Dr. Ram Manohar Lohiya National Law University: Basics Of Case Law

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

2014-15 BASICS OF CASE LAW PROJECT

ROMESH THAPAR V STATE OF MADRAS (1950)

SUBMITTED FOR THE PROJECT WORK UNDERTAKEN IN THE PARTIAL FULFILLMENT OF B.A. L.L.B (HONS.) COURSE AT DR. RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY, LUCKNOW

SUBMITTED TO: MR. SHASHANK SHEKHAR ASSISTANT PROFESSOR (LAW) DR. RAM MANOHAR LOHIA SEMESTER

NATIONAL LAW UNIVERSITY, LUCKNOW

SUBMITTED BY: SIDDHARTTH SINGH ROLL NO. 141, SECTION “B” BA.LLB. (H ONS.), 1 ST

ROMESH THAPAR V STATE OF MADRAS, 1950

TABLE OF CONTENTS

ACKNOWLEDGEMENT..........................................................................................................III LIST OF ABBREVIATIONS.....................................................................................................IV TABLE OF CASES......................................................................................................................V INDIAN CASES........................................................................................................................................................V FOREIGN CASES...................................................................................................................................................VI INTRODUCTION.........................................................................................................................1 OVERVIEW OF THE CASE.......................................................................................................6 ISSUES RAISED.........................................................................................................................11 JUDGMENT................................................................................................................................13 RATIO OF AFOREMENTIONED............................................................................................15 JUDGMENT................................................................................................................................15 VALIDITY

OF

MADRAS MAINTENANCE

OF

PUBLIC ORDER ACT

AND

MAINTAINABILITY

OF

WRIT PETITION IN THE SUPREME COURT.....................................................................................................15 THE AMBIT OF THE TERM “PUBLIC ORDER” AND THE APPLICABILITY THEREOF...........................16 THE GIST OF THE VERDICT...............................................................................................................................18 CONCLUSION............................................................................................................................20

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ROMESH THAPAR V STATE OF MADRAS, 1950

PERSONAL IMPLICATIONS..................................................................................................21 BIBLIOGRAPHY........................................................................................................................22 ONLINE SOURCES................................................................................................................................................22 OFFLINE SOURCES (ALONG WITH LITERATURE REVIEW)........................................................................23

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ROMESH THAPAR V STATE OF MADRAS, 1950

ACKNOWLEDGEMENT I would like to take this opportunity to extend a word of my gratitude to my esteemed ‘Basics of Case Law’ teacher Mr. Shashank Shekhar, who has been a constant source of inspiration for me in the pursuance of this project. Sir has been gracious enough to guide me on the right path which has enabled me to strengthen my efforts. I may also like to take this opportunity to wish the reader of my project a knowledgeable experience. The project has been made with utmost care and finesse so as to see that the information mentioned herein is concurrent with the highest benchmarks of accuracy and precision.

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ROMESH THAPAR V STATE OF MADRAS, 1950

LIST OF ABBREVIATIONS 1. Cls - clause 2. UDHR - Universal Declaration of Human Rights 3. CPC - Civil Procedure Code 4. CrPC - Criminal Procedure Code 5. Sec - Section 6. IPC - Indian Penal Code 7. L. R. - Law Report 8. K. B. - King’s Bench 9. CCGTLR - Centre for Communication Governance Law Report 10. SC - Supreme Court 11. AIR - All India Reporter 12. PC - Penal Code 13. U.S. - United States 14. I.L.R. - Indian Law Report

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ROMESH THAPAR V STATE OF MADRAS, 1950

TABLE OF CASES

Indian Cases 1. Bennett Coleman and Co. v Union of India AIR 1973 SC 106; (1972) 2 SCC 788.........3 2. Bijoe Emmanuel v State of Kerala (1986) 3 SCC 615.........................................................5 3. Brij Bhushan v State of Delhi AIR 1950 SC 129.................................................................4 4. Channing Arnold v King Emperor AIR 1914 PC 116, 117.................................................2 5. Emperor v Bisheswar Prasad Sinha I.L.R. 56 All. 158....................................................10 6. Express Newspapers v Union of India AIR 1958 SC 578, 617...........................................5 7. Indian Express v Union of India (1985) 1 SCC 641............................................................3 8. M.S.M. Sharma v Sri Krishna Sinha AIR 1959 SC 395......................................................3 9. Maneka Gandhi v Union of India AIR 1978 SC 597..........................................................1 10. Prabha Dutt v Union of India (1982) 1 SCC 1; AIR 1982 SC 6.........................................4 11. Romesh Thapar v State of Madras AIR 1950 SC 124.........................................................2 12. Sakal Papers Ltd. v Union of India AIR 1962 SC 305........................................................3 13. Union of India v Assn. for Democratic Reforms (2002) 5 SCC 294...................................3 14. Virendra v State of Punjab AIR 1957 SC 896.....................................................................5

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ROMESH THAPAR V STATE OF MADRAS, 1950

Foreign Cases 1. Urguhar v Brown 205 US 179………………………………………………………………...7 2. Ex-parte Jackson 96 U.S. 727; Lovell v City of Griffin 303 U.S. 444………..…………….....4 3. Hooney v Kolohan 294 US 103………..………………………………………………...........7 4. Rex v Wormwood Scrubbs Prison (1) L.R. [1920] 2 K.B. 805……………………………....17

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ROMESH THAPAR V STATE OF MADRAS, 1950

INTRODUCTION Article 19 (1) (a) under Part III of the Constitution of India purports that citizens of aforementioned nation are guaranteed certain rights pertaining to the freedom of speech. To be more elaborate, sub-clause 1 says that “citizens are guaranteed the freedom of speech and freedom of expression”. The case at hand strikes at the very cord of this article, wherein we go on to observe that so far as the exercise of said right does not go on to, in any way whatsoever, give impetus to feelings of sedition or “endanger the security of the State”, the curtailment of aforementioned rights guaranteed by Article 19 (1) (a) will be said to be unconstitutional in nature. The study brings the ambit of Article 19 (1) (a) under the limelight and goes on to explore its constitutionality in the instance of the case at hand. It will throw light on the validity of the exercise under Section 9 (1-A) of the Madras Maintenance of Public Order Act 1949, especially in conjunction with Article 13 (1) of the Indian Constitution. In a landmark judgement of the case Maneka Gandhi v Union of India,1 the Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also. The constitution of India does not specifically mention the freedom of press. Freedom of press is implied from the Article 19(1) (a) of the Constitution. Thus the press is subject to the restrictions that are provided under the Article 19(2) of the Constitution. Before Independence,

1

Maneka Gandhi v Union of India AIR 1978 SC 597.

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ROMESH THAPAR V STATE OF MADRAS, 1950

there was no constitutional or statutory provision to protect the freedom of press. As observed by the Privy Council in Channing Arnold v King Emperor2: The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, as also may the journalist, but apart from statute his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject. The Preamble of the Indian Constitution ensures to all its citizens the liberty of expression. Freedom of the press has been included as part of freedom of speech and expression under the Article 19 of the UDHR3. The heart of the Article 19 says: Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. In Romesh Thapar v State of Madras,4 Patanjali Shastri, CJ observed: “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 process of popular government, is possible.” The Supreme Court observed in Union of India v Assn. for Democratic Reforms5: One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and Channing Arnold v King Emperor AIR 1914 PC 116, 117. Universal Declaration of Human Rights. 4 Romesh Thapar v State of Madras AIR 1950 SC 124. 5 Union of India v Assn. for Democratic Reforms (2002) 5 SCC 294. 2 3

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ROMESH THAPAR V STATE OF MADRAS, 1950

expression includes right to impart and receive information which includes freedom to hold opinions. In Indian Express v Union of India,6 it has been held that the press plays a very significant role in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. Freedom of press has three essential elements. They are: 1. Freedom of access to all sources of information7 2. Freedom of publication 3. Freedom of circulation8 In India, the press has not been able to practise its freedom to express the popular views. In Sakal Papers Ltd. v Union of India,9 the Daily Newspapers (Price and Page) Order, 1960, which fixed the number of pages and size which a newspaper could publish at a price was held to be violative of freedom of press and not a reasonable restriction under the Article 19(2). Similarly, in Bennett Coleman and Co. v Union of India,10 the validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Supreme Court of India holding it to be violative of provision of Article 19(1) (a) and not to be reasonable restriction under Article 19(2). In Romesh Thapar v. State of Madras (1950 SCR 594, 607; AIR 1950 SC 124), entry and circulation of the English journal "Cross Road", printed and published in Bombay, was banned Indian Express v Union of India (1985) 1 SCC 641. M.S.M. Sharma v Sri Krishna Sinha AIR 1959 SC 395. 8 Supra note no. 4. 9 Sakal Papers Ltd. v Union of India AIR 1962 SC 305. 10 Bennett Coleman and Co. v Union of India AIR 1973 SC 106; (1972) 2 SCC 788. 6 7

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ROMESH THAPAR V STATE OF MADRAS, 1950

by the Government of Madras. The same was held to be violative of the freedom of speech and expression, as “without liberty of circulation, publication would be of little value”. 11 In Prabha Dutt v Union of India,12 the Supreme Court directed the Superintendent of Tihar Jail to allow representatives of a few newspapers to interview Ranga and Billa, the death sentence convicts, as they wanted to be interviewed. There are instances when the freedom of press has been suppressed by the legislature. The authority of the government, in such circumstances, has been under the scanner of judiciary. In the case of Brij Bhushan v State of Delhi,13 the validity of censorship previous to the publication of an English Weekly of Delhi, the Organiser was questioned. The court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before the publication, till the further orders”, on the ground that it was a restriction on the liberty of the press. Similarly, prohibiting newspaper from publishing its own views or views of correspondents about a topic has been held to be a serious encroachment on the freedom of speech and expression.14 Under Indian law, the freedom of speech and of the press do not confer an absolute right to express one's thoughts freely. Clause (2) of Article 19 of the Indian constitution enables the legislature to impose certain restrictions on free speech. Following are the restrictions allowed upon the fundamental right to freedom of speech: 1. Security of the State 2. Friendly relations with foreign States

Ex-parte Jackson 96 U.S. 727; Lovell v City of Griffin 303 U.S. 444. Prabha Dutt v Union of India (1982) 1 SCC 1; AIR 1982 SC 6. 13 Brij Bhushan v State of Delhi AIR 1950 SC 129. 14 Virendra v State of Punjab AIR 1957 SC 896; Express Newspapers v Union of India AIR 1958 SC 578, 617. 11 12

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ROMESH THAPAR V STATE OF MADRAS, 1950

3. Public order 4. Decency and morality 5. Contempt of court 6. Defamation 7. Incitement to an offence 8. Sovereignty and integrity of India.15 However, reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.16 Thus, all in all, the issue of reasonable and just contravention of the freedom of speech granted by Article 19 (1) (a) of the Constitution of India has to be viewed in strict conjunction with the facts of the case at hand. An ironclad rule cannot be adopted as these guaranteed rights are excessively subjective in nature.

OVERVIEW OF THE CASE

15 16

Sourced from http://wikipediawiki/Freedom_of_expression_in_India#cite_note-2.org on 02/10/’14 at 1500 Hrs. Bijoe Emmanuel v State of Kerala (1986) 3 SCC 615.

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ROMESH THAPAR V STATE OF MADRAS, 1950

1. CITATION: Romesh Thapar v State of Madras AIR 1950 SC 124, 1950 CriLJ 1514, 1942 55 LW 929, 1950 63 LW 929, (1950) 2 MLJ 390, (1950) 1 SCR 594

2. NAME OF THE CASE: Romesh Thapar v State of Madras

3. HON’BLE JUDGES/ CORAM: i.

Fazal Ali, Saiyid

ii.

Sastri, M. Patanjali

iii.

Mahajan, Mehr Chand

iv.

Das, Sudhi Ranjan

v.

Mukherjea, B.K.

4. FOREIGN CASES REFERRED:

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ROMESH THAPAR V STATE OF MADRAS, 1950

Urguhar v. Brown17, Hooney v. Kolohan18

5. CASE NOTE: Madras Maintenance of Public Order Act 1949, s. 9(1-A) - Constitution of India, 1950 Art. 19, cls (1) (A) and (2), 32-Application U/Art. 32-Preliminary object - Fundamental Right to freedom of speech and expression - Restrictions imposed by law for securing order of the public and maintenance of public safety-Validity-Act's servability - Validity.

6. PARTIES INVOLVED IN THE CASE: Petitioner:

Romesh Thapar

Respondent: State of Madras

7. SUBJECT: Deals with cls (1) and (2) of Article 19 of the Constitution of India.

8. ACTS, RULES AND ORDERS:

17 18

Urguhar v Brown 205 US 179. Hooney v Kolohan 294 US 103.

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ROMESH THAPAR V STATE OF MADRAS, 1950

Constitution of India - Article 13(1), Constitution of India - Article 19(1), Constitution of India - Article 19(2), Constitution of India - Article 32; Madras Maintenance of Public Order Act, 1949 - Section 9(1); Code of Criminal Procedure, 1898 (CrPC) - Section 435; Code of Civil Procedure, 1908 (CPC) - Section 24.

9. ORIGINAL JURISDICTION: Petition No. XVI of 1950. Application under article 32 of the Constitution for a writ of prohibition and certiorari.

10. COUNSEL FOR PARTIES: Plaintiff: C.R.Pattabhi Raman, K. J. Kale Respondent: K. Rajah Ayyar, Ganapathi Ayyar, P. A. Mehta

11. DATE OF DECISION: 26th May, 1950

12. FACTS OF THE CASE:

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ROMESH THAPAR V STATE OF MADRAS, 1950

1.

The petitioner is the printer, publisher and editor of a recently started weekly

journal in English 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, 194919 purported to issue an order No. MS. 1333 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(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 published at Bombay. 2.

The petitioner claims that the said 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 and he challenges the validity of section 9(1-A) of the impugned Act as being void under article 13(1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. 3.

The Advocate-General of Madras appearing on behalf of the respondents raised a

preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resorting to this Court directly for such relief in the first 19

Hereinafter referred to as the Impugned Act.

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ROMESH THAPAR V STATE OF MADRAS, 1950

instance. As a matter of orderly procedure, the petitioner should first approach the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Criminal Procedure Code, applications for bail and applications for transfer under section 24 of the civil Procedure Code as instances where, concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court. He referred to Emperor v. Bisheswar Prasad Sinha20, where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions Urquhart v. Brown21 and Hooney v. Kolohan22, 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 - be it habeas corpus or certiorari - would be allowed.23

ISSUES RAISED

Emperor v Bisheswar Prasad Sinha I.L.R. 56 All. 158. Supra note no. 17. 22 Supra note no. 18. 23 Ibid. 20 21

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ROMESH THAPAR V STATE OF MADRAS, 1950

1.

The right to monitor the press warrants the right to curtail/censure the press prior to the

purported

defamatory/seditious

matter’s

publication.

Also,

the

conditions

of

such

restrictions/curtailment are ruminated and implicated upon. 2.

The Advocate-General of Madras appearing on behalf of the respondents raised a

preliminary objection, not to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resorting to this Court directly for such relief in the first instance. It was contended that, as a matter of orderly procedure, the petitioner should first to the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter. 3.

Petitioner claims that the Madras Maintenance of Public Order Act, 194924 contravenes

his fundamental right of freedom of speech and expression conferred on him by article 19(1) (a) of the Constitution and he further challenges the validity of section 9(1-A) of the impugned Act as being void under article 13(1) of the Constitution by reason of its being inconsistent with his fundamental rights enshrined in Part III of the Constitution of India and guaranteed to every citizen of India. 4.

Furthermore, there can be no doubt that freedom of speech and expression includes

freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. Therefore, liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value.25 3.

It is argued that section 9(1-A) of the impugned act could not be considered wholly void,

as, under article 13(1), an existing law inconsistent with a fundamental right is void only to the 24 25

Hereinafter referred to as the “impugned act”. Supra note no. 11.

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ROMESH THAPAR V STATE OF MADRAS, 1950

extent of the inconsistency and no more. In so far as the securing of the public safety or the maintenance of public order would include the security of the State, the impugned act was covered by clause (2) of article 19 and must be held to be valid. 4.

The main vein of contention in this case is that whether "disorders involving menace to

the peace and tranquillity of the Province" and affecting "public safety" will be a matter which undermines the security of the State or not. It is to be noted that that if a document is seditious, its entry could be validly prohibited, because sedition is a matter which undermines the security of the State; but if, on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State. 5.

The issue as to whether partial/absolute curtailment of Article 19 (1) (a) of the

Constitution of India is valid when the issues of “sedition” and “imminent threat to public safety” are at hand, but invalid when instances of matters such as inter alia “incitement of feeling of general displeasure” are brought up.

JUDGMENT

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ROMESH THAPAR V STATE OF MADRAS, 1950

It was found that the violation of the right to freedom of speech and expression was violated and the writ petition was allowed unanimously. 1.

Apart from libel, slander etc. 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 cls (2) of Art. 19 of the Constitution, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. Section 9 (1-A) of the Madras Maintenance of Public Order Act of 1949, which authorises impositions of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under cls (2) and is therefore void and unconstitutional.

2.

Where a law purports to authorize 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. Section 9(1-A) is therefore wholly unconstitutional and void.

Therefore, The Court considered whether the ban could have been legitimately instituted for public order purposes. It considered the law on the basis of which the ban had been ordered and noted that it was drafted in broad and vague terms. This was not legitimate. On the

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ROMESH THAPAR V STATE OF MADRAS, 1950

face of it, the law allowed restrictive action to be taken even in cases where no objective public safety threat existed. This went beyond what was constitutionally permissible and the ban was therefore quashed.26

Sourced from: http://www.article19.org/resources.php/india:-romesh-thappar-v.-state-of-madras.html 03/10/’14 at 1700 Hrs. 26

on

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ROMESH THAPAR V STATE OF MADRAS, 1950

RATIO OF AFOREMENTIONED JUDGMENT

The rationale behind the judgment delivered by the judges is as follows: VALIDITY OF MADRAS MAINTENANCE PETITION IN THE SUPREME COURT

OF

PUBLIC ORDER ACT

AND

MAINTAINABILITY

OF

WRIT

In exercise of the powers conferred by section 9 (I-A) of the Madras Maintenance of Public Order, Act, 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 claims that the said 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 and he challenges the validity of section 9 (1-A) of the impugned Act as being void under article 13 (1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. The Advocate-General of Madras appearing on behalf of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resorting to this Court directly for such relief in the first instance. 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 criminal revision petitions under section 435 of the CrPC,

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ROMESH THAPAR V STATE OF MADRAS, 1950

applications for bail and applications for transfer under section 24 of the CPC as instances where, concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court.27 Therefore the judges are of the opinion that neither the instances mentioned by the learned Advocate General nor the American decisions 28 referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution.

THE AMBIT OF THE TERM “PUBLIC ORDER” AND THE APPLICABILITY THEREOF The Impugned Act was passed by the Provincial Legislature in 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.

27 28

Supra note no. 20. Supra note nos. 17 and 18.

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ROMESH THAPAR V STATE OF MADRAS, 1950

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, inter alia, the Government and the Legislature of each of the erstwhile Provinces. Much reliance was placed in support of this view on Rex v Wormwood Scrubbs Prison29 where it was held that the phrase "for securing the public safety and for the “defence of the realm" in section 1 of the Defence of the Realm (Consolidation) Act of 1914, was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion. The decision is not of much assistance to the respondents in the present context wherein the words "public safety" occurring in that Act showed unmistakably that the security of the State was the aim in view. Our attention has not been drawn to any definition of the expression "public safety," nor does it appear that the words have acquired any technical signification as words of art. "Public safety" ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be regarded as securing public safety. The meaning of the expression must, however, vary according to the context. In the classification of offences in the IPC, for instance, Chapter XIV enumerates the "offences affecting the public health, safety, convenience, decency, and morals" and it includes rash driving or riding on a public way (section 279) and rash navigation of a vessel (section 280), among others, as offences against public safety, while Chapter VI lists waging war against the Queen (section 121), sedition (section 124-A) etc. as "offences against the State", because they 29

Rex v Wormwood Scrubbs Prison (1) L.R. [1920] 2 K.B. 805.

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ROMESH THAPAR V STATE OF MADRAS, 1950

are calculated to undermine or affect the security of the State, and Chapter VIII defines "offences against the public tranquillity" which include unlawful assembly (section 141), rioting (section 146), promoting enmity between classes (section 153-A), affray (section 159) etc. Although in the context of a statute relating to law and order, "securing public safety" may not include the securing of public health, it may well mean securing the public against rash driving on a public way and the like, and not necessarily the security of the State. It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the State rather than trivial offences like rash driving, or an affray. But whatever ends the impugned Act may have been intended to sub serve, and whatever aims its framers may have had in view, its application and scope cannot, in the absence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which are calculated to endanger the security of the State. Nor is there any guarantee that those authorised to exercise the powers under the Act will, in using them, discriminate between those who act prejudicially to the security of the State and those who do not.

THE GIST OF THE VERDICT The argument which subsisted was that sec 9 (1-A) could not be considered wholly void, as, under article 13 (1), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more. In so far as the securing of the public safety or the maintenance of public order would include the security of the State, the impugned provision, as

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ROMESH THAPAR V STATE OF MADRAS, 1950

applied to the latter purpose, was covered by clause (2) of article 19 and must, it was said, be held to be valid. However the hon’ble judges were unable to accede to this contention. 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. In other words, clause (2) of article 19 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.

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ROMESH THAPAR V STATE OF MADRAS, 1950

CONCLUSION The Court found that the ban constituted a violation of the right to freedom of expression. The starting point in considering the merits was freedom of circulation of the press: There can be no doubt that freedom of speech 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.” 30 The Court considered whether the ban could have been legitimately instituted for public order purposes. It considered the law on the basis of which the ban had been ordered and noted that it was drafted in broad and vague terms. This was not legitimate. On the face of it, the law allowed restrictive action to be taken even in cases where no objective public safety threat existed. This went beyond what was constitutionally permissible and the ban was therefore quashed.

30

Supra note no. 11.

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ROMESH THAPAR V STATE OF MADRAS, 1950

PERSONAL IMPLICATIONS In this case, the cornerstone to the constitution and the very rudimentary values intrinsic to the same have been ruminated upon. Freedom of speech and that of the press lies at the foundation of a democratic society, for without free political discussions, no public education is possible, which is so important for the proper functioning of the government. It allows us to freely express our ideas and thoughts through any medium such as print, visual, and voice. One can use any communication medium of visual representation such as signs, pictures, or movies. Freedom of speech would amount to nothing if it were not possible to propagate the ideas. Thus, the freedom of publication is also covered under freedom of speech. Freedom of speech serves 4 purposes

Allows an individual to attain self-fulfillment.



Assists in the discovery of truth.



Strengthens the capacity of a person to make decisions.



Facilitates a balance between stability and social change. This right is not only about communicating your ideas to others but also about being able

to publish and propagate other people's views as well. Thus, freedom of speech and expression is linked to the people's right to know. Freedom of speech and expression is a broad term and encompasses several things and therefore has to be interpreted with an open, all-inclusive mindset.

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BIBLIOGRAPHY ONLINE SOURCES 

http://wikipedia/wiki/Freedom_of_expression_in_India#cite_note-2.org

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http://www.article19.org/resources.php/india:-romesh-thappar-v.-state-of-madras.html

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http://indiankanoon.org/doc/456839.html

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http://infochangeindia.org/agenda/freedom-of-expression/reasonable-restrictions-andunreasonable-speech.html

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http://www.legalserviceindia.com/article/l46-Freedom-of-Press.html

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http://hanumant.com/SpeechAndExpression.html

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http://legallyindia.com/RomeshThapar.html

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https://coursewebs.law.columbia.edu/RomeshThaparVStateofMadras1950.html

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http://judis.nic.in/supremecourt/imgs1.aspx?filename=1245.html

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http://kafila.org/2010/12/06/how-sedition-crept-into-the-constitution.html

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http://www.legalera.in

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http://ccgtlr.org/ThaparRomesh.html

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ROMESH THAPAR V STATE OF MADRAS, 1950

OFFLINE SOURCES (ALONG WITH LITERATURE REVIEW) 

Bakshi, P.M., The Constitution of India The book exhaustively elucidates the Constitution along with all its main points whilst also discussing all of its trivialities and nuances.



Johari, J.C., The Constitution of India – A Politico-Legal Study The book contemplates upon the Government of Madras in exercise of their powers under Sec. 9 (1-A) of the Madras Maintenance of Public Order Act, 1949.



Shrivastava, B.P., Constitutional Provisions and Judicial Pronouncements on Freedom of Information Sourced from the Orissa Review, November 2006



Ramnath, Kalyani, The Runaway Judgment: Law as Literature, Court-craft and Constitutional Visions Provides expert thoughts and implications on the process of judgment writing and how to extract relevant, pertinent pieces of information from various judgments.

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