Case Analysis: Romesh Thappar Vs. The State of Madras

Author: Soumya Pandey,

NMIMS Bangalore

IN THE SUPREME COURT OF INDIA

Petition No. XVI of 1950

Decided On: 26.05.1950

Appellants: Romesh Thappar Vs. Respondent: The State of Madras

Hon’ble Judges/Coram:

H.J. Kania, C.J., Saiyid Fazl Ali, M. Patanjali Shastri, M.C. Mahajan, B.K. Mukherjee and Sudhi Ranjan Das, JJ.

FACTS:

• Ramesh Thappar serves as the weekly periodical “Cross Roads” publisher, editor, and printer. The language of the Bombay edition is English.

• As a result of printing "critical and derogatory views of the Congress" in violation of the Madras Maintenance of Public Order Act[i], 1949, the Madras government forbade the entry and distribution of the journal Cross Roads on March 1st, 1950.

• According to the order, the prohibition is being implemented for "public safety and the maintenance of public order" and "in compliance with the authority conferred by section 9 (I-A) of the Madras Maintenance of Public Order Act, 1949[ii]." ( Madras Act XXII of 1949).The governor of Madras has issued an order prohibiting the publication, sale, and distribution of the English-language weekly newspaper “Cross Roads” in Madras and the entire state of Madras as of the date of publication of this order in the Fort St. George Gazette, having determined that a ban on the publication is required to safeguard public safety and maintain public order.

ISSUE:

• The issue that the Court was the adjudicate upon was whether the order under Section 9 (1-A) of the Madras Maintenance of the Public Order Act [iii]was in violation of Article 19(1)(a)[iv] of the Constitution or did it fall within the restrictions provided in Article 19(2).[v]

• The Court also had to determine whether the impugned provision was void under Article 13(1) of the Constitution by virtue of it being in violation of the fundamental right of free speech and expression.

• The Advocate General who appeared on behalf of the State of Madras also raise an additional issue whereby he argued that the petitioner has to first approach to the High court under Article 226 and only when he had exhausted that remedy , he could bring his grievances to the Supreme Court.

RULES:

• Article 19(1) (a) of Constitution of India.[vi]

• Article 19(2) of the Constitution of India.[vii]

• Article 13(1) of the Constitution of India[viii]

• Article 32 of the Constitution of India[ix]

• Article 226 of the Constitution of India[x]

ANALYSIS:

ARGUMENT OF PETITIONER

· Romesh Thappar directly requested a Writ of Prohibition and Certiorari under Article 32 [xi]from the Supreme Court (Right to Constitutional Remedies). He claimed that Article 19(1)(a) [xii]of the US Constitution's right to free speech was violated by the order that was issued against him.

· Thappar argued that Section 9 (1-A) of the Preservation of Public Order Act of 1949 [xiii]was unconstitutional under Article 19(1)[xiv] of the United States Constitution because it violated the fundamental right to freedom of speech and expression.

ARGUMENTS OF RESPONDENT

The Advocate General of Madras, who is a respondent on behalf of the State of Madras.

Public safety is the term used to describe the security of the province, and thus, indirectly, the security of the province, indirectly, the security of the state. In Article 19(2)[xv], it is stated that the state described in Article 12 [xvi]includes, among other living things, the executive and legislative branches of each of the former Provinces. Despite the concurrent power of Article 226 to hear the case, the state of Madras also objected to the petitioner contacting the Supreme Court in his first instance.

He gave the examples of a criminal petition under section 435 of the Criminal Procedure Code[xvii], a request for bail, and a request for transfer under section 24 of the Civil Procedure Code[xviii]; in each of these situations, the lower court and the high court have jurisdiction, and custom dictates that the party involved must first appear before the lower court.

The remedy provided by Article 32 of the Indian Constitution[xix]n is not comparable to the cases Emperor v. Bisheswar Prasad Sinha[xx], in which practise was followed in a criminal revision case, and Hooney v. Kolohan [xxi]and Urquhart v. Brown[xxii] SC of the United States, which require applicants to exhaust all available legal options in Federal and State courts.

As a fundamental right in Part III of the constitution,[xxiii] Article 32 [xxiv]of the constitution offers a "guaranteed" way to enforce these rights. It also forbids the court from declining to consider instances in which persons are attempting to defend their rights against infringement.

COURT'S REASONING:

• A law restricting freedom of speech and expression cannot violate Article 19 [xxv]unless it is primarily intended to prevent compromising the security of the state or its overthrow (2). The court stated that Article 32 [xxvi]guarantees a remedy for the enforcement of fundamental rights provided under Part III of the constitution[xxvii], and the remedy itself is made a FR by being included in Part III. This statement was made in response to the petitioner's decision to approach the SC in first instance. As a result, the SC cannot consider rights infringements because it is the custodian and guarantor of the FR’s.

• According to the Supreme Court, freedom of speech and expression [xxviii]encompasses the right to disseminate ideas, and this freedom is supported by the right to free movement. In addition, it was determined that the Government of Madras violated the petitioner's fundamental rights under Article 19(1)(a) [xxix]unless section 9(1-A) of the Madras Maintenance of Public Order Act [xxx]was covered by one of the exceptions stated in Article 19(2). [xxxi]Article 19(2) [xxxii]requires reasonable limits on FRs for state security; yet, section 9 [xxxiii]uses the words "public safety and public order.”

• The controversial measure was voted by the provincial legislature, which was authorised by Article 100 of the Government of India Act of 1935[xxxiv]. Entry 23 of List III (Concurrent List) of the seventh schedule [xxxv]differentiates between "Securing public safety" and "Maintaining public order." Because "public order" and "public safety" are interrelated, the Madras legislature would not have adopted the measure if the terms had distinct meanings.

• Since "state" is defined in Article 12 [xxxvi]to include the administration and legislative of other provinces, the phrase "public safety" in the challenged act applies to the security of the province and, hence, "the security of state" in Article 19(2).[xxxvii]

• The term "public safety" implies that no one is in risk or in jeopardy. Regarding offences against public safety, Chapter XIV of the Indian Criminal Code lists "offences endangering public health, safety, convenience, decency, and morals" (Article 280). In contrast, Chapter VI specifies "offences against the state," which include activities such as declaring war on the Queen (Article 121).

• Although section 57 of the Government Act of 1935 [xxxviii]addressed violent acts intended to overthrow the government, the phrase "security of the state" was not included. As a result, the governor was charged with combating anyone "endangering the tranquilly or calm of the province."

• Article 352 of the Indian Constitution [xxxix]allows the president to declare a state of emergency if he considers that war, external aggression, or domestic instability constitute a threat to the security of India or any section of its territory. These restrictions recognise that public disruptions may become so severe as to harm national security.

• Under Article 19(2) of the Constitution[xl], different sorts of regulations may be used to restrict fundamental rights; nevertheless, there must be a distinction between significant and aggravating forms of public disturbance that jeopardise national security and minor violations that only affect a small territory.

• Unless there is a threat to national security or an attempt to overthrow the government, the usage of the term "sedition" in Article 13(1) [xli]should not be used to curtail freedom of expression or the press.

• Many think that freedom of speech and expression is essential for the smooth functioning of a democracy; hence, regulations that restrict these rights can impose extremely stringent restrictions. Therefore, it was found that legislation restricting free speech and the press do not fall under the exemption in Article 19(2) of the Indian Constitution[xlii] . Hence, section 9(1-A)[xliii], which allows restrictions to be imposed for the broader purpose of preserving public safety or maintaining public order, is unconstitutional and null since it exceeds the scope of restrictions permitted by Article 19 (2).[xliv]

• Because clause (2) of article 19 [xlv]specifies that restrictions on freedom of speech and expression may only be enacted when the state is in danger, section 9(1-A) [xlvi]cannot be deemed unconstitutional and illegal in its entirety. Instead, it must be partially invalidated.

• The petition was granted, and the respondents' order prohibiting the sale or distribution of the petitioner's publication in the State of Madras was reversed.

CONCLUSION

Romesh Thappar v. State of Madras was a major case in Indian constitutional law since it established precedents for the country's freedom of expression and press. The Supreme Court of India heard the case in 1950, shortly after the adoption of the Indian Constitution.

Romesh Thappar was a journalist and editor who published Cross Roads, a political magazine. The State of Madras, which was governed by the Congress party at the time, banned the publication on the grounds that it included seditious and provocative content. Thappar argued in court that the restriction violated his fundamental rights under the Indian Constitution, including his right to free speech and expression.

In a 4-1 judgement, the Supreme Court found in favour of Thappar and overturned the prohibition on Cross Roads. The court determined that freedom of speech and expression was a constitutionally protected fundamental right, and that any restrictions on this right must be reasonable and in the public good. In addition, the court determined that the government had not shown adequate proof that Cross Roads posed a threat to public order or national security.

Romesh Thappar's case attracted attention for a variety of reasons.

It first established the notion that freedom of speech and expression is a fundamental right protected by the Indian Constitution. This idea has been supported by numerous later rulings and is now a cornerstone of Indian democracy.

Second, the case emphasised the need of a fair legal system in preserving people's rights and liberties. Thappar's ability to successfully oppose the government's ban on his magazine in court serves as evidence of the strength and independence of India's judicial system.

In summary, the case demonstrated the value of a free and active press in a democracy. The court noted that any attempt to suppress or regulate the press poses a threat to democracy itself and that the press plays a crucial role in informing and educating the public.

Finally, the Romesh Thappar case was a significant decision that helped define the value of free speech and expression in Indian constitutional law. Significant precedents for individual freedoms, judicial independence, and the function of the press in a democracy were set by the case. As a reminder of the need of preserving individual rights and liberties in a democratic society, the concepts articulated in this case still define and instruct Indian constitutional law today.

REFERENCES [i] The Madras Maintenance of Public Order Act , 1949 passed by Provincial Legislature under the Section 100 of GOI Act 1935, read with Entry 1 of List II of the seventh schedule of the act which comprised among other matters, “ Public Order”. [ii] Section 9 (1-A) of the Madras Maintenance of Public Order Act, XXXIII of 1949, which authorises impositions of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under cl. [iii] Supranote 2 [iv] Article 19 (1) (a); (1) All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (g) to practise any profession, or to carry on any occupation, trade or business. [v] Article 19(2) ; Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. [vi]Supranote 4 [vii] Supranote 5 [viii] Article 13(1) : All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. [ix]Article 32: (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. [x] Article 226: (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without — (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32. [xi] Supranote9 [xii] Supranote4 [xiii] Supranote2 [xiv] Supranote4 [xv] Supranote5 [xvi] Article 12: In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India [xvii] Article 435 of Crpc : which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, shall not be exercised by the State Government except after consultation with the Central Government. [xviii] Section 23 of CPC: General power of transfer and withdrawal. [xix] Supranote9 [xx] 164 Ind Cas 184 [xxi] (294 U.S. 103) [xxii] (205 U.S. 179) [xxiii] The Constitution of India,1950 [xxiv] ibid [xxv] Supranote5 [xxvi] ibid [xxvii] ibid [xxviii] Article 19(1) of the Constitution of India,1950 [xxix] Supranote4 [xxx] Supranote2 [xxxi] Supranote5 [xxxii] ibid [xxxiii] ibid [xxxiv]Article 100 of Gov. of India Act 1935: Subject matter of federal and provincial laws. [xxxv]The Constitution of India, 1950 [xxxvi] Supranote16 [xxxvii] ibid [xxxviii] Section 52 of Gov. of India Act 1935: Special Responsibilities of Governor. [xxxix]Article 352: If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation. [xl] Supranote5 [xli] Supranote8 [xlii] ibid [xliii] Supranote2 [xliv] ibid [xlv] ibid [xlvi] ibid