Case name: ROMESH THAPPAR V. THE STATE OF MADRAS

Author :ESHA CHATTERJEE, a Student of Birla Global University

INTRODUCTION

The petitioner, Romesh Thapar, printed and published the Cross Roads journal in Bombay as its editor, publisher, and printer. In the previous state of Madras, it was illegal to circulate, distribute, or disseminate the publication. In compliance with Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949. The journal was banned because the Madras government at the time believed it may jeopardize public safety and order. When the petitioner filed it directly with the Supreme Court, the Madras Advocate-General questioned the system. He contended that the petitioner had to first file with the Madras High Court as required by Article 226. Nonetheless, the Supreme Court felt that Article 32[1] granted it the right to handle this matter right away.

BACKGROUND OF THE CASE

The petitioner, Romesh Thapar, printed and published the Cross Roads journal in Bombay as its editor, publisher, and printer. in line with Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949[2]. Publication, distribution, and diffusion of the journal were all forbidden in the former state of Madras. The Fort St. George Gazette published an article about the order, which contended that the state’s “public safety” justification for the restriction was unduly expansive. 

In reaction to the ban, the petitioner filed a writ appeal with the Supreme Court, claiming that the Act’s limitations on free expression were unconstitutional under Article 19 of the Indian Constitution. As a result, it was decided that the respondent State’s primary goal in imposing the restriction was to uphold law and order. This could be contrasted to the security of the State, which is recognized under Article 19 as a legitimate limitation on the right to free expression.

ISSUES FRAMED

1. Is the petitioner’s right to freedom of speech and expression—a right guaranteed by Article 19(1)(a) of the Constitution—violated by Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, or does it fall under Article 19(2)’s reservation?

2. Because Section 9(1-A) of the Act infringes upon his fundamental rights and is consequently beyond its jurisdiction, is it unconstitutional under Article 13(1) of the Constitution?

ARGUMENTS ON BEHALF OF PETITIONER

The petitioner contends that Article 19(1)(a) of the Constitution, which guarantees him the freedom of speech and expression, is violated by the aforementioned order. In addition, he argues that because Section 9(1-A) of the criticized Act infringes on the previously indicated right, it is unconstitutional under Article 13(1) of the Constitution.

ARGUMENTS ON BEHALF OF RESPONDENT

On behalf of the State of Madras, the Advocate General initially raised a preliminary objection to the petitioner’s request for relief under Article 32 of the Constitution in this matter. He maintained that the petitioner ought to have started by depending on the Madras High Court to exhaust his remedies available under Article 226 of the Constitution. A party must appeal to the lower court before filing an application with the High Court. He drew attention to several US rulings and referenced Emperor v. Bisheswar Prasad Sinha, a criminal revision case in which such a standard of behavior was affirmed.  Urquhart v. Brown and Hooney v. Kolohan serve as examples of how the US Supreme Court has historically mandated that any further federal and state remedies that the petitioner may be entitled to be pursued before seeking relief from the court, whether through habeas corpus or another avenue. Second, following Rex v. Wormwood Scrubbs Prison, the respondents contended that Section 9(1-A) employs the terms “securing the public safety” and “the maintenance of public order” with disparate meanings. Furthermore, it was contended that “public safety” included the province’s security, which is protected by Article 19(2), which lists “security of state” as a legitimate limitation.

DURING TRIAL

The Court, which applied the literal rule of interpretation to read the article, held that the Supreme Court has the power to grant writs in situations where a citizen’s fundamental rights have been violated. The goal of comprehension is to identify the legislative objectives, and the language used for this purpose should be fully trusted. Conversely, textualists believe that the legislative intent at the time the law was established has been included into the regulation itself, therefore there’s no need to go beyond the language.

As a result, it was decided that nothing in the Constitution could imply that a person must give up their claim under Article 226 before bringing their case before the Supreme Court. The court brought that up in reference to the US Constitution. The Advocate General misrepresented foreign cases and statutes in this context since it lacks such a provision.The Federal Court decided that the purpose of eliminating the word “Sedition” from the draft Constitution was justified, and it also concurred that criticism of the government cannot be justified as a justification for restricting press or speech freedom unless it is carried out with the intent to overthrow the government or jeopardize public safety. The Court went on to say that “public safety” means “security or freedom from danger” for the entire population. It was talked about how the term might indicate several things depending on the situation, including reckless driving, reckless navigation, sedition, etc.  This demonstrated that, for instance, driving carelessly puts public safety at risk but does not endanger state security. The Apex Court ruled that Section 9(1-A) was unconstitutional. The Court pointed out that “Security of the State” and “Maintenance of Public Order” are distinct legislative subjects as per Entry 3, List III of the Seventh Schedule of the Indian Constitution.

The Court then agreed that criticism of the government cannot be used as a pretext for restricting freedom of speech, expression, or the press unless it is done with the intent to overthrow the State or endanger public safety. It also noted the rationale behind eliminating the word “Sedition” from the draft Constitution. The Court concluded by referencing the Severability Principle. As a result of its inconsistency with Part III of the Constitution and consequent nullity under Article 13(1) of the Constitution, the majority of the court determined that Section 9(1-A) of the condemned Act was extra vires.

But Justice Fazal Ali also cited Brij Bhuwan v. Anr. V in his dissenting opinion. The State of Delhi said that upholding tranquility and peace was crucial to upholding state security; he claimed that the contested Act was required because public disorder and disruption of public safety may potentially jeopardize state security, just as sedition could.

He also addressed the purpose of the Act, emphasizing that its intent was to address issues that affect the peace and harmony of the community rather than trivial ones. He acknowledged that the executives might apply the law improperly, but this does not mean that the law is unlawful.

CRITICAL ANALYSIS

On behalf of the State of Madras, the Advocate General initially objected to the petitioner’s request for relief under Article 32 of the Constitution in this matter. He argued that the petitioner ought to have gone to the High Court of Madras right away in order to exhaust his remedies under Article 226 of the Constitution. Prior to going to the High Court, a party needs file an appeal with the lower court. He cited certain U.S. decisions, such as Urquhart v. Brownand Hooney v. Kolohan as evidence that the US Supreme Court has generally mandated that any further federal and state remedies that the petitioner may be entitled to be pursued before seeking relief from the court, whether through habeas corpus or another avenue. The speaker cited Emperor v. Bisheswar Prasad Sinha, wherein a norm of conduct was established in a criminal revision case. Second, the respondents argued that Section 9(1-A) uses the terms “securing the public safety” and “the maintenance of public order” with different meanings in light of Rex v. Wormwood Scrubbs Prison. Furthermore, it was claimed that “public safety” indicated the province’s security, which is safeguarded by Article 19(2), which enumerates “security of state” as an acceptable limitation. The right to free speech and expression is one of a society’s essential elements. It is an essential feature that all forms of government must have, otherwise. There could be devastating outcomes from it. There is a belief that the media constitutes the fourth pillar of democracy. A healthy democracy requires the presence of media in a society. It should be remembered, nevertheless, that the media’s very existence will be meaningless if it is not allowed to express itself freely. The Supreme Court offered a very good and valid analogy. This decision strikes the right balance for the Supreme Court.  The disparities between the financial and socio-political domains of the two countries made the court’s decision to not arbitrarily impose an unknown rule untenable. In reaction to this decision, the Parliament changed the Constitution in 1951. As a reasonable limitation on the right to free speech and expression, public order was covered by Section 19(2) of the First Constitutional Amendment Act of 1951. The decision also declared that free and fair political debate is necessary for a democracy-based government to function effectively.

JUDGEMENT

The plea was rejected by Fazal Ali, J., and was accepted 4:1. Justice S. Fazl Ali disapproved of the majority ruling, which was written by Justice M. Patanjali Sartri. The Court decided that unless a law restricting free speech and expression is specifically designed to compromise or overturn the government, it cannot be said to fall under the jurisdiction of Article 19(2) of the Indian Constitution.