Romesh Thappar v State of madras

Romesh Thappar v State of madras

Author:- Diksha Tiwari from JIMS Engineering Management Technical Campus of Law 

This case is a legal battle in Indian history which revolves around freedom of speech and expression under Art19(1)(a) . A Journalist who challenged the Madras government ban on his journal “Cross Road ” under sec 9(1-A) of the Madras Maintenance Public Order Act,1949.

Facts of the case

•  The one who made the request was the one who printed,published and edited a journal in English called Cross Road in Bombay.This journal is banned in the former state of Madras under sec9(1-A) of the Madras Maintenance Public Order Act 1949.
• In order to challenge this ban the person filed a legal petition in the supreme court. As they argue that ban violates fundamental rights of expression which is enshrined in Art19 of the Constitution. In this response state argued that they ban the journal in order to maintain Public Order and this is seen as the line with safeguarding state security which is considered a reasonable limit on freedom of expression according to art19(2).

Issue raised 

• Does the order issued by the Madras government violate fundamental rights?
• Is sec9(1-A) of Madras Maintenance Public Order Act 1949 valid under art13(1)  of Constitution considering its potential inconsistency with petitioner fundamental right to freedom of speech and expression?
• Can a petitioner directly approach the SC under Art32 of Constitution for Relief or it is necessary to first approach the HC of the respective state under Art 226?

Petitioner Contention

The petitioner put two argument,

• The Governor of Madras’ order prohibiting entry, publication, and distribution of Cross Roads in the state violated the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. 
•  Section 9(1-A) of The Madras Maintenance of Public Order Act, 1949, was incompatible with Section 13(1) of the Constitution, as it infringed upon the petitioner’s fundamental  right of freedom of speech and expression.

 Respondent  Contention

• The Advocate of Madras, representing the respondent, raised a preliminary objection in this case  regarding the petitioner’s choice to directly approach the SC  under Article 32 of the Constitution, stating that  petitioner initially had to approach the High Court of Madras under Article 226 as a standard procedural step.
• In order to support this contention, the Advocate cited case  examples such as criminal revision petitions under Article 435 of the Criminal Procedure Code, applications for bail and applications for transfer under Section 24 of the Civil Procedure Code, where established practice dictates that a petitioner should initially seek relief from a lower court before approaching a HC.
• Further he made References of the case Emperor v Bisheshwar Prasad Sinha where such practice was employed in a criminal revision case .
• The Advocate  referred to two American cases, Urquhart v. Brown and Hooney v. Kolohan, to highlight that the U.S. SC mandates the exhaustion of all possible remedies in both Federal and State Courts before considering specific remedies, such as habeas corpus or certiorari, in the SC.

Judgment 

•  The court found that the two remedies of going to high court and going to SC are equivalent and petitioner is free to apply either in SC or in high court for the violation of their fundamental rights. 
• The decision regarding legality of the order that prohibited the circulation of the weekly magazine in certain areas of Madras. The court states that freedom of expression and speech includes freedom of expressing view .
• The Court determined that the contested decision blatantly violated Article 19(1)(a) unless the reservation in the Act shielded Section 9(1-A). To assess Section 9’s legitimacy, the Court delved into the historical context of the Madras Maintenance of Public Order Act, tracing its roots to the Government of India Act of 1935 and Constituent Assembly discussions.
• The court finally imposes the doctrine of Severability which removes the law which is intended for changes in legislation  and if not then the challenge portion is declared void.
• The majority declared Section 9(1-A) of the Madras Maintenance of Public Order Act unlawful under Article 13(1), deeming it ultra vires as it conflicted with Fundamental Rights in Part III, employing severability criteria.
• Justice Fazal Ali, in his dissent, argued that preserving peace is crucial for state security, contending that the contested Act imposed reasonable restrictions on freedom of speech and expression.

Significance 

• As this case is binding on all subordinate courts as it is decided by SC.
• It is resolved by a 5 judge bench which is the largest Supreme bench would be required to examine or overturn the decision thanks to 1st Amendment which gives standard change in Art19.
• The 1st Constitutional amendment empowered the state to form any law for the advancement of economic and social backward class.
• Provided for the saving of law providing for the acquisition of estate etc.
• Also added 9th schedule to safeguard land reform and other law for judicial review after addition of Art31,Art31A and 31B.
• It also adds three restrictions on freedom of speech and expression i. e. Public Order,friendly relation with foreign states and incitement to offense. Also made the restriction reasonable and thus justifiable in nature.
• Provide that any trade or business by state is not to ne invalid on the ground of violation of right to trade or business.
• Within art19(2) Public Order now includes as permissible restrictions. 
• It draws distinction on the basis whether such restriction would be reasonable or not.Only speech that threatens the system of the Constitution is prohibited. 
• As in case Shreya Singh v UOI , which made distinction between advocacy and incitement that mere hatred with advocacy does not permit states to prohibit freedom of speech and expression. 

Conclusion

• It set a favorable precedent in terms of safeguarding press freedom and defining proper limits of restrictions on fundamental rights in Part III.
• The Court’s restriction on state intervention in individual rights laid the groundwork for later rulings supporting individuals against state power, enhancing public confidence in the judiciary’s integrity.
• In this reaction the 1st Constitutional amendment passed which added the word Public order as a legal restraint in art19(2) of freedom of speech and expression Act art19(1)(a).