Romesh Thappar vs The State Of Madras

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. XVI of 1950

Decision Date: 26 May, 1950

Coram: Saiyid Fazal Ali, Hiralal J. Kania, Mehr Chand Mahajan, B.K. Mukherjea, Patanjali Sastri, Das

In this case, the Supreme Court of India delivered its judgment on 26 May 1950 concerning the petition filed by Romesh Thappar against the State of Madras. The judgment was pronounced by a bench that included Justices Saiyid Fazal Ali, Hiralal J. Kania, Mehr Chand Mahajan, B. K. Mukherjea and other members listed in the report. The decision is reported in the official law reports as 1950 AIR 124 and 1950 SCR 594 and appears with numerous citations, including F 1950 SC 129, R 1951 SC 270, E 1951 SC 318, D 1952 SC 75, E 1952 SC 329, R 1953 SC 252, RF 1953 SC 384, RF 1957 SC 620, RF 1957 SC 628, E&D 1957 SC 896, RF 1958 SC 578, F 1959 SC 395, R 1959 SC 725, R 1960 SC 633, RF 1961 SC 1457, RF 1962 SC 171, R 1962 SC 305, R 1962 SC 955, R 1962 SC 1621, R 1963 SC 996, MV 1966 SC 740, RF 1967 SC 1110, RF 1967 SC 1643, D 1969 SC 903, D 1970 SC 1923, F 1971 SC 2486, R 1973 SC 106, RF 1973 SC 1461, RF 1974 SC 1389, RF 1977 SC 908, R 1978 SC 597, RF 1980 SC 494, RF 1986 SC 515, R 1986 SC 872, RF 1989 SC 190, and it concerned the Constitution of India, article 19(1)(a) and (2), and a petition filed under article 32. The Court addressed a preliminary objection and held that, under the Constitution, the Supreme Court is the protector and guarantor of fundamental rights and therefore cannot refuse to entertain applications seeking protection of those rights, even when a High Court with concurrent jurisdiction exists. The Court distinguished the United States cases Urquhart v. Brown and Hooney v. Kolohan. It further declared that freedom of speech and expression includes the freedom to propagate ideas and that this freedom is ensured by the freedom of circulation, referring to Ex parte Jackson and Lovell v. City of Griffin. Justice Fazal Ali delivered a dissenting opinion, stating that, except for libel, slander and similar offences, a law restricting freedom of speech must be directed solely at undermining the security of the State or its overthrow to fall within the reservation of article 19(2). Consequently, Section 9(1-A) of the Madras Maintenance of Public Order Act, which authorises restrictions for public safety and order, lies outside the permissible limits and is therefore void and unconstitutional. Justice Ali further explained that a law whose language is so broad that it can be applied beyond constitutional limits cannot be severed and must be held wholly unconstitutional; thus Section 9(1-A) is entirely void.

In this case the Court held that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, which empowers the State to impose restrictions for the broader purpose of securing public safety or maintaining public order, lies beyond the range of permissible restrictions enumerated in clause (2) of Article 19 of the Constitution. Consequently, the provision was declared void and unconstitutional. The Court further explained that when a statute is framed in language that is sufficiently broad to authorize both permissible and impermissible restrictions on a fundamental right, the statute cannot be upheld even to the extent that it might be applied within constitutional limits because it is not severable. As long as there exists any possibility that the law could be employed for purposes not sanctioned by the Constitution, the entire provision must be struck down as unconstitutional. The judgement therefore concluded that Section 9(1-A) is wholly invalid. In dissent, Justice Fazl Ali observed that the restrictions authorized by Section 9(1-A) fall within the scope of clause (2) of Article 19 and consequently he regarded the provision as not unconstitutional or void, referring to the earlier decision in Brij Bhushan and Another v. The State [1950] S.C.R. 605.

The matter was instituted as an original jurisdiction petition numbered XVI of 1950 under Article 32 of the Constitution, seeking a writ of prohibition and certiorari. The petitioner, who was the printer, publisher and editor of a newly launched English-language weekly titled Cross Roads issued from Bombay, challenged an order dated 1 March 1950 issued by the Government of Madras. The order—issued under the authority of Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 (referred to as the impugned Act) and recorded as No. MS. 1333—prohibited the entry, circulation, sale or distribution of the newspaper within the State of Madras. The notice was published in the Fort St. George Gazette and read in full: “In exercise of the powers conferred by section 9(1-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.” Counsel for the petitioner was C.R. Pattabhi Raman, while the respondents were represented by the Advocate-General of Madras, K. Rajah Ayyar, assisted by Ganapathi Ayyar. The judgment was delivered on 26 May 1950 by a bench comprising Chief Justice Kania, Justice Mehr Chand Mahajan, Justice Mukherjea, Justice Das and Justice Patanjali Sastri, with Justice Fazl Ali delivering a separate opinion.

The order issued by the Government of Madras was said to be published at Bombay. The petitioner contended that this order infringed his fundamental right to freedom of speech and expression, a right that the Constitution guarantees under article 19(1)(a). In support of his claim, the petitioner referred to the headnote in Brij Bhushan v. State of Delhi, page 605, and argued that the order violated his constitutional liberty. He further challenged the validity of section 9(1-A) of the impugned Act, asserting that the provision was void under article 13(1) of the Constitution because it was inconsistent with the aforementioned fundamental right.

The Advocate-General of Madras, appearing on behalf of the respondents, raised a preliminary objection. He did not dispute the Supreme Court’s jurisdiction to entertain an application under article 32, but he questioned whether the petitioner was entitled to approach this Court directly for relief. According to the Advocate-General, procedural propriety required the petitioner first to seek redress in the High Court at Madras, which, under article 226 of the Constitution, possesses concurrent jurisdiction over the matter. To illustrate his point, he cited examples such as criminal revision petitions filed under section 435 of the Criminal Procedure Code, bail applications, and transfer applications under section 24 of the Civil Procedure Code. In each of these instances, where both a lower court and a High Court have jurisdiction, the established practice has been that a party must initially approach the lower court before turning to the High Court.

He further referred to the case of Emperor v. Bisheswar Prasad Sinha (1) where such a practice was enforced in a criminal revision context, and he mentioned American decisions—Urquhart v. Brown (2) and Hooney v. Kolohan (3)—to demonstrate that the United States Supreme Court ordinarily required exhaustion of all available remedies in federal and state courts before granting relief such as habeas corpus or certiorari. The Court, however, expressed the view that neither the examples presented by the Advocate-General nor the foreign decisions were analogous to the remedy provided by article 32 of the Indian Constitution. Article 32 does not merely grant this Court a power comparable to that conferred on High Courts by article 226, which authorise the issuance of writs as part of general jurisdiction under articles 131 to 139. Instead, article 32 creates a guaranteed remedial right for the enforcement of fundamental rights, a right that itself is enshrined as a fundamental right within Part III of the Constitution. Consequently, the Supreme Court is designated as the protector and guarantor of fundamental rights and, in accordance with that responsibility, cannot refuse to consider applications that seek protection against infringements of those rights.

The Court observed that the United States Constitution contained no provision comparable to the one under discussion and therefore concluded that the American cases cited by counsel were not applicable to the present question. Turning to the substantive issues, the Court affirmed without doubt that the freedom of speech and expression inherently encompasses the liberty to propagate ideas, and that such liberty is fully realized only when the ideas can be disseminated through circulation. The Court quoted the principle that “liberty of circulation is as essential to that freedom as the liberty of publication” and noted that, without the possibility of circulation, the value of any publication would be greatly diminished, citing the decision in Ex parte Jackson and also referring to the judgment in Love II v. City of Griffin. On the basis of this understanding, the Court held that the order issued by the Government of Madras infringed the petitioner’s fundamental right guaranteed by article 19(1)(a), unless the provision of section 9(1-A) of the impugned Act, which formed the basis of the order, fell within the exceptions enumerated in clause (2) of article 19. The Court clarified that clause (2) preserves the operation of any existing law that relates to matters that undermine the security of, or tend to overthrow, the State, and it expressly excluded from consideration any provisions dealing with libel, slander, or similar subjects that were not relevant to the present case. Consequently, the Court posed the crucial question of whether the impugned Act, insofar as section 9(1-A) authorized the Provincial Government “for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into, or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents,” could be characterised as a “law relating to any matter which undermines the security of or tends to overthrow the State.” The Court explained that the Act had been enacted by the Provincial Legislature under the authority conferred by section 100 of the Government of India Act 1935, read with Entry 1 of List II of the Seventh Schedule, which empowered the Legislature to legislate on matters including “public order.” The Court described “public order” as a term of broad meaning, signifying a condition of tranquility among the members of a political community that results from internal regulations enforced by the government. While section 9(1-A) separately mentioned “securing the public safety” and “the maintenance of public order,” the Court reasoned that “public safety” must be understood as part of the larger concept of public order. The Court reasoned that if “public safety” were intended to denote a matter entirely distinct from “public order,” the Madras Legislature would not have been competent to enact provisions concerning public safety. This interpretation was not contested by the respondents. However, the respondents argued that in the context of the impugned Act, which pertained to law and order, the phrase “public safety” should be interpreted as referring to the security of the Province.

The Court noted that the expression “security of the State” must be understood in the sense given to the term “State” in article 19 (2) of the Constitution, where article 12 defines “State” to include, among other things, the Government and the Legislature of each former Province. The Court referred to the decision in Rex v. Wormwood Scrubbs Prison, where it was held that the wording “for securing the public safety and the defence of the realm” in section 1 of the Defence of the Realm (Consolidation) Act, 1914, was not confined to protection against an external enemy but also covered protection against internal disturbances such as rebellion. The Court observed, however, that this precedent offered little assistance to the respondents because the context in which the words “public safety” appeared in that Act clearly showed that the object was the security of the State. The Court further observed that no definition of the phrase “public safety” had been presented and that the expression had not acquired any specialised technical meaning. In ordinary usage, “public safety” means the security of the public or freedom of the public from danger, and anything that prevents danger to public health may also be described as securing public safety. The Court emphasized that the meaning of the expression varies with context. For example, the Indian Penal Code classifies offences affecting public health, safety, convenience, decency and morals in Chapter XIV, which includes rash driving on a public way (section 279) and rash navigation of a vessel (section 280) as offences against public safety. Chapter VI, by contrast, lists offences against the State such as waging war against the Queen (section 121) and sedition (section 124-A), because those offences are intended to undermine the security of the State. Chapter VIII defines offences against public tranquillity, including unlawful assembly (section 141), rioting (section 146), promoting enmity between classes (section 153-A) and affray (section 159). The Court explained that, in a statute dealing with law and order, “securing public safety” need not include securing public health; it may merely refer to protecting the public from hazards such as rash driving, and does not necessarily imply security of the State. The Court rejected the argument that a law providing drastic measures such as preventive detention and prohibition of newspapers must be interpreted as relating only to matters affecting the security of the State, rather than to minor offences like rash driving or affray. Finally, the Court held that whatever purposes the impugned Act was intended to serve, and whatever objectives its framers may have envisaged, its operation and scope cannot, in the absence of explicit limiting language in the statute, be confined solely to serious prejudicial activities calculated to endanger the security of the State, nor is there any guarantee that the powers conferred by the Act will be exercised only against those who threaten the security of the State.

In this case the Court observed that it could not be assumed that officials who were given authority to act under the Act would automatically distinguish between persons whose conduct was detrimental to the security of the State and persons whose conduct was not. The Court noted that the Government of India Act of 1935 never employed the phrase “security of the State,” although that statute did provide, in section 57, for dealing with violent crimes that were intended to overthrow the Government. The Court further explained that, under that Act, the responsibility for maintaining law and order, including public order, was placed in the hands of a Minister who was elected by the people, while the Governor was given the duty of counter-acting persons who “endangered the peace or tranquillity of the Province” by committing or attempting to commit “crimes of violence intended to overthrow the Government.” In a similar vein, the Court pointed out that article 352 of the Constitution authorises the President to proclaim an Emergency whenever he is satisfied that the “security of India or any part of the territory thereof is threatened by war or by external aggression or by internal disturbance.” Those constitutional provisions, the Court said, recognise that a disturbance of public peace or tranquillity can, in certain circumstances, become so serious that it threatens the security of the State.

The Court then referred to the scholarly observation made by Stephen in his treatise Criminal Law of England, volume II, page 242, where Stephen remarks that unlawful assemblies, riots, insurrections, rebellions and the levying of war are offences that overlap and cannot be separated by perfectly defined boundaries. Stephen adds that all of these offences share one common feature: the normal tranquillity of a civilized society is disturbed either by actual force or at least by the display and threat of force. The Court accepted that while each of these offences involves a disturbance of public tranquillity and, in theory, constitutes an offence against public order, the distinctions among them are merely matters of degree. For the purpose of determining the appropriate penalty, the law may therefore classify them into different minor categories, as the Indian Penal Code does.

Continuing its analysis, the Court observed that the Constitution, when setting out the varying criteria for permissible legislation that may restrict the fundamental rights listed in article 19(1), creates a separate category for those offences against public order that are intended to undermine the security of the State or to overthrow it. The Court explained that the prevention of such offences is the sole justification for legislatively limiting freedom of speech and expression; in other words, only conduct that endangers the foundations of the State or threatens its overthrow can justify curtailment of those freedoms. By contrast, the rights to peaceable assembly (sub-clause (b)) and to association (sub-clause (c)) may be restricted under clauses (3) and (4) of article 19 in the interest of “public order,” a term that, in those clauses, also embraces the security of the State. The Court further noted that this differentiation is reflected in Entry 3 of List III (the Concurrent List) of the Seventh Schedule of the Constitution, which expressly mentions both “security of a State” and “maintenance of public order.”

The Constitution treated the matters of public order and tranquillity as distinct subjects of legislation, and therefore required a clear demarcation between the more serious, aggravated forms of public disorder that threaten the security of the State and the comparatively minor, locally-situated breaches of the peace. In drawing this line, the Constitution treated differences in the degree of disturbance as if they represented differences in kind. It is also noteworthy that the term “sedition,” which originally appeared in article 13(2) of the Draft Constitution prepared by the Drafting Committee, was omitted before the final version was enacted as article 19(2). In this regard, it may be recalled that the Federal Court, in Niharendu Dutt Majumdar v. the King Emperor, had defined sedition to require that “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.” However, the Privy Council subsequently overruled that decision (see [1942] F.C.R. 38) and reaffirmed the view expressed in Tilak’s case, namely that “the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small” (King Emperor v. Sada shiva Narayan Bhalerao). The deletion of the word “sedition” from the draft article 13(2) therefore indicates that mere criticism of the Government, or the evocation of disaffection or bad feelings towards it, does not justify curtailing the freedom of expression or of the press unless such criticism is intended to undermine the security of the State or to promote its overthrow. It is also significant that the comparable Irish provision, which described an offence as “undermining the public order or the authority of the State” in article 40(6)(i) of the Constitution of Eire (1937), was not adopted by the framers of the Indian Constitution. Consequently, the Constitution placed very narrow and stringent limits on any permissible legislative restriction of the right to free speech and expression. This restrictive approach was evidently motivated by the recognition that freedom of speech and of the press form the foundation of all democratic institutions, for without free political discussion there can be no public education, which is essential for the proper functioning of popular government. While such a broad freedom inevitably carries the risk of abuse, the framers appear to have been influenced by the view of Madison, described as “the leading spirit in the preparation of the First Amendment of the Federal Constitution,” who claimed that “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits” (quoted in Near v. Minnesota). Accordingly, the Court held that unless a law restricting freedom of speech and expression is aimed solely at undermining the security of the State or its overthrow, it cannot fall within the permissible restrictions provided for under article 19(2).

In the present case, the Court observed that a law directed solely at undermining the security of the State or its overthrow could not be placed within the reservation provided by clause 2 of article 19, even though the restrictions it sought to impose might have been conceived broadly in the interests of public order. The Court then noted that section 9(1-A), which authorized the imposition of restrictions for the wider purpose of securing public safety or maintaining public order, fell outside the scope of authorised restrictions under clause 2 and therefore was void and unconstitutional.

The Court acknowledged an argument advanced by the respondents that section 9(1-A) should not be deemed wholly void because, under article 13(1), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency. It was contended that if the securing of public safety or the maintenance of public order included the security of the State, the impugned provision, when applied to that latter purpose, would be covered by clause 2 of article 19 and should be held valid. The Court could not accept this contention.

The Court explained that where a statute purports to authorise restrictions on a fundamental right in language so wide that it covers restrictions both within and beyond the limits of constitutionally permissible legislative action, the statute cannot be upheld even to the extent that it might be applied within constitutional limits, because it is not severable. As long as there remains a possibility that the law could be applied for purposes not sanctioned by the Constitution, the statute must be declared wholly unconstitutional and void.

In other words, because clause 2 of article 19 permits restrictions on freedom of speech and expression only in cases where danger to the State is involved, any enactment capable of being applied to situations where no such danger exists cannot be held constitutionally valid to any extent. Accordingly, the Court allowed the application and set aside the order of the respondents that prohibited the entry and circulation of the petitioner’s journal in the State of Madras.

Justice Fazl Ali, referring to reasons given in Brij Bhushan and Another v. The State, which involved the same question, held that the reliefs sought by the petitioner could not be granted. He indicated that the petition would be dismissed, but added observations to supplement his earlier remarks. He noted that the ultimate issue to be decided was whether “disorders involving menace to the peace and tranquillity of the Province” and affecting “public safety” constituted matters that undermine the security of the State.

The Court observed that the words taken in quotation marks from the preamble of the Act clearly disclose its purpose and necessity, and therefore the question presented for consideration – namely the validity of the Act – must be framed in the manner the Court had suggested. The Court held that, if the answer to that question is affirmative, as the Court was inclined to think, then the impugned legislation, which forbids the entry into the State of Madras of “any document or class of documents” for the purpose of securing public safety and preserving public order, would satisfy the conditions laid down in article 19 (2) of the Constitution. The Court noted that the material before it showed a line of argument asserting that a seditious document could lawfully be prohibited because sedition allegedly threatens the security of the State, whereas a document intended merely to disturb public tranquillity or to affect public safety could not be barred because such public disorder was said not to undermine the security of the State. The Court expressed its inability to accept that distinction. Referring to Brij Bhushan and Another v. The State (1), the Court cited authority indicating that the seriousness of sedition derives from its tendency to create disorders, and quoted Sir James Stephen, a noted criminal-law authority, who classed sedition as an offence against public tranquillity. The Court therefore asked how sedition could be said to endanger the security of the State while public disorder and threats to public safety could not be treated alike. The Court rejected the contention that a small riot or an affray does not undermine state security, offering a two-fold response: first, the Act, as its preamble demonstrates, was intended to address not petty disturbances but disorders that menace the peace and tranquillity of the Province; second, the offence of sedition itself contains varying degrees of gravity, and even a mildly seditious piece of writing by an insignificant individual might, from an ordinary perspective, fail to threaten the security of the State, though that would not alter the law’s objective of checking sedition. The Court also dismissed the argument that the statute might be misused by the executive, distinguishing misuse from unconstitutionality and stating that the present enquiry concerned only the latter. Concluding that it had already addressed the subject sufficiently in the related case, the Court decided not to pursue the matter further and allowed the petition. The petitioner's agent was identified as K. J. Kale and the opposite party’s agent as P. A. Mehta.