Harsh Mander

Barefoot - The duty of disobedience

In my last column, I argued that civil servants have the duty to disobey unlawful orders of political and administrative superiors. But I would go further, and suggest that the duty to dissent of civil servants extends even to orders which are strictly legal, but which the civil servant regards to be unjust.

I believe that public officials are not servants of their administrative superiors, or of elected representatives, or even of the government that employs them. They are servants firstly of the people — especially of the disadvantaged and oppressed — and of the Constitution. In the service of these masters, they would do well to heed Gandhi, who declared that he recognised only one dictator, and that was the still feeble inner voice of his conscience. If the voice of their conscience so compels civil servants, their highest duty indeed is to dissent. Only if they act consistently with their conscience and in conformity with the Constitution, would the people whom they serve be in safe and caring hands.

Not all statutes or government policies are just and conforming to the interests of disadvantaged citizens. There is a whole body of laws and policies that I believe to be wholly unjust, such as those that vest security forces with special powers in troubled regions, laws that enabled acquisition of land on highly inequitable terms, laws that criminalise beggary and destitution, and policies to demolish urban slums, to name only a few.

Inalienable right

Does the civil servant have the right to dissent and refuse to implement such laws and policies if these contravene his or her conscience? I have always believed this to be the case. The civil servant does not surrender this inalienable right to individual conscience even after joining public service in a democracy, precisely because it is a democracy; and a civil servant does not cease to be a sovereign citizen even while accepting the responsibility of becoming the instrument to implement the will of the sovereign collective of people, as reflected in the will of their public representatives. For instance, when in my career I believed that certain “lawful” official directives were unjust, such as to use force to crush democratic dissent, whether against discriminatory displacement or for labour rights; or to demolish urban slums; or to drive away or lock up the homeless and destitute, I feel that my duty was indeed to disobey, and acted on this conviction.

But I acknowledge that it is reasonable to be uneasy about endorsing the ethical right of all civil servants to act in obedience to their conscience rather than the directions of the political executive, even when these conform to the law and policies of the government. It can be argued that if every public official was free to disobey laws and policies which they regarded to be unjust, then this could be a prescription for anarchy. But I would counter that if every civil servant was bound to obey every official law and policy even if this contravened her conscience, then this could lead ultimately to fascism. And if the ultimate choice for my country is between anarchy and fascism, my choice would be for anarchy! A story is told of the training of young recruits by the Nazis, who were given puppies to rear, and later commanded to strangle them to death. Only those who complied without flinching passed the test of being reliable Nazi workers. On the contrary, many of us would find reliable not only an officer who would flinch, but who would stoutly refuse to obey such an order. Only such an official would have had the strength of character to defy say the Emergency of 1975-77 or the carnage in Gujarat in 2002.

Reservations

But it is not my claim that this right to act by one's conscience is not unlimited and unqualified for civil servants. Suppose a civil servant believes, say, in the Maoist project of the violent overthrow of the State, or secession to form, say, Khalistan, and uses his offices to actually protect militants and promote insurgency; likewise, an official's conscience may lead to active complicity in the demolition of the Babri Masjid. I believe these officials cross dangerously, even criminally, the ethically permissible limits of dissent in public service.

The ultimate limits to dissent by public servants are laid down by the letter and spirit of the Constitution which declares India to be a socialistic, secular democracy. I believe that when one joins the Civil Service, one must subscribe fully to the Constitution, and its basic features and values. There is no legitimate space for dissent with the Constitution itself, in one's duties as a civil servant. Civil servants cannot ethically act on their beliefs if they dissent with secularism for instance — as interpreted as equal protection under the law and equal legal citizenship rights to all regardless of their faith, gender, caste, language, ethnicity and wealth. They cannot differ with other core features of our Constitution, such as the principle that the State must intervene to defend the rights of disadvantaged people including through affirmative action; or reject universal adult franchise as just a sham democracy. They cannot uphold untouchability, or violence against women and discrimination because of gender, or communalism, or bonded labour, or the deployment of violence as a legitimate instrument of political aspirations.

The Constitution therefore sets the non-negotiable limits of dissent of public servants. It defines for those to who accrue the powers of the state the frontiers of conscience and discretion. Civil servants must obey faithfully, defend and uphold the Constitution and all it stands for. But in the commodious spaces within the four walls of the Constitution, I believe the civil servant retains the rights of conscience and dissent, of course against illegal orders, but even against lawful orders, policies and programmes that the civil servant believes to be unjust to the true masters – the people of this land.

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Printable version | Jan 16, 2021 12:13:02 AM | https://www.thehindu.com/opinion/columns/Harsh_Mander/barefoot-the-duty-of-disobedience/article3531735.ece

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