The Supreme Court today reserved for orders the appeals filed by the State of Tamil Nadu against the order of the Division Bench of Madras High Court directing the State Police to grant permission to RSS (Rashtriya Swayamsevak Sangh) for conducting route marches, without the conditions imposed by the Single Judge of the Court.

A Bench comprising Justice V. Ramasubramanian and Justice Pankaj Mithal after hearing the Counsel said, "We will consider and pass orders".

Senior Advocate Mukul Rohtagi appearing for the State submitted a list of five places where the route marches can be conducted and started his submission by stating that the State is being reasonable by saying that route marches cannot be conducted in fifty places on the same day due to law and order issues and that the State is not completely against the conduct of the route marches.

He read from the pleadings and stated that "there can't be an absolute right and there can't be an absolute ban" and that the State has to take care of law and order. He said that the order of the High Court with "blanket mandamus for all the places" has also been challenged now through a fresh SLP.

He submitted that whichever place the petitioners wanted will now be allowed as per the Division Bench's order. "This means the State has no power to say that some places have law and order issues and are not appropriate", he said, adding that some balance should be maintained and there can't be such an absolute order.

He said that the State has relaxed the condition that required an indoor route march. "At the end of the day, is it appropriate for the Court to say that wherever the petitioner wants, irrespective of the intelligence report, it can be allowed", he asked.

He said that there is no vested right with the petitioners before the High Court. He suggested that let the matters be kept pending, let the route marches be held as permitted by the State and "we can come back after a month".

Senior Advocate Mahesh Jethmalani for the respondents submitted that there is a right to conduct the marches unless there are strong reasons. He submitted that indoor route marches are meaningless since route marches are being conducted for the public and not for the members of the organisation alone.

He submitted that instances pointed out by the State are not cases of violence during the procession. He said that the RSS is the victim in the incidents highlighted by the State.

"The fact that a banned terrorist organisation continues with impunity to attack members of this organisation is a matter of grave concern". You are taking that as a ground, you are encouraging them, he added.

He submitted that the incidents of violence highlighted by the State are before the ban on PFI. He said that this is not an issue of public order but that of an organisation creating violence.

"You don't want to control it because you have sympathies for them", he said and pointed out that there were no incidents when the PFI was banned. The banning of the PFI has restored law and order, he said. "This is intolerable in a democratic country and violation of fundamental rights cannot be permitted on specious grounds", he said.

Senior Advocate Guru Krishna Kumar also appearing for the respondents submitted that law and order is the responsibility of the State. "You can say that because some may attack you, we won't permit you", he submitted, adding that over the years route marches have been conducted by the RSS. "There is absolutely no complaint or allegation by them that I will engage in any problem. They say you have been conducting peacefully but there will be problems because of someone else", he said.

He relied on a 2014 Judgment of the Madras High Court in the matter of Durai Sankar vs The Director General Of Police authored by Justice V. Ramasubramanian, in a similar case pertaining to the same organisation. He said that the single judge has followed that decision and that the situation is similar. He said that the incidents relied upon by the State in its report were by an organisation that is now banned.

Senior Advocate Menaka Guruswamy submitted that at the heart of this case is the question of what is 'public order' and what is 'reasonable restrictions'.

We as a country pay some importance to Article 19. "This country was imagined and conceived by those who marched under duress", she submitted.

In this country, can 'public order' and 'reasonable restrictions' be reduced to this sort of status report? The language of the Constitution in terms of the restrictions that are allowed is 'reasonable restrictions' on the exercise of such rights, she said.

She pointed out that the State states in its report that "it is not advisable" to conduct marches in some places. She submitted that 'reasonable restrictions' have been reduced to "it is not advisable". When it comes to public order, it cannot be "it is not advisable". "The Constitution demands more. 'It is not advisable' is not the expected Constitutional standard", she said.

Senior Advocate for the State then submitted that a report in sealed cover was perused by the High Court. I have selected places where there is no law and order problem. It is not that we have prohibited absolutely.

"We will consider and pass orders", the Bench said, concluding the hearing.

On an earlier hearing, the Supreme Court refused to pass any interim order, despite a plea for the same by the State of Tamil Nadu and adjourned the matter after the State submitted that it will try to work out some solution.

The State of Tamil Nadu had filed a new SLP challenging the Single Judge's order in the Writ Petition. The earlier SLP was filed challenging the order of the Division Bench setting aside the order of the Single Judge passed in contempt petitions filed by the petitioners before the High Court. The Single Bench had modified its order in contempt, even though the review petition filed against the original order was dismissed.

On March 17, Senior Advocate Mukul Rohtagi, who appeared for the State of Tamil Nadu, said that the new SLP was not listed and requested the matter to be posted for hearing today.

Advocate Nachiketa Joshi appearing for the respondents who are petitioners before the High Court had opposed the submission pointing out that on the last occasion, the matter was adjourned at the request of the State, which had said that it wants to discuss the matter with the petitioners and suggest alternate routes.

The State of Tamil Nadu filed the Special Leave Petition in the Supreme Court on February 21, challenging the judgment of the Division Bench of the Madras High Court which had asked the RSS to give three dates to the State Police and had asked the Police to choose one date from the three.

The Division Bench of the High Court has set aside the order of the Single Judge of the Court permitting the RSS to conduct route marches across Tamil Nadu only inside compounded premises, with certain additional restrictions. “…the ideology of every organization or political outfit in the State need not be identical or acceptable to another. Just because there are other outfits that have a different ideology, the permission sought cannot be denied”, the Division Bench had said.

Earlier, contempt petitions had been filed alleging non-compliance of the Single Judge's order.

The Single Judge had originally granted permission to the RSS to conduct route marches with certain conditions. The Court had directed that the procession and public meetings should be conducted in compounded premises such as a ground or stadium. The Court had also directed that during the program, nobody shall either sing songs or speak ill on any individuals, any caste, religion, etc.

Cause Title- K. Phanindra Reddy, I.A.S & Ors. v. G. Subramanian

Justice V. RamasubramanianRSSJustice Pankaj Mithal

Puneet Deshwal