1950

May26.

594 SUPREME COURT REPORTS

ROMESH THAPPAR

I/.

THE STATE OF MADRAS

[SHR1 HAR1LAL KANIA C. J., SA1Y1D FAZL Au,

PATANJALI ~ASTRI, MEHR CHAND MAHAJAN,

MuKHERJEA and DAs JJ.]

[1950}

Constitution of India, Art. 19, els. {I) (a) and (2), 32-Appli­

cation under Art. 32-Preliminary ob1ection-Fundamental right of

freedom of speech and expression-Law imposing restrictions for

securing public order and maintenance of public safety-Validity-­

Seuerability of Act-Madras Maintenance of Public Order Act

tXXXIll of 1949), s. 9 ( 1-A)-Validity.

Held,

by the Full Court (i) (overruling

o preliminary objections)

-TJnder the Constitution the Supreme Court is constituted the

protector and guarantor of fundamental rights, and it cannot, con·

sistently with the responsibility so laid upon it, refuse to entertain

applications seeking prota:tion against infringement of such right$,.

although such applications are made to the Court in the first

instance without resort to

a High Court having concurrent

juris-dic­

tion in the matter.

Urguhar v. Brown (205 U. S. 179.) and Hooney v. Kolohan

(294 U. S. 103) distinguished.

(ii) Freedom of speech and expression includes freedom of

propogation of ideas and that freedom is ensured by the freedom

of circulation.

Ex parte /ackson (96

U. S. 727) and Lovell v. City of Griffin

(303 U. S. 444) referred to.

Held per KANIA C. J., PATANJAL.I SAsTRJ, MEHR CttAND

MAHAJAN, MuKHERJEA and DAs IJ.-(FAzL Au J. dissenting):

(i) Apart from libel, slander etc. unless a law restricting freedom

of speech and expressiofi is directed solely against the undermin­

ing of the: st:curity of the State or the overthrow of it, such law

cannot fall within the reservation under cl.

(2) of the Art. 19 of the

Constitution, although the restrictions \vhich it seeks to impose may

have been conceived generally in the interests of public order.

Sec­

tion 9 0-A) of the Madras Maintenance of Public Order Act, XXXlll

of 1949, which authorises impositions of restrictions for the wider

purpose of securing public safety or the maintenance of public

order falls outside the

scope of authorised restrictions under cl. (2)

and is therefore void and unconstitutional; (ii) Where a

la\' pur­

ports to authorise the imposition of restrictions on a fundamental

right

in langauge wide enough to cover restrictions both within

and without the limits of constitutionally permissible legislative actiOft. affecting such right, it is not possible to uphold it even so I

far as it may be applied within the constitutional limits, as it is1

not severable. So long as the possibility of its being applied for

purposes not sanctioned by the Constitution cannot be ruled o~

I

· S.C.R. SUPREME-COURT REPORTS 595

it must be held to be wholly unconstitutional and void. Section

9 (1-A) is therefore wholly unconstitutional and void.

Per FAZL Au J.-Rcstrictions which s. 9 (1-A) authorised

arc within the provisions of

cl. (2) of art. 19 of the Constitution

and

s. 9 (1-A) is not therefore uncoqstitutional or void. (

1

)

Brij BhuJhan and Another v. The State (1950) S.C.R. 60)

referred to. . .

·ORIGINAL Ju&Is01c110N: Petition No. XVI of 1950.

Application under article 32 of the Constitution for a.

writ of prohibition and certiorari. The facts are set

out in the judgment.

C. R. Pattabhi Ra1nan, for the petitioner.

K. Rajah Ayyar, Advocate-Gene;al of Madras, (Gana­

pathi Ayyar, with him) fQr the opposite party.

1950. May 26. The Judgment of Kania C. J., Mehr

Chand ~1ahajan, Mukherjea and Das JJ. Was delivered

by Patanjali Sastri, J. Fazl Ali. J. delivered a separate

judgment.

PATANJALI

SASTRI J.-The petitioner is the printer,

publisher and editor of a recently started weekly

journal in English called Cross. Roads printed and

published in Bombay. The Government of Madras,

the respondents herein, in exercise of their powers

under section 9(1-A) of the Madras Maintenance of

Public Order Act, 1949 (hereinafter referred to as the

impugned Act) purported to issue an order No. MS.

1333 dated 1st March,

1950, whereby they imposed · a

ban upon the entry and circulation of the journal in

that State. The order was published in the Fort St.

George Gazette and the notification ran

as follows :-"In exercise of the powers conferred by section 9

(1-A) of the Madras Maintenance of Public Order, Act,

1949 (Madras Act XXlII of 1949) His Excellency the

Governor of Madras, being satisfied that for the purpose

of securring the public safety and the maintenance

of

puolic 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."

The petitioner cl;iims that the said order contravenes

the fundamental right of the petitioner to freedom of

. (

1

) Sec the .headnote to Brij Bhus.%an v. The Stale of Delhi, p. 60~ Infra.

6-5 S. C. India 1N.Dl 58

1950

Ramesh Thappar.

v.

The Stat• a}

Madras.

Patanjali

Sast1iJ.

1950

R...,sh 1'happar

v.

T "-Slau of

Madras.

Palanjali

Sastri].

596 SUPREME COURT REPORTS l1950]

speech and expression conferred on him by article 19

( 1) (a) of the Constitution and he challenges the valid­

ity of section 9 (1-A) of the· impugned Act as being

void und~r article 13 ( 1) of the Constitution by reason

of its being inconsistent with his fundamental right

aforesaid.

The Advocate-General of Madras appearmg on be­

half of the respondents raised a prelimmary objection,

not indeed to the jurisdiction of this Court

to entertain

the application under article

32, but to the petitioner

resorting

to this Court directly for such relief in the

first instance.

He contended that, as a matter of

orderly procedure, the petitioner should first resort to

the High

Court at Madras which under article 226 of

the Constitution has concurrent jurisdiction to deal

with the matter.

He cited criminal revision petitions

under section

435

ot the Criminal Procedure Code,

applications for bail and applications for transfer

under section

24 of the Civil Procedure Code as in­

stances where, concurrent jurisdiction having been

given in certain matters

to the High Court and the

Court of a lower grade, a rule of practice

has been

established that a party should proceed first to the

latter Court for relief before resorting to the High

Court.

He referred to Emperor v.

Bishes11Jar Prasad

Sinha(

1

) where such a rule of practice was enforced in

a criminal revision case, and called our attention also

to certain American decisions Urquhart v. Brown(')

and Hooney v. Kolohan( ') as showing that the

Supreme Court of the United States ordinarily

required· that whatever judicial remedies· remained

open to the applicant in Federal .

ancl

State Courts

should

be exhausted before the remedy in the Supreme Court-be it habeas corpus or certiorari­

would be allowed. We are of opinion that neither the

instances mentioned by the learned Advocate-General

nor the American decisions referred

to by him are

really analogous to the remedy afforded

by article 32 of

the Indian Constitution. That article does not merely

confer power on this Court,

as article 226 does on the

(') I. L, R. 56

All. l58. i'j 20s u. 5. 179. (') 294 U.S. W

S.C.R. . SUPREME COURT REPORTS 597

High Courts, to issue certain writs for the enforcement

of the rights conferred by Part III or for any other

purpose,

as part of its general jurisdiction. In that

case it· would have been more appropriately placed

among articles

131 to 139 which define that jurisdic­

tion. Article

32 provides a

"guaranteed" remedy for

the enforcement of those rights, and this remedial right

is itself made a fundamental right by being included in Part UL This Court is thus constituted the protector

and guarantor of fundamental rights, and it cannot,

consistently with the responsibility

so laid upon it,

refuse to entertain applications seeking protection again.~t infringements of such rights. No similar pro­

vision

is to be found in the Constitution of the

United

States and we do not consider that the American

decisions are in point.

Turning now to the merits, there can be no doubt

that freedom of speech and

expression includes freedom

of propagation of ideas, and that . freedom is ensurt:d / by

the freedom of circulation. "Liberty of circulation is

as esscn tia I to that freedom as the liberty of publica­

tion. Indeed, without circulation the publication

would be of little value". Ex parte fackso11(1 ). Sec

also Lovell v. City of Griffin(

2

). It is therefore per­

fectly clear that the order of the Government of Madras

would be a Yiolation of the petitioner's fundamental

right under article 19(1)

(a), unless section

9 (I-A) of

the impugned Act under which it was made is saved

by the reservations mentioned in clause (2) of article 19

w!iich (omitting immaterial words regarding laws relat­

ing to libel, slander, etc., with which we are not con­

cemed in this case) saves the operation of any "exist­

ing law in so far as it relates to any matter which

undermines the security

of, or tends to overthrow,

the

State." The question accordingly arises whether the

impugned Act, in

so far

as it purpo:-ts by section 9(1-A)

to authorise the Provincial Government "for the pur­

pose of ''ecming the public safety or tlie maintenance

·of public order,

to prohibit or regulate the entry into

(

1

)

96 u,s. 727. (') 303 U.S. 444.

1930

Romesh T happar

v.

The Stale of

Madras.

Patanjali

Sastri, J.

1950

Ronush T happar

v.

Tiu State of

Madras.

Patanjali

Sastri,

J.

598 SUPREME COURT REPORTS [ 1950]

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 or tends to overthrow the

State."

. The impugned Act was passed by the Provincial

Legislature in exercise of the power conferred upon it by

section 100 of the Government of India Act, 1935, read

with Entry I of List

II of the Seventh Schedule to

that Act, which

comprises among other matters,

"public order." Now "public order" is an expression

of wide connotation and signifies that state of tranquil­

lity which prevails among titc members of a political

society

as a result of the internal regulations enforced

by the government which they have established.

Although section 9 (1-A) refers to

"securing the public

safety" and "the maintenance of public order" as

distinct purposes, it must be taken that "public safety"

is used as a part of the wider concept of public order,

for, if public safety were intended to signify any matte1

distinct from and outside the content of the expres­

sion "public order," it would not have been competent

for the Madras Legislature to enact the provision

so

far as it relates to public safety. This indeed was not

disputed on behalf of the respondents. But it

was

urged that the expression "public safety" in the im­

pugned Act, which is a statute relating to law

and order, means the security of the Province, and,

therefore, "the security of the State" within the meaning

of article

19 (2) as

"the State" has been defined in

article

12

as including, among other things, the Govern­

ment and the Legislature of each of the erstwhile Pro­

vinces. Much reliance was placed in support of this

view on Rex v. Wormwood Scrubbs Prison(') where it

was held that the phrase "for securing the public. safe­

ty and the defence of the realm" in section I of the

Defence of the Realm (Consolidation) Act,

1914, was

not limited to securing the

c~untry against a foreign

foe but included also protection against internal dis­

order such as a rebellion. The decision is not of

much assistance to the respondents

as the context in

(') L.R.

[1920] 2 K.B. 305.

S.C.R. SUPREME COURT REPORTS 599

which the words "public safety" occurred in that Act

showed unmistakably that the security of the State

was the aim in view. Our attention has not been

drawn to any definition

of the expression

"public

safety," nor does it appear that the words have ac­

quired an.y technical signification as words of art.

"Public safety" ordinarily means security of the

public or their freedom from danger.

In that sense,

anything which tends to prevent dangers to public

health may

also be regarded as securing ,public safety .

. The meaning of the expression must, however, vary

according

to the context. In the classification of

offen­

ces in the Indian Penal Code, for instance, Chapter XIV

enumerates the "offences affecting the public health,

safety, convenience, decency, and morals" and it

includes rash driving or riding on a public

way

(sec­

tion 279) and rash navigation of a vessel (section 280),

among others, as offences against public safety, while

Chapter VI lists waging war against the Queen (section

121), sedition (section

124-A) etc. as

"offences against

the State", because they are calculated to undermine

or affect the security of the State, and Chapter. VIII

defines "offences against the public tranquillity"

which include unlawful assembly (section 141) rioting

(section 146), pr~moting enmity between classes

(section 153-A), affray (section 159) etc. Although in

the context of a statute relating to law and order

"securing public safety" may not include the securing

of public health, it

may well mean securing the public

against rash driving

on a public way and the like, and

not necessarily the security of the State.

It was said

that an enactment which provided for drastic remedies

like preventive detention and ban on newspapers must

be taken to relate to matters affecting the security of

the State rather than trivial offences like rash driving

or an

affray. But whatever ends the impugned Act.

may have been intended to subserve, and whatever

aims its framers may

have had in view, its application

and scope cannot, in the absence of limiting words in

the statute itself,

be restricted to those aggravated

forms

of

prejudicial activity which are calculated to

1950

Romnh T hap/HJt

v.

The S1aJe of

Madras.

PaJanjali

Sastri, J.

1950

Ro""'h Thappar

v.

The Stall of

Madras.

Patanjali

Sastri, J.

600 SUPREME COURT REPORTS f1950l

endanger the security of the State. Nor is there any

guarantee that those authorised to exercise the powers

under the Act will in using them discriminate between

those who act prejudicially

to the security of the State

and those who do not.

The Government of India Act,

1935, nowhere used

the expression

"security of the State" though it made

provision under section

57 for dealing with crimes of

violence intended

to overthrow the Government.

While the administration of law and order including

the maintenance

of public order was placed in charge

of a Minister elected

by the people, the Governor was

entrusted with the responsibility of combating the

operations of persons who

"endangered the peace or

tranquillity of the Province" by committing or at­

tempting "to commit "crimes of violence intended to

overthrow the Government."' Similarly, article

352

of the Constitution empowers the President to make

a·.

Proclamation of Emergency when he is satisfied that

the "security of India or any part of the territory thereof

is thr~atene<l by war or bv external aggression or by

internal disturbance." These provisions recognise

that disturbance

of public peace or tranquillity may

assume such grave proportions

as to threaten the secu­

rity of the State.

As

Stephen in his Criminal Law of England (

1

) ob­

serves : "Unlawful assemblies, riots, insurrections,

rebellions, levying of war, are offences which run into

each other and are not capable of being marked off

by

perfectly defined boundaries. All of them have in

common one feature, namely, that the normal tran­

quillity of a civilised

society is in each of

the cases

mentioned disturbed either by actual force or at least

bv the show and threat of it." Though all these

offences thus involve disturbances of public tranqua.

lity and are in theory offences ·against public order,

the difference between them being only a difference of

degree, yet for the purpose of grading the punishment

to

be inflicted in respect of them they may be classified

into different minor categories

as has been done by

(')Vol. TT, p.

242.

S.C.R. SUPREME COURT REPORTS 601

the Indian Penal Code. Similarly, the Constitutiop.,

in formulating the varying criteria for permissible

legislation imposing restrictions on the fundamental

rights enumerated

in article 19 (1), has placed in a

distinct category those offences against public order

which aim at undermining the security of the

State or

overthrowing it, and made their prevention the

sole

justification for legislative abridgement of. freedom of

speech and expression, that

is to say, nothing

lcrs than

endangering the foundations of the State or threaten­

ing its overthrow could justify curtailment · of the

rights to freedom of speech and expression, while the

right

of peaceable assembly

"sub-clause (b )" and the

right

of association

"sub-clause ( c)" may be restricted

under clauses ( 3) and ( 4) of article 19 in the interests

of "public order", which in those clauses includes the

security of the State. The differentiation is also

noticeable in Entry

3 of List Ill (Concurrent List)

of the

Seventh Schedule, which refers to the "security

of a State" and "maintenartce . ·of public order". as.

distinct subjects of legislation. Th~ Constit~tio~ thus

requires a line to

be drawn in the field of public order

or tranquillity marking off, may

be, roughly, the boun­

dary between those serious and aggravated forms of

public disorder which are calculated to endanger the

security of the

State and the relatively minor breaches

of the peace of a purely local significance, treating for

this purpose differences in degree as if they were

differences in

kind.

It is also worthy

of note that the word "sedition"

which occurred in article ,13 (2) of the Draft Constitu­

tion prepared

by

the· Drafting Committee was

deleted before the article was finally passed as

article 19 (2). In this connection it may be

recalled that the Federal Court had, in defining sedition

in Niharendtt Dutt Majumdar v. The King Em­

peror(

1

), held that

"the acts or words complained of

must either incite

to disorder or must be such as to

satisfy reasonable men that that is their intention or

tendency'', but the

Privy Council overruled that

(

1

) [1912] F.C.R. 38.

1950

llomesh ThaptmT

v.

The Stale oj

Madras.

Patlllijali

Sastri, ].

1950

v.

Tlw S<a1< ef

Matku.

P°'flllia/i

Sanri, ].

602 SUPREME COURT REPORTS [1950]

decision and emphatically reaffirmed the view express­

ed in Tilak's case(

1

)

to the

effect that "the offence

consisted ·in exciting or attempting to excite in others

certain bad feelings towards the Government and not

in exciting or attempting to excite mutiny or rebellion,

or any sort of actual disturbance, great or

small"-·

King Emperor v. Sadashiv Narayan Bhalerao (').

Deletion of the word "sedition" from the draft

article

13 (2), therefore, shows that criticism of

Government exciting disaffection or bad feelings

to­

wards it is not to be regarded as a justifying ground

. for restricting the freedom

of expression and of the

press, unless it is such as to undermine the security of

or tend to overthrow the State. It is also significant

that the corresponding Irish formula

of

"undermin­

ing the public order or the authority of the State"

[article 40 (6) (i) of the Constitution of Eire, 1937] did

not apparently find favour with the framers of the

Indian Constitution. Thus,

very narrow and stringent

limits have been

set to permissible legislative

abridge­

ment of the right of free speech and expression, and

this

was doubtless due to the realisation that freedom

of speech and of

the press lay at the foundation of all

democratic organisations, for without free political

discussion

no public education,

so essential for the

proper functioning

of the processes of popular

govern­

ment, is pos,ible. A freedom of such amplitude might

involve risks

of abuse. But the framers of the

Constitution

may well

have reflected, with Madison

who

was

"the leading spirit in the preparation of the

First Amendment

of the Federal

Constitution," that

"it is better to leave a few of its noxious branches to

their luxuriant growth, than, by pruning them away,

to injure the vigour of those yielding the proper

fruits": [Quoted in Near v. Mi1111esotta (')].

We are therefore of opinion that unless a law restrict­

ing freedom of speech '11<1 expression is directed solely

against the undermining of the security of the State or

the overthrow of it, such law cannot fall within the

reservation under clause (2) of article

19, although the

(

1

) 22 Botn. 112. (z) L.R. 74 I. . .\. $9. ·') 282 U.S. 607. 717-8

S.C.R. SUPREME COURT REPORTS 603

restrictions which it seeks to impose may have been

conceived generally in the interests

of public order. It

follows that section 9 (1-A) which authorises imposi­

tion of restrictions for the wider purpose

of securing

public safety or the maintenance

of public order falls

outside the

scope of authorised

restrictions under

clause (2), and

is therefore void and unconstitutional.

It

was, however, argued that section 9 (1-A) could

not he considered wholly void,

as, under article 13(1 ),

an existing law inconsistent with

a fundamental right

is void only to the extent of the inconsistency and no

more. · In so far as the securing of the public safety or

the maintenance of public order would include the

security of the State, the impugned provision, as

applied to the latter purpose, was covered by

clause (2) of article 19 and must, it was said, be held

to he valid. We are unable to

accede to this conten­

tion.

'Vhere a law purports to authorise the imposi­

tion of restrictions on a fundamental right in language

wide enough to cover restrictions both within and

without the lirpits of constitutionally permissible

legislative action affecting_ such right, it is not possible

to uphold it even so far as if may be applied within

the constitutional limits,

a:s it is not severable.

So

long as the possibility of its being applied for purposes

not sanctioned

by the Constitution cannot be ruled out,

it must be held to be wholly unconstitutional and void.

In other words, clause (2) of article

19 having allow­

ed the imposition of restrictions on the freedom of

speech and expression only in cases· where danger to

the State is involved, an enactment, which is capable

of being applied to

cases where no such danger could

arise, cannot

be held to be constitutional and valid to

any extent.

The application

is therefore allowed and the order

of the respondents prohibiting the entry and circula­

tton

of the petitioner's journal in the

State of Madras

is hereby quashed.

FAZL Au J.-For the reasons given by me in B1'ij

Bhushan and Another v. The State( t ), which practically

(

1

) [19:0] S.C.R. 601.

1950

Romesh T happat

V.

The Slate of

Madras.

Patanjali

Sastri, ].

Fa~l Ali ].

Ronush Thappar

v.

Ti.. Sia/I of

Madras.

Fad Ali,].

604 SUPREME COURT REPORTS [1950}

involves the same question as is involved in this case,.

I hold that the reliefs sought by the petitioner cannot

be granted. In this view, I would dismiss this . peti­

tion, but I should like to add a few observations to

supplement what I have said in the other case.

It appears to me that in the ultimate analysis the

real question to

be decided in this case is whether "disorders involving menace to the peace and tran­

quillity of the Province" and ailecting "public safety"

will be a matter which undermines the security of the

State or not. I have borrowed the words quoted

within inverted commas from the preamble

of the Act

which shows its

scope and necessity and the question

raised before

us attacking the validity of the Act

must

be formulated in the manner I have suggested.

If the answer to the question is in the affirmative,

as

I think it must be, then the impugned law which

prohibits entry into the State of Madras of "any

document or class of documents" for securing public

safety and maintenance of··public order ,,hould satisfy

the requirements laid down in article

19 (2) of the

Constitution. From the trend of the arguments ad­

dressed

to us, it would appear that if a document

is

seditious, its entry could be validly prohibited, be­

cause sedition is a matter which undermines the

security of the State ; but if, on the other hand, the

document

is calculated to disturb public tranquillity

and affect public safety,

its entry cannot be prohibited,

because public disorder and disturbance of public

tranquillity are not matters which undermine the

security of the

State. Speaking for myself, I cannot

understand this argument.

In Brij Bhushan and

Another

v. The State(

1

), I have quoted good authority

to show that sedition

owes its gravity to its tendency to

create disorders and an authority on criminal law

like Sir James Stephen has classed sedition

as

an

offence against public tranquillity. If so, how could

sedition

be a matter which would undermine the secu­

rity

of the State and public disorders and disturbance

of public safety will not

be such a matter? It was

argued that a small riot or a affray will not

(

1

)

[19;0) S.C.R. 605.

)

-!

S.C.R. SUPREME COURT REPORTS 605

undermine the security of the State, but to this line of

argument there

is a two-fold answer :-

( 1) The Act, as its preamble shows, is not intended

for petty disorders but for disorders involving menace

to the peace and tranquillity of the

Province, (2) There

arc degrees of gravity

in the offence of sedition

also

ahd an isolated piece of writing of mildly seditious

character

by one insignificant individual

may not also,

frotn the layman's point of view,

be -a matter which

undermines the securitv of the State, but that would

not affect the law

whi~h aims at checking sedition. It

was also said that the law as it stands may be mis­

used by the State executive, but misuse of the law is

one thing and its being unconstitutional is another.

We are here concerned with the latter aspect only. I

shall

not pursue the matter further as I have said

enough

on the subject in the connected

c~se.

Petition allotved.

Agent for the petitioner :-K. /. Kale.

Agent for the opposite party :-P. A. Mehta.

BRIT BHUSHAN AND ANOTHER

ti.

THE STATE OF DELHI.

[SHRI HARILAL KANIA C.J., SAIYID FAZL Au,

PATANJALI SASTRI, MEHR CHAND MAHAJAN,

MuxHERJEA and DAs JJ.J

Constitution of India. A1·t. 19. els. (I )(a) and (2)-Fundamental

right of freedom of speech and expreuion-Law imposing pre-censor­

ship on newspapers for securing public safety and preventing public

disorder-Validity-Matter disturbing public safety

or causing

pub­

lic disorder, whether "undermines the secut·ity of, or tends to over­

throw, the State"-Scope of Art. 19. cl. (2)-East Punjab Public

Safety Act, 1949, sec. 7 (I) (c)-Validity.

Section 7 (I) ( c) of the East Punjab Public Safety Act, 1949,

as extended to the Province of Delhi provided that "the Provin­

cial Government or any authority authorised by it in this behalf,

if satisfied that such action is necessary for preventing· or combat­

ing any activity prejudicial to the public safety or the mainten­

ance of public order may, by order in writing adGresscd to a

printer, publisher or editor require that any matter relating to a

1950

Romtsh T hap/HJ•

v.

The Stau qf

Madras.

Faz.I Ali,].

1950

May 26.