On March 27, the Supreme Court (SC) of India reserved verdict on Tamil Nadu Government’s appeal against the Madras High Court’s permitting Rashtriya Swayamsevak Sangh (RSS) to conduct route marches without the conditions imposed earlier. The bench comprising Justices V Ramasubramanian and Pankaj Mithal said, “We will consider and pass orders,” after hearing the parties.
Tamil Nadu Government’s counsel, Senior Advocate Mukul Rohatgi, submitted a list of five places where the RSS can conduct the route march claiming that the government is being reasonable in citing law and order issues on conducting route marches in fifty places on the same day. He said, “there can’t be an absolute right and there can’t be an absolute ban.”
He submitted that now the “State has no power to say that some places have law and order issues and are not appropriate,” following the Madras High Court’s order allowing route marches without conditions. He added that a balance must be maintained and there cannot be such an absolute order.
However, the respondent’s counsel, Senior Advocate Mahesh Jethmalani, submitted that there is a right to conduct marches in absence of strong reasons. Furthermore, he claimed that the indoor route marches are meaningless considering that route marches are conducted for the public and not for the organisation alone. He submitted that the instances pointed out by the Tamil Nadu Government are not cases of violence during procession, instead the RSS is the victim in those incidents.
He said, “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.”
Furthermore, he claimed that the ban on Popular Front of India (PFI) has restored law and order. He said, “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.”
Senior Advocate Guru Krishna Kumar supported these contentions and said, “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.”
Senior Advocate Maneka Guruswamy argued that the right of a group to peacefully assemble and “to march and occupy public spaces” cannot be contained unless there is a well-founded fear of escalation of hostilities. 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.”
She added, “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?”
She submitted that the Tamil Nadu Government stated that “it is not advisable” to conduct marches in some places and claimed that reasonable restricted have been reduced to advisories. She said, “The Constitution demands more. ‘It is not advisable’ is not the expected Constitutional standard.”
Background
The tussle between the Tamil Nadu Government and the RSS began when the former denied permission to organise route marches and public gatherings to the latter in September 2022. The government cited that since the Government of India’s decision to ban PFI under the Unlawful Activities (Prevention) Act (UAPA), the law-and-order situation is not conducive to organising marches.
After the Tamil Nadu Government denied RSS permission to organise route marches, RSS filed a contempt of court petition before the Madras High Court. The matter was heard by the single-judge bench of Justice GK Ilanthiraiyan, Madras High Court, which on November 4, 2022, allowed RSS to organise route marches and hold public gatherings at 44 locations in Tamil Nadu. The single-judge bench also reprimanded the Tamil Nadu police as it observed that there was nothing adverse in the intelligence reports cited by them.
However, the single judge decided that the RSS’s route marches and gatherings should be organised within the confined of an auditorium or an open ground. The RSS later organised an outdoor march and gatherings in the three locations where it was permitted, and then cancelled the route marches scheduled for November 6, 2022, at other locations due to the slew of restrictions imposed against the organisation by the single judge.
On November 23, 2022, RSS moved the Madras High Court to review Justice GK Ilanthiraiyan’s November 4 order which permitted RSS to conduct route marches within the confines of the auditorium or open ground. Madras High Court’s division bench comprising of Justices R Mahadevan and Mohammed Shaffi, upon hearing the RSS’s appeal, directed the Tamil Nadu police to allow RSS to organise route marches on public roads.
On February 10, Madras High Court’s division bench set aside the single judge’s order which imposed a slew of restrictions against the RSS related to conducting route marches and gatherings in Tamil Nadu. The division bench observed that a democratic state must uphold the citizen’s right to freedom of speech and expression, and asked RSS to file fresh applications for organising the route march with three different dates and directed the Tamil Nadu police to approve any such date for RSS to conduct route march on public roads.
The division bench said, “The organization shall ensure that strict discipline is followed at their end and that there is no provocation or incitement on their part. The State on the other hand has to take adequate safety measures and make traffic arrangements to ensure that the procession and the meeting shall go on peacefully.”
On February 21, Tamil Nadu Government filed an appeal before the SC against the Madras High Court’s order allowing RSS to organise route marches and hold public gatherings.
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