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In what is being seen as a possible way to stomp out dissent in the police force, Gujarat Director General of Police (DGP) Shivanand Jha issued a virtual ‘gag-order’ by way of a code of conduct with respect to social media usage by police personnel in the state.
The Indian Express quoted the notification as saying, “The code of conduct will be applicable to all personnel of Gujarat Police using social media for public as well as private use… They should not make any critical comments on the government or police department while using social media related to their duty. They should not post or transmit any service related application, they should not post any personal opinion while using social media for government work (sic).”
The code of conduct also reportedly prohibits policemen from being a part of any agitation or campaign, post any opinion related to government work, post requests related to police service or post anything political or communal on social media.
What triggered the ‘code of conduct’?
This is significant as recently, policemen in Gujarat had reportedly taken to social media platforms like Facebook and Twitter to demand a pay hike. Meanwhile, a case has been registered against three persons; Kamlesh Solanki, Bhojabhai Bharwad and Hasmukh Saxena, for misleading the cops to participate in the campaign.
Speaking to media persons at a press conference in Gandhinagar a day after issuing the code of conduct, DCP Jha justified the need for it saying, “Policing is not an ordinary job, but a service towards society and the country. It cannot be compared with any other government job. If someone works in the department without the feeling of service, they cannot serve the society with the best police model… Police don’t enjoy the same rights as citizens or other government personnel under the Police Forces Restriction of Rights Act, given the extremely strict departmental rules and the nature of job as a discipline force.”
Section 3 of the The Police-Forces (Restriction of Rights) Act, 1966 is reproduced below:
Restrictions respecting right to form association, freedom of speech, etc.— (1) No member of a police-force shall, without the express sanction of the Central Government or of the prescribed authority,— (a) be a member of, or be associated in any way with, any trade union, labour union, political association or with any class of trade unions, labour unions or political associations; or (b) be a member of, or be associated in any way with, any other society, institution, association or organization that is not recognised as part of the force of which he is a member or is not of a purely social, recreational or religious nature; or (c) communicate with the press or publish or cause to be published any book, letter or other document except where such communication or publication is in the bona fide discharge of his duties or is of a purely literary, artistic, scientific character or is of a prescribed nature. Explanation.—If any question arises as to whether any society, institution, association or organisation is of a purely social, recreational or religious nature under clause (b) of this sub-section, the decision of the Central Government, thereon, shall be final. (2) No member of a police-force shall participate in, or address, any meeting or take part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be prescribed. |
On the subject of the campaign for a pay hike and the charges against the three people who allegedly instigated it DCP Jha said, “Three persons have been detained for misleading policemen at a time when the state and police force are involved in the fight against coronavirus pandemic” He added, “The personnel can seek grievance redressal through proper channels in the department and not on public platforms.”
Indian Army bans 89 social media apps
But this is not the first time the social media use of personnel employed in government or public services has been brought under the scanner. In June 2020, the Army had come up with a list of 89 apps, banning army personnel from using them. The Print reported that apps such as TikTok, WeChat, Zoom, and even Facebook, Twitter and Instagram, had been banned. The army had justified the move terming these apps as prejudicial to sovereignty, integrity and national security.
This led Lieutenant Colonel P.K. Choudhary to move Delhi High Court seeking withdrawal of the new policy on the grounds that it was “arbitrary executive action”. On Tuesday, the Delhi HC ordered that proceedings in the matter will be conducted ‘in camera’ after the government lawyer requested it saying it was a very sensitive decision taken by the Army and the inputs cannot be made public. Following this, on directions from the bench comprising Justices Rajiv Sahai Endlaw and Asha Menon who were hearing the case, only lawyers associated with the case were permitted to be on the weblink and everyone else, including media persons were removed, reported Outlook.
US Army guidelines for social media use
Meanwhile, in the United States, guidelines for the usage of social media as per the army’s official website (https://www.army.mil/
The army guidelines further say, “It is important that all Soldiers know that when they are logged on to a social media platform, they still represent the U.S. Army. Soldiers using social media must abide by the UCMJ at all times, even when off duty. Commenting, posting and linking to material that violates the UCMJ or basic rules of Soldier’s conduct are prohibited, along with talking negatively about supervisors or releasing sensitive information.” Moreover, there are mechanisms to report online misconduct which has been defined as “the use of electronic communication to inflict harm. Examples include, but are not limited to: harassment, bullying, hazing, stalking, discrimination, retaliation, or any other types of misconduct that undermine dignity and respect.”
When it comes to commenting on politics on social media, the army’s official website says, “Soldiers are encouraged to express their opinions of the political process online and offline, as long as they are consistent with the Army values and are not expressed as part of an organized communication campaign and as a representative of the U.S. Army or as a Soldier. Such opinions must be expressed as an individual apart from the military.”
When it comes to participation in political activity, the guidelines are as follows:
Soldiers should be aware of the limitations that exist when it comes to participation in political activity as well as DOD support to political campaigns. You must adhere to the policy in Department of Defense Directive 1344.10 when posting any political content, which includes:
Cannot participate in any interview or discussion as an advocate for or against a party, candidate or cause.
Can generally express their personal views on public issues or political candidates via social media platforms much the same as they would be permitted to write a letter to the editor of a newspaper.
Cannot participate in partisan political activity.
Can “follow,” “friend,” or “like” a political party or candidate running for partisan office.
Cannot post links to, “share” or “retweet” comments or tweets from a Facebook page or Twitter account of a political party or candidate running for partisan office. Such activity is deemed to constitute participation in political activities.
Cannot communicate contemptuous words against the president, vice president, secretary of defense, deputy secretary of defense, secretary of the navy, or governor and legislature of any state in which he or she is located or performing duty in. It’s against federal law for commissioned officers to communicate in this manner.
Protected speech by US police and public servants: Garcetti v. Ceballos
Similarly, when it comes to the use of social media by police personnel and public servants in the US, the matter was visited in the Garcetti v. Ceballos case of 2006, which held, “First Amendment protections apply only to a public official’s speech in a private context rather than during the exercise of his duties.”
Here are the facts of the case as per: https://supreme.justia.com/
A sheriff in the Los Angeles District Attorney’s office misrepresented facts in a search warrant affidavit. When Ceballos, who worked in the office, discovered the misrepresentation, he told the prosecutors who were working on the case. They refused to dismiss the case, even though they agreed that the affidavit was dubious. Ceballos took his information to defense counsel, who subpoenaed him to testify. He later brought a claim against his employer on the grounds that he had suffered from retaliation for cooperating with the defense, which he argued was protected by the First Amendment.
The trial court ruled that qualified immunity protected the district attorneys, but the Ninth Circuit found that it did not apply because Ceballos had been engaging in activity covered by the First Amendment protections on speech regarding matters of public concern.
Anthony M. Kennedy authored the majority opinion held by himself as well as John G. Roberts, Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito, Jr., stating, “Public employees are not considered to be speaking as citizens for First Amendment purposes if they are making statements pursuant to their official duties. The First Amendment does not protect them from discipline by their employers. In this case, the employee properly received discipline because of his cooperation with the defense, which undermined his ability to carry out his official duties.”
However, John Paul Stevens authored a dissent to this and held, “The majority creates an illusory distinction between speech as a private citizen and speech in the course of employment. The First Amendment may protect a public employee from disciplinary actions based on speech made pursuant to an official duty.”
Three other justices; David H. Souter (Author), John Paul Stevens and Ruth Bader Ginsburg also dissented saying, “While the government has an interest in efficiently implementing its policies as an employer, private individuals and the public also have an interest in preventing official misconduct that causes threats to health and safety. In some instances, those interests will be more important, and when that happens the First Amendment should protect the speech of public employees that is contrary to the policy of their employers.”
Stephen G. Breyer also authored a dissenting opinion saying, “First Amendment protections should apply to public employees when the speech involves a matter of public concern and occurs in the course of ordinary job-related duties when there is a heightened need for constitutional protection and a lower risk of undue judicial interference with government operations.”
Related:
Why social media sites must exercise social responsibility and nip hate speech in the bud