KAMESHWAR PRASAD AND OTHERS versus THE STATE OF BIHAR AND ANOTHER

3 S.C.R. SUPREME COURT REPORTS

KAMESHWAR PRASAD AND OTHERS v.

THE STATE OF BIHAR AND ANOTHER

(P. [B. ][GA.JENDRAGADKAR, ][A. ][K. ][SARKAR, ][K. N. ]WANCHOO, K. C. DAS GUPTA and N. RAJAGOPALA AYYANGAR, .JJ.)

Government Servant-Participation in strike.9 or demonstra• tions-Rule prohibiting strikes or demonstrations pertaining to conditions of service-Oondtutional validity of rule-"Detnonstration". meaning of-Bihar Governm,ent Servants' Conduct Rules, 1956, r. 4-A-Constitution of India, Art•. 19(1)(a), 19(1)(b), J.9(1) (c), 33, 309.

By notification dated August 16, 1957, the Government of Bihar introduced r. 4-A into the Bihar Gevernment Servani:s' Conduct Rules, ! 956, which provided "No Govern-ment servant shall partjcipate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service." The appellants filed petition before the High Court of Patna under Art. 226 of the Con-stitution of India challenging the ,validity of the rule on the grounds, inter alia, that it violated sub-els. (a), (b) and (c) of Art. 19 and that, in coniequence, the rule was in excess of the rule making power conferred by Art. 309. The High Court took the view that the freedom guaranteed under Arts. 19 (1) (a' and 19 (1) (c) did not include right to demonstrate or to strike so far as servants of Government were concerned, 3.nd that in any case, the impugned rule was saved as impo3ing reasonable restrictions.

He.ld, that r. 4·A of the Bihar Government Servants' Conduct Rules, 1956, in so far as it prohibited any form of dernostration, be it however innocent or however incapable of causing breach of public tranquillity, was vioiative of Arts. 19 (1) (a) and 19(l)(b) of the Constitution of India, and since on t~1e language of the rule as it stood it was not possible to so read it as to separate the legal from the unconstitutional por-tion of the provision, the entire rule relating to participation in any demonstration must he declared as ultre vlrcs.

T/1e Superintendant, Central Pri8on, Fetehgarh v. Ram Marw/iar Lohia, [1960] 2 S. C.R. 821, relie~ on.

The Constitution has under Art. 33, selected two of the Services uncier the State, the ~trnbers ~f WJiich might b~

February 22.

Karruthwar fraxad •• ~ Staft Qj Bfl1ar

deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also has prescribed the limit~ within which such rcscrictions or abrogation might take place; but the ocher clau'iscs of servants of Govcrn1nent in co1nmon with other persons and citizens of the country cannot be exclu· <led from the protection of the rights guaranteed by part JI I by reason 1nerely of their being Govern1nent scr\'ants, though on account of nature and incidents of the duties \vhich they have to discharge in that capacity, certain restrictions on their freedoms rnight have to be imposed.

Heid, further, that the rule in so far as it prohibited

strikes v.•as valid, because there was no fundamental right t0 resort to strike.

All India Rllnk /~1npl1Jyers' Asaocir1tion v. _,1ationrzl Indus· trial Tribunal, (1962] 3 S.C.R. 269, followed.

Civil Az>pellate .l'llrisdfrtion: Civil Appeal Xo. 41.l of 1959.

Appeal from the judgment and decree dated ,July 7, 19.~8, of the Patn:t High Court in ~I. ,J.C. ~o. 456 of 1957.

B. P. Jfoheshwari, for the appellants.

S. P. Va;-ma, for the rcspowlrnts.

B. Sen and R.H. Dhchar, for the Intervener

No. l (Cnion of India).

A. S. R. Chari, M. K. Rammni1rthi, R. K. Garg, ]). P. Singh and S. C. Agarwal, for the Inwn·ener No 2 (E. X. Joseph).

1962. February 22.

The Judgment of the

Court was delivered by

AYYA:XGAR, J.-This appeal comes beforo. us

by virtue of certificate of fitness grnntNI under Art. 132 of the Constitution by the High Court of Patna. The question involve<! in the app<•al is 8[hort ][ono but ][is ][of ][considerable puhlic importance ]and of great constitutional significance. ft. i~ con· cerned with the constitutional validity of r. 4·A,

which was introduced into the Bihar Government Servants' Conduct Rules, 1956; by 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 pertain-ing to his conditions of service." ·

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, petition before the High Court of Patn'l 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-els. (a), (bl and (c) of cl. (l) 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. 30:J of the Consti-tution which "·as the source of the authority enabl-ing 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( l)(a) and 19(l)(cl of the Constitution did not include right to resort to strike or the right to demonstnte so far as sevants of Government were concerned. ·The learned Judges however, further considered the validity of the rule on the assumption that the freedoms enumerated in sub-els. (a) and (c) of Art. 19(1) did include those rights. On this basis they held that the rule impugned was saved as being reason~ble restraints on these guaranteed freedoms,

Kamechwar Prasad v. The Slate of Bihar ;:yan:ar J,

ltameJhrt;Qr P,au1d v. The Stale of Bihar A}yan111f' J.

The learn°d Judges therefore directed the petition to Le di~missed, but on application by the ppell:ints thoy granted 11 certificate und<'r Art. 132 of the Constitution to enable them to approach tliis Court.

At this stage it is necessary to mention that similar conclusion as the one by the High Court of Patna· now under appeal wa.s reached by the learned Judges of tho High Court of Romhay before whom the constitutional validitv of rn le in identical terms as r. 4A of the Bihar Rul<'s was impugned. The correctneRS of th:it decision is unrfor chnll<'nge in this Court in S.L Ps. (Civil) Nos. 40\J »nd 500 of 19til and the appellants in that app1·al sought leave to intervene in this appeal and we ha,_.,, permitted them t-0 do RO, and we heard '.\Ir. Chari-learned Crmnoel for the int~rveners in furl her ~upport of the appeal.

Before entering on di~cussion of tho a,rgu-ments adv:mced before us it might be eonvenient to state certain matter~ which are common ground and not in controversy :

(I) The impui,,'lled rule 4-A was framed under

Art. 309 of tho Con8titution which enact~. to quote the material words :

"300. Subied to tho provision" of this

Constitution, Acts of the appropri11te Legisla-ture may regulate the rceruit1rn·nt, and condi-tions of service of persons appointed, to public . ,, scrvtC(\,S .. .•.....•.....

ancl provision i~ made hy tho proviRo to thi> Article for tlw Governorn of States to make JU!t's until "provision in that ~chalf i~ macle .!':V or unrfor .an Act of the appropriate Leg1slalur<, . We are <lrnwmg att~ntion to the Artidc under which th(' rnlo is mad(' for the purposP of pointing out that the rule-making power being snhj.,ct to the Cntrntit.utio1;, the validit.y of the rulo would have to b" tested by the saml' criteria as aro applicable to all !:1~s and subordinate legislation. In other wor<ls, 1f

3 S.C.R.

there are any constitutional limitations npon law-making, such of them as are appropriate to the subject dealt with by the rule would be applicable to them.

(2) It would be seen that the 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. This Court had, in All India Banlc Emplnyees' Association v. National Industrial Tribunal (') (Bank disputes Bombay etc.), to consider the question as to whether the right to form an association guaranteed by Art. 19( l) (c) involved or implied the right to resort to strike a,nd answered it in the negative. In view of this decision learned Counsel for the appellants, as also Mr. Chari for the interveners confined their arguments to the question of the legality of the provision as regards the right "to hold demons-trations". The validity of the rule therefore in so far as it prohibits strikes, is no longer under challenge.

The argument addressed to us on bl'half of the appellants may be shortly stated thus : The eervice-rule being one framed under Art. 309 is "law" within the definitiun of Art. 13(3) of the Constitu-tion and it would have to be pronounced invalid to the extent that it is inconsistent with the provi-sions of Part III. of the Constitution Art. 13(2). 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 rightto"demonstrate"would be covered by these two sub-clauses. By the ,mere fact that 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. In fact, Art. 33 which enacts :

"Parliament may by law determine to (I) CJ.A; 154 of 1961 (Not yet reported).

Kameshwar Prasad v. The State of B1'har

Ayyanzar J.

JYG2 Kam11hw.rr l'rasad •• The Sl•U of Bihar . .i/~·a :;ar J.

374 SOPREME COURT REPORTS (1962] SuP~.

wh11t extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces or tho Forces charged with maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the main-tenance of discipline among them.,.

obviously procC'eds on the basis of personH in the service of Government being entitled to the Protec-tion of tho fundamental rights guaranteed by Part III of the Constitution and iB inserted to <·nable special provi;ion being made fur the abrogation, if necessary, of thn guarant-0ed freedoms in the ease of two special scrd<;cs only, viz., the army :u:d the police force. The approach to the queRt.i<in regard-ing the constitutionality of the rule should be whether the ban that it imposes on demonstrations would be covered by the limitation of the guaran-teed rights contained in Art. 19(2) and 19(::!). In regard to both these clauses the only relevant criteria which has been suggested by the respon-dent-State iH that the rule is framed •·in the interest of public order". demonstration may be defined as "an expres8ion of one's feelings by outward signs". demonstration such as is prohibited by, the rule may be of the most innocent type- peaceful orderly such as the mere wearing of badge by a. Government servant or even by silent afSem bly say outside oflice hours-demonstrations which could in no sense be suggested to involve any breach of tranquillity, or of type involving incitement to or capable of lea.ding to disorder. If the rule had confined itself to demonstrations of type which would lead to disorder then the validity of that rule could havo been sustained but what the rule does is the imposition of blanket-ban on all demonstra-tions of whatever type-innocent ae well as other-wise-and in consequence its validity cannot be upheld.

Before considering these arguments of learned

3 s.c.R.

Counsel it is necessary to deal with the submission by Mr. Sen who appeared for the Union of India who intervened in this appeal which, if accepted, would cut at the· root of the entire argument for the appellant. He endeavoured to persuade us to hold that 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 Government servant. He urged that as person voluntarily entered Government service he must by that verj act be demeed to have consented to errter that service on 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 rule regulating the conditions of service was reasonable and was calcu-lated to ensure the purposes above-named he sub-mitted that its reasonableness and validity could not be tested solely by reference to the criteria laid down in ols.(2}, (3) or (4) of Art. 19.In this connection we were referred to few decisions of the American Courts· for the proposi-tion that the constitutionality of special rules enact-ed for the discipline of those in the service of Govern-ment had to be tested by criteria different from those applicable to ordinary citzens. Thus in 'f!Jx Parle; Curtis (') the constitutionality of law prohibiting officers or employees of the United S~ates from "requesting, giving to or receiving from any other officer or employee of the government any money . or property or other thing of value for political purposes," under penalty of being discharged and, on conviction fined, was upheld. In the majority (I) 27 Law. Ed. 232, 106 U. S. 371.

196B Kameshwar Prastld v. Tiu S t•I• of Bihar Ayyangar J.

KouuslrUJar PrOJ•i v. Tht Stak of Bilw Auyongar J•

judgment which was delivered by Waite, C.J., the rcasonablen('ss of such rule is pointed out. It is however manifest that no fundamrntal right could be claimed to havP been infringed by the provision there impugned. In United l'ublic Worker" v. Mitdull ('), which was another caso to which our attention was invited, ono of the questiuns raised related to the validity of an Act of Congress (The Hatch Act, 1940) making it unlawful for the emplo-yees in the Executive Branch of the .Federal Government to take part in political campaigns 11.nd making the same the basis for disciplinary depart-mental action. It was eontended that thi" wa8 an interference with the right of free speech as well as with political rights. l\eed, J., who spoke for the majority obHerved:

"Tho interference with free cxpreSBion has to be seen in comparison with the require-ml'nts of orderly management of administra-tive personnel. ....... _.,,We accept appellant's contention that the nature of political rights reserved to the people are involved. The righ~ claimed as inviolate may be stated as the right.of citizen to aot as party official or worker to further his own political views. Thus we h11.ve measure of interference by the Hatch Act and the Rules with what other-wise would be the freedom of the civil servant under the .First Amendment. And, if we look upon due process as guarantee of freedom in those fields, there is corresponding impair-ment of that right under the Fifth Amend-ment .......... ,_ .... We do not find persuation in appellants' argument that such activities during free time are not subject to regulation even though admittedly politieal activitos cannot be indulged in during working hours. The influence of politieal activity by gc,vern-rnent employees, if evil in its effects on tho (I) 91 Law. Ed. 75·1, 330 t..:.S. 75.

' 3S.C.R.

service, the employees or people dealing with them, is hardly less so because that activity takes place after hours ............ It is accepted constitutional doctrine that these fundamental human rights are not absolutes ............ The essential rights of the First Amendment are subject to the elemental need for O!der with· out which the guarantees of civil rights to others· would be mockery".

Mr. Sen also referred us to Mc Auliffe v. New Bedford ( ') which is cited at p.791 in 91 Law. Ed. in support of the position that servants of Govern-ment formed class and that conditions of service imposed upon them which are reasonable and necessmy to ensure efficiency and discipline cannot be questioned on the ground of their contravening any constitutional guarantees. Mr. Sen drew our attention in particular to the following passage in the judgment of-Holmes, J. :

"There is nothing in the Constitution or

the statute to prevent the city from attaching obedience to this rule as condition to the office of policeman, and making it part of the good conduct required. The petitioner may have constitutional right to talk polities, but he has no constitutional right to be policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant c1mnot complain, as he takes the employment on the terms which are offered him. On the same principle, the city may impose any reasonable condition upon holding offices within its control. This · condition seems to us reasonable, if that be question open to revision here (The Police Regulation prohibiting mem hers of the depart-( I) (1892) 155 Mass. 216.

Kameshwar Prasad

The State of Blha• Ayyanzar J.

1961 KtJmtshwar Pr"•ad .. Thi Stu1 of Billi"

.. ,_,.,,,., J

:ns SUPREME COURT REPORTS (1962] SUPP.

ment from soliciting money etc. for political purposes)" .

As regards t hesc decisions of t.he American Courts, it should be borne in mind that though the First Amendment to the Constitution of the United State reading "Congress shall make no law ......... abridging the freedom of speech ......... " appears to confer no power on the Congress to impose any l'<'Striction on the exercise of the guaranteed right, ~till it has always been u11derstood that the free-dom guaranteed is subject to the police power-the scop:• of which however has not been ddined with precision or uniformly. It is on the basis of the police power to abridge that freedom that the cu118ti-tutional validity of law~ penalising libels, and those relating to sedition, or to obscene publicatio11s etc., has been sustained. The resultant flexibilit.y of the restrictions that could be validly jmposPd renders the American deci;.io11s inapplicable to and without mnst use for resolving the que~tions arising under Art. 19('l)(a) or (b) of onr Constitntion wherein the ground-; on which limitations might be placed on the guaranteed right are set out with definiteness and precision.

Learned Counsel iavited our attention also to the decision of this Court in BrJ/11.kotaiah v. Union of India(') to Rimilar effect. But it must how-ever, be noted that in Balakotaiah's case the validity of the rule wa.s not challenged.

In further support of his submis8ion that the

fre•cdoms guaranteed to citizens by Art. J 9 c:annot in their very nature, be applied to those who are employed in governmt-nt St>rvicc our attention was invited to sub-els. (d), (c) and (g) of d. (1). It was said tha.t Government servant who wa.8 post~d to partieular place could obviously not cxercisP tho freedom to move throughout the t·;rritory of India and similarly, his right to reside and settle in any part of India could be said t.o be violated by his (I) {1958] S. C. R.I05i.

3 S.C.R. SUPREME COURT REPORTS

being posted to any particular place. Similarly, so long as he was in government service he would not be entitled to practise any profession or trade and it was therefore urged that to hold that these freedoms guaranteed under Art.. 19 were applicable to government servants would render public service or administration impossible. This line of argu-ment, however, does not take into account the · limitations which might be imposed on the exercise of these rights by els. (5) and (6) under which res-trictions on the exercise of the rights conferred by sub-els. (d) and (g) may be imposed if reasonable in the interest of the general public.In this connection he laid stress on the fact that special provision had been made in regard to Service under the State in some of th\) Artic]es·in Part III-such as for instance Arts. 15, 16 and 18(3) and (4)-and he desired us therefrom to draw tho inference that the other Articles in which there was no specific reference to Government servants were inapplicable to them. He realised however, that the implication arising from Art. 33 would run counter to this line of argument but as regards this Article his submission was that it was concerned solely to save Army Regulations . which permitted detention in manner which would not be countenanced by Art. 22 of the Constitution. We find ourselves unable to accept the argument that the Constitution excludes ·Government ser-vants as 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.

In our opinion, this argument even if other-

wise possible, has to be replll!ed in view of the terms of Art. 33. That Article selects two of the Services under the State-members oflthe armed forces charged with the maintenance of public order and saves the rules prescribing the conditions of service in regard to them-from invalidity on the . ground of violation of a.ny of the funda.menta.l

196% Kameshwar Prasai v. The State of Bihar Ayyangar J,

J96Z E011Ushwar Prasad v. Tiu Stat1 of Bihar AJ;·angar J.

rights guaranteed by Part III and also d<>fines the purpose for which ~uch abrogation or restriction might take place, this being limited to ensure the prop!Jr di~charge of duties and the maintenanco of discipline among th('m. The Article having thus selected the Services mem hers of which might Le deprived of the bcndlt of the fundamental rights guaranteed to other persons and citizens and also having prescribed tho limits within which such rPStrictions or abrogation might take r)ace, we congider that other classes of 5ervants o Govern· mcnt in common with other persons and other citi-zens of t.hc eountry cannot Le excluded from the protection of the rights guaranteed by Part HI by reason merely of their br.ing Government servants artd the nature and inri<lenta of th\) dnties which they have to diecharge in that capacity might ncce-ssarilv involve restrictions of certain freedoms a8 we have pointed out in relation to Art. 19 ( l) (c J and (g ).

The first question that falls to be considered is whether tho right to mako "demonstration" is covered by e·1thcr or both of the two freedoms guaranteed by Art. l!J(l)(a) and 19(l)(b). "elem· onstratio11" is dcfinrd in tl1e Concise Oxford Dictil1· nary as "an outward exhibition of feeling, as an exhibitio11 of opinion on political or other question especially public meeting or procession". In Webster it is defined as "a public exhibition by party, sect or society......... as by parade or mass-meeting". Without going very much into the niceties of language it might be broadly stated that d1•monstration is visible mauifcstation of the feelings or sentiments of an individual or group. It is thus a. communication of one"s ideas to others to whom it is intended to be conH•ycd. It is in effeot therefore form of Hpecch or of expressiotl, because speech need not be vocal since signs made by dumb person would also be form of speech. It ha.a however to be recognised thatthe argument before us is confined to the rule pro-hibiting demonstration which is form of speech and expression or of mnre assembly and speeches · therein and not other forms of demonstration which do not fall within the content of Art. l.9(l)(a) or 19(l)(b). 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 freedbms gu'1rante<Jd by Art. 19( 1 )(a) and· 19( l) (b). It is needless to add that from the very nature of things demonstration may take various forms; It may be noisy and disorderly, for instance stone-throwing by crowd may be cit-,d as. an example of violent and disorderly demonstration and this would not obviously be within Art. 19(l)(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(l)(a) or 19(l)(b), the next question is whether r. 4-A, in so far as it lays an embargo on any form of demonstration for the redress of the grievances of Government em-ployees, could be sustained as falling within the scope of Art. 19(2) and (3).

These clauses run:

"19. (2) Nothing in sub-clause (a) of clause ( 1) shall affect the operation of any existing law, or prevent the State from mak-ing any fa w, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relatfons with foreign States, public order, decency or morality, or in relation to ' ' '

Kameahwar Prasad v. Tiu Stat11 of Bihar Ayyangar J.

K amts!ztcar Prasud v. Tht Stal< of Billa• Ayyongar J,

38~ SUPRE:\iE COCRT REPORTS [1962] SUPP.

contempt of court., <lcfamatio11 or incitement to an offence.

(.'l) ~othing in sub·clause (h) of the said

clause shall affi>et the opemtion of any exis-~ing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order, reasonabfo restrictions on the cxerciso of tho right con-ferred by the said sub·clause."

The learned Judges of the High Court have, as

stated earlier, ·upheld the validity of the rule hv considering them as roasonable rPstrictiohs in t.h·e interest of public order. Tn coming tot.his co1wl11-sion the learned Judges of the High Court did not have the benefit of the exposition of the meaning of the expression "in the int Nest of public order" in these two clauses by thiR Court in Snperi111e11dent, Central Prison, Jiutthyarh v. Ram }rfanolwr Lohio ('). Speaking for the Court Subba Rao, ,J., summarised his co11cluHion on tlrn point in these terms:

"Public order (Art. 19(2) and (!l)) is syno.

nymous with public safety and tranquillity. It is tho absence of disorder involving breach-es of local significance in contradistinctfon to national upheavals such as revolution, civil strike, war affecting the security of the Stat1""

The learned Judge further stated that in order that legislation may be "in the interests of public order" there must he proximate and reasonable nexus bP.twe!'n the nature of the speech prohibited and public ordAr. The learned .T urlge reject<'d tho argument that the phra~n "in the interests of public order" which is wider than the words "for the maintenance of public or1ler" which were found in th<> Article a• originally cnai·ted-thNeby sanctioned the enactment of ii law which reHtricted the right merely because the Hpcech had tendency however (I) [19'l0) 2 S.C.R. 82J.

remote to disturb 'public order. The connection has

to be intimate, real and rational. The validity of the rule now impugned has to [1]le judged with reference to tests here propounded.

If one had to consider the propriety of the

rule as one int.ended to. ensure proper discipline part from the limitations on law :making, in Government servaut and in the context of the other provisions made for the making ofrepresentations and . for the redress of services, grievances, and apart from the limitiations imposed by the Constitution there could be very little doubt nor would it be even open to argument that the rule now impugned was Loth reasonable and calculated to ensure discipline in the· Services and in that sense conducive to ensure effi-ciency in the Service. Based on this aspect of the function of the rule the argument as regards Art.19(2) & (3) was put on twofold basis: (1) that the main-tenance of public order was directly dependent upon the existence of body of Government ser-vants who were themselves subject to strict dis-cipline. In other words, the maintenance of dis-cipline among Government servants not only contri-buted to the maintenance ofpublic order but· was sine qua Mn of public order. (2) The other aspect in which it was presented was the negative of the one just now mentioned that if Government ser-vants were ill-disciplined and were themselves to agitate in disorderly manner for the redress of their service grievances, this must lead to demo-ralisation of the public and would be reflected in the disappearance of public order ..

We find ourselves unable to uphold this sub·

mission on behalf uf t.he State. In the first place we are not here concerned with any rule for ensur-ing disciplin~ among the police, which is the arm of the law primarily charged with the maintenance of public order. 'l'hc threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, ff the rule were so fral)'.leq

Kameshwar Prasad v. The Stale of Bihar Ayyangar J.

• 96Z Ko~1hwar Pra1ad v. Tht Stalt of Bi/111' A»angar J.

as to single out those types of demonstration which were likely to lead to distnrhance of public tran. qnillity or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it. lays ban on overy type of demonstration- bi> the Harne however innocent and however incapable of causing breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result.

Learned Counsel for the respondent and those who supported the validity of the rule could not suggest that on the language of the rule as it stood, it was poBBible to read it as to separate the legal from the unconstitutional portion of the provi-sion. As no suoh B<>paration is possible the <'ntire rule has to be struck down as uneonstitutional.

\Ve have rejected the broad contention that persons in the servicn of government form class apart to whom the rights guaranfre<l by Part III do not, in general, apply. By aee('pting the conten-tion that the freedoms guarant.,ed by Part HI and in pa.rticular those in Art. J\)( I)( a) apply to the servants of government we should not be taken to imply that in rolation to this class'Of citizen the responsibility arising from oflicial position would not by itsolf impose some limitntion~ on tho excr-dse of their rights as citizens. For inst:rncc, s.!i4 (2) of the Income-tax Act, 1922, enacts:

"If public servant discloses any parti-

culars contained in' anv such statement., return, accounts, docum,;nts, cvidcncc affi-davit, deposition or record, ho shall be punish-able with imprisonment which may extend to six months, an<l shall alHo be liable to fine."

Section 128(1) of the Representat.icm of thn People Act, 19!il, enjoins on every officer, clerk, agent etc. who performs any duty in connection with tpe

3 s.c.R. SUPREME couRT REPoR±s

recording or counting of votes at an election shall maintain the secrecy of the voting and shall not communicate to any person any information calcu-lated to violate such secrecy, and visits the breach of the rule by punishment with imprisonment for term which inay extend to three months or with fine. It cannot be contended that provisions on these or similar lines in these or other enactniim ts restrict the freedom of the officers etc. merely because they are prohibited from communicating information which comes to them in the course of the performa-nce of the duties of their office, to othtrs. The information having been obtained by them 'in the course of their duties by virtue of their official position, rules or provisions of the law prescribing the circumstances in which alone such information might be given out or used do not infringe the right of freedom of speech as is guaranteed by the Con· stitution.

We would therefore allow the appepl in part

and grant the appellants declaration that r. 4A in the form in which it now stands prohibiting "any form of demonstration" is violative of the appel-lants' 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 strike, cannot be struck J.own since there is no fundamen-tal right · to resort to strike. As the appel-lants have succeeded only in part, there will be na order as to costs in the appeal.

Appeal allowed in part.

W62 --Kameshwar Prasad v. Tbe State of Bihar AyyangarJ.