Romesh Thappar vs State of Madras

The Romesh Thappar vs State of Madras case, a landmark legal battle in India in 1950, revolved around issues of freedom of speech and expression. Romesh Thappar, a journalist, challenged the Madras government’s ban on his journal “Cross Roads” under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949.

The case addressed whether the ban violated his fundamental rights. The Supreme Court of India upheld Thappar’s right to directly approach the Supreme Court under Article 32, without prior recourse to the High Court and declared Section 9(1-A) unconstitutional. This case set an important precedent for the protection of free speech in India.

Case Name: Romesh Thappar v State of Madras

Equivalent Citation: AIR 1950 SC 124: 1950 SCR 594.

Date of Judgement: 26 May 1950

Court: Supreme Court of India

Case no.: Petition no. XVI of 1950

Case type: Writ of Prohibition and Certiorari

Petitioner: Romesh Thappar

Respondent: The State of Madras

Bench: Saiyid Fazl Ali, Harilal J. Kania, M. Patanjali Sastri, Mehr Chand Mahajan, Sudhi Ranjan Das, B.K Mukherjea

Referred: Constitution of India  –  Articles 19(1)(a) and (2), Article 32

Facts of Romesh Thappar vs State of Madras

The person who made the request was the one who printed, published and edited a journal in English called Cross Roads in Bombay. The Cross Roads journal was banned in the former State of Madras under Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949.

To challenge this ban, the person filed a legal petition with the Supreme Court. They argued that the powers granted under the Act went too far and limited freedom of expression as guaranteed by Article 19 of the Constitution of India.

In response, the State argued that the restriction on the journal was necessary for public safety and maintaining public order. This was seen as being in line with safeguarding the State’s security, which is considered a reasonable limit on freedom of expression according to Article 19(2).

Legal Provisions Referred

Romesh Thappar v. State of Madras concerns the Constitution of India, specifically Article 19, clauses (1)(a) and (2) and Article 32. The petitioner has filed an application under Article 32, addressing preliminary objections.

The fundamental right in question is freedom of speech and expression. The case revolves around a law that imposes restrictions on this fundamental right to ensure public order and the maintenance of public safety. The central issue is the validity of this law.

Additionally, the concept of severability of the Madras Maintenance of Public Order Act (XXIII of 1949), specifically Section 9(1-A), is also under scrutiny. The court is examining whether certain portions of the Act can be separated from the rest and declared valid.

Issues Raised

The key questions in Romesh Thappar vs State of Madras are as follows:

• Does the order issued by the Madras Government infringe upon the petitioner’s fundamental right of freedom of speech and expression?
• Is Section 9(1-A) of the challenged Act (Madras Maintenance of Public Order Act) valid under Section 13(1) of the Constitution, considering its potential inconsistency with the petitioner’s fundamental right to freedom of speech and expression?
• Can the petitioner directly approach the Supreme Court of India under Article 32 of the Constitution for relief, or is it necessary to first approach the High Court of the respective State under Article 226?

Contentions of the Petitioner

The petitioner in Romesh Thappar v State of Madras put forth two arguments:

• The order issued by the Governor of Madras, which banned the entry, publication and distribution of Cross Roads in the State of Madras, was in violation of the fundamental right to freedom of speech and expression as guaranteed by Article 19(1)(a) of the Constitution of India.
• Section 9(1-A) of The Madras Maintenance of Public Order Act, 1949, was inconsistent with Section 13(1) of the Constitution since it encroached upon the petitioner’s fundamental right to freedom of speech and expression.

Contentions of the Respondent

The Advocate-General of Madras, representing the respondent, raised a preliminary objection in Romesh Thappar vs State of Madras regarding the petitioner’s choice to directly approach the Supreme Court of India under Article 32 of the Constitution, contending that the petitioner should have initially sought redress from the High Court of Madras under Article 226 as a standard procedural step.

To support this contention, the Advocate-General in Romesh Thappar vs State of Madras cited examples such as criminal revision petitions under Article 435 of the Criminal Procedure Code, applications for bail and applications for transfer under Section 24 of the Civil Procedure Code, where established practice dictates that a petitioner should initially seek relief from a lower court before approaching a High Court.

Furthermore, reference was made to the case of Emperor v. Bisheswar Prasad Sinha, where such a practice was employed in a criminal revision case.

The Advocate-General also cited two American cases, Urquhart v. Brown and Hooney v. Kolohan, which illustrated that the Supreme Court of the United States requires exhaustion of all available remedies in Federal and State Courts before allowing certain remedies, like habeas corpus or certiorari, to be pursued in the Supreme Court.

Judgement in Romesh Thappar vs State of Madras

Issue 1: Direct Approach to Supreme Court under Article 32

The primary question in Romesh Thappar v State of Madras at hand was whether the petitioner had the right to directly approach the Supreme Court of India under Article 32 of the Constitution without initially seeking relief from the respective High Court under Article 226.

The Court in Romesh Thappar versus State of Madras determined that Article 32 provides a guaranteed remedy for the enforcement of fundamental rights and by including this remedial right in Part III of the Constitution, it elevates it to the status of a fundamental right itself. In this context, the petitioner had the option to approach either the High Court under Article 226 or the Supreme Court under Article 32.

The Court observed that these two remedies are similar in nature and as such, the petitioner was not obligated to first approach the High Court before moving to the Supreme Court. The Court held that, with regard to the enforcement of fundamental rights, the petitioner had the right to directly approach the Supreme Court and there was no hierarchical order to be followed.

Issue 2: Validity of the Government of Madras’ Order under Section 9(1-A)

The second issue in Romesh Thappar vs State of Madras pertained to whether the order of the Government of Madras, issued under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, contravened the petitioner’s fundamental right to freedom of speech and expression as guaranteed under Article 19(1)(a) of the Constitution, or if the act fell within the permissible restrictions outlined in Article 19(2).

The Court held in Romesh Thappar v State of Madras that any action contributing to the protection of public health could be considered a form of maintaining public safety. However, the interpretation of this statement should vary depending on the circumstances. While “ensuring public safety” under a law-and-order statute might not encompass safeguarding public health, it could readily include protecting the public from reckless driving or similar offences rather than safeguarding the State’s security.

The Court suggested that punitive measures like preventive arrests and publication bans should be applied to situations that pose a threat to the security of the State, rather than to minor offences like reckless driving or affray.

The Court emphasised in Romesh Thappar v State of Madras that unless the statute explicitly includes words that restrict the application of a specific provision, its applicability and scope cannot be limited to aggravated forms of harmful activities intended to jeopardise the State’s security. The goals and purposes envisioned by the framers of the Act would not affect the imposition of such restrictions. Moreover, there is no guarantee that those authorised to exercise these powers will effectively distinguish between individuals who pose a threat to the State’s security and those who do not. Disruptions of public peace or tranquillity can have such severe consequences that the security of the State is compromised.

Issue 3: Validity of Section 9(1-A) of the Madras Maintenance of Public Order Act 1949 under Article 13(1) of the Constitution

In this specific issue, the Court considered whether Section 9(1-A) of the Madras Maintenance of Public Order Act 1949 is void under Article 13(1) of the Constitution of India, which states that any law inconsistent with the fundamental rights as outlined in Part III of the Constitution is deemed unconstitutional. The primary contention was that this section violated the petitioner’s fundamental right to freedom of speech and expression.

The Court’s ruling on this matter in Romesh Thappar v State of Madras emphasised that when defining the criteria for determining “reasonable” legislations that impose restrictions on the fundamental right to freedom of speech and expression, as stipulated in Article 19(1) of the Constitution, a distinction should be made between offences against public order and actions aimed at overthrowing the State. The Court maintained that these distinctions provide the exclusive basis for legislative restrictions on freedom of speech and expression.

According to the Court, the Constitution necessitates the drawing of a line in the realm of “public order” and tranquillity to delineate the boundary between severe and aggravated forms of public disorder that could endanger the State’s security. Minor breaches of peace confined to local areas should not be equated with disturbances of national significance and different treatment should be accorded to such breaches.

Furthermore, the Court in Romesh Thappar v State of Madras noted that the removal of the term “sedition” from the draft Article 13 indicated that acts criticising the government and causing disaffection or negative sentiments toward it do not justify imposing restrictions on freedom of speech and expression for the press. Restrictions may only be imposed if they directly threaten the security of the State or the overthrow of the government.

Consequently, the Court determined that Section 9(1-A) of the Madras Maintenance of Public Order Act, which empowers the government of Madras to impose such constraints with the objective of preserving public safety or maintaining public order, falls outside the permissible scope of restrictions on the right to freedom of speech and expression as discussed in Article 19(2). As a result, the section was deemed unconstitutional and invalid, as it lacked authorisation under the Constitution of India to operate in this manner.

Romesh Thappar vs State of Madras Summary

In the case of Romesh Thappar vs. State of Madras, the fundamental question was whether the State of Madras had violated the petitioner’s freedom of speech and expression guaranteed under Article 19(1)(a) by banning the journal “Cross Roads.” The court ruled that the petitioner had the right to directly approach the Supreme Court under Article 32 without first seeking relief from the High Court under Article 226. It also determined that Section 9(1-A) of the Madras Maintenance of Public Order Act, which allowed the government to impose restrictions in the interest of public safety and order, was unconstitutional as it went beyond the permissible limits of restricting freedom of speech and expression. This case marked a significant precedent in upholding free speech rights in India.