Romesh Thappar v. State of Madras

This article is written by Tasneem Hussain Legal content writer at Lawyers Troop

Table of Contents

1950 AIR 124
In The Supreme Court of India
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

Title

A restriction through a law on freedom of speech and expression cannot be held within the ambit of Article 19(2) unless it aims to protect the state from activities that may undermine the security of the state or intend to overthrow the State.

Relevant Statutes and Sections/Articles

Constitution of India, Article 13(1), Article 19(1), Article 19(2), Article 32, Article 226
Constitution of India, Seventh Schedule
Madras Maintenance of Public Order Act, 1949, Section 9(1-A)

Facts & Procedural History

The petition was filed by the printer, publisher and editor of ‘Cross Roads’, a weekly English language journal based in Bombay. The State of Madras had banned the entry, circulation, sale or distribution of the journal in the 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 order.

The Petitioner had directly filed this petition in the Supreme Court upon which the Advocate-General of Madras questioned the procedure of the petition. He argued that the petitioner should 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.

Issues Presented

Whether Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 is in violation of Article 19(1)(a) of the Constitution of India.
Whether Section 9 (1-A) of the said Act is within the ambit of reasonable restrictions as provisioned under Article 19(2)?

Ratio of the Supreme Court

Patanjali Sastri, J. authored the judgement on behalf of Kania C.J., Mehr Chand Mahajan, Mukherjea and Das JJ. Fazal Ali, J. presented a separate judgement.

It was agreed by the Court that freedom of propagating ideas through circulation is within the ambit of Article 19(1)(a). The Court believed that liberty of publication without the liberty of circulation is of no essence.

Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 banned the entry, circulation, sale and distribution of the Journal ‘Cross Roads’. It can therefore be agreed that Section 9 (1-A) of the Act in question is ultravires of Article 19(1)(a).

The next issue that the Court deliberated upon was whether the restriction imposed on the journal by Section 9(1-A) was within the scope of Article 19(2).

Section 9(1-A) referred to the terms “securing the public safety” and “the maintenance of public order” with different purposes. The respondents, placing reliance on Rex v. Wormwood Scrubbs Prison¹, 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. The Court, however, rejected their reliance due to distinct contexts.

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. 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 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.

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. The Court held this opinion and regarded Section 9(1-A) as void.

The respondents argued that as per Article 13(1), the said section cannot be held wholly void and only that part which is not consistent with the fundamental rights should be struck down. The Court held that if the language of a law is wide enough to encompass restrictions which are both within and beyond the constitutionally permissible legislative action affecting the right, it cannot be upheld even within the constitutional limits as it cannot be severed.

Justice Fazal Ali gave a contradicting judgement on this issue. Taking in view the judgement of Brij Bhushan and Anr. V. The State of Delhi², held that the petition should be dismissed and no relief should be granted to the petitioner.

He disregarded the argument that the entry of seditious documents can be prohibited but not of those which may only be calculated to disturb public tranquillity and public safety. He argued that sedition tends to create disorders and relied on the authority of James Stephens³ who subjected sedition as an offence against public tranquillity. Fazal argued that if sedition can challenge security of the state, so can public disorders and disturbance in public safety.

He further drew attention to the aim of the Act in question and said that the Act was not meant to take into consideration petty disorders but rather disorders that affect peace and tranquillity of the province. He agreed that the law may be misused by the by the executives, but misuse of a law does not make it unconstitutional.

Decision Held

The petition was allowed in the ratio 4:1, Fazal Ali, J. dismissing the petition.

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.

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