ROMESH THAPPAR V. STATE OF MADRAS - (Case Commentary)

Introduction

In this case, article 19(2) of the Indian constitution that deals with the government to impose, by law, reasonable restrictions upon the freedom of speech and expression that is mentioned in article 19(1)(a) is dealt.

Background

 In Mumbai there was a journal that was printed and published. The petitioner of this case was the printer, editor, publisher and the journal was called cross roads. The madras maintenance of public order act,1949, which says the entry and circulation of the journals was banned in the erstwhile state of madras as defined under section 9(1-A) of the act. In the response of this ban the petition filed a case before the Supreme Court, saying that power in this act is violating the freedom of speech and expression as mentioned in article 19 of the Indian constitution. The state in response to this writ petition said that for the public safety and order the restriction has been made. It was considered as the restriction provided under article 19 (2) of the Indian constitution.

Issues

1.      Whether the petitioner is allowed to file a writ petition directly in the Supreme Court without having resort to other legal mechanisms present at disposal of the petitioner?

2.      Whether some of the terms like ‘public order and public safety’ etc have such a wide connotation to cover curtailment on media also?

3.      Whether under article 19(1)(a) of Indian constitution of the petitioner is violated by the government?

 In this case the judges were J. Patanjali sastri and J. Fazal.

1.      Related to the first issue court held that article 32 of the Indian constitution afforded remedy to the analogous that are referred by neither instances that are mentioned by the advocate general nor American decisions. Guaranteed remedy for the violation of fundamental rights of the people this guarantee is given in article 32 of the Indian constitution in part III. Thus the court cannot refuse to entertain application seeking protection against infringement of fundamental rights as the court is the guarantor and protector of fundamental rights.

2.      Related to the second issue the court held that it has wide connotation and signifies that state of disturbance which prevails among the members of a political society as result of the internal regulation enforced by the government which they have established is “public order”. It is used as a part of the wider concept of public order it also signifies that that any matter distinct from and outside the content of expression “public order”, it would not have been satisfactory for the madras legislature to enact the provision so far as it relates to public safety it is public safety.

 As section 9(1-A) refers to securing public safety and maintenance of public order.

3.      Related to third issue court repeatedly stated that freedom of propagation of ideas and that freedom is ensured by freedom of circulation with no doubt is included in the freedom of speech and expression. It’s clear that fundamental rights under article 19(1)(a) of the Indian constitution is being by the government of madras under section 9(1-A) of  the impugned of the act which it was made saved by the reservation mentioned in clause (2) of article 19.

Comment

Voltaire says “I do not agree with a word you say, but I will defend till death your right to say it.”

George Washington says “if freedom of speech is taken then dumb and silent we may be led, like sheep to the slaughter”.

For a healthy society one of the basic essences is the freedom of speech and expression. If there is any form government they required attribute which should present in it, otherwise it may lead to the suffering. In present time the fourth pillar of democracy is also present that is media. Without the media one cannot imagine a healthy democracy but there should be not muted media as it will not serve the purpose of the media. In Romesh Thappar v. State of Madras the petitioner was a publisher of the magazine but when the government of madras stopped the publication then this case was filed for the infringement of article 19(1) of the Indian constitution by section 9(1-A) of the madras maintenance of public order act, 1949. When India was newly independent then this case came in light. It brings the new experience to the whole country. For the citizen of India taste of freedom was new experience. As a guarantor and caretaker it was the responsibility of the Supreme Court to interpret the law in light of the constitution of India.

So the decision of court can be termed as to be an appropriate step that changes the fate of the press for forever. This decision of Supreme Court brought a brake to the unfettered use of power by the state.   

Analysis

In this case the Intentionalism approach was adopted by the judge while dealing of the facts of the case because they were required to attain the original intent to drafter of the statue and use this intent while interpreting it. According to Maxwell, “ the object of all interpretation of statute is to determine what intention is conveyed, either expressly or implied by the language used, so far as it is necessary for determining whether the particular case or state of facts presented to the interpreter, fall within it.” The maxim verbis legis non east recedendum repeatedly the approach of Intentionalism. In this case on behalf of the state of madras the advocate general was presenting the case as he first raised a preliminary objection with respect to the petitioner’s application for claiming relief under article 32 of the Indian constitution. The advocate general argued that the petitioner should come to the court under article 226 of the Indian constitution by resorting to the madras high court first. As under the literal rule of interpretation the court held that as this case was against the violation of fundamental rights so the remedies for the fundamental rights are given under article 32 of the Indian constitution. Justice Patanjali wrote the majority judgement and he wrote the judgement on the basis of the external aids of interpretation. He pointed that sedition and public order was not included in the original article 19(2) of the Indian constitution. The court went ahead and applied the golden rule of interpretation which states that the words in the statue may be modified and varied by the judiciary where their import is doubtful or ambiguous or resulting in injustice. Here the court also applied the rule of noscltur-a-soclls it states that the meaning of the word is to be judged by the company it keeps as explained by the Lord Macmillan. However Justice Saiyid Fazal Ali in the dissenting judgement concluded that the maintenance of peace and tranquility was a part of the public safety

Conclusion

 As it was the case of the supreme court that creates a binding on the lower courts. It is noteworthy that the text of the constitution was altered through the first amendment after this judgement. Therefore in article 19(2) there was an amendment that brings public order to the reasonable restriction of article 19. And the public safety as discussed in judgement continues to be beyond the scope of permissible restriction.

The judgement of this case has been still authoritative in so far as it draws a distinction on the basis of whether such restrictions come under the reasonable clause. This standard was forced and expended which drew a distinction between advocacy and incitement to hold that mere advocacy of hatred does not permit the state to curtail free speech as decided in Shreya Singhal v. Union of India 2012.

- Sonal Garg

Law College, Dehradun.