Kameshwar Prasad vs State Of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1962 Supreme(SC) 75

SUPREME COURT OF INDIA
22nd February, 1962
P.B. GAJENDRAGADKAR, A.K. SARKAR, K.N. WANCHOO, K.C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR, JJ.
Kameshwar Prasad and others, Appellants
Versus
State of Bihar and another, Respondents.
1. Union of India and 2. E. X. Joseph, Interveners.
Civil Appeal. No. 413 of 1959.
Advocates appeared
Mr. B. P. Maheshwari, Advocate, for Appellants; Mr. S. P. Varma, Advocate, for Respondents; Mr. B. Sen, Senior Advocate, (Mr. R. H. Dhebar, Advocate, with him), for Intervener No. 1, Mr. A. S. R. Chari, Sr. Advocate, (M/s. M. K. Ramamurthi, R. K. Garg, D. P. Singh and S. C. Agarwal, Advocates of M/s. Ramamurthi and Co., with him), for Intervener No. 2.

Advocates:
A.S.R.CHARI, B.P.MAHESHVARI, B.SEN, D.P.Singh, M.K.RAMAMURTHI, R.H.Dhebar, R.K.GARG, RAMAMURTHI, S.C.AGRAWAL, S.P.Varma

Headnote:SOVEREIGN POWER AND THEORY OF POLICE POWER—TAX ON INTOXICANTS AND ALCOHOL—DEFINITION AND CONCEPT OF SOVEREIGNTY - GOVERNMENT SERVANTS AS A CLASS NOT EXCLUDED FROM PROTECTION OF RIGHTS GUARANTEED IN PART III EXCEPT THOSE SPECIFICALLY MENTIONED—ARTICLE 33 SPECIFICALLY SELECTED MEMBERS OF SERVICES WHO MIGHT BE DEPRIVED OF FUNDAMENTAL rights and limitation of restrictions—others cannot be EXCLUDED FROM THE RIGHTS ONLY BECAUSE THEY ARE GOVERNMENT SERVANTS, NATURE AND INCIDENTS OF DUTIES IN THAT CAPACITY MAY IMPOSE RESTRICTIONS IN FREEDOM IN ARTICLE 19(1)(e) & (g) - GOVT. SERVANTS WHO ARE CITIZENS OF INDIA CANNOT BE EXCLUDED FROM PROTECTION OF FUNDAMENTAL RIGHTS IN ARTICLE 19 - VARIOUS FORMS OF DEMONSTRATION—MAY BE FALLING WITHIN FREEDOMS GUARANTEED BY ARTICLES 19(1)(a) AND 19(1)(b)
       -held all citizens including Govt. servants are entitled also to form associations or unions under Art. 19(1)(c).
       -held, a violent and disorderly demonstration would not be covered by either – A peaceful and orderly demonstration is within protection.
       -see decision in Kameshwar Prasad v. State of Bihar, AIR 1962 SC 116 = 1962 Supp. (3) SCR 369 = 1962 AIR (SC) 1166 = 1966913) FLR 194 = 63(22) FJR 50 = 1962(1) LLJ 294.

Judgement Key Points

Case Notes:

The case concerns the constitutional validity of a rule that prohibits government servants from participating in demonstrations and strikes (!) .
The core issue is whether such restrictions violate the rights to freedom of speech and assembly guaranteed under Article 19(1)(a) and 19(1)(b) of the Constitution (!) .
The court held that citizens, including government servants, are entitled to the rights of speech and assembly, and these rights cannot be entirely excluded solely because of their employment status (!) .
The restrictions imposed by the rule must be reasonable and proportionate, aimed at maintaining public order and discipline (!) .
A blanket ban on all demonstrations, regardless of their nature or potential to cause disorder, is unconstitutional because it exceeds the permissible scope of restrictions (!) .
Restrictions must be targeted and justified, and cannot be arbitrary or absolute, especially when peaceful and orderly demonstrations are involved (!) .
The rule in question was struck down because it imposed an absolute prohibition on all forms of demonstration, including those that are peaceful and innocuous, which is inconsistent with constitutional protections (!) .
Government servants, as citizens, retain their fundamental rights unless specific restrictions are lawfully justified and imposed in accordance with constitutional limits (!) .
The court emphasized that restrictions on fundamental rights must adhere to the principles of reasonableness and necessity, and cannot be based on broad, sweeping prohibitions (!) .

Judgment

AYYANGAR, J. : This appeal comes before us by virtue of a certificate of fitness granted under Art. 132 of the Constitution by the High Court of Patna. The question involved in the appeal is a short one but is of considerable public importance and of great constitutional significance. It is concerned with the constitutional validity of R. 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."

2. Very soon after this rule was notified the six appellants, the first of whom is the President of the Patna Secretariat Ministerial Officers Association and the others are 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 rule-making 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. The learned Judges of the High Court who heard the petition were of the opinion that the freedom guaranteed under Art. 19(1)(a) and 19(1)(c) of the Constitution did not include a right to resort to a strike or the right to demonstrate so far as servants of Government were concerned. The learned Judges, however, further considered the validity of the rule on the assumption that the freedoms enumerated in sub-cls. (a) and (c) of Art. 19 (1) did include those rights. On this basis they held that the rule impugned was saved as being reasonable restraints on these guaranteed freedoms. The learned 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 this Court.

3. At this stage it is necessary to mention that a similar conclusion as the one by the High Court of Patna now under appeal was reached by the learned Judges of the High Court of Bombay before whom the constitutional validity of a rule in identical terms as R. 4A of Bihar Rules was impugned. The correctness of that decision is under challenge in this Court in S. L. Ps. (Civil) Nos. 499 and 500 of 1961 (SC) and the appellants in that appeal sought leave to intervene in this appeal and we have permitted them to do so, and we heard Mr. Chari- learned Counsel for the interveners in further support of the appeal.

4. Before entering on a discussion of the arguments advanced before us it might be convenient to state certain matters which are common ground and not in controversy :

1. The impugned Rule 4-A was framed under Art. 309 of the Constitution which enacts, to quote the material words:

"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 . We are drawing attention to the Article under which the rule is made for the purpose of pointing out that the rule-making power being 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 subordina

Click Here to Read the rest of this document