Gag orders are increasingly being issued globally in this information age and becoming fashionable even in democracies. India is also in this race. Former US President Donald Trump’s gag orders were directed at serving government officials and deemed illegal. India seems to be a step ahead of the US, as its latest gag orders have a particular category of retired officials as their target. The Union government’s new order bars retired civil servants who worked in India’s security and intelligence bodies from publishing “details involving the affairs of the organisation without clearance from the head of the organisation”. Violation of procedure will lead to stoppage of pension.
The gag order was issued on 31 May through a notification by the Department of Personnel and Training (DoPT) that is directly under the PMO. The notification inserts an amendment to the Central Civil Services (Pension) Rules, 1972, and is applicable only to the central services cadre, including the Indian Foreign Service. It is not applicable to the Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFS) because they belong to the All India Services. It also does not include the armed forces.
Among the central services, it is applicable only to those who have worked in any intelligence or security-related organisation included in the “Second Schedule of the Right to Information Act” and draws their pension under the rules of the central cadre. There are currently 26 such organisations. Persons who have served in the listed organisations but draw their pensions under different rules are not affected.
IPS/IAS and officers of other cadres who populate important posts in many of the 26 organisations do not come under the ambit of this order. However, if they have signed Form 26 while serving in intelligence organisations or on retirement from them, similar restrictions apply. What has changed, though, is that restrictions on freedom of expression, which hitherto were specifically meant for intelligence officials, has now been extended to the central cadre. The Indian Foreign Service is the most affected because diplomats are very active in the public space, post-retirement. But for those who have not signed the undertaking, this restriction cannot apply. However, all central cadre personnel who are in service and retire after 31 May 2021 will be affected. The PMO, which is the main receptacle of intelligence and security issues, is not covered. Combined with other exceptions, the discrimination is obvious.
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What the new rules say
The enabling power of Article 309 of the Constitution has been utilised to change the pension rules. The notification derives its legal validity as it is gazetted, which implies that it has the sanction of the President. Article 309 empowers the President to “make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature”. The notification retains its validity till approved by Parliament. But no timeline has been laid down for approval. So, technically, the order can survive infinitely without approval of the legislature.
While only the legislature can make laws, the government has to make rules to give life to the laws. Rule-making is the metal that provides the cutting-edge of governmental power that citizens experience, which influence their behaviour and makes them law-abiding. The power of rule-making has now been utilised to tweak Rule 8 – ‘Pension Subject to Misconduct’. Sub-rule 1 states: “The appointing authority may, by order in writing, withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct”. The expression “serious crime” includes an offence under the Official Secrets Act, 1923. “Grave misconduct” includes the “communication or disclosure of any secret official code, or password, or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State.”
Sub-rule 3 states: “In a case not falling under sub-rule (2) (pertaining to serious crime), if the authority referred to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1)’ issue notice etc”. With the amendment, no explanation or notice is required to judge grave misconduct in case it does not fall under serious crimes. The earlier provision has been substituted by restrictions related to publication – “No government servant, who, having worked in any intelligence or security-related organization listed in Schedule B of the RTI Act, shall without prior clearance from the Head of the Organisation make any publication after retirement of any material relating’ to domain and sensitivity.”
The restrictions relating to the domain say: “Domain of the organization, including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organization.”
The sensitivity dimension of information is stipulated as: “Sensitive information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific, or economic interests of the State, or relation with foreign state or which would lead to incitement of an offence.”
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A threat
In effect, the rules for the above category of retired officers publishing matters relating to specified domains and sensitivity without permission have now been brought under the ambit of ‘grave misconduct’ in the Pension Rules. If any publication is done without permission and the contents are judged to be related to the specified domain and/or sensitivity, the appointing authority can suo motu decide that the pensioner is prima facie guilty of grave misconduct and withhold pension. It looks like a bottomless hole for flagrant misuse. Now, the government can also hold up and delay any permission for publication that is sought.
In essence, the Fundamental Right to freedom of expression has been threatened by empowering the government to withhold pension before guilt is even established. In contrast, serious crimes and grave misconduct require guilt to be legally proved before pension is withheld.
It is a procedural sleight of hand that can leverage bureaucratic and judicial delays to keep the appellant on tenterhooks. The order invokes a procedure of bureaucratic ‘prior approval’ and bypasses the law, and yet stays legal. It is an attempt to use the power of procedural jugglery to frighten some sections of the retired fraternity.
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The rationale for the government using its legal powers to silence only a particular lot of pensioners is unclear. The retired Indian Foreign Service fraternity, who are the stalwarts of India’s strategic cognoscenti, could be in the government’s crosshairs. In essence, the government has weaponised ‘prior approval’ to deprive individuals the right to decide for themselves whether or not their publication will violate the provisions inserted.
The legal process has been usurped by the government, and pension can be withheld based merely on interpretation by the head of the organisation. Justice seems to be begging for mercy here.
The order appears to be a precision weapon to silence particular individuals, which can then be expected to silence others. This is an illusion. Machiavelli’s thoughts provide a glimpse of the human proclivity to overcome. Viewing the gag order only in terms of its legal validity may be myopic. The larger political issue is whether freedom of expression of selected pensioners is being held to ransom by the government through threats that can be executed without any legally tenable process. The Union government owes the citizens of India an explanation, because otherwise the notification could be perceived as blackmail to suppress a Fundamental Right of persons who may not have much time left to enjoy their pension.
Lt Gen Prakash Menon (retd) is Director, Strategic Studies Programme, Takshashila Institution, and former military adviser, National Security Council Secretariat. Views are personal.