Romesh Thappar V. The State of Madras: case comment

Romesh Thappar V.  The State of Madras: case comment.

Bench: Fazal Ali, Saiyid Kania, Hiralal J Sastri, M. Patanjali Mahajan, Mehar Chand Das, Sudhi Ranjan Mukhreja, B.k

Petitioner/appellant: Romesh Thappar

Respondent: State of Madras

Date of Judgment: 26/05/1950

Facts: The Editor(petitioner) is a printer, publisher, and editor of a recently started weekly journal in English called “CROSSROADS” printed and published in Bombay. The Government of Madras, the respondents herein, in the exercise of their powers under section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 (hereinafter referred to as the impugned Act) purported to issue an order dated 1st March 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State. The order was published in the Fort st. George gazette and the notification ran 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.”

The petitioner claimed that the impugned order contravenes the fundamental rights of the petitioner to freedom of speech and expression conferred on him by Article 19(1)(a) of the constitution and the challenges the validity of Section 9(1-A) of the impugned act as being void under Article 13(1) of the constitution because of it being inconsistent with his fundamental right as aforesaid.

The advocate-general of madras, appearing on the behalf of respondents raised a preliminary objection, not indeed to the jurisdiction of the Supreme court to entertain the application under Article 32, But to the petitioner resorting to this court directly without resorting to any other remedy. He contended that as a matter of orderly procedure, the petitioner should first resort to the High Court at Madras which under Article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited various provisions of the law such as section 435 of C.R.P.C. He also referred to American decision Urquhart v. Brown and Hooney v. Kolohan as showing that the Supreme Court of the United States ordinarily required that whatever judicial remedies remained open to the applicant in Federal and State Courts should be exhausted before the remedy in the Supreme Court.

Issues raised

1. Whether the petitioner is allowed to file a writ petition directly in the supreme court without having resort to other legal mechanisms present at the disposal of the petitioner?
2. Whether terms such as ‘public order’, ‘Public safety’ etc have such a wide connotation to cover curtailment on media also?
3. Whether there was a violation of the fundamental right of the petitioner by the government under Article 19(1)(a) of the constitution?

Judgment

With regard to the first issue, Court held that neither the instances mentioned by the learned Advocate General nor the American decisions referred to by him are analogous to the remedy afforded by Article 32 of the Indian Constitution. Article 32 provides a ‘Guaranteed’ remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by including it in part III of the constitution. Thus the court is constituted as a guarantor and protector of fundamental rights, and it can not, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringement of fundamental rights. No similar provision is found in the constitution of the US.

With regard to the third issue, the court reiterated that there can be no doubt the freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by freedom of circulation. It is therefore clear that order of the government of madras would be a violation of the petitioner’s fundamental right under Article 19(1)(a) of the constitution unless Section 9(1-A) of the impugned act under which it was made is saved by the reservation mentioned in clause (2) of Article 19.

Finally, with regard to the third issue, court propounded that  The impugned Act was passed by the Provincial Legislature in the exercise of the power conferred upon it by section 100 of the Government of India Act,1935, read with Entry 1 of List II of the Seventh Schedule to that Act, which comprises among other matters, “public order.” Now “public order” is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the government which they have established. Although section 9 (I-A) refers to “securing the public safety” and “the maintenance of public order” as distinct purposes, it must be taken that “public safety” is used as a part of the wider concept of public order, for, if public safety were intended to signify any ‘matter distinct from and outside the content of the expression “public order,” it would not have been competent for the Madras Legislature to enact the provision so far as it relates to public safety. This indeed was not disputed on behalf of the respondents. But it was urged that the expression “public safety” in the impugned Act, which is a statute relating to law and order, means the security of the Province, and, therefore,’ ‘the security of the State” with the meaning of Article 19(2) as “the State” has been defined in Article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces.

The application was allowed and the order of the respondents prohibiting entry and circulation of petitioner’s Journal was quashed.

Comments

“I do not agree with a word you say, but I will defend till death your right to say it”

• Voltaire

“If freedom of speech is taken then dumb and silent we may be led, like sheep to the slaughter”

• George Washington

Freedom of speech and expression is one of the basic essences of a healthy society. Be it any form of government, it is required attribute which should be present in it, otherwise, it may lead to catastrophic results. Media in present times considered to be the fourth pillar of democracy. One can not imagine a healthy democracy without the existence of media in society. But it may be noted that mere mute presence of media will serve no purpose if it is not granted freedom of speech and expression. In the case of Romesh thappar v. state of madras, the petitioner was a publisher of a recently started weekly magazine named ‘Crossroads”. Respondents i.e state of madras stopped the publication and entry of the magazine of the petitioner in its state by virtue of section 9(1A) of the Madras Maintainance of Public Order Act,1949. The petitioner contended that the act of sate of madras was violative of his freedom of speech and expression as envisaged by Article 19(1)(a) of the constitution of India. It was his Fundamental right so he availed a remedy under article 32. But the Respondent contended that the Petitioner should not have knocked on the door of the supreme court without having resort to other remedies under article 226 of the constitution. While the court held that the petitioners’ right of freedom and expression was violated by the respondent and petitioner has every right to approach the supreme court as the article is a guaranteed right provided to the citizens of the country.

This case came in light when India was newly independent and the constitution was freshly adopted. So it was a whole new experience for everybody in the country. Taste of freedom was a new experience for the citizens of the country. Interpretation of various laws in light of the constitution was a task which supreme court as a guarantor and caretaker of the constitution has to look after. This case is one that set a guiding policy for the freedom of the press in the upcoming era.

So the court’s decision in this context can be termed to be an appropriate step that changed the fate of the press forever. The supreme court rightly interpreted the constitution of India in line with the freedom granted in the international plane to the press. Supreme court by this decision put a brake on the unfettered use of power by the state. The reasoning and analogy provided by the supreme court were sound and perfect. The supreme court strikes a perfect balance while delivering this judgment. The court’s decision not to blindly follow foreign law was analyzed to be good, due to the difference in socio-economic and political spheres of both countries, not following the American law was an apt decision.

By deciding in favour of the petitioner and protecting his fundamental rights led to the increase in faith of the common man on the judiciary as a protector and messiah.