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Romesh Thappar v. State of Madras

Supreme Court of India · 26 May 1950 · 6 judges · 1950 AIR 124; 1950 SCR 594

The Court held Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 wholly void under Article 19(2) and quashed the Madras Government's ban on the entry and circulation of the weekly Cross Roads.

Facts

The petitioner was the printer, publisher and editor of Cross Roads, an English weekly printed and published in Bombay. By an order dated 1 March 1950 under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, the Government of Madras, stating that it was necessary for securing public safety and the maintenance of public order, prohibited the entry into, and the circulation, sale or distribution of the journal in, the State of Madras. The petitioner applied directly to the Supreme Court under Article 32, claiming that the order violated his right to freedom of speech and expression under Article 19(1)(a) and that Section 9(1-A) was void under Article 13(1). The Advocate-General of Madras objected that the petitioner should first have approached the High Court under Article 226.

Questions before the Court

  1. Must a petitioner first approach the High Court under Article 226 before seeking relief from the Supreme Court under Article 32?
  2. Does a ban on the entry and circulation of a journal infringe freedom of speech and expression under Article 19(1)(a)?
  3. Is Section 9(1-A), which allowed restrictions for securing public safety or the maintenance of public order, saved by Article 19(2) as it then stood?
  4. If the provision is partly within Article 19(2), can it be upheld to that extent?

What the Court held

  • The preliminary objection failed. Article 32 provides a guaranteed remedy that is itself a fundamental right, and the Court, as protector and guarantor of fundamental rights, cannot refuse to entertain such petitions because the High Court was not approached first.
  • Freedom of speech and expression includes freedom of propagation of ideas, which is ensured by freedom of circulation. The ban on the journal therefore violated Article 19(1)(a) unless saved by Article 19(2).
  • Unless a law restricting free speech is directed solely against undermining the security of the State or its overthrow, it is not saved by Article 19(2). 'Public order' is wider, and Section 9(1-A), framed for securing public safety or maintaining public order, was void.
  • A law worded widely enough to authorise restrictions both within and beyond constitutional limits cannot be upheld even in part, since it is not severable. Section 9(1-A) was wholly void and the order banning the journal was quashed.

Why it matters

The judgment holds that a petitioner may come directly to the Supreme Court under Article 32 without first approaching the High Court, and that freedom of speech under Article 19(1)(a) includes freedom of circulation. It reads the original Article 19(2) narrowly, allowing restrictions on speech only for matters undermining the security of the State or tending to overthrow it, and holds that a provision capable of unconstitutional application and not severable is void as a whole.

In the Court's words

Copied from the official judgment; each passage links to its page.

“Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part 1II. This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights.”
Patanjali Sastri, J.Page 4 of the judgment
“Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.”
Patanjali Sastri, J.Page 7 of the judgment
“It follows that section 9 (1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional.”
Patanjali Sastri, J.Page 7 of the judgment
“Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void.”
Patanjali Sastri, J.Page 7 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Romesh Thappar v. The State of Madras
Case
Petition No. XVI of 1950 (Original Jurisdiction)
Decided
26 May 1950
Bench
Kania, Hiralal J. (CJ), Fazal Ali, Saiyid, Sastri, M. Patanjali, Mahajan, Mehr Chand, Das, Sudhi Ranjan, Mukherjea, B.K.
Opinions
Majority 5:1. Judgment of Kania, CJ, Mehr Chand Mahajan, Mukherjea and Das, JJ. delivered by Patanjali Sastri, J.; Fazl Ali, J. dissented and would have dismissed the petition.

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