On July 25, the Madhya Pradesh High Court strongly criticised the decades-long ban on government employees participating in the activities of the Rashtriya Swayamsevak Sangh (RSS). The court highlighted the flawed basis of the original office memorandums (OMs) that had enforced this prohibition over fifty years ago.
The bench, consisting of Justices Sushruta Arvind Dharmadhikari and Gajendra Singh, emphasised the lack of empirical evidence and rational justification for the blanket restriction on the RSS. They noted that despite the Narendra Modi government lifting this ban on July 9, 2024, the prohibition had unjustly persisted for more than five decades without any review or assessment of its validity.
58-year-old ban lifted
“It took almost five decades for the Central Government to realise its mistake” the court highlighted while acknowledging that an internationally renowned organisation like the RSS was wrongly placed among the banned organisations of the country and that its removal from this list is essential.
The court stated, “The aspirations of many central government employees to serve the country in various ways were thus stifled during these five decades because of this ban.”
This declaration came while disposing of the writ petition filed by Purushottam Gupta, a retired Central government employee who had approached the court in September 2023 challenging the ban.
The bench resolved Gupta’s plea following the Union government’s recent decision to lift the 58-year ban on government servants associating with the RSS.
Why was ban imposed?
The controversy surrounding the prohibition of central government employees from associating with the RSS dates back to three Office Memorandums (OMs) issued between 1966 and 1980.
Before delving into the detailed discussion, it is essential to briefly examine the subject matter of the three notifications challenged in the current petition, dated November 30, 1966, July 25, 1970, and October 28, 1980, to understand the severity of the restrictions they imposed on government employees.
The 1966 order stated:
“As certain doubts have been raised about the government’s policy with respect to the membership of and participation in the activities of the Rashtriya Swayamsevak Sangh (RSS) and the Jamaat-e-Islami by government servants, it is clarified that the government has always regarded the activities of these two organisations as such that participation in them by government servants would attract the provisions of sub-rule (1) of Rule 5 of the Central Civil Services (Conduct) Rules, 1964. Any government servant who is a member of or otherwise associated with these organisations or their activities is liable to disciplinary action.”
The 1970 order stated:
“In the context of the current situation in the country, it is all the more important to ensure a secular outlook on the part of government servants. The need to eradicate communal feelings and bias cannot be overemphasised. No notice should be taken by the government and its officers, local bodies, or state-aided institutions of petitions or representations on a communal basis, and no patronage whatsoever should be extended to any communal organisation.”
How the matter reached court?
On May 6, 2024, the petitioner, a retired central government employee, expressed his intention to join the RSS as an active member in the remaining years of his life. He wished to be deeply involved in the social, cultural, and religious activities undertaken by the RSS. However, the impugned OMs issued by the Ministry of Home Affairs (MHA) impeded his desires.
Despite repeated opportunities, the Union of India (UOI), failed to file a reply. Consequently, the court directed the presence of senior officers from the government to facilitate an effective adjudication of the dispute.
Why court decided to take up the case?
The court noted that, ideally, it would have dismissed the writ petition as moot and academic after the filing of the affidavit dated July 10, 2024. However, given the national implications of the issues raised in the petition, especially concerning one of the largest voluntary non-governmental organisations, the court found it necessary to make certain observations.
These observations aim to ensure that any esteemed voluntary organisation working in the public and national interest is not unfairly targeted by executive instructions or OMs based on the whims of the government of the day, as the RSS had been for almost five decades.
The court directed the Department of Personnel and Training (DoPT) and the Ministry of Home Affairs (MHA) to ensure widespread dissemination of the new order lifting the prohibition on RSS participation. The court mandated that the OM dated July 9, 2024, be prominently displayed on the official websites of these departments and communicated to all central government departments and undertakings across India within 15 days of the judgment.
Court questioned which action of RSS led to the ban?
The court questioned the basis on which the activities of the RSS were deemed communal or anti-secular during the 1960s and 70s. It asked what studies, reports, surveys, or materials led the government at that time to decide that involvement of central government employees with the RSS would foster communal feelings and bias.
The court wanted to know what evidence justified the belief that any employee’s participation in RSS activities, even after retirement, would be considered ‘anti-secular.’
The court noted that, despite repeated inquiries, the Union of India failed to provide any reply. This led the court to believe that there might not have been any substantial evidence or study supporting the government’s decision to ban employees from engaging in RSS activities.
Over five different hearings, the court questioned the rationale behind the circulars and OMs that restricted the freedoms of numerous central government employees for nearly five decades, from the 1960s until 2024. These restrictions seemed to violate the freedoms guaranteed under Article 19(1).
The court highlighted that these limitations would have continued if not for the current writ petition filed by the petitioner.
Three important questions raised by the court
The court asked the Union of India why they imposed a sudden, five-decade ban on the RSS. The court presented three imporstant questions:
1. What evidence or compelling study led the Central Government to include the RSS in the list of banned organisations, preventing central government employees from joining it? Was there any real evidence, or was the ban issued merely on the government’s own assertion to suppress an organisation that opposed its ideology?
2. Was the necessity of keeping the RSS on the ‘don’t join’ list reviewed periodically? Did the government regularly assess whether the ban should continue? It’s established law that a prohibition cannot last forever and must be reviewed with changing times and interpretations of freedoms under the Constitution.
3. If there was evidence or a study that justified placing the RSS on the ‘don’t join’ list, was its sudden removal based on any new evidence or data?
What if government’s ban RSS again?
The court noted that, if such evidence or study was collected before removing the RSS from the list, then, in the future, more substantial and compelling reasons, supported by objective evidence and data, would be required to place it back on the list.
This means that moving the RSS in and out of the ‘don’t join’ list cannot be done arbitrarily. It must involve thorough consideration at the highest government levels and only be done for compelling national security and public interest reasons.
Any mechanical attempt to reinstate the RSS on the list would violate Articles 14 and 19 of the Constitution, affecting employees who have an emotional and ideological alignment with the RSS.
Selfless service of the RSS
The court highlighted the selfless services provided by the RSS for several reasons.
Firstly, it is well-known that the RSS is a nationally established voluntary organisation, not part of the government, with the highest membership from all districts and talukas in the country. These members actively participate in religious, social, educational, health, and many non-political activities under the RSS umbrella.
Secondly, the RSS oversees numerous subsidiary organisations that engage in various apolitical activities unrelated to politics. Volunteers undertake these activities purely for community service, without any political ambitions.
Seva Bharti’s work
Te court noted that, most of the RSS’s activities today are not political but span multiple areas of social engagement. For example, ‘Rashtriya Seva Bharti’ (RSB) is a registered public trust aiming to organise a group with nationalist thoughts and patriotic sentiments. RSB provides training and exposure in education, health, self-reliance, and other social activities. It operates nationwide through 45 representative organisations, like Seva Bharti, and 1,200 other affiliated trusts and NGOs, with thousands of volunteers serving selflessly across India.
The court questioned whether RSB could be considered a ‘political organisation’ and if voluntary participation in its educational, health, and social activities should be banned. It also questioned whether the prohibition should extend to all the 1,000+ affiliated trusts and NGOs under its umbrella and if central government employees would be guilty of misconduct for participating in RSB’s educational and social activities.
The court emphasised that the authorities must be very cautious and aware before broadly categorising the RSS and its subsidiary organisations as ‘don’t join’ organisations.
Saraswati Shishu Mandirs
The court cited another example of the RSS engaging in apolitical activities is through its chain of ‘Saraswati Shishu Mandirs’ (SSM), where thousands of students from poor backgrounds receive primary and higher secondary education either for free or at minimal costs. These schools focus solely on education and have no political affiliations. Many people in India wish to be involved with SSMs to share their knowledge with underprivileged children, without any political motives.
Additionally, the court noted that RSS’s volunteers (Swayamsevaks) are actively involved in large-scale rehabilitation, resettlement, and disaster management programs, such as flood relief efforts in various states. This social and philanthropic work is separate from any political activities of the RSS, focusing only on helping people in need.
The key point is that being a member of the RSS does not necessarily mean involvement in political activities, let alone communal, anti-national, or anti-secular activities. This distinction may have been overlooked when the Central Government issued the prohibitory OMs 45 to 50 years ago.
RSS is no more a ‘don’t join’ organisation
The court noted that, classifying any organisation as a ‘don’t join’ organisation for Central Government employees must be based on reason, fairness, and justice, not on the subjective opinions of those in power. The decision should be guided by law and not by biases against nationally and internationally renowned organisations. Once the government decides to review and remove the RSS from the list of banned organisations, this decision should not be subject to the whims of the current government.
The court mentioned that voluntary membership in a nationally and internationally renowned organisation like the RSS, for activities that are non-political in nature—such as religious, social, philanthropic, and educational—cannot be prohibited through executive instructions alone. If such a prohibition was deemed necessary, it should have been enacted through a duly passed law, ideally by amending the Conduct rules.
The moratorium on joining the RSS should be established through the Conduct rules and not via executive-issued Official Memorandums (OMs), as these infringe on the fundamental rights of Central Government employees and members of the RSS. OMs do not constitute ‘law’ under Article 13(3)(a) of the Constitution of India, especially when issued by subordinate officers of the Central Government.
“Although the Central Government has chosen to review and remove the RSS from the list of ‘don’t join’ organisations during the pendency of this writ petition, we hold that any future consideration of restoring the RSS to this list must be preceded by thorough deliberation at the highest levels of authority. This process should be backed by persuasive data, compelling evidence, and material justifying why the RSS and its subsidiary organisations should be banned from participation by Central Government employees,” the court noted.
The reasons for prohibiting involvement in the RSS’s religious, social, educational, and health-related community services must be deeply examined before categorising such involvement as misconduct under Rule 5 of the CCS Rules, 1964.
The court stated that, issuance of OMs branding all RSS activities as communal, anti-secular, and against national interest is a decision with severe consequences, not only for the organisation but also for those wishing to associate with it for the purpose of community and public service.
The court finally noted that any executive or legislative decision infringing upon fundamental rights must be supported by substantial data, evidence, and material justifying the restrictions imposed by the government.
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