Romesh Thappar v. State of Madras
"Freedom of speech and expression includes freedom of circulation; a law permitting restrictions on grounds wider than those allowed by Article 19(2), which cannot be confined within them, is void; and the Supreme Court cannot decline an Article 32 petition because the petitioner did not first approach the High Court."
Issues Before the Court
- (i)
Whether a person complaining of a violation of fundamental rights must first approach the High Court under Article 226 before invoking Article 32?
- (ii)
Whether an order banning the entry and circulation of a journal in a State restricted the freedom of speech and expression under Article 19(1)(a)?
- (iii)
Whether Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, which allowed such orders for 'securing the public safety or the maintenance of public order', was saved by Article 19(2) as it then stood?
Law & Rules Applicable
- (i)
Constitution of India, Article 32 (the right to move the Supreme Court for the enforcement of fundamental rights).
- (ii)
Constitution of India, Article 19(1)(a) and Article 19(2) as originally enacted, which permitted restrictions on speech relating to libel, slander, defamation, contempt of court, decency or morality, or matters undermining the security of, or tending to overthrow, the State.
- (iii)
Madras Maintenance of Public Order Act, 1949, Section 9(1-A).
Application to Facts & Circumstances
The petitioner published Cross Roads, an English weekly printed in Bombay. In March 1950 the Government of Madras, acting under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, prohibited its entry and circulation in the State. The petitioner moved the Supreme Court directly under Article 32.
The State objected that he should first have approached the High Court. The majority rejected the objection: Article 32 is itself a fundamental right, and the Court, constituted as "the protector and guarantor of fundamental rights", cannot refuse to entertain an application seeking protection against their infringement.
On the merits, freedom of speech and expression includes the freedom to propagate ideas, and that freedom is secured by the freedom of circulation. A ban on circulation is therefore a direct restriction on Article 19(1)(a).
Article 19(2) as it then stood allowed restrictions only on the specified heads, including matters undermining the security of, or tending to overthrow, the State. 'Public safety' and 'public order' in the Act covered a much wider field than the security of the State. Because the provision authorised restrictions both within and beyond the constitutional limits, and could not be confined to the permissible part, it was void in its entirety.
Patanjali Sastri J. delivered the majority judgment; Fazl Ali J. dissented, holding that the restriction fell within Article 19(2).
Conclusion & Ruling
- (i)
The petition was allowed, and the order prohibiting the entry and circulation of the journal in the State of Madras was quashed.
- (ii)
A petitioner may approach the Supreme Court directly under Article 32 for the enforcement of a fundamental right, without first exhausting the remedy under Article 226.
- (iii)
The decision was among those that led to the Constitution (First Amendment) Act, 1951, which widened Article 19(2) to include 'public order' among the permissible grounds of restriction.