Romesh Thapper vs State of Madras

Title: Romesh Thapper vs. State of Madras

Citation: 1950 AIR 124

Court: Supreme Court of India 

Judges:

Chief Justice Harilal Kania

Justice Saiyid Fazl Ali

Justice Patanjali Sastri

Justice Mehr Chand Mahajan

Justice B.K Mukherjea

Justice Sudhi Ranjan Das

Bench Type: Divisional Bench

Date of Judgement: 26 May, 1950

Parties Involved:

Petitioner – Romesh Thappar is the well known communist printer, publisher and editor of a weekly journal called “Cross Roads” printed and published in Bombay. He was very skeptical of the policies of the then Prime Minister Pt. Jawaharlal Nehru, especially his foreign policy.

Respondent – State of Madras imposed restrictions on selling and display of the “Cross Roads” weekly magazine under the Madras Maintenance of Public Order Act, 1949. This is to highlight the balance between individuals rights and state interest, particularly in a nascent democratic India. 

Facts of the Case:

The petitioner wrote some skeptical pieces of journals for his english weekly magazine “Crossroads” about then PM , while he was writing these articles, communalism was getting big in in some parts of Madras. The government worried that his articles would just fuel the communist fire. So, in month of March 1950, the Madras government banned the magazine for its sale or distribution in those areas under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, which let them block journals to keep the peace. Upset by this, the petitioner went to the Supreme Court and argued the ban stomped on his fundamental right, right to freedom of speech and expression under Article 19(1)(a) of Constitution of India.

Issues Raised:

1. Whether Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 being inconsistent with the fundamental rights is void under Article 13(1) and Article 19(1)(a) of the Constitution of India?
2. Whether the petitioner can directly approaching the Supreme Court of India under Article 32 of the Indian Constitution for relief was valid or was it required to approach the High Court first under Articles 226 of the Indian Constitution?
3. Whether the order under Section 9(1-A) of the Madras Maintenance of Public Order Act was in violation of Article 19(1) (a) of the Constitution or did it fall within the restrictions provided in Article 19(2)?

Arguments of the Parties:

• Petitioner’s Contentions – 

1. The petitioner argued in Supreme Court of India, that ban by the madras government on the weekly journal “Cross Roads” is a violation of its fundamental right of freedom of speech and expression which is conferred upon him by Article 19(1)(a) of the constitution of India.
2. He also contended that under Article 13(1) of the constitution of India, Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 is void and he challenged the said Act for the reason that it was inconsistent with the fundamental rights granted to him by Indian Constitution. 

• Respondent’s Contentions – 

1. The Advocate-General of Madras argued that the petitioner has wrongly resorted to the Supreme Court directly for the relief sought. He should have first sought relief from the High Court under Article 226 before approaching the Supreme Court under Article 32 which is against the procedural norms.
2. The respondent further contended that the ban on the magazine was justified to preserve public order and safety under Article 19(2) of the Constitution of India, as the publication allegedly posed a threat to national security and the stability of the government.

Relevant Case Law:

In the case of Brij Bhushan vs. State of Delhi (1950), Justice Fazl Ali quoted that sedition, according to Sir James Stefan, is an offence against public tranquility and it is considered a cause of concern for the security of the state, but public safety and disturbances are not. The argument that a small riot or affray would not compromise the security of the state is met with two responses: firstly, the Act, as stated in its Preamble, is designated for disorders including menace to the peace and tranquility of the province, and secondly, there are different levels of gravity associated with the offence of sedition. While a single, insignificant piece of writing that is mildly seditious may not, in the opinion of the general public, compromise state security, it doesn’t alter the legislation that aims to prevent sedition.

Judgement:

• With reference to approaching the High Court first, the Court held that these two remedies, to approach to the High Court and approach to the Supreme Court are analogues in nature. The petitioner can approach straight to the Supreme Court to defend his fundamental rights without approaching to the High Court first.
• While ruling the validity of the impugned order of banning the entry and circulation of the magazine in Madras, the Court held that the freedom of speech and expression includes freedom of propagation of ideas that can only be ensured by circulation.
• The Court decided that the impugned order violates the Article 19(1)(a) of the Indian Constitution, unless Section 9(1-A) of the Act was protected by Article 19(2) of the Indian Constitution.
• The Court finally invoked the Doctrine of Severability were, they checked if taking out or severing a part of the law would change, what the law was trying to do. If not, then the part of that impugned provision may be declared as invalid.
• After applying the rule of severability to Section 9(1-A) with this impugned Act, the majority held to be void under Article 13(1) of the Constitution and thus ultra vires as it was inconsistent with Part III of the Constitution.
• Justice Fazl Ali however in his dissenting opinion held that maintenance of peace and tranquility was an integral part of maintaining state security, thus contending that the impugned Act imposed reasonable restriction on the freedom of Speech and Expression. He related the judgement of Brij Bhushan and Another vs. State of Delhi (1950) with the present case, as the question revolved around the same matter. He further explained by referring to the preamble that the central issue in this case was whether ‘disorders involving threats to the peace and tranquility of the province’ and affecting ‘public safety’ constituted a threat to the safety of the State. In his view, the answer to these questions is affirmative.

Ratio Decidendi:

• Freedom of Speech and Expression

Its landmark interpretation of Article 19(1)(a) of the Indian Constitution, the Supreme Court underscored that the right to freely speak one’s mind and express oneself isn’t merely a privilege it’s the cornerstone upon which a democratic society is built. This freedom empowers individuals, fosters open dialogue, and holds those in power accountable. The Court made it unequivocally clear that any attempt to restrict this right must fall strictly within the carefully drawn boundaries of Article 19(2). In essence, no vague justifications or broad claims by the State can override this fundamental liberty unless they align precisely with the Constitution’s defined exceptions.

• Limits Defined by Article 19(2)

Back in 1950, when this crucial judgment was delivered, Article 19(2) listed specific situations under which the State could legitimately limit speech such as matters relating to the security of the State, friendly ties with other nations, public decency or morality, contempt of court, defamation, or incitement to commit an offence. It’s important to note that “public order” wasn’t originally part of this list; it was only included later through the First Constitutional Amendment in 1951. The Court took a firm stance: any restriction not rooted in these exact grounds was simply outside the bounds of the Constitution.

• Drawing the Line: ‘Security of the State’ vs. ‘Public Order’

One of the most nuanced aspects of the Court’s ruling was its clear demarcation between two often-conflated concepts: “security of the State” and “public order.” At the time, legislation like the Madras Maintenance of Public Order Act, 1949, gave local governments the authority to restrict speech in the name of “public safety” or “public order.” But the Court saw a problem here. These terms, it held, cast too wide a net much broader than what “security of the State” implied in Article 19(2). Since the Constitution, in its unamended form, didn’t recognize “public order” or “public safety” as valid reasons for curbing speech, any law that did so was found to be unconstitutional.

• The Constitutionality Test

In setting a precedent for how courts should evaluate restrictions on speech, the judgment introduced a critical test: the “proximity” test. According to this principle, a law cannot simply claim that it relates to a constitutional ground for restriction it must have a direct and immediate connection to one of those grounds. Vague fears, speculative risks, or distant possibilities just wouldn’t cut it. In the case at hand, the government tried to justify a speech ban citing “public safety” and maintenance of “public order.” But since those weren’t valid constitutional grounds at the time, the Court struck down the law itself as invalid.

• Courts as Constitutional Guardians

Lastly, the ruling firmly reaffirmed the judiciary’s role as the guardian of fundamental rights. It declared that no law, and no executive decision, could be allowed to infringe upon constitutional freedoms unless it passed the test of judicial scrutiny. Just because the State says a restriction is in the “public interest” doesn’t make it so. The courts, not the government, would have the final word on whether such a restriction respects the constitutional framework especially the strict conditions of Article 19(2).

Conclusion:

The Court said the ban on “Cross Roads” magazine broke Article 19(1)(a) and also ruled Section 9(1-A) of the Madras Maintenance of Public Order Act was unconstitutional under Article 13(1). This case showed why it’s so important to protect free speech and other key democratic values. Also, it set a standard for courts to check when the government does things that might limit basic rights. As this ruling happened early on just after independence, when India’s constitution was pretty new but the reasons behind it were a good example of how to protect the press and set limits on how much the government can restrict basic rights. By limiting the government’s power to mess with individual rights, the court helped create other rulings that defended people against the government and this really helped people trust the honesty of the judiciary system. Reacting to this judgment, the Parliament amended the Constitution in 1951 and introduced 1st Constitutional Amendment Act, 1951 added ‘Public Order’ as a reasonable restriction under 19(2) on the Freedom of Speech and Expression 19(1)(a).