Romesh Thappar Vs. The State of Madras

Judges: H.J. Kania, C.J., Saiyid Fazl Ali, M. Patanjali Sastri, M.C. Mahajan, B.K. Mukherjea and Sudhi Ranjan Das, JJ.

Facts:

The petitioner is the printer, publisher and editor of a weekly journal called Cross Roads printed and published in Bombay. The Government of Madras, the respondents herein, in exercise of their powers under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 (Act) issued an order whereby they imposed a ban upon the entry and circulation of the journal in that State. Hence, the present petition has been filed to challenge the order.

Issues:

(i) Whether present petition is maintainable?

(ii) Whether Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 being inconsistent with his fundamental rights of Petitioner is void under Articles 13(1) and 19(1)(a) of the Constitution?

Law:

Madras Maintenance of Public Order Act, 1949 - Section 9(1-A) - 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" is a "law relating to any matter which undermines the security of or tends to overthrow the State.

Constitution of India - Article 13(1) - All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Pan, shall, to the extent of such inconsistency, be void.

Constitution of India - Article 19(1)(a) - All citizens shall have the right to freedom of speech and expression

Contention:

Petitioner

The order contravenes the fundamental right of the petitioner to freedom of speech and expression conferred on him by Article 19(1)(a) of the Constitution.

Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 as being void under Article 13(1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid is invalid.

Respondent

Maintainability: The petitioner has wrongly resorted to this Court directly for the relief sought. 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.

Merits: Section 9(1-A) of Madras Maintenance of Public Order Act, 1949 could not be considered wholly void, as, under Article 13(1) of Constitution, an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more.

Analysis:

M. Patanjali Sastri, J

Maintainability

(i) Article 32 of the Constitution does not merely confer power on Supreme Court, as Article 226 of the Constitution does on the High Court, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. Article 32 provides a "guaranteed" remedy for the enforcement of the rights, and this remedial right is itself made a fundamental right by being included in Part III. Supreme 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.

Validity of Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949

(i) Freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. "Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value".

(ii) Thus, the order of the Government of Madras would be a violation of petitioner's fundamental right under Article 19(1)(a) of Constitution, unless Section 9(1-A) of Madras Maintenance of Public Order Act, 1949 saved by the reservations mentioned Article 19 (2) of Constitution which saves the operation of any "existing law in so far as it relates to any matter which undermines the security of, or tends to overthrow, the State."

(iii) Unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under Article 19(2) of Constitution, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. Thus, Section 9(1-A) of Act 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.

(iv) 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 if 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. In other words, Article 19 (2) of the Constitution having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.

Saiyid Fazl Ali, J.

(i) While dissenting the with opinion of Majority, Justice Fazl Ali observed that the Act, as its preamble shows that it is not intended for petty disorders but for disorders involving menace to the peace and tranquillity of the Province. There are degrees of gravity in the offence of sedition also and an isolated piece of writing of mildly seditious character by one insignificant individual may not also, from the layman's point of view, be a matter which undermines the security of the State, but that would not affect the law which aims at checking sedition. Further, misuse of the law is one thing and its being unconstitutional is another and the Law cannot be declared as unconstitutional on said ground.

Conclusion:

In view of the majority decision, the application is allowed and the order of the Respondents prohibiting the entry and circulation of the petitioner's journal in the State of Madras has been quashed.