Romesh Thappar vs. Union of India, 1950

The petitioner was the the printer, publisher and editor of a journal in English called Cross Roads printed and published in Bombay. Under Section 9 (1-A) of the the Madras Maintenance of Public Order Act, 1949, the entry and circulation of the journal was banned in the erstwhile State of Madras.

In response to the ban, the petitioner filed a writ petition before the Supreme Court, averring that the powers under the Act were an excessive restriction on freedom of expression under Article 19 of the Constitution of India.

Thappar challenged this order, asserting that it violated his fundamental right to freedom of speech and expression as guaranteed by Article 19(1)(a) of the Constitution.

1. Whether the order issued under Section 9(1-A) of the Madras Maintenance of Public Order Act was in violation of Article 19(1)(a) of the Constitution or fell within the limitations set out in Article 19(2) of the Constitution.
2. Whether the challenged provision was unconstitutional under Article 13(1) of the Constitution since it violated the basic right to free speech and expression.
3. Whether the petitioner was required to first approach the High Court under Article 226 before proceeding to the Supreme Court.

ARGUMENTS:-

Plaintiff’s Arguments:

Petitioner argued that 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.

Respondent’s Argument:

The respondent argued  that the , 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.

JUDGMENT:-

• The Supreme Court held that the security of the State is a reasonable restriction under Article 19(2) of the Constitution, but the restriction under this Act was not constitutionally permissible as it restricted the freedom of expression.
• The impugned section was accordingly considered to be void because it gave the State wide range of powers to restrict freedom of expression. and court also quashed the government order banning the journal.
• Freedom of speech and expression includes freedom to propagate ideas, which is ensured by the freedom of circulation of a publication, as publication is of no value without its proper circulation.
• Justice J. Fazl concluded that the maintenance of peace and tranquility was part of maintaining the security of the State. Therefore, he disagreed with the majority opinion and stated that the Act imposed reasonable restrictions on freedom of speech and expression, and thus the Act must be upheld as valid.

This judgment underscored the paramount importance of freedom of speech and expression in a democratic society. The Court's interpretation delineated the boundaries between permissible restrictions aimed at safeguarding the security of the State and broader measures concerning public order and safety.​

By distinguishing between "public order" and "security of the State," the Court set a precedent that laws imposing restrictions on fundamental rights must be narrowly tailored to address specific threats to state security, rather than broad concerns of public order.​

Furthermore, the decision highlighted the judiciary's role in scrutinizing legislative actions that may infringe upon fundamental rights, ensuring that any restrictions are justified, reasonable, and within the constitutional framework.​