Barack Obama’s op-ed piece in the New York Times on August 15, 2009, reminded me that government servants do not lose their individual rights when they assume office. Imagine a Congressional law which prohibits the President from appearing in popular television shows like the Tonight Show, or from writing for newspapers – wouldn’t the law be invalidated under first amendment scrutiny? The interesting point here is that although (that which we in India term) “fundamental rights” are protections primarily available against the government, you don’t lose those rights even though you may become a part of the government. Similarly, an officer of (say) the Life Insurance Corporation of India is still entitled to ‘natural justice’ when removed from office. Of course, there are good reasons why visible members of the executive government/legislature should be able to communicate ideas/information publicly.
But then again, appointment to the Indian judiciary does involve a significant sacrifice in terms of speech and associational rights. One of us has highlighted elsewhere the 1997 ‘Restatement of Values of Judicial Life’ which mandates judicial reticence on some issues – while there seems to exist a wider convention of judicial silence on many issues which seems only recently to have been broken in blogs/newspaper articles written by judges in the context of the assets controversy (see article) [after all, who knows what questions may come up in litigation tomorrow?]. It would be interesting to situate the question of judicial propriety within a wider free speech debate.