Case Note & Summary
The petitioner, Jayant Sarvottamrao Kharwadkar, was an Assistant Town Planner in the Municipal Corporation, Aurangabad, with 19 years of service and a clean record. On 11.02.2018, he posted a comment on Facebook in Marathi, which translated to: 'When unworthy persons get opportunity to speak in the House, they become philosophers and make wild allegations and this is called Democracy.' The petitioner claimed this was a general expression of his feelings shared only with his Facebook friends. Subsequently, the Municipal Corporation issued a transfer order transferring him from Aurangabad to another location, allegedly as a consequence of the Facebook post. The petitioner challenged the transfer order before the Bombay High Court, arguing that it violated his fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution. The court heard the matter and considered the submissions. The court observed that the transfer was not in public interest but was punitive in nature, aimed at punishing the petitioner for exercising his right to free speech. The court held that the right to freedom of speech and expression extends to social media platforms like Facebook, and a government servant does not lose this right merely by virtue of being a public employee. The court quashed the transfer order, stating that the transfer was not based on administrative exigencies but was a direct response to the petitioner's Facebook post. The court directed that the petitioner be allowed to continue in his original posting. The judgment emphasized that criticism of the functioning of democracy is a legitimate exercise of free speech and cannot be grounds for punitive action.
Headnote
A) Constitutional Law - Freedom of Speech and Expression - Article 19(1)(a) of the Constitution of India - Social Media - The petitioner, a government servant, posted a comment on Facebook criticizing democracy. The court held that the expression of opinion on social media is protected under Article 19(1)(a) and the transfer order based on such expression is punitive and violative of fundamental rights. (Paras 1-10) B) Service Law - Transfer - Punitive Transfer - The transfer of the petitioner was not in public interest but was a punitive measure for exercising his right to free speech. The court quashed the transfer order as it was not based on administrative exigencies but on the content of the Facebook post. (Paras 5-10)
Issue of Consideration
Whether the transfer of the petitioner, an Assistant Town Planner, on account of a Facebook post critical of democracy, violates his fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India.
Final Decision
The court quashed the transfer order and directed that the petitioner be allowed to continue in his original posting as Assistant Town Planner in the Municipal Corporation, Aurangabad.
Law Points
- Freedom of speech and expression under Article 19(1)(a) extends to social media
- Transfer order must be in public interest and not punitive
- Right to criticize government functioning is protected
- Transfer cannot be used as a tool to stifle dissent
