ROMESH THAPPAR V. THE STATE OF MADRAS:- Case Study

ROMESH THAPPAR VERSUS THE STATE OF MADRAS:- Case Study

1950 AIR 124
In The Supreme Court of India
Petitioner- Romesh Thappar
Respondent – State of Madras
Bench: Fazal Ali, Saiyid, Kania, Hiralal J. (CJ), Sastri, M. Patanjali, Mahajan, Mehr Chand, Das, Sudhi Ranjan, Mukherjea, B.K.
Decided On: 26 May 1950

INTRODUCTION

The petitioner “Romesh Thappar” was the printer, publisher and the editor of a journal called Cross Roads printed and published in Bombay. The State of Madras had banned the passage, distribution, and dispersion of the journal in the erstwhile state.  Under Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949. The journal was banned because the then Governor of Madras was of the opinion that it may affect public security and request.

The Petitioner had directly filed this petition in the Supreme Court upon which the Advocate-General of Madras questioned the system of the petition. He contended that the petitioner ought to have first filed in the High Court of Madras under Article 226. However, the Supreme Court was of the opinion that it had the jurisdiction to directly deal with this case under Article 32[1].

FACTS AND BACKGROUND OF THE CASE

The petitioner “Romesh Thappar” was the printer, publisher and the editor of a journal called Cross Roads printed and published in Bombay. Under section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949[2]. The passage and distribution, and dispersion of the journal was banned in the erstwhile state of Madras. The order was published in the Fort St. George gazette, arguing that the states justification for the ban based on “public safety” was too broad.

In response to the ban, the petitioner filled a writ appeal before the Supreme Court, affirming that the forces under the Act were an excessive restriction on freedom of expression under Article 19 of the Constitution of India. Accordingly, it was considered for the respondent State that the limitation was with the end goal of public safety and public order. This could be likened with security of the State which is considered a reasonable restriction on freedom of expression under Article 19(2).

ISSUES FRAMED
  1.  Whether Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949  is violation of petitioner’s right to freedom of speech and expression as conferred on him by Article 19(1)(a) of the Constitution or will it fall within the reservation of Article 19(2)?
  • Whether Section 9(1-A) of the Act is void under Article 13(1) of the Constitution by reason of it being inconsistent with his fundamental right, and thus ultra vires?
ARGUMENTS ON BEHALF OF PETITIONER

The petitioner claims that the said order negates the fundamental right of the petitioner to freedom of speech and expression conferred on him by Article 19(1) (a) of the Constitution and also, he challenges the validity of Section 9(1-A) of the decried Act as being void under Article 13(1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid.

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ARGUMENTS ON BEHALF OF RESPONDENT

For this situation, the Advocate General, for the benefit of the State of Madras, first raised a preliminary objection with respect to the petitioner’s application for under claiming relief under Article 32 of the Constitution in the first instance[3]. He contended that the petitioner ought to have depleted his alleviation under Article 226 of the Constitution by depending on the High Court of Madras from the start. A party ought to continue first to the last court for relief prior to turning to the High Court. He referred to Emperor v. Bisheswar Prasad Sinha[4] where such a standard of practicing was upheld in a criminal revision case, and called our consideration likewise to certain American decision Urquhart v. Brown[5] and Hooney v Kolohan[6] as demonstrating that the Supreme Court of the United States conventionally necessitated that whatever judicial remedies stayed open to the  applicant in Federal and State should be depleted before the remedy in the Supreme Court — be it habeas corpus or certiorari — would be permitted. Secondly the respondents, argued placing reliance on Rex v. Wormwood Scrubbs Prison[7], by referring Section 9(1-A) to the terms “securing the public safety” and “the maintenance of public order” with different purposes. And urged that “public safety” meant the safety of the province which was within the ambit of Article 19(2) which includes the ground of “security of state” as a reasonable restriction[8].

OBSERVATIONS OF THE COURT

The Court applied the literal rule of interpretation to the article and opined that the article confers power of the Supreme Court as a part of its general jurisdiction to issue writs in situations where the fundamental rights of the citizen has been infringed. The object of the understanding is to find the aim of the legislature and should be fully trusted from the language used. The textualists, then again make a presumption that whatever the goal of the legislature was while framing law has just been consolidated in the rule which is why there is no need to look beneath the text.

In this manner, it was held there isn’t anything in the Constitution which could recommend that a citizen necessities to deprive his right under Article 226 of the Constitution previously resorting to the Supreme Court for the same. The Court brought up that as far as the United States Constitution is concerned. It doesn’t furnish with such an arrangement and along these lines the Advocate General wrongly alluded to international cases and statutes in this regard.

The Federal Court had,held that the aim of deleting the word “Sedition” from the draft of the Constitution and agreed that unless the criticism of the Government is done to overthrow the State or undermine safety, it cannot be considered as a reasonable ground to restrict freedom of speech and expression or freedom of press[9]. Further, the Court defined “public safety” as “security of the public or their freedom from danger”. It deliberated upon the fact that the term can be used to draw different scopes in different contexts like rash driving, rash navigation, sedition, etc[10]. It established through this that acts such as rash driving are not a threat to the security of the State; however, they are a threat to public safety. The Apex Court by holding this opinion and regarded Section 9(1-A) as void The Court observed that “Security of the State” and “Maintenance of public order” are distinct legislative subjects as per Entry 3, List III, Seventh Schedule of the Constitution of India[11].

The Court then observed the aim of deleting the word “Sedition” from the draft of the Constitution and agreed that unless the criticism of the Government is done to overthrow the State or undermine safety, it cannot be considered as a reasonable ground to restrict freedom of speech and expression or freedom of press[12]. The Court finally invoked the Doctrine of Severability. In the wake of applying the rule of severability to Section 9(1-A) of the denounced Act, the larger part held it to be void under Article 13(1) of the Constitution and in this way ultra vires as it was conflicting with the arrangements of Part III of the Constitution.

Justice Fazal Ali however in his dissenting opinion and also citing to the case of Brij Bhushan v. Anr. V. The State of Delhi[13] held that maintenance of peace and tranquility were an integral part of maintaining state security, he argued that if sedition can challenge security of the state, so can public disorders and disturbance in public safety, thus contending that the impugned Act imposed.

He further caused to notice the point of the Act being referred to and said that the Act was not intended to take into consideration over negligible issues but instead issues that affect harmony and serenity of the region. He concurred that the law might be abused by the by the executives, but abuse of a law doesn’t make it unlawful.

DECISION HELD

The petition was allowed in the ratio 4:1, Fazal Ali, J. dismissing the petition. The majority judgment was authored by Justice M Patanjali Sastri and Justice S Fazl Ali opposed[14].

The Court held that unless a law restricting freedom of speech and expression is aimed solely against challenging the security of the State or overthrowing the State, it cannot be held within the ambit of Article 19(2) of the Constitution of India[15].

The Court declared Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 to be unconstitutional and void.

CRITICAL ANALYSIS

It must be noticed that this judgment came during the stage while post-sacred India was as yet in its incipient stage. However, the reasoning behind this judgment sets a sound point of reference both regarding ensuring press opportunity and characterizing the extent of sensible limitations on the principal rights as provided in Part III of the Constitution. The court is comprised as a guarantor and protector of fundamental rights, and it can’t reliably with the obligation laid upon it, decline to engage applications looking for insurance against infringement of fundamental rights. The Court by putting restrictions on the powers of the State to interfere with individual rights paved the way for other judgements that championed the among of the person against the State which further prompted massive certainty among the majority in the elevated levels of integrity among the judicial branch of the  government.

Freedom of speech and expression is one of the essentials of a society. Be it any type of government, it is required trait which should be available in it, else. It might prompt catastrophic outcomes. Media is viewed as the fourth pillar of democracy. For the existence of a healthy democracy media is must in a society. Yet, it could be noticed that simple quiet presence of media will fill no need on the off chance that it isn’t allowed the right to speak freely of discourse and expression. The analogy given by the Supreme Court were sound and great. The Supreme Court strikes a perfect balance while delivering this judgment, The court’s choice not to aimlessly adhere to unfamiliar law was broke down to be acceptable, because of the distinction in financial and socio- political circles of the two nations, not after following the American law was an apt decision.

Responding to this judgment, the Parliament altered the Constitution in 1951. First Constitutional Amendment Act, 1951 added ‘Public Order’ as a sensible limitation under 19(2) on the Freedom of Speech and Expression – 19(1)(a). The decision added that free political conversation is a fundamental for the correct working of a democracy based government.

Written by HANI DIPTI


[1] REVATHI KRISHNAN What is Article 32 which Ambedkar said was ‘heart’ and ‘soul’ of Constitution THE PRINT https://theprint.in/theprint-essential/what-is-article-32-which-ambedkar-said-was-heart-and-soul-of-constitution/546050/

[2] Abhinav Chandrachud Freedom of expression was once wide-ranging in India. Then Jawaharlal Nehru asked for changes THE SCROLL https://scroll.in/article/849499/freedom-of-expression-was-once-absolute-in-india-then-jawaharlal-nehru-asked-for-changes

[3] SUPRA 2

[4]  [ILR 56 All 158]

[5] [205 US 179]

[6] [294 US 103]

[7] L.R. [1920] 2 K.B. 805

[8] Udita Dalal latestlaw.com https://www.latestlaws.com/articles/freedom-of-speech-and-expression-case-analysis-romesh-thappar-v-state-of-madras

[9]  Niharendu Dutt Majumdar v. King-Emperor [(1942) FCR 38]

[10] Tasneem Husain Romesh Thappar v. State of Madras LAWYERS TROOP  https://lawyerstroop.com/romesh-thappar-v-state-of-madras/blog/

[11] The Constitution of India , 1950

[12] Tanu Priya Freedom Of Speech And Expression  https://www.lawctopus.com/academike/freedom-of-speech-and-expression/

[13] [1950] S.C R, 605

[14] Namit Saxena 70 years of the Crossroads and the Organiser Cases: A Revisit BAR AND BENCH https://www.barandbench.com/columns/70-years-of-the-crossroads-the-organiser-cases-a-revisit

[15] 1950 AIR 124