Romesh Thapar v. The State of Madras

Read this landmark judgement to learn how the Supreme Court upheld the right to free speech for the first time after the constitutionality of a provision of Madras Maintenance of Public Order Act, was challenged before the Court.
CITATION1950 AIR 124
COURTSupreme Court of India
JUDGES/CORAMJustice S. Fazal Ali and Justice PatanjaliShastri
DATE OF JUDGEMENT26.05.1950

Introduction

Article 19(2) of the Constitution authorizes the government to impose, by law, reasonable restrictions upon the freedom of speech and expression “in the interests of… public order.” To understand the Supreme Court’s public order jurisprudence, it is important to break down the sub-clause into its component parts, and focus upon their separate meanings. Specifically, three terms are important: “reasonable restrictions”, “in the interests of”, and “public order”.

The Supreme Court’s public order jurisprudence can be broadly divided into three phases. Phase One (1949-1950), which we may call the pre-First Amendment Phase, is characterized by a highly speech-protective approach and a rigorous scrutiny of speech-restricting laws. Phase Two (1950-1960), which we may call the post-First Amendment Expansionist Phase, is characterized by a judicial hands-off approach towards legislative and executive action aimed at restricting speech. Phase Three (1960-present day), which we may call the post-First Amendment Protectionist phase, is characterized by a cautious, incremental move back towards a speech-protective, rigorous-scrutiny approach. This classification is broad-brush and generalist, but serves as a useful explanatory device.

Before the First Amendment, the relevant part of Article 19(2) allowed the government to restrict speech that “undermines the security of, or tends to overthrow, the State.” The scope of the restriction was examined by the Supreme Court in Romesh Thappar vs State of Madras and Brij Bhushan vs State of Delhi[1], both decided in 1950. Both cases involved the ban of newspapers or periodicals, under state laws that authorized the government to prohibit the entry or circulation of written material, ‘in the interests of public order’.

Indian judiciary has taken an onerous task by evolving in its own way some principles for meeting with the aforesaid situation. An attempt is made here to evaluate the judicial response with focus on the conflict between the individual and the state.[2]

Facts

The facts of the case are as follows: The petitioner was 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 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. In response, it was considered on behalf of the respondent State, which the restriction was for the purpose of public safety and public order. This could be equated with security of the State, which is considered a reasonable restriction on freedom of expression under Article 19(2).

Issues

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. The main issue before the Supreme Court was whether the state can make such restriction?

Summary of court decision and judgement

J. Patanjali Sastri held that the security of the State is a reasonable restriction under Article 19 (2) of the Constitution. However, the words used in the impugned section of the Act are ‘public safety and public order’. The Court considered that the 2 terms have to be read together. The restrictions were allowed under the Act for the wider purpose of public order.[3] It drew parallels with the Indian Penal Code and other texts to show that public order have a very wide interpretation- including acts like rash driving. On the other hand, security of the State referred to extreme acts of violence that would threaten to overthrow the State. Further, where an Act may be used within the constitutional limits as well as outside the scope of these limits, it must be considered void. The impugned section was accordingly considered to be void for unconstitutionality, because it gave the State wide powers to restrict freedom of expression. The Court also quashed the order of the Government whereby the newspaper was banned.

J.Fazal concluded that the maintenance of peace and tranquillity was a part of maintaining security of the State. Therefore, he disagreed with the majority opinion and asserted that the Act imposed reasonable restrictions on freedom of expression and must be upheld as valid.

Analysis

The scope of the restriction was examined by the Supreme Court in Romesh Thappar vs State of Madras and Brij Bhushan vs State of Delhi, both decided in 1950. Both cases involved the ban of newspapers or periodicals, under state laws that authorized the government to prohibit the entry or circulation of written material, ‘in the interests of public order’. A majority of the Supreme Court struck down the laws. In doing so, they invoked the concept of “over-breadth”: according to the Court, “public order” was synonymous with public tranquillity and peace, while undermining the security of, or tending to overthrow the State, referred to acts which could shake the very foundations of the State. Consequently, while acts that undermined or tended to overthrow the State would also lead to public disorder, not all acts against public order would rise to the level of undermining the security of the State. This meant that the legislation proscribed acts that, under Article 19(2), the government was entitled to prohibit, as well as those that it wasn’t. This made the laws “over-broad”, and unconstitutional. In a dissenting opinion, Fazl Ali J. argued that “public order”, “public tranquillity”, “the security of the State” and “sedition” were all interchangeable terms, that meant the same thing.

In Romesh Thappar and Brij Bhushan, the Supreme Court also held that the impugned legislations imposed a regime of “prior restraint” – i.e., by allowing the government to prohibit the circulation of newspapers in anticipation of public disorder; they choked off speech before it even had the opportunity to be made. Following a long-established tradition in common law as well as American constitutional jurisprudence, the Court held that a legislation imposing prior restraint bore a heavy burden to demonstrate its constitutionality.

The decisions in Romesh Thappar and Brij Bhushan led to the passage of the First Amendment, which substituted the phrase “undermines the security of, or tends to overthrow, the State” with “public order”, added an additional restriction in the interests of preventing an incitement to an offence, and – importantly – added a the word “reasonable” before “restrictions”.

The newly-minted Article 19(2) came to be interpreted by the Supreme Court in Ramji Lal Modi vs State of UP (1957)[4]. At issue was a challenge to S. 295A of the Indian Penal Code, which criminalized insulting religious beliefs with an intent to outrage religious feelings of any class. The challenge made an over-breadth argument: it was contended that while some instances of outraging religious beliefs would lead to public disorder, not all would, and consequently, the Section was unconstitutional. The Court rejected this argument and upheld the Section. It focused on the phrase “in the interests of”, and held that being substantially broader than a term such as “for the maintenance of”, it allowed the government wide leeway in restricting speech. In other words, as long as the State could show that there was some connection between the law, and public order, it would be constitutional. The Court went on to hold that the calculated tendency of any speech or expression aimed at outraging religious feelings was, indeed, to cause public disorder, and consequently, the Section was constitutional. This reasoning was echoed in Virendra vs State of Punjab (1957)[5], where provisions of the colonial era Press Act, which authorised the government to impose prior restraint upon newspapers, were challenged. The Supreme Court upheld the provisions that introduced certain procedural safeguards, like a time limit, and struck down the provisions that didn’t. Notably, however, the Court upheld the imposition of prior restraint itself, on the ground that the phrase “in the interests of” bore a very wide ambit, and held that it would defer to the government’s determination of when public order was jeopardized by speech or expression.

In Ramji Lal Modi and Virendra, the Court had rejected the argument that the State can only impose restrictions on the freedom of speech and expression if it demonstrates a proximate link between speech and public order. The Supreme Court had focused closely on the breadth of the phrase “in the interests of”, but had not subjected the reasonable requirement to any analysis. In earlier cases such as State of Madras v V.G. Row[6], the Court had stressed that in order to be “reasonable”, a restriction would have to take into account the nature and scope of the right, the extent of infringement, and proportionality. This analysis failed to figure in Ramji Lal Modi and Virendra. However, in Superintendent, Central Prison v Ram Manohar Lohia[7], the Supreme Court changed its position, and held that there must be a “proximate” relationship between speech and public disorder, and that it must not be remote, fanciful or far-fetched. Thus, for the first time, the breath of the phrase “in the interests of” was qualified, presumably from the perspective of reasonableness. In Lohia, the Court also stressed again that “public order” was of narrower ambit than mere “law and order”, and would require the State to discharge a high burden of proof, along with evidence.

Lohia marks the start of the third phase in the Court’s jurisprudence, where the link of proximity between speech and public disorder has gradually been refined. In Babulal Parate vs State of Maharashtra (1961)[8] and Madhu Limaye vs Sub-Divisional Magistrate (1970)[9], the Court upheld prior restraints under S. 144 of the CrPC[10], while clarifying that the Section could only be used in cases of an Emergency. Section 144 of the CrPC empowers executive magistrates (i.e., high-ranking police officers) to pass very wide-ranging preventive orders, and is primarily used to prohibit assemblies at certain times in certain areas, when it is considered that the situation is volatile, and could lead to violence. In Babulal Parate and Madhu Limaye, the Supreme Court upheld the constitutionality of Section 144, but also clarified that its use was restricted to situations when there was a proximate link between the prohibition, and the likelihood of public disorder.

In recent years, the Court has further refined its proximity test. In S. Rangarajan vs P. Jagjivan Ram (1989)[11], the Supreme Court required proximity to be akin to a “spark in a powder keg”. Most recently, in Arup Bhuyan vs State of Assam (2011)[12], the Court read down a provision in the TADA criminalizing membership of a banned association to only apply to cases where an individual was responsible for incitement to imminent violence (a standard borrowed from the American case of Brandenburg)[13].

Lastly, in 2015, we have seen the first instance of the application of Section 144 of the CrPC to online speech. The wide wording of the section was used in Gujarat to pre-emptively block mobile internet services, in the wake of Hardik Patel’s Patidar agitation for reservations. Despite the fact that website blocking is specifically provided for by Section 69A of the IT Act[14], and its accompanying rules, the Gujarat High Court upheld the state action.

The following conclusions emerge:

  • “Public Order” under Article 19(2) is a term of art, and refers to a situation of public  tranquility/public peace, that goes beyond simply law-breaking
  • Prior restraint in the interests of public order is justified under Article 19(2), subject to a test of proximity; by virtue of the Gujarat High Court judgment in 2015, prior restraint extends to the online sphere as well
  • The proximity test requires the relationship between speech and public order to be imminent, or like a spark in a powder keg.

Conclusion

As a Supreme Court decision, this case is binding on all lower Courts. It was decided by a 5-judge bench, which means that a larger Supreme Court bench would need to be constituted in order to review or overrule this case. Therefore, it acts as a binding precedent. It is noteworthy that the text of the Constitution was altered through the First Amendment after this judgment. Therefore, the standard of Article 19 stands altered. ‘Public order’ is now listed as a reasonable restriction within the text of Article 19(2). However, public safety as discussed in the judgment continues to be beyond the scope of permissible restrictions.

The judgment is still authoritative in so far as it draws a distinction on the basis of whether such restrictions would be viewed as ‘reasonable’. The examples cited in the judgment reveal that only such speech which poses a great threat to the system of governance could be restricted. This standard was reinforced and expanded by Shreya Singhal v. Union of India[15], which drew a distinction between advocacy and incitement to hold that mere advocacy of hatred does not permit the State to curtail free speech.


[1] 1950 AIR 129, 1950 SCR 605.

[2] H.M SEERVAI, Constitutional Law of India1137.

[3] https://globalfreedomofexpression.columbia.edu/cases/thappar-v-madras/

[4] 1957 AIR 620, 1957 SCR 860

[5] 1957 AIR 896, 1958 SCR 308 .

[6] 1952 AIR 196, 1952 SCR 597 (India).

[7] 1960 AIR 633, 1960 SCR (2) 821 (India).

[8] 1961 AIR 884, 1961 SCR (3) 423 (India).

[9] 1971 AIR 2486, 1971 SCR (2) 711 (India).

[10] Code of Criminal Procedure Act, 1973.

[11]1989 SCR (2) 204, 1989 SCC (2) 574 (India).

[12] CRIMINAL APPEAL NO(s). 889 OF 2007 (India).

[13]Brandenburg v. Ohio, 395 U.S. 444 (1969) (United States).

[14] The Information Technology Act, 2008.

[15] WRIT PETITION (CRIMINAL) NO.167 OF 2012 (India).