Supreme Court Dismisses Tamil Nadu Govt's Plea Challenging HC Judgment Lifting Conditions For RSS Route March

On the first date of hearing, Senior Advocate Mr. Mukul Rohatgi appearing on behalf of the State Government submitted that it is not totally opposed to the route marches proposed to be carried out by the Rashtriya Swayamsevak Sangh (RSS) in the State but wanted it to be restricted with conditions in certain areas. He argued that the State had taken a call that in certain areas "affected by PFI, bomb blasts etc", the march can be allowed only with conditions. Considering the intelligence reports it was thought fit to impose some conditions.

Senior Advocate Mr. Mahesh Jethmalani appearing on behalf of RSS pointed out that the State had allowed protest marches by other organisations, such as Dalit panthers and the ruling DMK party, but RSS was singled out.

During the course of the hearing, the Bench noted that on November 4, 2022, the Single Judge of the High Court had imposed additional conditions by modifying its earlier order passed on September 29, 2022. This was done while exercising jurisdiction in a contempt petition filed on behalf of RSS alleging that State disobeyed the first order. Justice Ramasubramanian asked Mr. Rohatgi if the single bench could have modified the original order while exercising contempt power. Mr. Rohatgi responded that the State had filed a review petition against the original order and it was taken along with the contempt petition filed by RSS. He agreed that the proper course of action would have been to challenge the original order but added that in a matter concerning public order such as the present one, the Apex Court should not look at technicalities. He added that the technical issue can be resolved by the State filing an SLP in the Supreme Court against the first order. Eventually, the State filed a fresh Special Leave Petition against the original order passed by the Single Judge of the Madras High Court on 22nd September, 2022, which had allowed the organisation to hold processions.

Mr. Jethmalani submitted 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. Countering his submission Mr. Rohatgi argued, “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 tranquility.

Mr. Jethmalani further 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. Senior Advocate Guru Krishna Kumar appearing for the RSS supported Mr. Jethmalani’s argument. 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. She averred that the report of the State police did not meet the conditional standard of reasonable restriction.

Supreme Court's reasoning

In a short 13-page judgment, the Supreme Court faulted the single bench for imposing conditions for the route march by modifying the original order in exercise of contempt powers.

"After having disposed of the batch of main writ petitions by a final order dated 22.09.2022 in a particular manner and after having dismissed the batch of review applications on 02.11.2022, the learned Judge could not have modified his original order dated 22.09.2022 in a batch of contempt petitions on 04.11.2022...the learned Judge travelled beyond the scope of a contempt petition and this is why the said order warranted interference by the Division Bench", the Apex Court held.

As regards the apprehensions of law and order problems following the "ban order on another organization", the Court noted from the chart provided by the State that "members of the respondent organization were the victims in many of those cases and that they were not the perpetrators". The Court said that it does not want to extract the chart in the order on account of the "sensitivities involved".