No Bihar Govt Jobs for Protesters: An Unconstitutional Condition?

Even though the order says person has to be charge-sheeted, they would still be innocent of a crime till convicted.

Bihar Chief Minister Nitish Kumar.

(Photo: PTI)

Soon after the news broke that Uttarakhand Police were going to keep track of ‘anti-national’ social media posts when conducting police verification for passport applicants, the Bihar government decided to go even further.

A new order from the Bihar Police warns that police verification for not just passports but appointment to government posts, getting bank loans and more, could be affected by a person’s involvement in protests and demonstrations. The order has been widely condemned as undemocratic by opposition leaders in Bihar including RJD’s Tejashwi Yadav.

The order from the Bihar police does appear to indicate that mere involvement in protest movements will itself not be grounds to create objections, the person should have indulged in some criminal activity during the protest/demonstration and been subsequently named in a police charge sheet.

As the Indian Express points out, the Bihar Home Department circular dated 29 January which this police order cites, does not make a reference to criminal involvement.

This does raise questions about whether the additional condition of being charge-sheeted for a criminal offence (which would at least make the whole thing less onerous) will actually apply before the negative consequences do.

Even if being charge-sheeted for one’s involvement in a protest is a precondition for it to affect one’s chances of getting a government job, etc, this does not necessarily mean that the condition is a legally valid one.

Why?

Because in the absence of a conviction for some criminal activity, this could merely become a tool to force people to avoid protesting against their rights out of fear of losing out on opportunities.

This would therefore become a violation of their right to freedom of speech and expression, even of their right to assemble peaceably.

But hang on a minute. This order doesn’t stop people from taking part in protests, it merely says they will have to be ready to face the consequences for doing so. How can that be illegal?

The answer to this lies in the concept of the doctrine of ‘unconstitutional conditions’. While that may sound like a mouthful, the idea is actually quite simple.

If, for receipt of some governmental privilege, the government says that you have to give up a constitutional right, this becomes an ‘unconstitutional condition’.

Two of the judges who wrote a concurring opinion in the 1974 case of Ahmedabad St Xaviers College vs State of Gujarat, acknowledged this argument where they borrowed from American jurisprudence to explain why the fact that this is ostensibly voluntary, isn’t good enough.

The problem basically is that if the government can make you choose to give up your right to free speech by making it a condition to get some privilege from the government (in this case, say, a government job or a passport):

“constitutional guarantees, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool – an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden.”

But aren’t fundamental rights subject to reasonable restrictions? Isn’t saying that people mustn’t commit criminal activities while protesting a reasonable thing to say?

The problem here lies with the fact that the person could be denied a government job or other government service without it being proven that they actually committed an offence.

Accusing someone of a criminal offence, even including them in a charge sheet, is not exactly a difficult thing to do, and there is no real independent assessment of any such accusation till that stage. The kind of criminal cases against protesters in recent times alone is sufficient to demonstrate just how easily this can happen (whether you agree with those protesters or not).

It is only when someone is actually convicted of an offence that you can conclusively say that they took part in a criminal activity during a protest – till then the presumption of innocence would apply.

For such a person to be denied a government job, or a passport or any of the other things the Bihar Police have indicated will be affected by the accusation of criminal involvement, cannot in any way be reasonable. Once they have actually been convicted by a court of law, the argument that this is fair thing to do becomes more feasible.

Would the courts actually strike down this kind of order? Is that doctrine of unconstitutional conditions consistently followed by the Supreme Court?

The doctrine of unconstitutional conditions is an established concept in the US courts, but not really in the Indian context. Apart from the concurring opinion in the Xaviers case (itself not the majority opinion), it has not been specifically cited as a ground to strike down government policy in any other judgments.

This does not mean the argument is untenable, just that there is no guarantee that a court would feel bound by it.

Support for the argument could perhaps be found in some other cases of the Supreme Court, such as several of the court’s judgments on press freedom which look at whether the government was trying to indirectly infringe the right to freedom of speech that journalists have by imposing conditions on circulation, readership or revenues.

There is also the general administrative law principle that what can’t be done directly, cannot be done indirectly, which could be used to argue that these are attempts to restrain protests and dissent in a roundabout manner.

The criminal charge sheet pre-condition is likely to be used as a way to say that there is no blanket ban on protesting, though the Bihar Home Department’s underlying circular could perhaps become a sticking point.

As it does not make any mention of criminal involvement, that order effectively bans the exercise of the right to freedom of speech and assembly for citizens looking to access a fairly wide cross-section of government privileges – remember that it isn’t just about government jobs.

Even if it were just about government jobs, the Supreme Court in the Kameshwar Prasad case in 1962 had held that government servants were not some special class of people whose fundamental rights can be taken away. Even those already holding government posts could not be subjected to a blanket ban on protests and demonstrations, as this:

“lays a ban on every type of demonstration -- be the same however innocent and however incapable of causing a breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result.”

Even with the charge sheet condition, the fact that this would apply even without a conviction could still make it arguable that the Bihar Police’s order is also a blanket ban and therefore caught by the reasoning in Kameshwar Prasad.

However, these arguments will need to be adjudicated upon by the Patna High Court or the Supreme Court to get further clarity.