Madhya Pradesh High Court: In a writ petition challenging the constitutional validity, legality, and propriety of sub-rules 12, 12A, and 13 of Rule 5 of the Central Civil Service (Conduct) Rules, 1964 (CCS Rules) thereby restricting central government employees from being members of or participating in the activities of the Rashtriya Swayamsevak Sangh (RSS), a division bench comprising of S.A. Dharmadhikari* and Gajendra Singh, JJ., disposed of the petition with the directions for public dissemination of the recent circular dated 09-07-2024 which removed the mention of the RSS from the impugned OMs of 1966, 1970, and 1980 and ensuring that any future decisions regarding RSS’s classification are well-supported by substantial evidence and legal reasoning.
Factual Matrix
In the instant matter, the petitioner, a retired central government employee, filed a petition to challenge the constitutional validity, legality, and propriety of sub-rules 12, 12A, and 13 of Rule 5 of the CCS Rules. These sub-rules restrict central government employees from being members of or participating in the activities of the RSS. The petitioner sought various reliefs, including the quashing of specific Office Memorandums (OMs) from 1966, 1970, and 1980 that enforced these sub-rules and requested a declaration that the sub-rules are unconstitutional as they violate Articles 14, 15, and 16(1) of the Constitution of India.
Union of India’s Affidavit
The Court noted that the counsel for the Union of India, referred to an affidavit filed by the Under-Secretary of the Department of Personnel and Training (DoPT) which included an OM dated 09-07-2024, which removed the mention of the RSS from the impugned OMs of 1966, 1970, and 1980. Although the affidavit could render the present petition infructuous, however, the Court recognised the national ramifications of the issues raised, especially concerning the RSS, a large voluntary non-governmental organization. The Court noted that the court’s observation is necessary to ensure that voluntary organizations working in public and national interest are not unjustly restricted by executive instructions or Oms and to ensure similar situations do not arise in the future.
The Court questioned the basis on which the RSS was initially included in the list of prohibited organizations in the 1960s and 1970s as communal or anti-secular. The Court stated that “what was the empirical report, statistical survey or material, that led the then government of the day to arrive at an objective satisfaction that involvement of Central Government employees with the RSS & host of its activities (social, political, health, disaster management support, religious and educational) would precipitate communal feelings and communal bias in the whole community; what was the basis to arrive at the satisfaction, that involvement of any employee in the aforementioned activities of RSS (even post retirement, after demitting the office) would be indulging in a conduct that may treated as ‘anti-secular’.” The Court further stressed on the need for transparency and evidence-based decision-making in such matters, ensuring that any restrictions on fundamental rights, such as those under Article 19(1)(g) of the Constitution, are justified and periodically reviewed. Upon reviewing the affidavit and the OM dated 09.07.2024, the Court identified three critical questions—
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What material, compelling survey, or study constrained the Central Government to include the RSS in the list of banned organizations? Was there actual material evidence, or was it issued on the mere ipse dixit of the government of the day to suppress an organization opposed to its ideology?
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Was the necessity of continuing the RSS in the list of ‘don’t join’ organizations periodically reviewed and its desirability examined? The Court noted that prohibitions or restrictions cannot remain operative forever and must be reviewed with changing times and interpretations of constitutional freedoms.
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If the RSS was included in the list of ‘don’t join’ organizations based on certain material and studies, was its overnight deletion from the list preceded by any fresh material, data, or survey compelling its removal?
RSS and It’s Activities
The Court noted that the RSS is primarily engaged in social, educational, health, and other apolitical activities. It was noted that the subsidiary organizations like Rashtriya Seva Bharti (RSB) and Saraswati Shishu Mandirs (SSM) provide community services, education, and disaster management, which are not politically motivated. The Court questioned whether participation in these activities should be restricted, highlighting the need for cautious and conscious decision-making.
Procedural Requirements for Re-classification
The Court stated that any future decision to reclassify the RSS or similar organizations as ‘don’t join’ organizations must be based on thorough and objective material, including compelling reasons, substantial evidence, and deep deliberation at the highest levels of government. The Court stated that the decision must be supported by significant and objective data reflecting compelling national security or public interest concerns. The Court opined that it is imperative to distinguish between political and apolitical activities of the RSS and its affiliated organizations.
The Court further asserted that such decisions cannot be made mechanically or arbitrarily. The Court opined that mechanical reclassification without thorough deliberation and high-level government consideration would violate Articles 14 and 19. The Court stated that
“…if any subsequent executive action/ decision attempts to restore it back mechanically, then it will plainly play foul of Articles 14 and 19 of the Constitution of India of the concerned employee, who has emotional and ideological alignment with the RSS.”
Impact on Fundamental Rights
The Court stated that the “State born under the Constitution has duties towards every individual under its control, which in turn arms the latter with certain rights. The rights and duties emanate from the trilogy of Articles 14, 19 and 21 of the Constitution, having been unravelled by the Courts from time to time.” The Court asserted that the blanket ban on RSS or similar organizations could infringe on the fundamental rights guaranteed under Articles 14 (Right to Equality) and 19 (Right to Freedom of Speech and Expression) of the Constitution.
The Court referred to Pharmacy Council of India v. Rajiv College of Pharmacy, (2023) 3 SCC 502, where the Supreme Court held that fundamental rights cannot be restricted by mere executive instructions. The proper procedure for imposing such restrictions involves legislative action, not just administrative decisions. The Court stated that the membership and participation in non-political activities of such organizations cannot be restricted solely through executive orders or circulars.
Administrative Discretion and Fairness
The Court referred to Suman Gupta v. State of J & K, (1983) 4 SCC 339; Sant Raj v. O.P. Singla, (1985) 2 SCC 349 and Fasih Chaudhary v. Director General, Doordarshan, (1989) 1 SCC 89 and stated that the coalesce of the afore-mentioned judgements is that “whilst spelling out ‘misconduct’ under Rule 5 of the CCS Rules, 1964, the Central Government cannot behave as ‘be all and above all’.” The Court stated that the discretion to classify any organisation as a ‘don’t join’ organisation for Central Government employees must therefore be clearly informed by rules of reasons, fair play and justice and not according to subjective opinions of those in power. The Court stated that the classify any organisation “should be guided by law and not humour or preconceived prejudice against such nationally & internationally famed organisation.”
“Therefore, once the government has decided and taken a conscious decision to review and remove the name of RSS from the litany of banned organisations, then its continuation shouldn’t be dependent only on the vagaries, mercy & pleasure of the government of the day.”
The Court referred to various precedents where the Supreme Court held that fundamental rights cannot be curtailed by executive instructions and require legislative enactments to impose restrictions validly. The Court stated that executive instructions or OMs cannot alter fundamental rights, which can only be modified by duly enacted laws under Article 13(3)(a).
The Court asserted that the administrative discretion must adhere to principles of reasonableness, fairness, and non-arbitrariness. The decisions impacting individual rights must be informed by objective criteria, not by subjective bias or political considerations. The exercise of administrative power must be within a framework of reasoned decision-making, ensuring that actions do not reflect personal or political prejudice.
Re-classification’s implication
The Court noted that any re-classification must be preceded by a thorough evaluation, including persuasive data and evidence, to avoid constitutional challenges. The Court asserted that the government must ensure that any future attempt to reclassify RSS or its subsidiary organizations as a ‘don’t join’ organization must be based on robust and persuasive evidence, not arbitrary and are backed by rational considerations aligned with public and national interest. The Court further stated that the same should include detailed deliberations at high governmental levels and clear justification for why such a reclassification is necessary, beyond just political considerations.
Court’s Directive
The Court directed the Department of Personnel and Training and Ministry of Home Affairs to publicly display the circular/OM dated 09-07-2024, on their official website and also transmit the circular/OM to all Central Government departments and undertakings within 15 days of the judgment. With the above directions, the Court disposed of the present writ petition.
[Purushottam Gupta v. Union of India, 2024 SCC OnLine MP 4978, Decided on 25-07-2024]
*Judgment by Justice S.A. Dharmadhikari
Advocates who appeared in this case :
Shri Manish Nair, Counsel for the Petitioner
Shri Himanshu Joshi, Dy. Solicitor General, Counsel for the Respondent/Union of India
Shri Aniket Naik, Dy. Advocate General, Counsel for the Respondent/State
