The bugle was sounded when Justice Chitta Ranjan Dash announced his retirement from the Calcutta high court saying “I am an RSS member ready now to go back”. Not to be left behind, Justice Rohit Arya of the Madhya Pradesh high court joined the BJP a few weeks after his retirement.
These were adequate signals for the Directorate of Personnel and Training (DoPT) to hurriedly issue a circular reviewing its previous three office memorandums and claim that they “have been reviewed and it has been decided to remove the mention of Rashtriya Swayamsevak Sangh (RSS) from the impugned office memorandums dated 30.11.1966, 25.07.1970 and 28.10.1980.”
No wonder former minister and now senior advocate Kapil Sibal on his becoming the president of the Supreme Court Bar Association said, “Now we have judges who after retirement say that they were part of RSS and want to go back to RSS.”
The decision of the Union government to rescind its previous orders so that the sarkari babus can officially become nikkarwalas and attend the shakhas is not very surprising. What is surprising is the action of the Madhya Pradesh high court – namely, a division bench of the court’s Indore bench presided by Justice Sushrut Arvind Dhamadhikari passing an order dated July 25, 2024 and giving glorious tributes to the RSS in a matter that became infructuous.
A writ petition was filed during the end of 2023 seeking to challenge Sub Rule 12, 12A and 13 of Rule 5 of the Central Civil Service (Conduct) Rules, 1964 for a declaration that they were unconstitutional and ultra vires of the constitution.
The substance of the petition was to strike down the order of the DoPT prohibiting Union government servants from becoming members of or associating with the RSS. It was seen from the petition that the petitioner Purushotam Gupta was a retired Union government employee who wanted to join the RSS and be its active member during the remaining years of his life.
On notice from the MP high court, an under-secretary of the DoPT filed a counter affidavit stating that the earlier orders had been reviewed and the name of the RSS found in those circulars had been removed by the government and therefore, the writ petition prayer of the petitioner had become infructuous.
Under normal circumstances, any court would have recorded the said submission and dismissed the writ petition as infructuous. But the division bench would not do so. In fact, they noted that after the Union government’s affidavit, the matter had been rendered infructuous. Notwithstanding the same, the bench observed:
“Since the issues raised in the present petition have national ramifications, especially pertaining to one of the largest voluntary non-governmental organisations, viz. RSS, therefore before parting with the matter, this Court finds condign(sic) constrained to make certain 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 treated for last almost 5 decades.”
Thereafter without the benefit of any reply from the Union government, the learned judges framed three questions and proceed to answer the same on their own.
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In that process, they made their own presumptions and gave their findings holding that it was general knowledge in public domain that the RSS is the only nationally established self-driven voluntary organisation outside the governmental bureaucratic hierarchy, which has highest membership drawn from all the districts and talukas of the country participating actively in religious, social, educational, health and many apolitical activities under its umbrella, which have no pertinence to its political activities.
They also said that the RSS has many subsidiary organisations including one Rashtriya Seva Bharti (RSB) which has 45 representative organisations and 1,200 other affiliated trusts and NGOs. They held that the RSB cannot be treated as a political organisation. They also gave the details of the Saraswati Shishu Mandirs as examples of places that benefit the less well to do and poor children in society.
All these led to their giving a finding “that membership of RSS per se may not aim at or drive oneself always to the involvement in the political activities of the organisation, much less being engaged in communal or anti-national or anti-secular activities. This fine distinction had perhaps been glossed over when the impugned OMs were issued by the Central Government 45 to 50 years back”.
They also found without the benefit of any reply from the Union government that the DoPT had taken a conscious decision to review the earlier decisions and also held that they cannot ban membership of the RSS by an executive instruction.
Before closing the case, they also lamented about the fact “that it took almost five decades for the Central Government to realise its mistake; to acknowledge that an internationally renowned organisation like RSS was wrongly placed amongst the banned organisation of the country and that its removal therefrom is quintessential. 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 proceedings”.
Not stopping with this, they also directed the DoPT to display this new order publicly on its official website and also that the said circular be transmitted to all departments and undertakings of the Union government across India.
By this exercise, the court had done a preemptive strike on the issue and has not only lauded the present exercise of the Union government, but also foreclosed any possible challenge to the new order of review by the DoPT.
This is certainly not expected from a judicial institution. Time and again the Supreme Court has forewarned all courts that they should not either answer academic issues in an infructuous matter nor give personal views in an adversarial litigation. The Supreme Court held:
“It would seem to us wise for the courts not to venture into this unchartered minefield. We are not exercising our will. We cannot impose our own values on society. Any such effort would mean to make value judgments. The impugned judgment illustrates “the danger of judges wrongly though unconsciously substituting their own views for the views of the decision maker who alone is charged and authorized by law to exercise discretion.” (Meerut Development Authority Vs. Association Of Management, 2009 (6) SCC 171)
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Keeping away government servants from politics
When did the separation of politics from government servants start?
When Mahatma Gandhi on September 4, 1920 issued a call for non-cooperation with the colonial government, he demanded that not only government servants get out of their service, but even that lawyers do so. Hundreds of government employees at all levels left their royal service to the British Indian government. Several leading lawyers also left their practice.
After the 1935 Government of India Act, service rules were also framed, including the Conduct Rules for the government servants, both in the provincial as well as in central services. It was made clear that government servants will have nothing to do with politics of any kind. However, since most industries were in private hands, trade unions were allowed to have a political fund and to use them in elections.
After the Constitution of India was brought in (in 1950), a whole chapter (Part XIV) was devoted to government servants and under Article 309 both the state and Union government were empowered to frame rules or enact laws relating to the services of the union and the states respectively.
The Government of India framed the Central Civil Services (Conduct) Rules, 1964 of which Rule 5(1) prohibited government servants from taking part in politics and elections. The rule read: “No Government servant shall be a member of, or be otherwise associated with, any political party or any organisation which takes part in politics nor shall he take part in, subscribe in aid of, or assist in any other manner, any political movement or activity”.
Only under Article 33 the armed forces will not have the fundamental rights conferred under Part III of the constitution and parliament can make a law restricting such rights in respect of not only the armed forces but also other para-military organisations.
It was for the first time when a railway trade union leader was arrested under the Madras Maintenance of Public Order Act, that he was dismissed from the railways’ service. When he questioned the same, the Supreme Court said that one can either be a union leader or railway employee but not both (Balakotaiah, 1957).
Later, a constitution bench held that a government servant is entitled to have all fundamental rights subject to reasonable restrictions (Kameshwar Prasad, 1962). However, the rule relating to the prohibition of participation in politics and elections were never held to be bad in respect of government servants.
There may be a departure from this rule in respect of workmen of the public sector undertakings and industries run by the government. However, when persons who apply for posts in government service were sought to be disqualified on the grounds of their past political faith before employment, the Supreme Court held that under the Indian Constitution, McCarthyism has no application.
The Supreme Court was dealing with the case of a school teacher being denied appointment by the Madhya Pradesh government on the grounds that police verification revealed that he had participated in RSS activities while he was a student. Taking exception to the denial of employment on the basis of past political faith, the Supreme Court directed his employment.
Justice Chinnappa Reddy, however, held that while one’s past political faith cannot be grounds for disqualification, once a person enters government service, he is subjected to the rules framed by the government. He wrote:
“We are not for a moment suggesting that even after entry into Government service, a person may engage himself in political activities. All that we say is that he cannot be turned back at the very threshold on the ground of his past political activities. Once he becomes a Government servant, he becomes subject to the various rules regulating his conduct and his activities must naturally be subject to all rules made in conformity with the Constitution”. (Ramashankar Raghuvanshi, 1983).
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Why was the basis of the ban not examined?
The Madhya Pradesh division bench has ended up foreclosing the case and giving their own findings without going through the file of the previous Office Memorandums dated November 30, 1966, April 7, 1970 and October 28, 1980 of the Union government. If those files were summoned, then one could have examined what was the basis of banning government servants from becoming members of not only the RSS, but also the Jamaat-e-Islami.
The division bench went into an academic exercise in saying that only political activities and not other cultural and social activities were banned, and that the RSS was not a political organisation. These observations were simple and naive, and one doesn’t have any clear acceptable definition as to what was meant by politics. Does it mean that if an organisation stays out of formal politics and elections but carries out much more destructive communal activities, the government will not have drawn undue benefits by making public officials members of such affiliated organisations?
It is well known that the RSS was banned thrice in this country. The first time was in 1948 after the assassination of Mahatma Gandhi and next during the internal emergency in 1975. In 1992, it was banned in the volatile situation created in the country in the wake of the destruction of the Babri Masjid.
Numerous scholarly write-ups are available about the activities of the RSS. To say that it can stay out of any prohibitory orders merely because it does not participate in the elections reflects a naive understanding of politics in this country.
After the end of the emergency, when the new Janata government was formed by a coalition of several parties including the Jana Sangh, the mother of the present BJP, a controversy arose around whether the members of the Janata coalition could also be members of the RSS, thereby holding a secret membership? A demand was made for giving up RSS membership (‘dual membership’) as a pre-condition for being in the coalition government. However, being a minority government, the Morarji Desai government could not enforce the said demand and finally the government fell.
States matter
The Tamil Nadu government has not only prohibited schools from permitting their playgrounds and buildings for any other use, but also in its latest Conduct Rules in respect of private teachers and non-teaching staff has prohibited them from being part of any organisation that promotes religion and whose activities are prejudicial to the maintenance of harmony between different religious groups (Rule 36(2) of the Privates Schools Rules).
Recently, when the Kerala government and the Travancore Devaswom Board prohibited the use of temple premises, including preventing RSS drills from being conducted on temple grounds, a challenge made was rejected by a division bench (G.Vyasan, 2023).
It must be noted that the DoPT reviewing its earlier ban order in three memorandums and removing the ban on government servants becoming members of the RSS has application only to Union government services. In respect of state services, it is the concerned state government that has the power to frame service rules including conduct rules. Therefore, the DoPT circular and the judgment rendered by Madhya Pradesh in an infructuous matter has no binding force on all the state governments.
Even otherwise, a challenge to the DoPT order dated July 9, 2024 in any other high court or in the Supreme Court can also bring a different outcome depending upon the contention as to how far the activities of the RSS are considered prejudicial to the harmony of the services, and the necessity to keep government servants away from such activities.
The order of the MP high court is not final.
With full trousers on and shifting their headquarters from Nagpur to Delhi, their dream to capture the Red Fort may not ultimately fructify in view of the results of the 2024 elections.
The author is a retired judge of the Madras high court.
