Issue 1- whether writ petition maintainable under art 32?

In case Ram Singh vs Delhi [1], the Supreme Court of India observed that
it is the duty of the supreme court to see the right, intended to be
fundamental must be kept fundamentally

From <https://blog.ipleaders.in/constitutional-remedies-supreme-court/>

A mere threat to infringement of fundamental rights is enough to justify the

issue of the writ in case of Simranjit vs Union Of India[2].

From <https://blog.ipleaders.in/constitutional-remedies-supreme-court/>

(following above) That article which finds a place in Part III of the Constitution entitled 'Fundamental
Rights' provides that the right to move the Supreme Court for the enforcement of the rights
conferred in that part is guaranteed. It empowers the Supreme Court to issue directions or orders or
writs for the enforcement of any of the fundamental rights.

From <https://indiankanoon.org/doc/462325/>

Yes, violation of fundamental rights- art 19(1)(a) and art 21

Art 19(1)(a)
Freedom of Speech And Expression- 19(1) (a) And 19(2)
Article 19(1) (a) secures to every citizen the freedom of speech and expression and should be
read with clause(2) which empowers the state to put reasonable restrictions on the following
grounds:
a) Security of the state
b) Friendly relationship with foreign states
c) Public order
d) Decency and morality
e) Contempt of court
f) Defamation
g) Indictment to an offence
h) Integrity and sovereignty of India
The freedom of speech and expression means the right to express ones convictions and opinions
freely by the word of mouth, writing, printing, pictures, electronic media or nay other mode
addressed to the eye or the ear. It also includes the right to publish views of other people (freedom
of press).
Freedom of speech and expression has 4 broad special purposes to serve:
1) It helps an individual to attain self fulfilment.
2) It assists in discovery of truth.
3) It strengthens the capacity of an individual in participating in decision making.
4) It provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change.

From <https://www.lawfinderlive.com/Articles-1/Article2.htm>

Mr gorg wrote about the manner in which the police dealt with the indigenous populations (namely
3rd degree torture for confessions ), flagrant corruption, political clout over police functioning.

In S.P. Gupta v. Union Of India(1982) 2 SCR 365, the court said "No democratic Government can
survive without accountability and the basic postulate of accountability is that people should have
the information about the working of the Government."

In Romesh Thappar v State of Madras (AIR 1950 SC 124), the Supreme Court of
India held that the freedom of speech and expression includes freedom to propagate ideas which is
ensured by freedom of circulation of a publication, as publication is of little value without
circulation. Patanjali Sastri, J., rightly observed that
freedom of speech and expression is the very foundation of all democratic organizations and are
essential for proper working

Life Insurance Corporation Of India v. Mannubhai D. Shah (1992) 3 SCC 637: The
Supreme Court examined the scope and extent of the freedom of speech and expression.
The court emphasized that freedom of speech and expression should be read and interpreted
broadly. It also includes the right to propagate one’s view through various mediums. The honorable
court observed, “Freedom to air one’s view is the lifeline of any democratic institution and any
attempt to stifle or suffocate or gag this right would sound a death knell to democracy and would
help the user in autocracy or dictatorship.

The court relied on the judgement of Romesh Tappar vs. The State of Madras,[1] where it
was held that freedom of speech and expression is the very foundation of all democratic
organizations and are essential for proper working. This view was reiterated in Indian Express
Newspapers Pvt. Ltd. And Ors vs. UOI[2] wherein this right was not limited but broadened
to the right to information and right to public communications. It was highlighted that in today’s
world freedom of the press is the heart of Political and social intercourse.

The court stated that this right indirectly benefits the common man as they have the right to be
informed about their surroundings and the media plays a vital role in disseminating information. This
right can only be reasonably restricted under Article 19(2) on the anvil of necessity and not in the
name of convenience

From <https://www.legisscriptor.com/post/life-insurance-company-vs-manubhai-d-shah>

Freedom of speech & expression to public servants and restrictions:

Restricitions put forth in ccs(pension)rules:
With respect to the ambit of reasonable restrictions, the Supreme Court in Chintaman
Rao v State of Madhya Pradesh had laid down the principle that the legislative view of
what constitutes reasonable restriction shall not be conclusive and final and that it shall
be subjected to supervision by the Supreme Court.
As mentioned earlier, the most basic rule while testing whether a law falls within the
ambit of reasonable restriction is that no general or abstract rule shall be adopted for
the application of all case. Each case has to be seen independently. The test of
reasonableness shall be however on the basis of the following grounds; “The nature of
the right alleged to have been infringed, the underlying purpose of the restrictions
imposed, the extent and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the time”[5]
With respect to the reasonableness of the restriction imposed, it is to be noted that the
question is not whether the judge finds it reasonable or not, but whether a reasonable
man would consider the restrictions reasonable or not.
In Chintaman Rao v State of Madhya Pradesh[6], the Supreme Court opined that a
restriction in order to be referred to as reasonable shall not be arbitrary and shall not
be beyond what is required in the interest of the public. The reasonable implies
intelligent care and deliberation Legislation which arbitrarily or excessively invades the
right cannot be said to contain the quality of reasonableness and unless it strikes a
proper balance between the freedom guaranteed.
It is important in this regard, to mention a theory that was propounded by John Stuart
Mill in his treatise “On Liberty” referred to as the Harm Principle. Harm Principle
suggests that the state may interfere in the private life of individuals by way of sanction
if harm is caused to others.
As per Mill’s theory, two sets of actions are present; that affects one’s own self and the
one that affects others. It is quite difficult to draw a definite line of division as any action
will have a ripple effect on the society at large howsoever small it may seem and Mills
was aware of this.
Thus, Mills suggests that those actions that affect one’s own selves and those which
affects others only by their free, willful, undeceived participation shall be free from state
interference. This in fact does have a relation with the reasonable restrictions clause
and the concept of reasonableness in particular.
In Express Newspapers v Union[7] of India, it was held by the Supreme Court that there
ought to be a reasonable balance between the freedoms enshrined under Article 19(1)
and the social control permitted by clauses (2) to (6). In addition to this, the restriction
imposed shall have a direct or proximate nexus with the object sought to be achieved by
the law.
The question of the relationship between reasonable restrictions and directive
Principles of State Policy was addressed by the Supreme Court in Kasturi Lal Lakshmi v
state of Jammu and Kashmir[8] in which the court observed that a law which is usually
aimed at fulfilling a Directive Principle, the probability of the law being an unreasonable
restriction.

Freedom of speech to public servants:

Government servants in common with other citizens enjoy the protection of fundamental rights
under Article 19(1) (a). A series of judgments by Supreme Court or other high courts in different
times, had recognized dissent as a “symbol of a vibrant democracy” and government employees
have right to dissent. Indian courts have repeatedly held that right to free speech “necessarily
includes the right to criticise and dissent.”
In Romesh Thaper vs State of Madras and Brij Bhushan vs State of Delhi, the Supreme Court took it
for granted the fact that the freedom of the press was an essential part of the right to freedom of
speech and expression. It was observed by Patanjali Sastri J. in Romesh Thaper that freedom of
speech and expression included propagation of ideas. It is clear that the right to freedom of speech
and expression carries with it the right to publish and circulate one’s ideas, opinions and other views
with complete freedom and by resorting to all available means of publication.

In December 2019, Justice Sabyasachi Bhattacharyya of the Calcutta High Court took note to
highlight that people have a right to criticise the ruling government. According to Supreme Court
judge Justice Gupta (2019) “The right of freedom of opinion and the right of freedom of conscience
by themselves include the extremely important right to disagree”.

In case of Kameswar Prasad vs. State of Bihar (AIR 1962 SC 1166), the Supreme Court had to consider
the validity of Rule 4A of the Bihar Government Service Conduct Rules which provided that no
government servant shall participate in any demonstration in connection with any matter pertaining
to his condition of service. It was sought to be argued that a person who voluntarily entered
Government service must be deemed to have consented to such reasonable conditions as might be
imposed for maintaining proper discipline in the service.

The Supreme Court rejected the contention and held that the prohibition of participation in any
demonstration is invalid as violating Articles 19(1)(a) and 19(1)(b). The Supreme Court held that, as
Article 19 applies to all citizens, government servants in common with other citizens enjoy the
protection of fundamental rights. It started by noting that “the mere fact that a person enters
Government service, he does not cease to be “a citizen of India”, nor does that disentitle him to claim
the freedoms guaranteed to every citizen.” If an employee agrees to be subject to the rules framed
by the Government, they agree to do so because the rules are subject to the provisions of the
Constitution. In other words, by agreeing to abide by the rules of the Government, they do not
surrender their fundamental rights.

In the case of Sanskar Marathe v. State of Maharashtra (2015), the Supreme Court held that
freedom of speech and expression cannot be encroached upon through any legislative action or
any administrative action if there is no imminent threat to operations of the government and no
incitement to violence with the intention of disrupting public order.

Relying on an earlier decision of the Supreme court in Bala Kotiah’s case (1958 SCR 1052) some have
argued that since a person has no fundamental right to be a government servant, there is no
question of violating his fundamental right if disciplinary action is taken against him for violating the
Government Servant Conduct Rules. This reasoning is not sound. The point is not whether a person
has a fundamental right to be a government servant. The point is whether a person exercising his
fundamental right can be punished.

Further, Article 13 (2), the state shall not make any law which takes away or abridges fundamental
rights and any law made in contravention of this clause shall be void. Hence, if the restrictions
imposed are not reasonable restrictions, then the rule contravenes Article 19(1)(a) and hence is void.
No punishment can therefore be imposed under a void rule.

In Lipika Paul vs. State of Tripura ,The judgment has been hailed as guaranteeing government
employees their right to freedom of expression on social media. Of particular significance are
these words by the Ld. Judge
“As a Government servant, the petitioner is not devoid of her right of free speech, a fundamental
right which can be curtailed only by a valid law. She was entitled to hold her own beliefs and
express them in the manner she desired of course subject to not crossing the borders laid down
in sub-rule (4) of Rule 5 of the Conduct Rules”

[Sub-rule (4) of Rule 5 pertains to the bar against government servants canvassing in elections.]

The Court emphasized that the right to freedom of speech and expression being a fundamental
right [Article 19(1) (a)], cannot be curtailed unless by way of a valid law. Further, a government
servant, like all citizens, can express them in any manner. Such expression should not however,
amount to canvassing for or against a political party or person. Subject to the restraints placed
by the Conduct Rules, she is free to hold her beliefs and to express them.

Lipika Paul vs. State of Tripura contribute to the discourse on citizens’ rights in a democracy. For
one, it clarifies that the right to post on social media, as a form of expression, is available to all
citizens including government servants. Social media is a powerful tool, especially in a
democracy. Its reach and potency are much higher than other traditional modes of mass
media.

From <https://blog.ipleaders.in/lipika-paul-vs-state-tripura-employee-have-right-to-freedom-of-expression-on-social-
media/>

Finally, the question which remains to be considered is: given that a person in service cannot be
punished under a void rule (which prohibits him from criticising the policies of Government), can a
person be prevented from being admitted as a government servant or a servant of a public
institution under such a rule? It would logically follow that as the rule is void and therefore non-
existent in the eye of the law, it cannot be relied on for refusing employment to a person who
criticises the policies of the Government.

According to the Supreme Court, it is clear that a blanket rule that prohibits criticism of the policies
of the Government is not a valid rule. There is no real and proximate connection between public
order and criticism of the Government’s policy. The reasoning that if every employee begins to
criticise the policies of the Government, it will lead to indiscipline and affect public order is too far-
fetched.

The well-known lawyer AG Noorani had pointed out at that time that ‘the fundamental right to
freedom of speech, which includes the right to know, is not absolute. But the state can
impose only “reasonable restrictions” on the right, on grounds specified in Article 19
and only by ‘law’ and not by an executive fiat

Art 21- Right to life

Shapoor m mehta vs allahabad bank

In a landmark judgment, the Bombay High Court has held that pension is a vital aspect of social
security and that the right to receive it constitutes a right to life under the constitution. Moreover, it
held that pension must be paid regularly in the first week of the month.

''Deprive a pensioner of the payment and you deprive him or her of the right to life. Delayed
pensionary payments place a pensioner in a position of uncertainty and dependence which impinges
on the quality of life under
Article 21, and the right to dignified existence of the aged. The judges held that
Pensioners must lead their lives with a sense of self-respect and dignity,'

Ndmc case
The right of employees to get salaries and pension is a fundamental right. The right to get salaries
and pension is a part of the right to life and liberty under the Constitution,” the court said.

Sri naini gopal vs union of india

The Court said that “Pension payable to employees upon superannuation is ‘property’ under Article
300-A of the Constitution of India & it constitutes a fundamental right to livelihood under Article 21
of the Constitution of India. The deprivation, even a part of this amount, cannot be accepted, except
in accordance with & authority of law".

From <https://www.latestlaws.com/latest-news/pension-a-fundamental-right-cannot-be-deducted-without-authority-of-
law-high-court/>

From <https://www.thehindu.com/news/cities/Delhi/salary-pension-fundamental-rights-of-all-employees-
hc/article34248406.ece>

Read more at:

https://economictimes.indiatimes.com/wealth/personal-finance-news/pension-part-of-right-to-life-bombay-
hc/articleshow/3877872.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cpps