Title: Courts on Government
servant's participation in RSS
Author: Alok Kumar
Publication: Organiser
Date: March 12, 2000
On November 26, 1949
the people of India solemnly resolved to constitute India into a democratic
state and to secure to all its citizens, liberty of thought, expression,
belief, faith and worship. This finds a poetic expression in the
Preamble of the Constitution of India.
The recognition of the
inherent dignity and of inalienable rights of the human family is the foundation
of freedom, justice and peace in the society. Every individual, by
virtue of his being human possesses certain basic and inalienable rights
which are commonly known as Human Rights. The Constitution identified
such rights as fundamental, incorporated them in Part III of the Constitution
and guaranteed them to all citizens of India.
The Fundamental Rights
are considered as a part of the basic structure of the Constitution and
Part III can not be abrogated by any organ of the State, be it the Legislature,
Executive or Judiciary.
The fundamental
freedoms are specified in Article 19 of the Constitution. They include
the right to freedom of speech and expression. To make this right
effective, the right to assemble peacefully and without arms has been made
a fundamental freedom and to channelise and assert the said two freedoms,
Article 19(1)(c) grants to all citizens of India the right to form associations
and unions. However, the State can impose reasonable restrictions
on the exercise of these rights in the interests of the sovereignty and
integrity of India or public order or morality.
Rashtriya Swayamsevak
Sangh is admittedly a lawful organisation. It is a socio-cultural
institution. The RSS is not a political party. Its office bearers
cannot accept any office in any political party.
It is a nationwide organisation.
To achieve its objects RSS holds its shakhas. It is generally known
that members of RSS called swayamsevaks are committed, dedicated and put
in supreme efforts in the mission assigned to them.
The following are the
objects of RSS as enshrined in its constitution.
(a) To eradicate the
fissiparous tendencies arising from diversities of sect, faith, caste and
creed and from political, economic, linguistic and provincial differences,
amongst Hindus;
(b) To make them realise
the greatness of their past;
(c) To inculcate in them
a spirit of service, sacrifice and selfless devotion to the society;
(d) To build up an organised
and well-disciplined corporate life and
(e) To bring about an
all-round regeneration of the Hindu samaj on the basis of its dharma and
its samskriti.
The aims and objects
of the RSS are to organise and weld various diverse groups within the Hindu
samaj and to revitalise and rejuvenate the same on the basis of its dharma
and samskriti, so that it may achieve an all-sided development of Bharatvarsha.
Article 4 (c) of the
constitution of RSS specifically states that the Sangh is aloof from politics
and is devoted to social and cultural fields only. However, the swayamsevaks
are free, as individuals to join any party, institution or front, political
or otherwise, except such parties, institutions or fronts which subscribe
to or believe in extra national loyalities or resort to violent and/or
secret activities to achieve their ends, or which promote or attempt or
have the object of promoting any feeling of enmity or hatred towards any
other community or creed or religious denomination. Persons owing
allegiance to the above mentioned undesirable elements and methods of working
shall have no place in the Sangh.
Unfortuantely, this satvik
shakti of RSS has been conceived as a threat to the political hegemony
in the state power by the Congress (I) party and other political parties
from time to time.
This started in the very
first year of Independence when the revered Mahatma Gandhi was assassinated
by a group of misguided persons. The Congress Government took advantage
of the murder, whipped up an antil RSS frenzy and banned it. The
Government knew well that RSS had no hand in the murder of the Mahatma.
Even the Home Minister Sardar Patel admitted and emphasized in his letter
(dt. 27-2-1948) to the then Prime Minister:-
"It also clearly emerges
from these statements that RSS was not involved in at all."
And yet they banned the
RSS and tried to continue with it. Ironically, the very persons who
abided by Gandhi, immediately on coming to power, murdered the pursuance
of Truth, a mission Gandhiji had pursued all his life.
The ban was lifted after
the RSS launched a mighty country wide satyagraha.
In 1975 Prime Minister
Indira Gandhi was declared guilty of corrupt practices and her election
to the Lok Sabha was set aside by the Allahabad High Court. Also
her party lost the elections in Gujarat. She out of her feeling of
a sinking ship imposed Emergency on the country. The Fundamental
Rights were suspended. The RSS was banned again.
And yet again the RSS
resisted the ban. Its members campaigned against the Congress Party
in the General Elections of 1977. The Congress Party lost the elections.
Smt Indira Gandhi and her son, Sanjay Gandhi were also defeated.
The ban on RSS was lifted.
December 6, 1992, after
the disputed structure at Ayodhya was demolished, RSS was banned, yet again.
Under the provisions of the Unlawful Activities (Prevention Act) 1967 the
Central Government referred the notification of the ban to the Tribunal
presided over by Shri P.K. Bahri, a sitting judge of the Delhi High
Court. After a marathon trial, the judgement came on June 18, 1993.
The Government had accused
that "RSS Swayamsevaks had participated in the demolition of the structure
commonly known as Ramjanmabhoomi-Babri Masjid, situated at Ayodhya".
The Government could
not establish this before the Tribunal. The Tribunal also found:
"No other particulars or facts have been given against RSS nor any evidence
or material in support of grounds mentioned in the ban notification have
been given." The Tribunal cancelled the Notification banning the RSS.
Efforts to restrict Government
employees from joining RSS
The Governments at the
Centre and in the States have attempted other unholy means to contain RSS
even when an outright ban was not successful. They targeted the Government
servants in the following ways:-
(a) Asking the police
to verify the antecedents of the proposed entrants to Government jobs and
to refuse employment if the candidate was a member of the RSS;
(b) To accuse the Government
servants with subversive activities and a threat to national securities
if they happen to participate, in the RSS activities and to remove them
from services;
(c) To amend service
rules thereby banning Government servants from participating in the RSS
activities.
The attempt is undemocratic.
It strikes at freedom to form associations. It arises out of malice
and intolerance against those whom the Government perceives as opponents.
This reveals a Fascist mind-set.
And it has consistently
failed in the Supreme Court, the High Courts and other courts.
The case of Shri Rama
Shanker Raghuvanshi is illustrative. He was a teacher in a school.
The school was taken over by the Government. Raghuvanshi was absorbed
in Government service subject to verification of antecedents. The
Superintendent of Police Raigarh reported that Ram Shanker Raghuvanshi
had taken part in the RSS and Jansangh activities. The Government
terminated Raghuvanshi's services.
Raghuvanshi petitioned
in the High Court of Madhya Pradesh. The High Court quashed the order.
An unashamed Government came to the Supreme Court. The Supreme Court
in a scathing and anguished judgement dismissed the appeal and said:
"Neither the RSS nor
the Jan Sangh is alleged to be engaged in any subversive or other illegal
activity; nor are the organisations banned. Most people, including
intellectuals, may not agree with the programme and philosophy of the Jan
Sangh and the RSS or, for that matter, or many other political parties
and organisations of an altogether different hue. But that is irrelevant.
Everyone is entitled to his thoughts and views. There are no barriers.
Our Constitution guarantees that. In fact members of these organisations
continue to be members of Parliament and State Legislatures. They
are heard often with respect inside and outside the Parliament. What
then was the sin that the respondent committed in participating in some
political activity before his absorption into Government service? What
was wrong in his being a member of an organisation which is not even alleged
to be devoted to subversive or illegal activities?"
The Supreme Court thus,
dismissed the appeal of Madhya Pradesh Govternment (Petition for Special
Leave to Appeal Civil No. 4679/1980)
Similarly, Ranganathacharya
Agnihotri was selected for the post of Munsiff in Karnataka. The
police verification found revealed that in his past he was an organiser
of RSS at Yelburga. The Government denied him entry into its job.
He approached the High Court of Mysore at Bangalore in writ No. 588/1966.
The Court allowed the Writ Petition and the Special Leave Petition was
dismissed. The High Court held:
"Prima facie the RSS
is a non-political cultural organisation without any hatred or ill will
towards non-Hindus and that many eminent and respected persons in the country
have not hesitated to preside over the functions or appreciate the work
of its volunteers. In a country like ours which has accepted the
democratic way of life (as ensured by the Constitution), it would not be
within reason to accept the proposition that mere membership of such peaceful
or non-violent association and participation in activities thereof, will
render a person (in whose character and antecedents there are no other
defects) unsuitable to be appointed to the post of a Munsiff".
The court held that it
was satisfied that the mere fact that the petitioner was member of the
RSS and participating in its activities is irrelevant for purpose of determining
his suitability to the post of a Munsiff.
In yet another case Chinta
Mani was sub-post master at Nagpur. He was accused of being an RSS
member who had visited the RSS office on a particualr day, participated
in its Sankranti Mahotsava and had attended a function of RSS. For
this he was removed from the services. Chintamani approached the
High Court at Bombay (Nagpur Bench) in Special Civil Appeal No. 22/52.
the Court held "in the case of the petitioner Chintamani, the first allegation
is that he has been associated and taking active part in the activities
of RSS. Though Chintamani has denied this allegation, we may assume
that the allegation is true according to the respondent. But the
RSS is not an organisation which is declared unlawful. The allegation
also does not disclose what are the activities of the RSS, participation
in which or association with which is considered subversive. To that
extent the Government is extremely vague. Unless a person is reasonably
suspected of being engaged in doing something unlawful, or ex facie prejudicial
to public security, it is difficult to countenance the suggestion that
mere association with an institution which is neither declared as unlawful
nor is alleged or shown to be indulging in any anti-social or treasonable
activities or activities leading to breach of the peace, can form a foundation
for action under rule 3.
These are only three
illustrations. At least 10 High Courts have examined the action taken
by the Government against its employees for being members of the RSS and
each time it has been quashed.
And yet the governments
have not removed the unlawful restraint. The democracy rests on the
firm belief in what. Voltaire had said in 1907- "I disapprove of
what you say, but I will defend to death your right to say it." (quoted
by Justice Krishna Iyer in the judgement reported as AIR 1977, Supreme
Court, 202).
It is time that all those
who believe in democracy and fundamental rights raise their voice to force
the governments to amend the service rules to remove the unlawful, undemocractic,
Fascist restriction on the Government servants from participating in socio-cultural
associations of their choice including the RSS.
(The author is an eminent
lawyer)
