Voluntary Membership Can't Be Proscribed By Executive, Violates Article 19(1)(g): MP HC Slams Erstwhile Ban On Central Govt Employees Joining RSS

In a plea filed by a retired government servant seeking permission to join RSS, the Madhya Pradesh High Court came down heavily on the previous office memorandums issued by the Union of India that listed the organization in the banned category.

“…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. They ought to have been done only through duly enacted law if the necessity was felt for doing so…”, the bench sitting at Indore observed.

The Division bench of Justice Sushrut Arvind Dharmadhikari and Justice Gajendra Singh held that executive-framed official memorandums cannot possibly impose a moratorium on joining RSS since these memorandums are not the law of the land under Article 13(3)(a).

“…. '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”, the court laid down in unequivocal terms.

Recently, the central government issued a fresh OM No. 34013/ 1(S)/ 2016-Estt (B) dated 09.07.2024, which in turn, removed the mention of Rashtriya Swayamsevak Sangh (R.S.S) from the impugned OMs dated 30.11.1966, 25.07.1970 and 28.10.1980. An affidavit to that effect was filed before the court by the Union of India on 11.07.2024.

The court also made observations at length about the apolitical nature of the activities carried out by RSS and its umbrella organisations and NGOs, and how the Central Governments were misguided in their approach to include it in the list. The court lamented about how it took the government five decades to acknowledge their fault about how RSS was wrongly placed in the list of banned organisations for employees.

“….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”, the court underscored that RSS was the 'only nationally established self-driven voluntary organisation outside the governmental bureaucratic hierarchy'.

To give wide publicity to the removal of RSS from the list of 'don't join' organisations, a direction has also been made to the Department of Personnel and Training and Ministry of Home Affairs, GOI to display the contents of freshly issued circular publicly on the Home Page of its Official Website .Within 9 days, the said circular should also be sent to all relevant departments and undertakings of the Central Government, the court stipulated.

The petitioner had also challenged the constitutional validity of sub rule 12, 12A and 13 of Rule 5 of the CCS(Conduct), 1965 as being ultra vires to the extent that it includes the Rashtriya Swayamsevak Sangh.

Further 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 emphasized as to why it was necessary to make relevant observations though it could have deemed the matter as infructuous upon the issuance of fresh OM in July.

About the three notifications issued by the Central Govt decades ago, the court questioned as to why RSS was treated as communal or anti-secular by the then governments.

The court highlighted that there were no empirical study, reports or surveys that could have led the central government to such a conclusion. The court enquired if there were ever any cogent findings that explained how the involvement of central government employees with RSS or its affiliate activities would cause communal bias. Since the Union of India did not file any reply despite repeated inquiries by the bench, the court noted as below:

“The Court… is compelled to believe and presumed that perhaps there was never any material, study, survey or report at the relevant point of time on the basis of which the ruling dispensation arrived at a satisfaction that involvement and engagement of central government employees even with the apolitical/non political activities of RSS must be banned for maintaining the communal fabric and secular character of the country”

The court remarked that the impugned OMs curtailed the freedom of lakhs of government employees under Article 19(1) for decades without proper justification.

The High Court has also observed that RSS, being 'one of the largest non-voluntary organisations', should not have been subjected to such a ban by the Ministry of Home Affairs.

“…the 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 proceeding', the court opined.

The court stated that there was no reason whatsoever to include RSS in the 'don't join' organisations. Even if the government decides to push back the name of RSS in the 'don't join' list for employees in the future, the same cannot be done as per the whims of the executive, the court laid down clearly.

“….picking, choosing RSS to be moved in and out; back and forth from the list of 'don't join' organisations cannot be done mechanically overnight, but must be preceded by deep thought, intensive thinking at the highest level of the Government. Only in a situation of a compelling national security and public interests, that it may be placed back in the said list”, the court added.

Case Title: Purushottam Gupta v. Union of India & Ors

Case No: Writ Petition No. 24208 of 2023

Citation: 2024 LiveLaw (MP) 147

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