September 25, 2022

Lukmaan IAS

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TOPIC- NEW CENTRAL CIVIL SERVICES PENSION RULES 2020- CONCERNS OF SECURITY OR A GAG ORDER ON THE FREEDOM OF SPEECH?

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THE CONTEXT: The Central Civil Services (Pension Rules) 1972(CSP) have been amended and notified by the Union Government in May 2021. These rules which are part of the Code of Conduct(CoC) of the civil servants, prohibit the retired civil servants belonging to intelligence and security organisations from communicating to the media or publishing any letter, etc without prior clearance. This move is criticised as unreasonable restrictions on the freedom of speech of retired civil servants. The critics also point out that there are other vital areas where changes in CoC are necessary like a post-retirement appointment. Against this backdrop, this write-up examines this whole issue in detail.

WHAT ARE THE AMENDMENTS TO CSP 1972?

The CSP 1972 places conditions on the continuity of pensions of the civil servants.  For instance, Rule 8 of the CSP provides that the pension benefits will be withheld or withdrawn if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. The 2021 amendment adds new conditionalities. Under amended Rule-8(3)(a), officials retired from certain intelligence and security establishments will not be allowed to write anything about their organisation without permission. It says: “no government servant worked in any intelligence or security-related organisation included in the Second Schedule of the RTI Act, shall, without prior clearance from the Head of the Organisation, make any publication after retirement. The new grounds are the domain of the organisation, experience or knowledge gained by virtue of working in that organisation; reference to personnel, etc. The existing rules prevent disclosure of 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 a foreign state or which would lead to incitement of an offense.

ARGUMENTS FOR THE AMENDMENTS IN PENSION RULES?

GOVERNMENT’S POSITION: The government says that the amendment to the CSP 1972 is not a sudden development. Rather these are based on a Committee of Secretaries recommendations years back.

2008 PENSION RULES: The UPA government in April 2008 also amended the 1972 pension rules, imposing restrictions on intelligence, security, and paramilitary organisations. Violation of these restrictions by retired civil servants then also invited disciplinary actions including reduction/withdrawal of pension and prosecution.

INTERNATIONAL EXAMPLES: Such restrictions on retired personnel from intelligence agencies exist in other countries also. For instance, In the United States (US), the Central Intelligence Agency’s (CIA) Publications Review Board (PRB) undertakes such reviews. CIA rules require op-ed essays and books related to intelligence to be submitted for approval before publication.

NATIONAL SECURITY CONCERNS: The prevailing national security environment is quite challenging and there has been intelligence on the foreign government’s increased efforts to penetrate sensitive government agencies. Also, some high-profile retired officers had written books on their tenure, and some of these had revealed information.

PENSION IS SUBJECT TO GOOD CONDUCT: The pension of government servants is already subject to their conduct after retirement. Rule 8 of the CCS Pension Rules says: the appointing authority can withhold or withdraw a pension if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. The expression ‘grave misconduct’ also includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document, or information.

RESTRICTIONS ON SERVING PERSONNEL: TheIntelligence Organisations (Restriction of Rights) Act, 1985 already bar serving officers from publishing any material without permission from their department.

WHAT ARE THE CRITICISMS OF THE AMENDMENTS?

PREVENTING CRITICISM OF GOVERNMENT: Many retired civil servants have been speaking against the actions and inactions of the Central Government in recent times. Many senior serving officers in the Government to are upset at the manner in which the pursuit of a partisan political agenda is undermining the rule of law. By bringing these amendments the government is attempting to prevent present and future criticism. 

GO BEYOND THE GROUNDS MENTIONED IN 2008 RULES: Unlike the 2008 Rules that confined the grounds of prior permission to security and sovereignty of the state etc, the current rules expand grounds by including domain knowledge, reference to personnel, expertise, and knowledge gained These terms are highly vague and can be so interpreted to include anything the retiree writes. Secondly, many retirees   had done extensive studies post-retirement on subjects like intelligence and security which had nothing to do with “expertise or knowledge gained by virtue of working in that organisation.” Why, then, should they submit the articles for prior scrutiny?

DISCRIMINATORY RULES: Only security and intelligence officials are singled out and the Armed Forces, Ministers, and other Civil Servants belonging to All India Services, etc are kept out of the purview of the Rules which violate Article 14.

AGAINST INTERNATIONAL NORMS: This rule India would become possibly the only “major democratic country in the world today which effectively bars its employees from expressing their views after retirement.

UNDUE RESTRICTIONS ON FREEDOM OF SPEECH: This not only violates the freedom of speech of the retirees but also prevents enlightened opinion and critical commentaries on contemporary issues. The importance of wisdom that retired bureaucrats bring with their years of work and how their domain knowledge is not only appreciated but also used as guiding stones for the current practitioners. For instance, the new rule means former R&AW officials can no longer write articles in the media on any foreign or security-related subject such as Pakistan, Afghanistan, or China without prior clearance as the organization’s ‘domain’ covers them.

ALIGNING RTI AND PENSION RULES ILLOGICAL: Giving cross-reference of RTI list to determine pension eligibility is illogical and unfair for pensioners, especially to those who had retired long ago. The list undergoes changes as and when the courts decide on modification of subjects to be revealed like human rights even in secret organisations or arbitrariness in decisions. On the other hand, “security” and “sensitivity to the national interest” are constant factors in democratic countries that do not undergo changes irrespective of which political party is ruling.

PENSION NOT A BOUNTY BY GOVT: Pension is a long-term compensation for government servants for the service rendered by them. Pension and gratuity are not mere bounties or given out of generosity by the employer. An employee earns these benefits by virtue of his long, continuous, faithful, and unblemished service.

WHAT ARE THE KEY AREAS OF CONCERN LEFT OUT BY THE GOVERNMENT?

POST-RETIREMENT EMPLOYMENT(PUBLIC): There exists no cooling off period at all with respect to the retired civil servants taking up government employment as advisors, consultants, etc. For instance, a former Higher Education Secretary soon after his retirement was appointed advisor to the Prime Minister recently. Similarly, many retired higher civil servants have been appointed to statutory bodies like the Human Rights Commissions, Information Commission, Government Corporations, etc. Civil servants are meant to provide sound advice without fear or favor to the political bosses. But when such post-retirement loaves are thrown at them, their advice may become biased and politicized.

POST RETIREMENT EMPLOYMENT(PRIVATE): Rule 26, Death-cum-Retirement Benefits Rules, restricts a pensioner from any commercial employment for one year after retirement, except with the previous sanction of the central government. This period was 2 years till 2007 which was reduced to one year. Many civil servants join as Board of Directors or in such other capacity in the private sector soon after their retirement.

POST RETIREMENT POLITICS: There are no rules governing the entry of civil servants into politics after retirement or resignation. This is a major reason for the politicisation of administration which strikes at the root of the principle of political neutrality. Among many examples in the Centre and the states, former Union Home Secretary who retired on June 30, 2013, joined the ruling party at the Centre on December 14, 2013, has twice been elected Lok Sabha MP since then, and is a Union Minister of State. A former Joint Secretary in the Ministry of Rural Development took voluntary retirement on November 16, 2018, joined the ruling party at the Centre on November 27 that year, and is now a Lok Sabha MP. An IPS officer of the Karnataka Cadre has resigned and soon after made the President of a political party in Tamil Nadu.

WHAT SHOULD BE THE WAY FORWARD?

CLARIFICATION BY GOVERNMENT: Although the government has the authority to make rules governing the pension of retired employees, there has been no reason provided as to why the amendments became necessary. Clarification in this aspect along with removing the vagueness in terminology will be helpful in allaying the concerns of the retirees.

UPHOLDING THE FREEDOM OF SPEECH: Constitutional guarantees protecting the freedom of speech can be restricted through reasonable restrictions but as scholars point out that the amendments go beyond what is permissible under reasonable restrictions. Thus, the government must not be seen as stifling free speech and open criticism of its policies. The wisdom and expertise of retired servants need to be used productively.

ADDRESSING THE LACUNAE IN RTI AND PENSION RULES LINKAGE: The automatic application of RTI exempted organisations to the pension rules needs revision as RTI has different purposes altogether and the list keeps changing. A refined list of organizations whose central functions are related to security aspects needs to be distilled.

LEARNING FROM BEST GLOBAL PRACTICES: India can adopt best global practices to balance the need for freedom of speech and security. In Britain, a cooperative relationship exists between retired British intelligence officers and their original departments on publications. The objective is to stop “real” national secrets (not political) from getting exposed. Any intentional breach will attract the Official Secrets Act. They do not object to varying political opinions aired by retired intelligence employees. In fact, Richard Dearlove, a former MI-6 chief (1999–2004) who joined MI-6 in 1966 and is now chairperson of the board of trustees of the University of London, is often seen as an outspoken critic of some political figures in the UK.

COOLING OFF PERIOD FOR EMPLOYMENT: Whether it is public or private employment or joining politics, a mandatory cooling-off period must be there for the retired civil servants. No government sanction be given unless for compelling reasons in the public interest. The post-retirement appointment of civil servants must be regulated through rules or guidelines in consultations with Union Public Service Commission. (In 2013, the Election Commission had written to the DoPT and Law Ministry, suggesting a cooling-off period for bureaucrats joining politics after retirement, but it was rejected)

WIDE-RANGING CONSULTATIVE PROCESS: Any governmental actions having such a wide range of impacts must be introduced by exhaustive consultations with relevant stakeholders. The working philosophy of the government is held to be evidence-based policy making and for it consultations and deliberations are necessary.

A CIVIL SERVICE CODE: Almost all the countries that have reformed their civil services have done it through comprehensive legislation. Art 309 also mandates such a law dealing with civil services personnel management. Such a law will help provide clarity to many sensitive aspects and can also enable avoiding knee-jerk reactions.

CONCLUSION: The objective of ensuring that retirees do not divulge any sensitive material to the detriment of the nation’s security is best achieved by the reiteration of the Official Secrets Act and stern action thereunder in case of infraction. The recent amendment to the Pension Rules attempts to impose a silence that will seriously affect scholarship and be a permanent impediment to an understanding of the imperatives of our security concerns. Officers who have spent a lifetime in security-related matters are unlikely to be irresponsible and reveal sensitive secrets. At the same time, other crucial areas like post-retirement appointments need a course correction.

QUESTIONS:

  1. Critically analyse the Central Civil Services Pension Rules 2020.
  2. The right to pension cannot be taken away by a mere executive fiat or administrative instruction. Pension is not a mere bounty or given out of generosity by the employer. An employee earns these benefits by virtue of his long, continuous, faithful, and unblemished service. Examine in the light of the 2020 amendment to Central Civil Services Pension Rules 1972.
  3. Regulation of post-retirement activities of civil servants requires going beyond the concerns of national security. Comment
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