-Palak Jhalani & Rashi Jeph*
In 2018, the University Grants Commission (“UGC”) instructed central universities without relevant statutes, ordinances, and regulations to adopt the Central Civil Services (Conduct) Rules, 1964 (“CCS Rules”) for service matters. In February 2021, a draft was circulated by the board of the Indian Institute of Management, Calcutta, which contained the proposed code of conduct (“IIM-C Draft Rules”) that are heavily reliant on the CCS Rules, for the faculty members of the institute.
Among other things, the provisions that have been incorporated into the IIM-C Draft Rules, include a restriction on public expression on the policies of the government or those of the institute, participation in protests that could harm public order, and a bar on approaching courts or the media in relation to the policies of the government or institute without prior permission of “a competent authority”. This draft has caused discontentment amongst the teaching faculty, who apprehend the loss of their liberal space by the imposition of such code. In light of the same, IIM-C has expressed its willingness to take into consideration the dissent of the teachers on the contentious draft before publishing the final code of conduct.
Other central universities such as the Jawaharlal Nehru University, Delhi, have adopted and subsequently withdrawn ordinances based on the CCS Rules in the past, in the wake of heavy condemnation by the teaching faculty of the University. The year 2018, also witnessed, the suspension of an assistant professor by the invocation of CCS Rules, by the Central University of Kerala. The insertion of such provisions by the university administrations that have the effect of robbing faculty of their fundamental rights brings to light the impact of a blind imposition of rules devised for civil servants upon the teaching staff of central universities.
Delving deeper into the same, the authors will first, examine the legal position distinguishing between civil servants and professors to assess the applicability of the CCS Rules on professors. Later, the authors shall examine the concept of academic freedom – a concept that must be kept in mind while evaluating the constitutionality of rules seeking to regulate teaching staff. Thereafter, the authors shall examine the constitutionality of the CCS Rules relying on the “doctrine of unconstitutional conditions” and subsequently draw up a conclusion on the constitutionality of the IIM-C Draft Rules.
Distinguishing Between Civil Servants And Professors
The CCS Rules impose certain restrictions on civil servants with the aim to maintain integrity in public services. For instance, Rule 5 prevents civil servants from associating with, or taking part in politics and elections and prevent a family member from doing the same; Rule 6 and 7 bars them from being a member of associations or engaging in any demonstration or strike in connection with any matter pertaining to his/her service. Rule 9 restricts criticism of government and Rule 19 restricts them from accessing court or the press for the vindication of any official act.
UGC’s notice to central universities in 2018 calls for the imposition of the CCS Rules upon teaching faculty – implying that professors of central universities are civil servants for the purpose of the CCS Rules. The position adopted by the courts on this matter, however, does not allow for such an interpretation.
In the matter of Khandesh College Education v. Arjun Hari Narkhede, the Supreme Court of India affirmed that the Maharashtra Civil Services Rules, 1981 would not be applicable to university teachers and teachers of government-affiliated universities as they are not ‘government servants’. This decision was reaffirmed by the Apex Court in the case of State of Maharashtra v. Nowrosjee Wadia Collegewherein it was held that while the state/central government exercises control over the universities in question, the functioning of the faculty and staff is autonomous. Unlike the civil servants who work directly under the directives of the state or central government, the statutory, regulatory, and advisory authority over these universities is embodied in the UGC.
The Allahabad High Court dealt with the question of the application of Central Civil Services (Classification, Control and Appeal) Rules, 1965 in the University of Allahabad in the case of Suchitra Mitra v. Union of India. There again, the court held that the rules would not be applicable on the teachers of a central university since they (¶ 21) “are neither members of service nor do they hold a civil post under the Union nor they are in the service of local or other authority.”
Decisions made by courts against the imposition of CCS Rules upon university faculty while highlighting the distinctions that lie between civil servants and professors disable the UGC from extending the applicability of CCS rules on professors. It is important to note that the nature and scope of work performed by the two professionals are starkly different from each other. While some restrictions (insofar as they are reasonable) may be imposed on the freedoms of civil servants to ensure political impartiality that is expected of them, we believe that the restriction of fundamental rights of university professors is grossly unreasonable. In contrast, educational institutions in order to impart quality education need to ensure complete freedom of professors.
Academic freedom is the freedom of professionally qualified persons to inquire, discover, publish, and teach the truth as they see it in the field of their competence, without any control or authority.[i] Admittedly, the Indian constitution does not provide for academic freedom as a fundamental right. However, it is important to note that sharing of information and knowledge is an integral component of the right to freedom of expression.
The concept of academic freedom becomes more relevant for staff and students in higher education as the United Nations Committee on Economic, Social and Cultural Rights has indicated that they are especially vulnerable to political and other pressures which undermine academic freedom. They face harassment and repression for the questions that they pursue, the points they raise in or out of the classroom, for peaceful assembly and protest. Such interference can constitute a violation of the rights to education, association, freedom of speech and expression, and due process. The universities in many instances, as mentioned in the previous section, try to limit academic freedom by imposing various conditions in the form of a code of conduct, making that integral for the job.
Moreover, this concept of academic freedom also finds its roots in other rights protected under Part III of the Constitution such as, the right to freedom of profession and right to life under Article 21 which has been expansively interpreted to mean life with dignity. Part IV of the constitution also lays a fundamental duty on the state to develop the scientific temper, humanism, and the spirit of enquiry and reform, and to strive towards excellence in all spheres of individual and collective activity, implying the duty to promote academic freedom in India.
Admittedly, the freedom of speech and expression is not absolute and the state may make a law imposing reasonable restrictions on the right to freedom of speech and expression. The conditions restricting professors from being part of protests or openly criticising the government policies may arguably fall under maintaining “public order”.
To determine the reasonability of the restriction, ‘clear and present danger test’ should be applied which means that a restriction would be reasonable only if the speech or action constitutes a clear and present (and not remote) danger to state security or public order. This test has been adopted in India by the apex court in Sri Indra Das v. State of Assam. In the case of professors, their opinion may be insightful considering the academic nature of the profession and the excellence of professors in their subject matter rather than creating any imminent threat to public order.
It is also imperative to note that threats to and restrictions on academic freedom will lead to a chilling effect on the freedom of speech and expression i.e. stifle legitimate speech through fear of sanctions which leads to self-censorship. Such a disguised, covert, and indirect transgression of fundamental rights is also considered unconstitutional. Conditions that restrict academic freedom, affect the sharing of information and knowledge which is an integral component of the right to freedom of expression are not permissible. Imposing restrictions like CCS Rules on academicians and professors would curb their right to discuss or critique policies of the government and impose sanctions on them, consequently leading to self-censorship.
Service Conditions v. Fundamental Rights
An employer may impose upon his employee conditions for employment that he deems necessary for the proper accomplishment of the tasks allocated. However, the doctrine of unconstitutional conditions posits that a condition attached to the grant of a governmental benefit is unconstitutional if it requires the relinquishment of a constitutional right.[ii] In US jurisprudence, courts have held that restrictions on fundamental rights in the name of conditions of service are impermissible as they produce a result which the government could not command directly.
Dr. B.R. Ambedkar, on this matter, opined that if a person is asked to choose between a job and his fundamental rights, it is not a choice in the ‘real sense’. He noted that fear of losing livelihood would not permit a man to stand out for his fundamental rights.[iii] The Supreme Court in the case of In Re Kerala Education Bill introduced the doctrine of “unconstitutional conditions” into Indian jurisprudence.
This doctrine, which is very well imported in Indian jurisprudence by a seven-judge bench and has not been overruled, would not allow for the imposition of such conditions of employment (codes of conduct) that need to be adhered to by professors of central universities in sacrifice and violation of their fundamental rights in return for employment.
The duty of the state is not limited to protecting professors and teachers against the encroachment of their rights but also extends to promote freedom and academic excellence. In the words of Dr B R Ambedkar, “cultivation of mind should be the ultimate aim of human existence..”
The judicial approach with regard to the application of the CCS Rules in the case of a university professor makes it clear that it is not legally sound to impose such rules upon universities. Besides, such imposition can also be challenged on the ground of constitutionality relying on the doctrine of unconstitutional conditions, as they encroach upon, inter alia, the academic freedom of the teachers, right to freedom of speech and expression, right to press, and right to constitutional remedies. Therefore, imposing conditions which go on to violate fundamental right would be unconstitutional. This is not only concerning professors but the doctrine of unconstitutional conditions will restrict the state from making any such rules for any of the government employees. Consequently, this may also become a challenge for CCS rules which have been heavily relied upon by the universities to curb the freedom of professors.
*Palak Jhalani is a second-year student at National Law University Jodhpur and Rashi Jeph is a third-year student at National Law University Jodhpur.
Views are personal.
Endnotes: [i] Sidney Hook, Political Power and Personal Freedom: Critical Studies in Democracy, Communism, and Civil Rights, 296 (New York: Criterion Books 1959). [ii] Hale, Unconstitutional Conditions and Constitutional Rights, 35 Colum. L. Rev. 321 (1935). [iii] B. Shiva Rao, The Framing of India’s Constitution: Select Documents, 100 (1st ed. 2015)