Author: Kushal Pathak.
AIR 1950 SC 124.
NAMES OF PARTIES
Appellant: Romesh Thappar;
Respondent: State of Madras.
Justice Harilal Kania;
Justice Saiyid Fazl Ali;
Justice M. Patanjali Sastri;
Justice Mehr Chand Mahajan;
Justice B.K. Mukherjea; and
Justice Sudhi Ranjan Das.
When talks about the essential elements for a healthy democracy are mentioned “Freedom of the Press” is what comes to mind. This right is not constrained to just newspapers but to every medium by which information is communicated. The freedom of the press in one of the most celebrated rights in a democratic setup as it is this right due to which the press can provide vital information needed to be circulated to the common people, as well as the shortcomings of the government. The first case with regards to the rights of a free press was the case of “Romesh Thapar v. State of Madras”, decided on May 26, 1950.
In the present case, Mr. Romesh Thappar is the petitioner. He was the editor, printer as well as the publisher of an English weekly journal named “Cross Roads”. This journal was printed and published in the state of Bombay.
The issue started when Mr. Romesh Thappar expanded his work and began to circulate the journal in the State of Madras. The Government of Madras, in the exercise of its powers under the Section 9(1-A) of the “Madras Maintenance of Public Order Act, 1949”, issues an order on 1st of March, 1950. Using their power under the said section of the act stated above, they imposed a ban on the circulation and entry of the journal in the state. The reason given by the government was such that it was necessary for the objective of securing the public safety and the maintenance of public order.
Aggrieved by the order of the government, Mr. Thappar approved the court and claimed that this order goes against his fundamental right of “Freedom of Speech and Expression” that has been conferred to all the citizens of Indian under the Article 19(1)(a) of the Constitution of India. He also challenged the validity of the said section of the “Madras Maintenance of Public Order act” under which the order was passed, as being void under the Article 13(1) of the Constitution of India, which states that any such law which is in violation of fundamental rights is void ab initio.
The primary issues involved in the present case are given below:
- Whether the petitioner has the right to directly approach the Supreme Court of India under the article 32 of the Constitution of India without approaching the respective High Court first under the article 226 of the Constitution?
- Whether the order of the Government of Madras under section 9(1-A) of the Madras Maintenance of Public Order Act 1949 acts contrary to the fundamental right of the petitioner to the freedom of speech and expression that has been inherently provided to him as the citizen of India under the Article 19(1)(a) of the Constitution or does the act fall within the restrictions to the right stated above, under the article 19(2) of the Constitution?
- Whether the section 9(1-A) of the Madras Maintenance of Public Order act 1949 is void under the Article 13(1) of the Constitution of India, which declares any such law that is inconsistent with the Part III of the constitution i.e., fundamental rights, since it violated the petitioner’s fundamental right of freedom of speech and expression?
Issue 1: Whether the petitioner has the right to directly approach the Supreme Court of India under the article 32 of the Constitution of India without approaching the respective High Court first under the article 226 of the Constitution?
The Advocate General of Madras, who was appearing on the behalf of the respondent, raised an objection to the petition directly resorting to the Supreme Court of India for relief. As per the advocate general, the petitioner did not follow the orderly procedure that should be to approach the High court of Madras first.
In the advancement of his arguments, he cited criminal revision petitions under the Section 435 of the Criminal Procedure Code and applications for bails and that for transfer, that have been filed under the Section 24 of the Code of Civil procedure. He also referred to Emperor v. Bisheswar Prasad Sinha1 where such a rule of practice was enforced in a criminal revision case. He used them as examples of concurrent jurisdiction having been given to the high court and lower court in certain matters. Such examples established the rule of practice that a party should approach the High court first, before approaching the Supreme Court.
The court found that Article 32 offers a “guaranteed” remedy for the enforcement of those rights, and that including this remedial right in Part III elevates it to the status of a fundamental right. In this matter, the petitioner has two options: seek the High Court under Article 226 or the Supreme Court under Article 32. It can be seen that the two therapies are similar in nature. As a result, the petitioner is not required to first approach the High Court before proceeding to the Hon’ble Supreme Court. The court so held that, in the context of basic rights enforcement, the petitioner has the right to approach the Supreme Court immediately and that there is no hierarchy to be followed.
Issue 2: Whether the order of the Government of Madras under section 9(1-A) of the Madras Maintenance of Public Order Act 1949 acts contrary to the fundamental right of the petitioner to the freedom of speech and expression that has been inherently provided to him as the citizen of India under the Article 19(1)(a) of the Constitution or does the act fall within the restrictions to the right stated above, under the article 19(2) of the Constitution
The term “public safety” in the contested Act, which is a law-and-order statute, was argued to refer to the security of the province, and thus “the security of the State” with the meaning of article 19 (2), because “the State” is defined in article 12 as including, among other things, the Government and the Legislature of each of the former Provinces. The case of Rex v. Wormwood Scrubbs Prison2, which held that the phrase “for securing the public safety and the defence of the realm” in section 1 of the Defence of the Realm (Consolidation) Act, 1914, included protection against internal disorder such as a rebellion, was heavily cited in support of this view.
For the present issue, it was held by the Honorable Court that Anything that aids in the protection of public health could be considered a sort of public safety. The statement’s meaning, however, must alter depending on the situation. Although “ensuring public safety” in the context of a law-and-order statute may not include the protection of public health, it may readily entail protecting the public from irresponsible driving on public roads and the like, rather than the security of the State. It was suggested that an enactment that provided for punitive punishments such as preventive arrest and publication bans should be applied to situations harming the state’s security rather than minor offences such as reckless driving or affray.
The court further said that, in the absence of such words in the statute itself, which limit the applicability of the particular provision, its applicability and scope can’t be limited to the aggravated forms of prejudicial activity that is carried out to endanger the security of the state. The objectives and the ends that the said act was intended to serve and the goals that the framers had in mind, would not affect the applicability of such limitations. There is also no guarantee that those authorized to carry out the powers will distinguish between those who act detrimentally to the security of the state and those who do not. Disruption of public calm or tranquility can have such catastrophic consequences that the state’s security is jeopardized.
Issue 3: Whether the section 9(1-A) of the Madras Maintenance of Public Order act 1949 is void under the Article 13(1) of the Constitution of India, which declares any such law that is inconsistent with the Part III of the constitution i.e., fundamental rights, since it violated the petitioner’s fundamental right of freedom of speech and expression
Under this particular issue, it was argued by the Advocate general of Madras, that the section 9(1-A) of the “Madras maintenance of public Order act” can’t be declared completely void. He stated that under the article 13(1) of the Constitution of India, an existing law that is inconsistent with a fundamental right is void only to the extent of the inconsistency and not more. This is based on the doctrine of severability, which states that where the inconsistent part of the legislation can be differentiated from the valid part, they must be seen separately and only the inconsistent part should be declared void.
In furtherance of the argument, the advocate general stated that the securing of public safety or the maintenance of public order are covered under “security of the state.” The impugned provision about the security of the state as applied to maintenance of public order, was covered under the clause (2) of the Article 19, which states the exceptions to the freedom of speech and expression and hence, was to be held valid and could not be declared void since it is differentiable from the rest of the provision.
In this particular issue, the court held that in defining the various criteria for determining the ‘reasonable’ legislations imposing restrictions on the fundamental right to freedom of speech and expression, as given in the article 19(1) of the Constitution, there is a difference between the offences that are against public order and those that aim at overthrowing the state. As per the court, they are the sole basis for the legislative restrictions on the freedom of speech and expression. As per the court, the constitution requires that a line must be drawn in the field of ‘public order’ and tranquility so as to roughly mark off the boundary between serious and aggravated forms of public disorder. Further, such disorders should be able to endanger the security of the state. However, relatively minor breaches of peace that are limited to the local limits are not to be treated the same as that of national significance and hence, there should be a difference in the treatment of breaches.
In the furtherance of its statement, the court also opined that the removal of the word “sedition” from the draft Article 13 itself demonstrated that such acts that criticize the government and cause disaffection or bad feelings toward it is not a justification for imposing restrictions on freedom of speech and expression for the press. Such restrictions may only be imposed if they undermine the security of the state or may cause overthrowing of the government. Hence, section 9(1-A) of the act, which gives the authority to the government of Madras to impose such constraints with the goals of preserving public safety or maintaining public order, is defective and illegal since it falls outside the scope of the restrictions on the right to freedom of speech and expression that have been discussed under Article 19(2). Hence, the section is unconstitutional and invalid as long as it is not authorized to do so under the Constitution of India.
Justice Fazl delivered the dissenting judgement with respect to the present case and concluded that keeping peace and tranquility was part of ensuring the state’s security. As a result, he disagreed with the majority view, claiming that the Act imposed reasonable restrictions on freedom of expression and must be upheld as legal.
The case of Romesh Thappar v. State of Madras is a landmark judgement in the Indian judiciary when it comes to fundamental rights and the restrictions that are to be imposed on them. In order to understand the impact of the verdict, it must be remembered that at the time of its delivery, the post-independent India was still in its early stage. The logic underlying this decision established a solid point of reference for both preserving press freedom and determining the number of reasonable constraints on the fundamental rights that are guaranteed in the Part III of the constitution. The court is constituted as a guarantee and guardian of fundamental rights and it cannot properly discharge its responsibility by declining to hear applications seeking insurance against infringement of fundamental rights. By limiting the state’s ability to interfere with individual rights, the court set the way for additional judgements that championed the individual against the state, causing huge confidence among the majority in the higher levels of honesty within the government’s judicial branch.
In response to the judgement of the present case, the Parliament of India amended the Constitution through the first constitutional amendment in 1951. The amendment introduced ‘Public order’ as a reasonable restraint on the Freedom of Speech and Expression under the Article 19(1)(a) of the constitution. The amendment to the Article was proposed by the interim government by the then-Prime Minister of India, Mr. Jawaharlal Nehru. The amendment limited the right to freedom of speech and expression on the three grounds: a) Public order; b) Incitement to an offence and c) friendly ties with foreign state.
However, the amendment also attracted some criticism from the other members of the parliament. The criticism was based on the view that the amendment limited individual liberties and had laid down the groundwork for arbitrary state action which restricted free expression in the modern India. The limitations were defended as being a logical solution to the political circumstances that prevailed at the time. The members who opposed the amendment questioned the moral and legal propriety of amending the constitution by a non-elected body and that too, so soon after it was discussed, framed and implemented. To such oppositions, Prime Minister Jawaharlal Nehru answered by claiming that the provisional parliament that was enacted at the time had a moral authority to modify the constitution because the members that were part of the provisional parliament were also a part of the Constituent Assembly. Hence, they had the inherent right to review the constitution as they had an upper hand considering the insights into the vision of the constitution makers.
It was further stated by Prime Minister Nehru that the parliament hereby constituted reflected the desire of the people and that the interim government formed at the time was acting on the behalf of the future generations of the Indians. It may be seen that while Prime Minister Nehru framed the argument for the amendment to the freedom of speech under the first constitutional amendment as trusting the parliament as a legitimate voice of the people, it was still challenged by the Members of parliament as the interim government not trusting the wisdom of the people to navigate contemporary political situation and using the constitution as a tool for making the task easier for the government rather than the legal legitimacy.
One of the pillars of every civilization is freedom of expression. It is a necessary feature that should be present in every sort of governance. It might have disastrous consequences. The media are regarded as the fourth pillar of democracy. A functioning democracy requires the presence of media in a society. However, it should be noted that the mere presence of media will serve no purpose if it is denied the freedom to freely express itself through conversation and speech.
It may be hereby concluded that the comparison by the Supreme Court was valid and excellent. The Hon’ble Court strike the perfect balance in the delivery of this judgment. The judgement refused to rely on the American laws as an appropriate precedent for the judgement and made the decision to not aimlessly adhere to the unfamiliar law that was not equally applicable to the country of India, which is evidently different from the United States in the context of the financial and socio-political circles of the two nations. Hence, the Court made a sound and appreciable decision in the present case, which allowed the perfect balance in the rights as well as duties of the citizens of India, allowing them their liberty but also putting unreasonable restrictions in order to protect the interest of the nation collectively.
In conclusion, the present case is a landmark judgement with respect to the fundamental right of freedom of speech and expression guaranteed under the Constitution of India. This case has overturned the way that the legal fraternity see Article 19 of the Constitution. Since this judgement was determined by a 5-judge bench, a bigger Supreme Court bench would be required to consider or overturn this ruling, and hence, as long as no such bench is formed, it serves as a binding precedent. As a result of this case, the wordings of the Article 19 were modified in the First amendment and “public order” has now been included as a permissible limitation to the said article. However, as also stated in the judgement, “public order” and “public safety” are two different concepts and the later cannot be included in the definition of public order.
The decision is landmark in the sense that it differentiated between ‘reasonable’ and ‘unreasonable’ limitations imposed on the fundamental rights of the citizens of India. As per the standards laid down in the present case, ‘reasonable’ limits to the implementation of Article 19 only constitute such speeches that pose a significant danger to the system of governance. Hence, only such speeches as stated above can be prohibited. Shreya Singhal v. Union of India3 upheld and extended on this criterion. In the given judgement, the Court drew a line of distinction between “advocacy” and “incitement” to conclude that mere advocacy of hatred does not constitute the limitations imposed and does not allow the state to limit the freedom of speech and expression.
- Emperor v. Bisheswar Prasad Sinha ILR 56 All 158.[↩]
- R v. Wormwood Scrubs Prison Board of Visitors, ex parte Anderson 1984 (1) ALL E.R 799.[↩]
- Shreya Singhal v. Union of India (2013) 12 S.C.C. 73.[↩]
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