(Raghav Chandak is a third year student at Rajiv Gandhi National Law University, Patiala )
Featured Artwork: “Unframed Histories” by Rollie Mukherjee.
Introduction
Jammu and Kashmir has since long been a centre of grave human rights violation, including indefinite internet shutdowns, press censorship, house arrest of opposition leaders etc.. The two U.T’s have dealt with yet another blow post the abrogation of article 370; an order has issued by J&K’s General Administration Department invoking article 311(2)c of the Indian constitution under which a Special Task Force(S.T.F.) has been constituted under the chairmanship of J&K Lieutenant Governor for scrutinizing cases based on suspicion of security of the state. Under the given order, if the conduct of an employee is perceived to be a potential threat to the security of the state, they will be removed from their office even without giving a reasonable chance of being heard and no requisite inquiry to look into the charges being levelled against the employee will be conducted.
The article has not defined ‘security of the state’; the government order is itself silent on the same and through the constitutional provision has given the central government-controlled U.T. administration a mechanism of resorting to terminate employment based on mere suspicion and without holding a reasonable inquiry. In the blog, the author will discuss at length the constitutional jurisprudence regarding the provisions invoked by the central government and the possible repercussions of the same.
Doctrine of pleasure
In India, every executive civil post is held at the pleasure of the governor or the president. The said doctrine does not give unbridled power to the president and governor. It is subject to constitutional limitations like the one imposed by Article 310 and Article 311 of the Indian Constitution.
The satisfaction of the president or the governor does not mean personal satisfaction rather like any other executive decision will rest on the aid and advice of the council of ministers. The primary difference in clause (b) and (c) of the second proviso of Article 311 is that by clause (b) the concerned authority is still required to record the reasons in writing and have to necessarily acquaint the court with adequate reasoning why a suitable inquiry could not be instituted for termination of the post. However, the same requirement is missing in clause (c) where the government has only to establish the expediency of the situation which necessitated the impugned action for termination.
Security of the State
As held in Shreya Singhal v. UOI the difference between the terms law and order, public order and security of state is mainly the varying degree of gravity of threat to the Nation. Law and order comprehends disorders of less gravity than those affecting public order just as public order comprehends disorders of less gravity than those affecting the security of State The security of the state as held in Union of India And Another vs Tulsiram Patel And Others is a graver issue than public order and law and order situation and encompasses within itself every likelihood threat to the security of the nation. The government is the best judge of the prevalent security issue, and an inquiry into such an issue would lead to the disclosure of sensitive information. Hence, an investigation into the interest of state security would be counterintuitive to the interest of the state much as the act does.
Silver lining: Judicial review; a right with a caution
As held in A.K. Kaul & Anr vs Union of India & Anr following the majority view in S.R Bommai regarding the scope of judicial review of a presidential order the court held that the provisions in article 311(2)(c) are akin to Article 356(1)[2] and the president and the council of ministers are not the final arbiters of a situation and that their opinion is inconclusive. A dismissal order or an order reducing the rank of an official can be challenged before an appropriate legal forum if it is based on wholly extraneous or malafide grounds. However, since the officials have a first brush with the prevailing circumstances and are well versed with ground reality, the court will presume the likeness of such circumstance which necessitated such an order. Further, even if there is a plethora of irrelevant material justifying the removal, the court will not interfere if there is some material in the impugned removal. Thus, a heavy burden rests on the appellant to justify his position as a dutiful and conformist government servant.
In Shamsher Singh & Anr vs State Of Punjab, the court held that it would not be feasible for the concerned authorities to furnish every single piece of documentary evidence before the court because they are working in a very delicate atmosphere where the security and integrity of the country are at stake and if their exposure may jeopardize and dry up the sources that provide essential and sensitive information needed to protect the public interest. The Supreme Court in Jamaat-E-Islami Hind vs Union of India lends support to the view that confidential evidence regarding security of state can be submitted before the concerned court without its non-disclosure to the other party keeping in mind the larger public interest in pursuant to leaking of crucial security details .[3] Thus, all the documents, except those protected under Section 123 and Section 124 of The Indian Evidence Act, can be furnished.
Perceived Apprehension of Misuse of Article311(2)(c)
Within few days of rolling the order, the Jammu and Kashmir administration terminated the service of three government employees without stating any reason for the order. One of them being a government school teacher. A peculiar thing about the arrest of the detainee was that in 2016 he was booked for stone-pelting and disrupting public peace and tranquility and the aggrieved approached the high court, which ordered their immediate release. The government frequently tumulted him after that, and now he is terminated from his services.
Right to life and personal liberty
Invoking said clause should be acted with caution and not in a cavalier manner because the aggrieved person, on the one hand, will be deprived of an adequate hearing while also with his livelihood, which is recognized by the apex court is equivalent to the right to life. Further, the deep disgrace with which the person would be subjected in society is beyond bounds. In H. L Trehan v. Union of India, the S.C. made it explicit that even where the authority has statutory power to take action without hearing; it would be arbitrary to take any action without hearing and thus violative of Article 14 of the Indian Constitution.[4] There is a need for more empathy and trust towards people working in the valley.
Security of the state is of paramount interest and the state shall employ the best possible measures to ensure that the security of the nation is upheld in true spirit. However, the same shall not come at the cost of suspension of civil liberties. Bureaucrats posing a security threat to the nation shall surely be punished; however, a chance of hearing and an inquiry is a constitutionally recognized right, and it shall be upheld and duly acknowledged. The duty to act fairly and reasonably are envisaged under Article 14 and 21 of the Indian Constitution. Principles of Natural justice have been firmly grounded in the Indian Constitution, and arbitrarily invoking an order and depriving away this constitutional right of a civil servant expunges their right to life and liberty.
Orwellian state
According to a news report of a Kashmir observer, the government is inflicting such measures to curb dissent because they can’t directly curb free speech and expression.
The whole scheme of events hints towards the state of the valley being turned into an Orwellian state. Where in Oceania, people were frequently subjected to thought crime and mass surveillance. The situation seems quite similar here where government employees are facing a wrath of having a difference of opinion, living in constant fear of the repercussions of their decisions, the fate of which being a loosened job. Bypassing the usual route for an inquiry under article 311 and invoking the proviso to the second clause brings about the irony of the union government which has vociferously claimed that the situation in the valley is back to normalcy after the abrogation of article 370 and terrorism in the valley has gone down significantly.
Conclusion
Indefinite internet shutdown, censorship on the press, restriction on the free movement of journalists, house arrests of opposition leaders and now invoking Article 311(2) speaks of the state of distrust in the erstwhile Jammu and Kashmir.
With the situation in the valley being always delicate and susceptible, there is always a chance of even routine activities getting colluded with those of dismantling the security of the state. However, only fair trial and reasonable inquiry can bring out the truth of the situation, and depriving the chance of fair hearing will be detrimental for civil liberties and will serve as a crackdown on free speech and expression.
Invoking such measures is not per se draconian. However, it gives unbridled power to the government to pass any order without stating any requisite reasons and giving a fair chance of hearing. Considering the judicial trend of courts taking a soft corner while it comes towards an issue of security of the state, a heavy burden lies on the person who has been sacked speaks volumes for distrust in the valley and possible misuse of the provision.
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