In April 2021, the Jammu and Kashmir administration announced the formation of a Special Task Force led by the Additional Director General of Police of the Criminal Investigation Department and entrusted with the duty of scrutinising past records and activities of government employees for any “anti-national” activities.
In case the STF came to a conclusion that an employee had indeed been involved in anti-national activities, their case was to be referred to the committee set up in July last year, which would review the case and decide upon the dismissal or termination of the employee.
The government dismissed at least two teachers and a revenue officer, the reason for their dismissal being ‘in the interest of the security of the state’. These termination orders have been doing rounds on social media and a lot of activists, as well as opposition parties in Kashmir, have criticised this move.
Where do the authorities derive the power to carry out these terminations and do the targets have any legal recourse?
Article 311 of the Constitution of India deals with the dismissal, removal, or reduction in rank of a government employee. While this provision is generally construed to be a safeguard in the interest of employees, in Kashmir, it has found a different use.
Clause 2 of this Article mandates that no employee shall be dismissed, removed, or reduced in rank prior to a proper enquiry against the charges made against him. This also obligates the authority in-charge of the removal to give a reasonable opportunity of being heard to the accused, and inform them of the grounds of their dismissal. These procedural safeguards flow from the basic principles of natural justice- the notice requirement, the fair hearing requirement, and the no bias requirement.
However, a proviso is added to these clauses, which specifies three situations where such fundamental procedures can be bypassed. The third situation, which is being invoked to dismiss employees in Kashmir, is enshrined in sub-clause (c) in the proviso which reads: “Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry”.
The two main limbs of this sub-clause are: “satisfied”, and “interest in the security of the state”. Only when these two are satisfied can action under this provision be taken.
The first limb is defined as subjective satisfaction. The executive authority (in our case the Lieutenant Governor) before ordering dismissal under this proviso, is bound to examine the facts and circumstances of the present case with a proper application of mind. While the inquiry of the accused remains barred under this proviso, the order can be subject to judicial review.
However, such a review is only available if the order is mala fide, or has been made on irrelevant grounds. In such a case, the Government could be asked to provide the relevant documents which have been used to arrive at the decision of dismissal for the Court to determine whether they were vaid.
This was also clarified by the Government of India in an office memorandum, post the judgments in Union of India v. Tulsi Ram Patel and Satyavir Singh v. Union of India. The second limb of the sub-clause is the test of “security of the state”. This is also an exception to a lot of civil liberties and fundamental rights, and is often construed broadly to include a plethora of cases under its ambit. This phrase also provides another loophole to executive authorities: the words used in the sub-clause are “in the interest of the security of the state”, with the keyword being “in”.
In the Tulsi Ram Case, the Supreme Court of India clarified that it does not matter if the security of the state is actually breached even if the executive authority is satisfied that there is a likelihood of it getting breached, the order will be good in law. Therefore, it is not a prerequisite that the security of the state should have been affected, the action can be taken on mere likelihood and further satisfaction of the executive, without an inquiry.
Politics and Hypocrisy
Politicians in J-K were quick to resort to social media and criticise the administration for these dismissals. Former Chief Minister Mehbooba Mufti, while criticising the move, tweeted that such terminations were being carried out on “flimsy grounds”.
However, this isn’t new to Kashmir. A lot of people have been assuming that such a law did not exist in Kashmir prior to the abrogation of Article 370, as the State had its own Constitution. However, this is only partially true.
These provisions were not applicable to the erstwhile State, but a replica of these provisions was enshrined in the State’s own Constitution. Article 126 of the Constitution of Jammu and Kashmir dealt with dismissal, removal, or reduction in rank of government employees. Sub-clause 2 under the Article provided procedural safeguards- as in the Constitution of India- and the proviso excluded three cases from its ambit.
Needless to say, sub-clause (c) of the proviso barred an inquiry ‘in the interest of the security of the state’. It read: “Where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold such an inquiry.”
This provision was often used by the Government to dismiss employees on vague grounds. In 2016, this provision was invoked to terminate at least 12 people from service under Mufti’s regime. Hence, neither this law nor its arbitrary application is new to J-K.
A ‘Limited’ Opportunity
The legality of these administrative orders can be challenged before a Court of law. However, only a limited judicial review is available to the aggrieved in such circumstances. Only if the petitioners allege arbitrariness, mala fide intention and unreasonable cause, or irrelevant grounds of dismissal, can the Court scrutinise the order to some extent.
In such a case, as held by the Supreme Court of India in Union of India v. M.M Sharma, even though sub-clause (c) to the proviso does not obligate the executive authority to record reasons of dismissal, there should still be the existence of records to indicate that there were cogent and sufficient reasons for dispensing with the inquiry in the interest of the security of the state.
The State can, however, refuse to provide such documents under relevant provisions of the Indian Evidence Act on grounds that it would be “against public interest”. Therefore, the review could well be a grey area if these employees decide to challenge their termination orders in court.