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PETITIONER: ROMESH THAPPAR

       Vs.

RESPONDENT: THE STATE OF MADRAS

DATE OF JUDGMENT: 26/05/1950

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID KANIA, HIRALAL J. (CJ) SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN MUKHERJEA, B.K.

CITATION:  1950 AIR  124            1950 SCR  594  CITATOR INFO :  F          1950 SC 129  (26)  R          1951 SC 270  (4)  E          1951 SC 318  (25)  D          1952 SC  75  (5,16)  E          1952 SC 329  (3,4,5)  R          1953 SC 252  (31)  RF         1953 SC 384  (5)  RF         1957 SC 620  (3,4,5,7)  RF         1957 SC 628  (12,16,20,21)  E&D        1957 SC 896  (14)  RF         1958 SC 578  (129)  F          1959 SC 395  (13,40)  R          1959 SC 725  (8)  R          1960 SC 633  (9,16)  RF         1961 SC1457  (8)  RF         1962 SC 171  (23)  R          1962 SC 305  (29)  R          1962 SC 955  (21)  R          1962 SC1621  (78,108,110,132)  R          1963 SC 996  (2,5)  MV         1966 SC 740  (48,69)  RF         1967 SC1110  (16)  RF         1967 SC1643  (165,227)  D          1969 SC 903  (23)  D          1970 SC1923  (12,13)  F          1971 SC2486  (8,13,14)  R          1973 SC 106  (16)  RF         1973 SC1461  (1705)  RF         1974 SC1389  (247)  RF         1977 SC 908  (23)  R          1978 SC 597  (77)  RF         1980 SC 494  (9)  RF         1986 SC 515  (24,33,34)  R          1986 SC 872  (74)  RF         1989 SC 190  (11)

ACT:    Constitution of India, Art. 19, cls. (1) (a) and (2),  32 Application under Art. 32--Preliminary  objection--Fundamen- tal right of freedom of speech and expression--Law  imposing

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restrictions  for securing public order and  maintenance  of public safety--Validity-Severability of Act--Madras  Mainte- nance   of   Public  Order  Act  (XXIII  of  1949),   s.   9 (1-A)--Validity.

HEADNOTE:    Held,  by the Full Court (i) (overruling  a  preliminary objection)  --Under  the Constitution the Supreme  Court  is 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  against  infringement of such  rights,  although such  applications  are made to the Court in the  first  in- stance  without  resort to a High  Court  having  concurrent jurisdiction in the matter.    Urquhart  v. Brown (205 U.S. 179) and Hooney  v.  Kolohan (294 U.S. 103) distinguished.    (ii) Freedom of speech and expression includes freedom propagation  of  ideas and that freedom is  ensured  by  the freedom of circulation.     Ex  parte  Jackson (96 U.S. 727) and Lovell v.  City  of Griffin (303 U.S. 444) referred to.      Held  per  KANIA  C.J., PATANJALI  SASTRI,  MEHR  CHAND MAHAJAN, MUKHERJEA and DAS JJ.--(FAZL ALI J. dissenting): (i) Apart from libel, slander etc. unless a law  restricting freedom of speech and expression is directed solely  against the  undermining of the security of the State or  the  over- throw  of  it, such law cannot fall within  the  reservation under  cl. (2) of art. 19 of the Constitution, although  the restrictions  which  it seeks to impose may have  been  con- ceived generally in the interests of public order. Section 9 (1-A) of the Madras Maintenance of Public Order Act,  XXXIII of  1949, which authorises impositions of  restrictions  for the  wider purpose of securing public safety or the  mainte- nance of public order falls outside the scope of  authorised restrictions under cl. (2) and is therefore void and  uncon- stitutional;   (ii)  Where a law purports to  authorise  the imposition  of restrictions on a fundamental right  in  lan- guage  wide  enough to cover restrictions  both  within  and without the limits of constitutionally permissible  legisla- tive  action  affecting such right, it is  not  possible  to uphold  it  even  so  far as it may be  applied  within  the constitutional  limits, as it is not severable.  So long  as the possibilitY of its being applied for purposes not  sanc- tioned by the Constitution cannot be ruled out 595     must  be  held to be wholly unconstitutional  and  void. Section  9  (1-A) is therefore wholly  unconstitutional  and void.     Per  FAZL ALI J.--Restrictions which s. 9  (1-A)  autho- rised are within the provisions of cl. (2) of art. 19 of the Constitution and s. 9 (1-A)is not therefore unconstitutional or void.(1)     Brij Bhushan and Another v. The State [1950] S.C.R.  605 referred to.

JUDGMENT:     ORIGINAL JURISDICTION: Petition No. XVI of 1950.  Appli- cation  under article 32 of the Constitution for a  writ  of prohibition  and certiorari.  The facts are set out  in  the judgment.

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   C.R.Pattabhi Raman, for the petitioner.     K.  Rajah Ayyar, Advocate-General of MadraS,  (Ganapathi Ayyar, with him) for the opposite party.    1950.  May  26. The Judgment of Kania  C.J.,  Mehr  Chand Mahajan,  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  exer- cise  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  (I-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act  XXIII of 1949) His Excellency the Governor  of  Madras, being satisfied that for the purpose of securing the  public safety and the maintenance of public 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 claims that the said  order  contravenes the fundamental right of the petitioner to freedom of See  the headnote to Brij Bhushan v. The State of Delhi,  p. 605 infra. 596 speech and expression conferred on him by article 19 (1)  (a) of the Constitution and he challenges the  validity of  section 9 (1-A) of the impugned Act as being void  under article  13 (1) of the Constitution by reason of  its  being inconsistent with his fundamental right  aforesaid.         The Advocate-General of Madras appearing on be  half of  the  respondents  raised a  preliminary  objection,  not indeed  to the jurisdiction of this Court to  entertain  the application under article 32, but to the petitioner  resort- ing  to  this Court directly for such relief  in  the  first instance.  He contended that, as a matter of orderly  proce- dure,  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 of the  Crimi- nal  Procedure Code, applications for bail and  applications for transfer under section 24 of the Civil Procedure Code as instances  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. Bisheswar 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  (2)  and Hooney v. Kolohan (3)  as showing  that  the Supreme  Court  of the  United  States  ordinarily  required that whatever judicial remedies remained open to the  appli- cant in Federal and 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

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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 (1)  I.L.R.  56 All. 158.     (2) 205 U. S. 179.    (3)  294 U.S. 103. 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 jurisdiction.  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 1II.  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 against infringements of such rights.  No similar  provision 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  propa- gation of ideas, and that freedom is ensured by the  freedom of circulation.  "Liberty of circulation is as essential  to that freedom as the liberty of publication.  Indeed, without circulation the  publication would be of little value ":  Ex parte  Jackson(1).  See also LoveIl v. City  of  Griffin(s). It  is therefore perfectly clear that the order of the  Gov- ernment  of Madras would be a violation of the  petitioner’s fundamental right under article 19 (1) (a), unless section 9 (1-A)  of the impugned Act under which it was made is  saved by  the reservations mentioned in clause (2) of  article  19 which (omitting immaterial words regarding laws relating  to libel,  slander,  etc., with which we are not  concerned  in this case) saves the operation of any "existinglaw in so far as  it relates to any matter which undermines  the  security of, or tends to overthrow, the State." The question  accord- ingly  arises  whether, the impugned Act, in so  far  as  it purports  by  section 9 (1-A) to  authorise  the  Provincial Government "for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry  into (1) 96 U.S. 727.                        (2)  303 U.S, 444. 598 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  Legisla- ture  in exercise of the power conferred upon it by  section 100  of the Government of India Act 1935, read with Entry  1 of  List II of the Seventh Schedule to that Act, which  com- prises  among  other  matters, "public order."  Now  "public order"  is an expression of wide connotation  and  signifies that state of tranquillity which prevails among the  members of  a political society as a result of the internal  regula- tions  enforced  by the government which  they  have  estab- lished.  Although  section 9 (I-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 ’matter  distinct from  and  outside  the content of  the  expression  "public order,"  it  would not have been competent  for  the  Madras

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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 impugned Act, which is a  statute relating to law  and  order, means the security of  the  Province,  and, therefore,’ ’the security of the State" with the meaning  of article 19 (2)as "the State" has been defined in article  12 as  including,  among other things, the Government  and  the Legislature of each of the erstwhile Provinces.  Much  reli- ance  was placed in support of this view on Rex v.  Wormwood Scrubbs  Prison(1) where it  was held that the  phrase  "for securing  the public safety and the’ defence of. the  realm" in  section  1 of the Defence of the  Realm  (Consolidation) Act, 1914, was not limited to securing the country against a foreign  foe but included also protection  against  internal disorder  such as a rebellion.  The decision is not of  much assistance to the respondents as the context in (1) L.R. [1920] 2 K.B. 805. 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 acquired any 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 offenCes 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 (section 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   "of- fences against the public tranquillity" which include unlaw- ful assembly (section 141) rioting (section  146),   promot- ing   enmity between  classes (section 153-A), affray  (sec- tion 159) etc.  Although in the context of a statute  relat- ing  to law and order "securing public safety" may  not  in- clude the securing of public health, it may well mean secur- ing 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  ab- sence of limiting words in the statute itself, be restricted to those aggravated forms of prejudicial activity which  are calculated to 600 endanger the security of the State.  Nor is there any  guar- antee 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

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expression" security of the State" though it made  provision under section 57 for dealing with crimes of violence intend- ed 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 attempting to commit "crimes of violence intended to overthrow the Govern- ment."  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 threatened by war or by  external  ag- gression  or  by internal disturbance."   These   provisions recognise  that disturbance of public peace or  tranquillity may assume such grave proportions as to threaten the securi- ty of the State.     As   Stephen   in  his  ’Criminal  Law   of   England(1) observes:’’   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 tranquillity of a civilised  society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it."  Though all these offences thus involve disturbances of public tranquil- 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 inflict- ed in respect of them they may be classified into  different minor categories as has been done by (1) Vol. II, p. 242. 601 the  Indian  Penal Code.  Similarly,  the  Constitution,  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  abridge- ment  of freedom of speech and expression, that is  to  say, nothing  less than endangering the foundations of the  State or  threatening 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 III (Concurrent List) of the Seventh  Sched- ule, which refers to the "security of a State" and  "mainte- nance of public order" as distinct subjects  of.legislation. The  Constitution  thus requires a line to be drawn  in  the field  of public order or tranquillity marking off, may  be, roughly,  the boundary 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  differ- ences in kind.     It is also worthy of note that the word "sedition" which occurred  in article 13 (2) of the Draft  Constitution  pre- pared   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,

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in  defining sedition in Niharendu  Dutt  Majumdar   v.  The King Emperor (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 [1942] F.C.R. 38. 602 decision  and emphatically reaffirmed the view expressed  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.  Sada- shiv  Narayan  Bhalerao (2) Deletion of the word  "sedition" from  the  draft  article 13 (2),   therefore,   shows  that criticism  of Government exciting disaffection or bad  feel- ings towards 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 corre- sponding Irish formula of  "undermining 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  abridgement  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  founda- tion  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 possible. 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. Minnesotta (3)].     We are therefore of opinion ’that unless a law restrict- ing  freedom  of speech and 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 Bom. 112.   (21 L.R. 74, I A. 89.  (8) 282U.S,  607, 717-8. 603 restrictions  which  it seeks to impose may have  been  con- ceived  generally in the interests of public order. It  fol- lows  that  section 9 (1-A) which authorises  imposition  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  there- fore void and unconstitutional.     It  was, however, argued that section 9 (1-A) could  not be  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 be valid.  We are unable to accede to  this contention.   Where a law purports to authorise the  imposi- tion of restrictions on a fundamental right in language wide

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enough  to cover restrictions both within and  without   the limits  of  constitutionally permissible legislative  action affecting  such right, it is not possible to uphold it  even so  far as it may be applied within the constitutional  lim- its, as it is not severable.  So long as the possibility  of its being applied for purposes not sanctioned by the Consti- tution  cannot  be ruled out, it must be held to  be  wholly unconstitutional  and  void. In other words, clause  (2)  of article 19 having allowed 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 circulation of the petitioner’s  journal  in  the State  of  Madras  is  hereby quashed.         FAZL  ALI  J.--For the reasons given by me  in  Brij Bhushan and Another v. The State(1) , which practically 605. 604 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 petition, 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 tranquillity of the  Prov- ince"  and affecting "public safety" will be a matter  which undermines  the security of the State or not.  I  have  bor- rowed  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 should satisfy the requirements laid  down  in article  19 (2)of the Constitution.  From the trend  of  the arguments  addressed to us, it would appear that if a  docu- ment  is seditious, its entry could be  validly  prohibited, because 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  of- fence  against public tranquillity.  If so, how could  sedi- tion  be a matter which would undermine the security 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  an  affray  will not (1) [1950] S.C R, 605. 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

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peace  and tranquillity of the Province, (2) There  are  de- grees  of  gravity in the offence of sedition  also  and  an isolated  piece of writing of mildly seditious character  by one insignificant individual may not also, from the layman’s point of view, be a matter which undermines the security  of the  State, but that would not affect the law which aims  at checking  sedition.  It  was also said that the  law  as  it stands may be misused 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 case.  Petition allowed. Agent for the petitioner:--K. J. Kale. Agent for the opposite party :--P. A. Mehta.