It Took 5 Decades For Centre To Realise Its Mistake That RSS Was Wrongly Placed Amongst Banned Organisations For Govt Employees: Madhya Pradesh HC Directs Centre To Publicise Removal Of Restriction

The Madhya Pradesh High Court has observed that it took almost five decades for the Central Government to realise its mistake that an internationally renowned organisation like RSS (Rashtriya Swayamsevak Sangh) was wrongly placed amongst the banned organisations for the government employees being restrained from joining the same.

The Indore Bench was dealing with a writ petition filed by a retired Central Government employee who was restricted from joining RSS even after his superannuation. He challenged the constitutional validity, legality, and propriety of sub-rule 12, 12A and 13 of Rule 5 of the Central Civil Service (Conduct) Rules, 1964 (CCS Rules).

A Division Bench comprising Justice Sushrut Arvind Dharmadhikari and Justice Gajendra Singh observed, “The Court also laments the fact that it took almost five decades for the Central Government to realise its mistake; to acknowledge that an internationally renowned organisation like RSS was wrongly placed amongst the banned organisations of the country and that its removal therefrom is quintessential. Aspirations of many central government employees of serving the countries in many ways, therefore got diminished in these five decades because of this ban, which got removed only when it was brought to the notice of this Court vide the present proceedings.”

The Bench said that any executive or legislative decision infringing upon fundamental rights must always be backed by cogent data, evidence and material justifying imposition of the restrictions chosen by the government to be clamped down upon its subjects or citizens.

Advocate Manish Nair appeared for the petitioner while Dy. Solicitor General Himanshu Joshi appeared for the Union of India and Dy. Advocate General Aniket Naik appeared for the State.

In this case, the petitioner prayed before the Court to issue a writ of certiorari or any other writ, order or direction in the nature of certiorari to call upon the record and proceedings culminating into the issuance of the Office Memorandum and to quash and set aside the same and hold sub rule 12, 12A and 13 of Rule 5 of the CCS (Conduct), 1965 as being ultra vires to the extent that includes RSS. He also prayed to issue a writ of mandamus or any other writ, order or direction in the nature of mandamus directing the Centre to forthwith withdraw and recall the Office Memorandums of 1966, 1970, and 1980 to the extent that includes the RSS.

When the matter was listed on May 22, 2024, the Union of India was represented through Solicitor General of India, Tushar Mehta along with Additional Secretaries Manoj Kumar Dwivedi and Praveen Vashista, on behalf of the UOI. It was informed by the Solicitor General that the Central Government is in the process of reviewing the circulars under challenge and that a formal adjudication may not be required at all. In view thereof the matter was therefore adjourned.

The High Court in the above context of the case noted, “Ideally, we would have disposed of the writ petition as having rendered infructuous and academic, post the filing of the affidavit dated 10.07.2024. However, since the issues raised in the present petition have national ramifications, especially pertaining to one of the largest voluntary non-governmental organisations, viz. Rashtriya Swayamsevak Sangh (for brevity ‘RSS’), therefore before parting with the matter, this Court finds condign to make certain observations. These observations are necessary to ensure that any coveted voluntary organisation, working in public and national interest is not crucified again through executive instructions/ OMs at the whims and fancies of the Government of the day, in the manner in which the RSS has been so treated for last almost 5 decades.”

The Court said that the membership of RSS per se may not aim at or drive oneself always to the involvement in the political activities of the organisation, much less being engaged in communal or anti-national or anti-secular activities and this fine distinction had perhaps been glossed over when the impugned OMs were issued by the Central Government 45 to 50 years back.

“… once the government has decided and taken a conscious decision to review and remove the name of RSS from the litany of banned organisations, then its continuation shouldn’t be dependent only on the vagaries, mercy & pleasure of the government of the day. … It is a trite law that fundamental rights, especially the rights guaranteed under Articles 14 & 19 cannot be altered by way of executive instructions or circulars or OMs. They can be altered only by way of ‘a law’ duly enacted and falling within the four corners of Article 13(3)(a) of the Constitution of India”, it added.

Moreover, the Court emphasised that the voluntary membership of a national & internationally famed organisation like RSS, for activities other than political in nature, like religious, social, philanthropic, educational cannot be proscribed through executive instructions and they ought to have been done only through duly enacted law if the necessity was felt for doing so, preferably through amendments to the Conduct rules itself.

“The moratorium on joining RSS must preferably by way of the Conduct rules only and not through executive framed Official Memorandums, as it results in infringement of precious fundamental rights of not only the Central Government employees as the citizens of the country, but also members and office bearers of the organisation serving the country as part of RSS. ‘OMs do not constitute a ‘law’ issued under Article 13(3)(a) of the Constitution of India, more so when they are issued on a piece of paper by the subordinate officers of the Central Government purportedly in the name of the sovereign”, it further enunciated.

The Court held that even though the Central Government during the pendency of writ petition has chosen to review and remove the name of RSS from the list of ‘don't join’ organisations, any such exercise of proposing and restoring its name back in the of ‘don't join’ list ever in future must be preceded by a profound thought process, intensive deliberations at the highest levels of the rule making authority, backed by persuasive data, compelling evidence and material as to why RSS as an umbrella organisation along with all its subsidiary organisations need to be banned from participation by any of the Central Government employee.

“Other than political, why its religious, social, educational, health related community services also invite a similar treatment be also delved deep into, before holding the same to be a facet of misconduct under Rule 5 of the CCS Rules, 1964. … If any such decision is taken by the Government sans persuasive data, compelling evidence and material of restoring the status of RSS and other organizations in future amongst the ‘don't join’ organisations, it would always be susceptible and vulnerable to constitutional challenge. Besides such data & material must also possess rational nexus with the purpose to be subserved, viz checking misconduct by Central Government employees whilst on government rolls”, it also observed.

The Court remarked that the issuance of the OMs painting the whole universe of even the apolitical activities of RSS as communal, anti-secular and against national interest is a decision having drastic consequences, not only for the organisation, but also everybody aspiring to associate with it with the noble interest of rendering community & public service.

“… we direct the Department of Personnel and Training and Ministry of Home Affairs, GOI to display publicly on the Home Page of its Official Website the contents and copy of the circular /OM dated 9th July, 2024 as filed in the present petition. This is to ensure public knowledge and information about the issuance of the said circular/ OM. Besides the above, within 15 days of the judgement of this Court, the circular /OM dated 9th July, 2024 is also directed to be transmitted to all the departments and undertakings of the Central Government across India”, it directed.

Accordingly, the High Court disposed of the writ petition.

Cause Title- Purushottam Gupta v. Union of India and Others

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