RSS Route March : Supreme Court Reserves Verdict On Tamil Nadu Govt's Challenge Against HC Allowing March Without Conditions

“We will consider and pass an order,” said Justice V Ramasubramanian, after hearing the submissions of the counsel for the state government as well as the right-wing nationalist organisation planning to take out route marches in the state. The division bench also comprised Justice Pankaj Mithal.

No absolute right, no absolute ban on RSS taking out processions: Mukul Rohatgi

Notably, senior advocate Mahesh Jethmalani, appearing for RSS, argued that the right to assemble peaceably without arms under Article 19(1)(b) must not be curtailed in the absence of a very strong ground. He assailed the condition imposed by the state government that the procession must be conducted indoors, saying, “When they propose to take out a procession, it is not done for the private organisation alone. They are making a public statement. That is a right – to say what you have to say or highlight relevant issues in the public domain, in full public view.”

“There cannot be an absolute right, just as there cannot be an absolute ban,” said senior advocate Mukul Rohatgi, in defence of the government’s decision. He asked, “Is there a vested right, in every case, to march across the India Gate or the Supreme Court? Can there be an absolute right to hold processions wherever an organisation wants?” He informed the bench that the state government had allowed RSS to take out route marches in some places while directing them to make suitable alternative arrangements indoors or altogether declined their request in other places in order to safeguard public order and tranquillity.

State can't deny permission citing threats of PFI attack: Mahesh Jethmalani

The decision of the Tamil Nadu government to allow or disallow the RSS to take out processions, or in other cases, qualify the permission with conditions, was made on the basis of intelligence reports and the threat perception, Rohatgi told the court. However, Jethmalani questioned the soundness of the state government’s decision to refuse the organisation permission citing clashes between members of a recently proscribed organisation, Popular Front of India, and the RSS. He submitted:

“These are not incidents where RSS took out route marches, but instances where we were sitting peacefully, but certain hoodlums attacked us. The fact that a banned, terrorist outfit continued to, with impunity, attack members of this organisation, is a matter of grave concern. This cannot be taken as a law and order ground. It is embarrassing, especially when the state government should be cracking down on PFI and allied organisations even more stringently. But either they cannot control this, or they do not want to because their sympathies are with PFI.”

Senior advocate Guru Krishna Kumar also supported this contention by saying, “It is not permissible for the state to eschew its own responsibility of maintaining the law and order and deny permission to the RSS on the ground that members of some other organisation may stage an attack.” In this connection, Jethmalani also argued that the state government had no evidence that after the central government banned the PFI, any law-and-order issue persisted. “The inevitable conclusion is that the banning of the PFI has restored law and order. They were the ones creating law-and-order issues and attacking our members. It is intolerable that on this specious ground, the government has sought to stop our route marches.”

Constitution itself was envisioned by people who marched under duress: Maneka Guruswamy

Representing the RSS, Senior Advocate Maneka Guruswamy argued that the right of any group to peaceably assemble, and “to march and occupy public spaces” could not be curtailed unless there was a well-founded fear of escalation of hostilities, and not on the tenuous ground cited by the state government. Assailing the status report filed by the Tamil Nadu police, she said:

“At the heart of this issue is the question of what public order is and what reasonable restrictions on the exercise of Article 19 rights are. It must be remembered that Article 19 is very important to us because this is a country that was imagined and conceived by those who marched under duress during the 200 years of colonisation. In this free country, 70 years on, can public order and reasonable restriction be reduced to this sort of status report?”

Further, Guruswamy asserted that the report by the state police did not meet the expected constitutional standard for circumscribing the fundamental right of RSS members to peaceably assemble.

Senior Advocate Guru Krishnakumar also appeared for the RSS.

Background

The Tamil Nadu government has approached the top court challenging an order of a division bench of the Madras High Court, which set aside conditions imposed by a single judge on a route march proposed by the Rashtriya Swayamsevak Sangh in the state.

The organisation had appealed against the November 2022 order of the single-judge bench which issued directions, inter alia, to organise the processions in compound premises such as grounds and stadium, not carry sticks, lathis or other weapons that might cause injury, etc. Besides objecting to the directions on the ground that they could not be passed in a contempt petition, the RSS also argued that public processions were an acceptable manner of exercising the constitutionally guaranteed freedom of speech and expression, which the state was under an obligation to protect. However, the state government defended their decision by citing threats to public security that, they claimed, were informed by intelligence reports.

A bench of Justices R Mahadevan and Mohammed Shaffiq ruled in favour of the RSS in February of this year, holding that the state ought to uphold the citizen’s right to freedom of speech and expression. The court, therefore, directed the organisation to file fresh applications for carrying out the route march on three different dates and directed the state police to grant them permission to conduct the said procession on any of the dates.

Later in February, the Tamil Nadu government appealed against the division bench’s decision by way of special leave. On March 3, Rohatgi conceded that the state government was not totally opposed to the route marches proposed to be carried out by the organisation in the state. However, he said, in the interest of public safety, the government wanted to impose certain restrictions. On the last date, the senior counsel informed the bench that it had filed another special leave petition challenging the original order by the single judge allowing the organisation to hold processions in the state.

Case Title

Phanindra Reddy, IAS & Ors. v. G. Subramanian | Special Leave Petition (Civil) No. 4163 of 2023

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