S.Murtaza Fazl Ali, J. -
(1.) SINCE we are clearly of the view that the special leave petition should be dismissed in limine on merits, I would not like to go any further in to the details of the facts of the case. I would, therefore, refrain from expressing any opinion on the observations made by my learned brother Chinnappa Reddy, J.
Chinnappa Reddy, J.
(2.) THIS special leave petition has to be dismissed. There is no merit in it. The Respondent was a teacher employed in a municipal school. The school was taken over by the Government in June 1971. The Respondent was absorbed in Government service by an order dated February 28, 1972, the order recited that the absorption was subject to verification of antecedents' and medical fitness. The services of the Respondent were terminated on November 5, 1974. Though the order terminating the services of the Respondent did not purport to stigmatise him in any manner, it was not disputed before the High Court and it is no longer disputed before us that the order was founded on a report made by the Superintendent of Police, Raigarh on October 31, 1974, to the effect that the Respondent was not a fit person to be entertained in Government service, as he had taken part in 'RSS and Jansangh activities'. The High Court held that the order of termination of service was of a punitive character and quashed it on the ground that the provisions of Article 311 of the Constitution had not been complied with. The State of Madhya Pradesh has sought leave to appeal to this Court under Article 136 of the Constitution. India is not a police State. India is a democratic republic. More than 30 years ago, on January 26, 1950, the people of India resolved to constitute India in to a democratic republic and to secure to an its citizens "Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity"; and to promote "Fraternity, assuring, the dignity of the individual" This determination of the people, let us hope is not a forgotten chapter of history. The determination has been written in to the Articles of the Constitution in the shape of Fundamental Rights and they are what makes India a democratic republic and what marks India from authoritarian or police States. The right to freedom of speech and expression, the right to form associations and unions, the right to assemble peaceably and without arms, the right to equality before the law and the equal protection of the lass the, right to equality of opportunity in matters relating to employment or appointment to any office under the State are declared Fundamental Rights. Yet the Government of Madhya Pradesh seeks to deny employment to the Respondent on the ground that the report of a Police Officer stated that he once belonged to some political organisation. It is important to not that the action sought to be taken against the Respondent is not any disciplinary action on the ground of his present involvement in political activity after entering the service of the Government, contrary to some Service Conduct Rule. It is further to be noted that it is not alleged that the Respondent ever participated in any illegal, vicious or subversive activity. There is no hint that the Respondent was or is a perpetrator of violent deeds, or that he exhorted anyone to commit violent deeds. There is no reference to any addiction to violence or vice or any incident involving violence, vice or other crime. All that is said is that before he was absorbed in Government service, he had taken part in some 'RSS or Jansangh activities'. What those activities were has never been disclosed. Neither the RSS nor the Jansangh is alleged to be engaged in any subversive or other illegal activity nor are the organisations banned. Most people, including intellectuals, may not agree with the programme and philosophy of the Jansangh and the RSS or for that matter, of many other political parties and organisations of an altogether different hue. But that is irrelevant. Everyone is entitled to his thoughts and views. There are no barriers. Our Constitution guarantees that. In fact members of these organisations continue to be members of Parliament and State Legislatures. They are heard often with respect, inside and outside the Parliament. What then was the sin that the Respondent committed in participating in some political activity before his absorption into Government service? What was wrong in his being a member of an organisation which is not even alleged to be devoted to subversive of illegal activities ? The whole idea of seeking a police report on the political faith and the past political activity of a candidate for public employment appears to our mind to cut at the very root of the Fundamental Rights of equality of opportunity in the matter of employment, freedom of expression and freedom of association. It is a different matter altogether if a police report is sought on the question of the involvement of the candidate in any criminal or subversive activity in order to find out his suitability for public employment. But why seek a police report on the political faith of a candidate and act upon it? Politics is no crime. Does it mean that only True believers in the political faith of the party in power for the time being are entitled to public employment Would it not it lead to devastating results if such a policy is pursued by each of the Governments of the constituent States of India where different political parties may happen to wield power, for the time being? Is Public employment reserved for "the cringing and the craven" in the words of Mr. Justice Black of the united States Supreme Court? It is not destructive of the dignity of the individual mentioned in the preamble of the Constitution? Is it to be put against a Youngman that before the cold climate of age and office freezes him into immobility, he takes part in some political activity in a mild manner. Most students and most Youngman are exhorted by national leaders to take part in political activities and if they do get involved in some form of agitation or the other is it to be to their ever -lasting discredit? Some times they get involved because they feel strongly and badly about injustice, because they are possessed of integrity and because they are fired by idealism, they get involved because they are pushed in to the forefront by elderly leaders who lead and occasionally mislead them. Should all these Youngman be debarred from public employment? Is Government service such a heaven that only angels should seek entry in to it? We do not have the slightest doubt that the whole business os seeking police reports about the political faith, belief and association and the past political activity of a candidate for public employment is repugnant to the basic rights guaranteed by the Constitution and entirely misplaced in a democratic republic dedicated to the ideals set forth in the preamble of the Constitution. We think it off ends the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual's service To hold other wise would be to introduce McCarthyism' into India. 'McCarthyism' is obnoxious to the whole philosophy of our Constitution. We do not want it.
(3.) IN the fifties the practice of baiting and crucifying teachers, public servants and a host of others in the United States, as Communists came to be known as McCarthyism' Its baleful effects were described by the late President Eisenhower, himself an anticommunist, as follows : - -
McCarthyism took its toll on many individuals and on the Nation. No one was safe from charges recklessly made from inside the walls of congressional immunity. Teachers, Government employees, and even ministers became vulnerable. Innocent people accused of Communist associations or party membership have not to this day been able to clear their names fully. For a few of course, the cost was little - -where the accused was a figure who stood high in public trust and respect, personal damage, if any could be ignored or laughed away. But where without Proof of guilt, or because of some accidental or early -in -life association with suspected persons, a man or woman had lost a job or the confidence and trust of superiors and associates, the cost was often tragic, both emotionally and occupationally.
The late President also said.
They...fear other people's ideas - -every new idea. They...talk about censoring the sources and the communication of ideas...without exhaustive debate - -even heated debate - -of ideas and programs, free Government would weaken and wither. But if we allow ourselves to be persuaded that every individual, or party, that takes issue with cur own convictions is necessarily wicked or treasonous - -then we are approaching the end of freedom's road....;