This article has been written by Uneza Khan. In this article, the author provides a comprehensive explanation of the case of Romesh Thappar v. State of Madras (1950) and how this landmark judgement left its footprints on the current judicial system. This article gives an overview of how freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India acts as a bridge through which the views and opinions of people at large and the restrictions imposed on them can be articulated.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

A very crucial element in democracy is freedom of speech and expression. Article 19 of the Universal Declaration of Human Rights, 1948 provides that “everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media, regardless of frontiers”. 

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Freedom of speech and expression not only allows an individual to propagate their views, but it also includes the right to propagate or publish the views of other people existing in society. Article 19(1)(a) of the Constitution of India, i.e. freedom of speech and expression, gives us the right to express one’s own views and opinions freely by word of mouth, writing, printing, pictures, or any other mode. One can express its views through any medium or visible representation, and for the same reason, freedom of the press is a medium to portray one’s own views, and thus it comes within the ambit of freedom of speech and expression, as it was rightly held in the case of Romesh Thappar vs. State of Madras (1950). It was noted that freedom of circulation is an indispensable element that justifies freedom of publication. Indeed, publication would be of little value without circulation. Fundamental rights give people the right to know.

Thus, in India, the freedom of the press flows from the freedom of speech and expression and enjoys no higher privilege than the freedom of speech and expression.

Details of the case 

  • Case name: Romesh Thappar vs. The State of Madras
  • Case number: Petition No. XVI of 1950
  • Equivalent Citations: 1950 AIR 124, 1950 SCR 594, and AIR 1950 SUPREME COURT 124
  • Important provisions involved: Article 19, sub-sections (1)(a) and (2), Article 32 of the Constitution of India, and Section 9(1-A) of the Madras Maintenance of Public Order Act (XXIII of 1949). 
  • Court: Supreme Court of India
  • Bench: Chief Justice Harilal Kania, Justice Fazl Ali, Justice Patanjali Sastri, Justice Mehr Chand Mahajan, Justice B.K. Mukherjea, and Justice Sudhi Ranjan Das.
  • Petitioner: Romesh Thappar
  • Respondent: State of Madras 
  • Date of the Judgement: 26/05/1950

Background of Romesh Thappar vs. State of Madras (1950) 

The petitioner, Mr. Romesh Thappar, published articles in the weekly English journal called ‘Cross Roads’. The Madras government felt the need to ban the journal in Madras as the communist movement was taking place and the journal was nowhere involved in stopping the enthusiasm of the communist movement.

In March 1950, under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, which gave the government of Madras authority to prohibit the circulation, sale, or distribution of “Cross Roads” in specific areas of the province of Madras in order to ensure “public safety” or safeguard “public order,” the Madras government imposed a ban on the entry and circulation of the journal in such areas.

The petitioner approached the Supreme Court as this prohibition violated his fundamental right granted to him under the Constitution of India as well as questioned the validity of the said Act.

Facts of Romesh Thappar vs. State of Madras (1950) 

The petitioner in this case was a printer, publisher, and editor of a weekly journal in English called “Cross Roads,” which was printed and published in Bombay. The respondent, the Government of Madras, in exercise of their powers under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, imposed a ban on the circulation and entry of the journal in the State of Madras. The order was published in the Fort St. George Gazette, and the notification was as follows:

“In exercise of the powers conferred by Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 (Madras Act 23 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.”

Issues raised inRomesh Thappar vs. State of Madras (1950) 

  1. Whether the petitioner’s directly approaching the Supreme Court of India under Article 32 of the Constitution of India for relief was valid, or was it required to approach the High Court first under Article 226 of the Constitution of India?
  2. Whether the order issued by the Madras Government violated the petitioner’s fundamental right of freedom of speech and expression conferred upon him under Article 19 of the Constitution of India?
  3. Whether Section 9(1-A) of the challenged Act (Madras Maintenance of Public Order Act) was valid under Article 13(1) of the Constitution of India?

Arguments of the parties in the case 

Petitioner 

The petitioner approached the Supreme Court of India, claiming that the ban by the Madras Government on the weekly journal Cross Roads is a violation of its fundamental right of freedom of speech and expression conferred upon him by Article 19(1)(a) of the Constitution of India.

He contended that under Article 13(1) of the Indian Constitution, Section 9(1-A) of the Madras Maintenance of Public Order Act is void, and he challenged the said Act for the reason that it was inconsistent with the fundamental rights granted to him.

Respondent  

A preliminary objection was raised by the Advocate General of Madras that the petitioner did not follow the orderly procedure. He contended that the petitioner should have first approached the High Court of Madras and then the Supreme Court. He cited criminal revision petitions under Section 435 of the Criminal Procedure Code and applications for transfer under Section 24 of the Code of Civil Procedure as illustrations where concurrent jurisdiction is granted to the High Court and the lower courts, and as a consequence, it has become a customary practice to seek relief from the lower court before resorting to the higher courts.

He cited cases like Shailabala Devi vs. Emperor (1933), where a criminal revision case involved such a rule of practice, and also referred to American decisions Urquhart vs. Brown (1907) and Mooney vs. Holohan (1935), which stated that the Supreme Court of the United States required that relevant judicial remedies 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.

Laws discussed in Romesh Thappar vs. State of Madras 

Constitution of India

Article 19, sub-sections (1)(a) and (2)

Article 19(1) of the Constitution of India guarantees six fundamental freedoms to every citizen of India, namely:

  1. It gives the citizens of India freedom of speech, i.e., to propagate their views freely in any manner without any fear.
  2. It grants the citizens of India the freedom of assembly. The assembly should be peaceful and unarmed and should not jeopardise public safety.
  3. The constitution under this subsection gives the citizen the right to form associations, unions, or co-operative societies. 
  4. Freedom of movement is granted to the citizens of India. They can freely move from one place to another within the state.
  5. Every citizen of India is guaranteed freedom of residence anywhere in India.
  6. It also guarantees every citizen freedom of trade or business, any occupation, or to practise any profession.

Subsection 2 states that nothing in 19(1)a will restrict the power of the government from framing laws that restrict freedom of speech and expression when it is required for keeping peace in the country, maintaining good relations with foreign countries, upholding public order, morality, or decency, dealing with contempt of court, defamation, or encouraging people to not commit crimes.

Article 32

Dr. B.R. Ambedkar considered this Article as the heart and soul of the constitution. It empowers the citizens of India to seek remedies from the Supreme Court for infringement of their fundamental rights provided to them under Part III of the Indian Constitution. The Supreme Court can issue directions, orders, or writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari. The exception to Article 32 is when the President, under Article 352, proclaims an emergency, and then Article 32 remains suspended.

Article 226

It gives the High Court the power to issue writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Every high court shall have the power to issue a writ, order, or direction throughout the territory having its jurisdiction. It is broader in scope than Article 32 and can be applied to a violation of a legal right as well.

Madras Maintenance of Public Order Act (XXIII of 1949)

Section 9(1-A)

This section gives the government authority to impose restrictions on public assemblies for the purpose of public safety and to prevent disturbances.

Issue-wise judgement in Romesh Thappar vs. State of Madras (1950)   

Whether or not the petitioner’s directly approaching the Supreme Court of India under Article 32 of the Constitution of India for relief was valid, or was it required to approach the High Court first under Article 226 of the Constitution of India?

The court opined that there is no correspondence between the instances given by the advocate general and the American decisions, which he referred to in Article 32 of the Indian Constitution. Article 32 of the Constitution gives more authority to the court than just granting specific writs for the enforcement of the rights granted by Part III for any purpose under Section 266 of the Constitution. Article 32 is a fundamental right, as it is included in Part III of the Constitution and provides a ‘guaranteed’ remedy for enforcement of the rights, and the Apex Court is the guarantor and protector of the fundamental rights. Thus, it cannot reject the applications for protection against the violation of fundamental rights. There is no similarity with the United States Constitution regarding this, and the American rulings are not relevant here.

Thus, the court held that in the matter relating to the enforcement of fundamental rights, the petitioner has the right to directly approach the Supreme Court, and there is no hierarchy here that needs to be followed.

Whether or not the order issued by the Madras Government violated the petitioner’s fundamental right of freedom of speech and expression conferred upon him under Article 19 of the Constitution of India?

The court held that public safety could be defined as anything that contributes to the preservation of public health. However, the interpretation of this meaning must change based on the circumstances. It further said that “ensuring public safety” in the matter of law and order might not include public health protection, it may include shielding the public from reckless driving on public roads and similar locations, as opposed to the state’s security. It was suggested by the court that penal punishments provided by any enactment, such as preventive arrest and publication bans, should be applied to situations that harm the security of the state rather than minor offences such as reckless driving or affray. The court also stated that the applicability and extent of a statute cannot be restricted to the aggravated forms of unfavourable activities executed to endanger the state’s security unless it expressly includes language that limits the application of a particular provision. Such limitations would not be affected by the intentions revolving around the objectives and desires of the framers of the Act. Additionally, there is no assurance that those with the authority to carry out these powers will appropriately distinguish between those who do and those who do not pose a threat to the security of the state. Public peace or tranquillity can have such severe repercussions that they can jeopardise a state’s security. The court ruled that it was clear that the impugned order passed was in violation of Article 19(1)(a) unless Section 9(1-A) of the impugned Act was saved by the restriction provided for in Article 19(2).

Whether or not Section 9(1-A) of the challenged Act (Madras Maintenance of Public Order Act) was valid under Section 13(1) of the Constitution?

As part of the right to freedom of speech and expression, freedom of circulation ensures that ideas may be freely propagated, or they can fall within the ambit of reasonable restrictions mentioned in clause (2) of Article 19. The question was whether Section 9(1-A), which authorises the State 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,” is a “law relating to any matter which undermines the security of the State or tends to overthrow the State”. 

The court held that in order to ensure the state’s security, the Constitution of India requires a line to be drawn between severe and provoking forms of public disorder and the areas of “public order” and tranquillity. Minor disruptions of the peace that only affect a small region should not be addressed equally with disturbances at the national level, and such violations should be handled distinctly. 

The court also determined that removing the term ‘sedition’ from Article 13 of the draft constitution, which later became Article 19, indicated that restrictions on freedom of speech and expression should be applied only to issues that directly threaten state security or aim to overthrow the government, rather than to matters that criticise the government or incite disaffection or hatred towards it. As a result, the court opined that Section 9(1-A) of the Madras Maintenance of Public Order Act, which grants authority to the Madras government to impose restrictions with the aim of maintaining public order or ensuring public safety, does not fall within the ambit of limitations on the right to freedom of speech and expression as covered in Article 19(2). And hence, the provision was declared unconstitutional and invalid, as it was not allowed to be restricted as per the Constitution of India. 

Dissenting Opinion 

Justice Fazl Ali gave a dissenting judgement in this case. He related the judgement of Brij Bhushan & Another vs. State of Delhi (1950) with the present case, as the question revolved around the same matter. He further explained by referring to the preamble that the central issue in this case was whether ‘disorders involving threats to the peace and tranquillity of the province’ and affecting ‘public safety’ constituted a threat to the safety of the State. In his view, the answer to these questions is affirmative.

The law in question, which prohibits entry into the State of Madras of “any document or class of documents” for safeguarding public safety and maintaining public order, should satisfy requirements laid down in Article 19(2) of the Indian Constitution.

He then opposed the argument that the entry of any seditious document could be validly prohibited. Entry of any document that affects public tranquillity and public safety cannot be prohibited because these matters do not affect the security of the state.

In the case of Brij Bhushan vs. State of Delhi (1950), he quoted that sedition, according to Sir James Stefan, is an offence against public tranquillity and it is considered a cause of concern for the security of the state, but public safety and disturbances are not. 

The argument that a small riot or affray would not compromise the security of the state is met with two responses: firstly, the Act, as stated in its Preamble, is designated for disorders including menace to the peace and tranquillity of the province, and secondly, there are different levels of gravity associated with the offence of sedition. While a single, insignificant piece of writing that is mildly seditious may not, in the opinion of the general public, compromise state security, it doesn’t alter the legislation that aims to prevent sedition.

Additionally, it was stated that while the state executive may misuse the current legislation, this is not the same as the law being unconstitutional. Only the latter is of significance to them in this matter. 

Analysis and after-effects of Romesh Thappar vs. State of Madras (1950)  

Freedom of speech and expression is fundamental in a democracy, and as it was rightly said by George Washington,

“If the freedom of speech is taken away, then dumb and silent, we may be led, like sheep, to the slaughter.”

It is essential for a democratic nation to allow its citizens to propagate their views, as well as the right to propagate the views of others. Democracy can flourish not only under the vigilant eye of its legislature but also under the due diligence and guidance of public opinion, and the press is, par excellence, the best vehicle through which opinion can be articulated.

Romesh Thappar vs. State of Madras (1950) has been a significant judgement in this regard, which uplifts the freedom of speech and expression through the press. The Indian Parliament Amended the Constitution in 1951 with the First Constitutional Amendment in response to the judgement in this case. The Amendment established “public order” as a reasonable restriction on the right to free speech and expression under Article 19(1)(a) of the Constitution of India. The Indian Prime Minister at the time, Mr. Jawaharlal Nehru, recommended the Article’s revision on behalf of the interim administration. Three reasons were given by the Amendment to restrict the right to free speech and expression: 

 a) public order;

 b) provoking an offence; and

 c) friendly relations with a foreign state.

The Supreme Court interpreted the scope of Article 19(1)(a) in the case of Sakal Newspapers (P) Ltd. & Ors. vs. Union of India (1962) that the right is broad enough to encompass the freedom of press, which is regarded as a “species of which freedom of expression is a genus”. And again, in the case of Indian newspaper vs. Union of India & Ors. (1986), the Supreme Court held that the term freedom of the press is not used in Article 19, but still it is considered a part of Article 19(1)(a). Freedom of the Press stands as the heart and soul of democracy, and it is the responsibility of the court to uphold this right and invalidate all the acts that are contrary to the constitutional mandate so as to ensure transparency with the citizens of the country.

In the landmark judgement of Bennett Coleman & Co. vs. Union of India (1973), it was held that “freedom of speech and press is the ark of the covenant of democracy because public criticism is essential to the working of its institutions”. Article 19(1)(a), which gives the right to freedom of speech and expression, has certain exceptions under Article 19(2), which can be imposed by the state government and grants the  authority to the state to enact laws restricting the right to freedom of speech and expression under Article 19(1)(a) without completely compromising the right to freedom of free speech and expression in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence.

In the case of Prabhu Dutt vs. Union of India & Others (1982), it was held that freedom of the press includes the right to know information as well as news related to the workings of the government, but this is subject to some restrictions in society’s best interest. The information can be procured only when the person willfully provides it. In this case, the Court ordered Tihar Jail’s Superintendent to allow the chief reporter of the Hindustan Times to interview two convicts of death sentence, namely Ranga and Birla, who gave their consent to do so under Article 19(1). 

In the case of Shreya Singhal vs. Union of India (2015), the constitutional validity of Section 66A of the Information Technology Act, 2000, was challenged as it was violative of the right to freedom of speech and expression guaranteed under Article 19(1)(a), and it does not fall under reasonable restrictions under Article 19(2). The Supreme Court in this case distinguished between incitement, discussion, and advocacy. The court opined that where there is clear and evident incitement, reasonable restrictions under Article 19(2) on free speech and expression may be imposed.

It was held that Section 66A is competent to restrict all forms of internet communications as it doesn’t “make any distinction between mere discussion or advocacy of a particular point of view, which may be annoying, inconvenient, or grossly offensive to some, and incitement by which such words lead to an imminent causal connection with public disorder, security of state, etc”. Section 66A is unable to show a direct connection between protecting public order and its implementation.

Now, let’s shed some light on the exceptions to the right to freedom of speech and expression:

In the case of Express Newspaper Private (Ltd.) vs. Union of India (1958), the regulation of conditions of service of workmen in the newspaper industry through the Working Journalist (Constitution of Service and Miscellaneous Provisions) Act, 1955, was challenged. The court held that the press is not immune from the laws of taxation, industry, or any other general law, and hence the Act was declared valid.

In Hamdard Dawakhana v. Union of India, (1960), the validity of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, was challenged on the ground that it violates the freedom of speech and expression guaranteed by Article 19(1)(a). The Act restricts the advertisement of drugs in some matters and prohibits the advertisement for certain purposes of medicines that have been claimed to have magical qualities. It was held by the Apex Court that, though advertisement is a type of speech, not every advertisement deals with the matter of freedom of speech and expression of ideas. The Act was held valid by the Court, and the court has opined that freedom to do business under Article 19(1)(g) includes commercial advertisement and does not come within the ambit of Article 19(1)(a), i.e., freedom of speech and expression. Further, the advertisement for promotion of business or trade falls within the ambit of freedom of business under Article 19(1)(g). Thus, restrictions can be imposed for the benefit of the general public. Article 19(1)(a) does not include the advertisement of prohibited drugs within its ambit.

Conclusion

The fundamental principle of the right to freedom of speech and expression is to give people the right to know, to express their views, and to know the truth. Romesh Thappar vs. State of Madras is a significant case in relation to this matter, which has left its footprints till the present day. There have been times where, just because of the fear of the government, genuine people were made silent. 

Freedom of speech and expression stand indispensable in a democracy, and freedom of the press is an undistinguished part of it, as it was rightly said by Dr. Ambedkar in his speech in Constituent Assembly Debates (Vol. VII, 980): “The press has no special rights that are not to be given or which are not to be exercised by the citizens in their individual capacity. The editor of a press or the manager are merely exercising the right of expression, and therefore, no special mention is necessary of the freedom of the press”. In all democratic countries, freedom of the press acts as a ray of light in the dark. The newspapers act as a collective display of ideas, opinions, and ideologies. The need to guard the public interest by disclosing the misdeeds, failures, and lapses of the government is very essential. The cornerstone of a democracy is the presence of strong, independent, and powerful media, especially in a country with a diverse population like India. Justice Hand of the Supreme Court of the United States summed up the increased role of the media in the present globalised and tech-savvy world when he said, “The hand that rules the press, the radio, the screen, and the far spread magazine, rules the country”. 

Frequently Asked Questions (FAQs)

What is India’s rank in the Press Freedom Index 2023?

The World Press Freedom Index is an annual report published by Reporters Without Borders (RSF). India’s rank in the World Press Freedom Index will be 161 out of 180 countries in 2023. 

Who pronounced a dissenting opinion in the Romesh Thapar vs. State of Madras case?

Justice Fazl Ali pronounced a dissenting opinion in the Romesh Thapar vs. State of Madras case.

What are some landmark cases in which Romesh Thapar vs. State of Madras cited?

The landmark cases in which Romesh Thappar vs. State of Madras was cited were: Shreya Singhal vs. Union of India (2015), State of Bombay vs. F.N. Balsara (1951), Sakal Papers (P) Ltd. vs. The Union of India (1962), Bennett Coleman & Co. vs. Union of India (1973), among others.

References 

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