the Protection of the fundamental rights guaranteed by Part III of the Constitution and is inserted to enable special provision being made for the abrogation, if necessary, of the guaranteed freedoms in the case of two special services only, viz., the army and the police force.

  • A demonstration may be defined as “an expression of one’s feelings by outward signs”. A demonstration such as is prohibited by, the rule may be of the most innocent type- peaceful orderly such as the mere wearing of a badge by a Government servant or even by a silent assembly say outside office hours-demonstrations which could in no sense be suggested to involve any breach of tranquillity, or of a type involving incitement to or capable of leading to disorder.

If the rule had confined itself to demonstrations of type which would lead to disorder, then the validity of that rule could have been sustained but what the rule does is the imposition of a blanket-ban on all demonstrations of whatever type-innocent as well as otherwise-and in consequence its validity cannot be upheld.

Arguments on behalf of Respondent-Union of State

  • Though the power to frame Service Rules under Art. 309 was subject to the Constitution with the result that the rules so framed ought not to be contrary to any constitutional provision, still it did not follow that every one of the fundamental rights guaranteed by Part III could be claimed by a Government servant.
  • As a person voluntarily entered Government service he must by that very act be deemed to have consented to enter that service in such reasonable conditions as might be framed for ensuring the proper working of the administrative machinery of the Government and for the proper maintenance of discipline in the Service itself.
  • Under Art. 310 every office is held, subject to the provisions of the Constitution, at the pleasure of the President or of the Governor as the case may be, and provided a rule regulating the conditions of service was reasonable and was calculated to ensure the purposes above- named.
  • The reasonableness and validity could not be tested solely by reference to the criteria laid down in cls.(2), (3) or (4) of Art. 19. The counsel referred some judgments of US for the proposition that the constitutionality of special rules enacted for the discipline of those in the service of Government bad to be tested by criteria different from those applicable to ordinary citizens.

A discussion on the rules and provisions

Article 309

Art. 309 of the Constitution enacts:

“309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services………”

and provision is made by the proviso to the Article for the Governors of States to make rules until provision in that behalf is made by or under an Act of the appropriate Legislature.

Thus, the rule making power of the government is strictly subject to the Constitution, the validity of the rule would have to be tested by the same criteria as are applicable to all laws and subordinate legislation.

The Rule 4-A

The disputed rule prohibits two types of activities, both in connection with matters pertaining to the conditions of service,

(i) the holding of demonstrations, and

(ii) resort to strikes to achieve the purpose indicated.

Meaning of Demonstration

According to supreme court-

“a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one’s ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech.”

A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. 19(1)(a) and 19(1) (b).

Forms of demonstration

It is needless to add that from the very nature of things a demonstration may take various forms;

  • It may be noisy and disorderly, for instance stone- throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b).
  • It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances. If thus particular forms of demonstration fall within the scope of Art. 19(1)(a) or 19(1)(b).

Conclusion of the Court

After hearing the arguments of both sides, the supreme court reached on following conclusions-

  • We find ourselves unable to accept the argument that the Constitution excludes Government servants as a class from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons were specifically named.
  • No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquillity or which ‘Would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained.

As no such separation is possible the entire rule has to be struck down as unconstitutional.

  • We have rejected the broad contention that persons in the service of government form a class apart to whom the rights guaranteed by Part III do not, in general, apply.
  • By accepting the contention that the freedoms guaranteed by Part III and in particular those in Art. 19(1)(a) apply to the servants of government we should not be taken to imply that in, relation to this class of citizen ‘the responsibility arising from official position would not by itself impose some limitations on the exercise of their rights as citizens.
  • The supreme court therefore allowed the appeal in part and granted the appellants a declaration that r. 4A in the form in which it then stands prohibiting “any form of demonstrations” is violative of the appellants’ rights under Art. 19(1)(a) & (b) and should therefore be stuck down.
  • It is only necessary to add that the rule, in so far as it prohibits a strike, cannot be struck
  • There is no fundamental right to resort to a strike.

Reference

Kameshwar Prasad And Others vs The State Of Bihar; 1962 AIR 1166, 1962 SCR Supl. (3) 369