Romesh Thappar vs The State of Madras

Romesh Thappar vs The State of Madras

By Gargee Yadav

In the Supreme Court of India

NAME OF THE CASERomesh Thappar vs The State of Madras
CITATION1950 AIR 124, 1950 SCR 594
DATE OF THE CASE26 May, 1950 
APPELLANTROMESH THAPPAR
RESPONDENTTHE STATE OF MADRAS
BENCH/JUDGEJustice Saiyid Fazal Ali; Justice Harilal Kania (CJI); Justice M. Patanjali Sastri; Justice Mehr Chand Mahajan; Justice B.K. Mukherjea; 
STATUTES/CONSTITUTION INVOLVEDThe Constitution of India, The Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949), Indian Penal Code;
IMPORTANT SECTIONS/ARTICLESThe Constitution of India- Article 12, 13(1),19 (1)(a), 19(2), 32, 226The Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949) – 9 (1-A)Indian Penal Code- Section 124A 

ABSTRACT

The case of Romesh Thapar vs State of Madras was the first case in the history of independent India recognizing the freedom of speech and expression. It acted as a precedent in the subsequent rulings and legal developments and helped in further expansion and recognition of this fundamental right as enshrined in Part III of the Constitution. In the state of Madras, a ban was imposed on the sale, distribution, and circulation of a Bombay-based  English journal called CrossRoads on the pretext of violating public safety and public order as per Section 9 (1-A) of the Madras Maintenance of Public Order, 1945. Consequently, a writ petition was filed under Article 32 of the Indian Constitution by Romesh Thappar, the printer, publisher, and editor of the journal, and contested the ban to be violative of the freedom of speech and expression.

On the other hand, the Advocate-General of Madras on behalf of the state of Madras argued that the restriction was reasonable in view of securing public safety and maintaining public order which would be included under ‘the security of the state’, thus, ensuring the validity of the impugned Act.

Subsequently, the Supreme Court of India upheld the petitioner’s right to freedom of speech and expression and held the Madras Maintenance of Public Order, 1945 to be void and unconstitutional. The court further recognized that only in specific circumstances such as severe threat to the security of the state, could the restriction on freedom of speech and expression be imposed. The court also affirmed that freedom of propagation of ideas and freedom of circulation is ensured by the freedom of speech and expression.

INTRODUCTION

 “Everyone is in favour of Free Speech. Hardly, a day passes without its being extolled, but some people’s idea of it is that they are free to say what they like, but if anyone else says anything back, that is an outrage”.

                                                                                                              – Sir Winston Churchill

Freedom of speech is considered to be one of the most cherished rights in a democratic country. It is the lifeblood of a democracy. The Preamble of the Constitution provides its subjects the liberty of thought, expression, belief, faith, and worship as a basic concept, which demonstrates that the main objective of our Constitution is to ensure the accessibility of the liberty to express one’s ideas and expressions freely. This freedom has been accorded the highest pedestal among almost all the countries worldwide and is rightly regarded as the mother of all the other liberties. It is an essential condition for a thriving democracy because without freedom of thought, there can be no progress in the intellect of a human being.  This freedom arouses in a person the ability to broaden the horizons of thinking, which would not only help in an individual’s growth but it would also act as a catalyst in the development of a democratic setup through mutual exchange of ideas between individuals.

The scope of freedom of speech and expression is not just restricted to freedom to express one’s ideas and expressions but through dexterous judicial interpretations and precedents, its horizon has been expanded, which includes:

  • Freedom of Press;
  • Freedom of Publication & Broadcasting;
  • Freedom of Commercial Speech;
  • Right to Criticize;
  • Right to Information;
  • Right to Internet;
  • Right to remain Silent;
  • Right to fly the National Flag by Indian citizen;
  • Right to participate in Sports

Main characteristics of Article 19(1)(a) are:

1. Freedom of speech and expression is accessible only to citizens of India.

2. This right includes the freedom to express and communicate one’s ideas and opinions on any topic through writing, speaking, gesticulating, etc.

3. This right is not absolute in nature consisting of eight reasonable restrictions that are imposed. They are- interests of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality, contempt of court, defamation, and incitement to an offence. 

The press is the fourth pillar of democracy and is considered to be the soul of democracy. It plays an instrumental role in the formation of public opinion. The free press keeps a constant vigil on the administration and functioning of the country, precluding the government from becoming arbitrary. Recently, in the World Press Freedom Index released by the Paris-based organization, Reporters without Borders, India’s rank slipped to 161st rank out of 180 countries. “Indian law is protective in theory but charges of defamation, sedition, contempt of court and endangering national security are increasingly used against journalists critical of the government, who are branded as “anti-national””[1], the report notes. The present state of affairs duly qualifies for what James Madison said: “a popular government without popular information or the means of acquiring it, is but a prologue to farce or a tragedy or perhaps both. Knowledge will forever govern ignorance. People who mean to be their own governors must arm themselves with the power which knowledge gives”. Therefore, the free flow of information is vital for the foundation of a vibrant democracy, which would empower individuals to make informed decisions and actively engage in the democratic process.

FACTS OF THE CASE

Romesh Thapar, who belonged to the realm of Marxian ideology was the petitioner. He was the printer, publisher, and editor of an English journal known as Cross Roads, which was printed and published in Bombay. The petitioner brought forth a writ petition before the Supreme Court challenging the prohibition imposed by the state of Madras with effect from 1st March, 1950 on the entry and circulation of the aforementioned journal in that state, under section 9(1-A) of the Madras Maintenance of Public Order Act, 1949. The challenged order was officially published in the Fort St. George Gazette, and the notification was expressed as follows: –

“In exercise of the powers conferred by section 9 (I-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949) His Excellency the Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort St. George Gazette the entry into or the circulation, sale, or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads, an English weekly published at Bombay.”

On behalf of the petitioner, C.R. Pattabhi Raman challenged the constitutionality of the aforementioned order and contested that it constituted an excessive constraint on the freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution of India, thereby, challenging the legitimacy of section 9 (1-A) of the impugned Act and asserted it as being void under Article 13(1) of the Constitution, by virtue of its being inconsistent with the previously mentioned fundamental right.[2]

K. Rajah Ayyar, the Advocate-General of Madras from the respondent’s side argued that the state of Madras imposed the concerned restrictions in the interest of “securing public safety” and the “maintaining public order”. It was further asserted that these restrictions were promulgated in order to safeguard the “security of the State”, which qualifies as a reasonable restriction on the freedom of expression as envisaged in Article 19(2).[3]  

ISSUES RAISED BEFORE THE COURT

  1. Whether it is permissible to approach the Supreme Court directly under Article 32 of the Indian Constitution in case of violation of fundamental rights, thus, bypassing the requirement to approach the respective state High Court under Article 226 at the first instance?
  2. Whether the order passed by the government under section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 violates the freedom of speech and expression or comes under the restrictions enunciated under clause two of the said right?
  3. Whether Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 is rendered void under Article 13(1) of the Constitution by virtue of it being contradictory to the fundamental right? 

ARGUMENTS FROM THE APPELLANT SIDE

  • The counsel for the petitioner, C.R. Pattabhi Raman argued against the order issued by the Governor of Madras, which imposed a ban on the entry, publication, and circulation of Cross Roads journal within the State of Madras infringes upon the fundamental right of freedom of speech and expression as enshrined under Article 19(1)(a) of the Constitution of India.
  • The counsel further contended that Section 9(1-A) of The Madras Maintenance of Public Order Act, 1949 violated Article 13(1) of the Indian Constitution because it (impugned Act) was violative of the fundamental right of freedom of speech and expression as enshrined in Article 19(1)(a).

ARGUMENTS FROM THE RESPONDENT SIDE

  • K. Rajah Ayyar, the Advocate-General of Madras, appearing on behalf of the respondent, raised a preliminary objection that the petitioner instead of directly resorting to the Supreme Court under Article 32 of the Constitution of India should have approached the High Court at Madras as a first resort which under Article 226 of the Constitution has concurrent jurisdiction(where two or more courts from different systems simultaneously have jurisdiction over a specific case) with respect to the concerned matter. He cited instances like criminal revision petitions (Section 435 of CrPC), applications for bail, and applications for transfer (Section 24 of CPC), where the High Court and a lower court were given concurrent jurisdiction. It was argued that as per established practice, a party should first seek relief from the lower court before approaching the High Court.

He cited the case of Emperor v. Bisheswar Prasad Sinha[4] where a similar practice was followed in a criminal revision case, and also referred to American decisions such as Urquhart v. Brown [5]and Mooney v. Holohan[6]. It was demonstrated by these cases that generally, at the first instance, it was required to exhaust the available judicial remedies in Federal and State Courts before approaching the Supreme Court, in cases such as habeas corpus or certiorari.

  • It was further contended that in order to protect the “security of the state” as per Article 19(2), it was imperative to include section 9(1-A) in the Act, which refers to “securing the public safety” and “the maintenance of public order”.
  • It was claimed that section 9(1-A) could not be declared completely unconstitutional because, under Article 13(1), an existing law that is in contravention of any fundamental right is void only to the extent of its contradiction and not beyond that. It was further contended that as per the impugned Act, in the process of “securing public safety” or “maintaining public order”, the ‘security of the state’ would also be influenced, which would fall within the scope of Article 19(2) of the Indian Constitution. Therefore, it was argued to hold the impugned Act to be valid.

RELATED PROVISIONS

  1. Madras Maintenance of Public Order Act, 1949

Section 9 (1-A): It allowed the state of Madras “for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents.”

  • Constitution of India

1) Article 19 (1): “All citizens shall have the right

  • to freedom of speech and expression;
    • to assemble peaceably and without arms;
    • to form associations or unions;
    • to move freely throughout the territory of India;
    • to reside and settle in any part of the territory of India; and
    • omitted
    • to practise any profession, or to carry on any occupation, trade or business;”[7]

2) 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.”[8]

3) Article 13: “Laws inconsistent with or in derogation of the fundamental rights

  • 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
  • The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void
  • In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
  • Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality.”[9]

4) Article 32: “Remedies for enforcement of rights conferred by this Part

  • The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
  • 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
  • Without prejudice to the powers conferred on the Supreme Court by clause (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)
  • The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”[10]

5) Article 226: “Power of High Courts to issue certain writs

  • Notwithstanding anything in Article 32 every High Court shall have powers, 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, prohibitions, 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
  • 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
  • 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
    • furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
      • 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 aid next day, stand vacated
  •  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.”[11]

(6) Indian Penal Code:

  • Section 124A: Sedition.—”Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 102 [***] the Government estab­lished by law in 103 [India], [***] shall be punished with 104 [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine. Explanation 1. —The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]”[12]

JUDGEMENT

The court categorically observed, “freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation.”

The honourable Supreme Court was of the view that the petitioner had the right to decide whether to seek redress under Article 32 or 226 of the Indian Constitution keeping in view his state of affairs. The court underlined that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights, which is itself considered a fundamental right. Therefore, it is the duty of the Supreme Court to entertain such applications seeking protection against the infringement of fundamental rights because of the reason that the concerned court acts as the protector and defender of fundamental rights. The court further observed, “No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point.” Thus, responding to the contentions raised by the respondent while citing Urquhart v. Brown[13] and Mooney v. Holohan[14].

The court referred to LoveIl v. City of Griffin(s)[15] in which it was observed, “Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value “.For the purpose of inquiring the validity of section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, which allowed the state government, “for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents”, the court elucidated the meaning of the terms “public order”, “public safety” and “undermines the security of the State”. The court defined public order as “the state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the government” whereas “public safety” in the words of the court, “ordinarily means security of the public or their freedom from danger”, which was included within the broader concept of “public order” and indicated a close relationship between the two. However, the court highlighted, “In the context of the statute, relating to law and order ‘securing public safety’ may not include the securing of public health, it may well mean securing the public against rash driving on a public way and the like, and not necessarily the security of the State”. Thus, underling that the danger to public safety may not necessarily lead to endangering the ‘security of the State’. The court further explained that undermining the security of the State under Article 19(2) meant “nothing less than endangering the foundations of the State or threatening its overthrow.”[16]

The court also took reference to Entry 3 of List III (Concurrent List) of the Seventh Schedule, which differentiated between the ‘security of the State’ and the ‘maintenance of public order’. Thus, it was recognized that the aforementioned terms are separate and independent subjects of legislation as observed by the honourable court- “The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance”[17], highlighting that only when there would be a threat of severe nature, which would be ‘undermining the security of the state’, could the curtailment of the rights to freedom of speech and expression be justified.

The honourable Supreme Court noted that initially, the draft Constitution included “sedition” as a  reasonable restriction on the freedom of speech and expression under Article 19(2). However, at the time of drafting of the final version of the Constitution, the word “sedition” was eliminated. The Court observed, “Deletion of the word “sedition” … shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. … Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organizations.” [18]

With regard to the offence of ‘sedition’, the court also referred to Niharendu Dutt Majumdar v. The King Emperor[19] where it was held that -“the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”, but it was overruled by the Privy Council King Emperor v. Sadashiv Narayan Bhalerao[20] to the effect that “the offence consists in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small.”

Consequently, the court observed that a restriction could be imposed on the freedom of speech and expression by the legislative-made law only if its sole objective was to prevent the “undermining or overthrow of the security of the State”, otherwise it would be deemed to be unconstitutional even if the main intention for the imposition of such a law was for the general maintenance of public order. Therefore, Section 9(1-A) of the impugned Act, which allowed for restrictions related to “public safety” or “the maintenance of public order”, was declared invalid and unconstitutional by the honourable court because it went beyond the authorized restrictions.

The court invoked the ‘doctrine of severability’ as enunciated in Article 13 of the Indian Constitution to check the validity of section 9(1-A) of the impugned Act. It was noted that the applicable law encompassed both permissible and impermissible restrictions. Therefore, the impugned Act was declared to be invalid because of its non-severable nature and also because of the possibility of it being applied for unconstitutional purposes. Therefore, the impugned Act was held to be void and unconstitutional by the honourable court.

CONCLUSION

Romesh Thappar’s constitutional battle for freedom of speech and expression is one that has altered history books worldwide. It has established legal frameworks for journalists and press, becoming a global symbol of the freedom of press. The verdict was significant enough to prompt the passing of the first-ever constitutional amendment in June 1951, including clauses such as ‘public order,’ ‘friendly relations with foreign states’ & ‘incitement to an offence’ – under Article 19(2). Undoubtedly, the judgment has remained steadfastly valid and has formed the basis of several courtroom decisions, including the most regarded case of Shreya Singhal v. Union of India which recognized that mere discussion or advocacy of an idea even if it is of unpopular nature cannot be termed as a violation of Article 19(2), it comes into play only when it leads to the incitement that Article 19(2) kicks in[21]. It highlighted the importance of dissent and public discourse in the functioning of a robust democracy.

Romesh Thappar’s precedent intensifies the protection of free expression rights while also highlighting how critical their safeguarding is for spaces that encourage healthy dialogue.

[1] Reporters Without Borders, ‘World Press Freedom Index 2023′[2023] <https://rsf.org/en/country/india> accessed 28 June 2023.

[2]   Romesh Thappar vs The State of Madras, (1950) AIR 124.

[3] Id.

[4] (1934) ILR56ALL1047.

[5] Urquhart v. Brown, 205 U.S. 179 (1907).

[6] Mooney v. Holohan, 294 US 103 (1935).

[7] The Constitution of India, 1950, Art. 19(1).

[8] The Constitution of India, 1950, Art. 19(2).

[9] The Constitution of India, 1950, Art. 13.

[10] The Constitution of India, 1950, Art. 32.

[11] The Constitution of India, 1950, Art. 226.

[12] The Indian Penal Code, 1860, §124A.

[13] Urquhart (n 5).

[14] Mooney (n 6).

[15] Lovell v. City of Griffin, 303 U.S. 444 (1938).

[16] Romesh (n 2).

[17] Id.

[18] Id.

[19] Niharendu Dutt Majumdar And Ors. vs Emperor, AIR 1939 Cal 703.

[20] King Emperor v. Sadashiv Narayan Bhalerao, (1944) 46 BOMLR 459.

[21]Shreya Singhal v. Union of India, AIR 2015 SC 1523.

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