Romesh Thappar Essay Example
Romesh Thappar Essay Example

Romesh Thappar Essay Example

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  • Pages: 14 (3651 words)
  • Published: December 1, 2017
  • Type: Essay
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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 Madras Maintenance of Public Order Act) whereby they imposed a ban upon the entry and circulation of the Journal in that State.

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 SST. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspap

...

er 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 speech and expression conferred on him by article 9(1)(a) of the Constitution and he challenges the validity of section 9(1-A) of the Madras Maintenance of Public Order Act as being void under article 13(1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid.

Issues: Whether fundamental right of the petitioner to freedom of speech and expression conferred on him by article 19(1)(a) of the Constitution is violated? Ђ Is Section 9(1-A) of the Madras Maintenance of Public Order Act being void under article 13(1) of the Constitution?

Arguments: The Advocate-General of Madras appearing on behalf of the respondent

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raised a relaying 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 of the Criminal 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.

Fisheries Parkas Sinai [1], where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions Request v. Brown[2] and , as showing that the Supreme Court of the United States ordinarily required that whatever Judicial remedies remained open to the applicant 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-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 High Court, to issue certain writs for the enforcement of the rights inferred by Part Ill 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 Ill. 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. It was contended by the petitioners that there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. In Ex part Jackson it was held that "Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value".

It is therefore perfectly clear that the order of the Government of Madras would be a violation of he petitioner's fundamental right under article 19(1)(a), unless section 9(1-A) of the Madras Maintenance of Public Order Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which saves the operation of any "existing 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 Madras Maintenance of Public Order Act, in so far as it purports by section 9(1-A) of to authorities the Provincial Government which for the purpose of securing the public feet or the maintenance of public order, to prohibit or regulate the entry into 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.

Now "public orders" is an expression of wide connotation and signifies that state of tranquility which prevails among the 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 f 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 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 Madras Maintenance of Public Order Act, which is a statute relating to law and order, meaner 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 Government and the Legislature of each of the erstwhile Provinces. Much reliance was placed in support of this view on Rexes v.

Wormwood Scrubs Prison[3] , where it was held that the phrase "for securing the public safety and the defense of the realm" in Section 1 of the Defense of the Realm (Consolidation) Act, 1914, was not limited to securing the country against a foreign foe UT included also protection against internal disorder such as a rebellion. The decision is not of much assistance to the respondents as the context in 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 meaner security of the public or their freedom from danger. In that sense, anything which tends to prevent dangers to public health may also be graded as securing public safety. 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 offenses lime rash driving or an affray.

But whatever ends the Madras Maintenance of Public Order Act may have been intended to submerse, 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 endanger the security of the State. Nor is there any guarantee that those authorized to exercise the powers under the Act will in using them discriminate between those who act prejudicial 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 tranquility of the Province" by committing or attempting 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 threatened by war or by external aggression or by internal disturbance.

" These provisions recognize that disturbance of public peace or tranquility may assume such grave proportions as to threaten the security of the State. Judgment : Justice Potential Astir held that Public safety" ordinarily meaner 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 offense in the Indian Penal Code, for instance,

Chapter XIV enumerates the "offenses affecting the public health, safety, convenience, decency, and, morals" and it includes rash driving or riding on a public way (section 279) and ash navigation or a vessel (section 280), among others, as offenses against public safety, while Chapter VI lists waging war against the Queen (section 121) sedition (section 124-A) etc. s "offenses against the State", because they are calculated to undermine or the security of the State, and Chapter VIII defines "offenses against the public tranquility" which include unlawful assembly (section 141) rioting (section 146), promoting enmity between classes (section 1 53-A), affray (section 1 59) etc. He quotes the words of Stephen who observes "Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offenses 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 tranquility of a civilized society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. " [4] Though these offenses thus involve disturbances of public tranquility and are in theory offenses 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 aspect of them they may be classified into different minor categories as has been done by 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 offenses against public order which aim at undermining

the security of the State or overthrowing it, and made their prevention the sole Justification for legislative abridgment of freedom of speech and expression, that is to say, nothing less than endangering the inundations 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. Justice Potential Astir said it is also worthy of note that the word "sedition" which occurred in article 13(2) of the Draft Constitution 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 Unhardened Duty Major v.

The King Emperor[5], held that "the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency", but the Privy Council overruled that decision and emphatically reaffirmed the view expressed in Atlas's case[6] , to the effect that "the offense consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny r rebellion, or any sort of actual disturbance, great or small" He further contends that they are therefore of opinion that unless a law restricting 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 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 authorities imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorized restrictions under clause (2), and is therefore 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 Madras Maintenance of Public Order provision, as applied to the latter purpose, was overfed 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 authorities the imposition of restrictions on a fundamental right in language wide 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 if may be applied within the constitutional limits, as it is not severable.

So long as the possibility of its being applied for purposes not sanctioned by the Constitution Anton 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. Therefore the application was therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner's Journal in the State of Madras was thereby quashed. Justice Faze All dissented in this case saying that for the reasons given by him in BRI Babushka and Another v.

The State[7], which practically involves the same question as is involved in this case, he held that the relief sought by the petitioner cannot be granted. In this view, he dismissed this petition, but he added a few observations to supplement what he has said in the other case. It appears to him that the ultimate analysis, the real question to be decided in this case was whether "disorders involving menace to the peace and tranquility of the Province" and affecting "public safety" will be a matter which undermines the security of the State or not. He has 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 he has suggested.

If the answer to the question is in the affirmative, as he thinks it must, be then the Madras Maintenance of Public Order 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 own in article 19(2) of the Constitution. From the trend of the arguments addressed to them, it appears that if a document 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 tranquility and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquility are not matters which undermine the security of the State. In BRI Babushka and Another v.

The State[8], he has quoted good authority o 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 offense against public tranquility. If so, how could sedition 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 ? There are degrees of gravity in the offense 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. Analysis: Under our constitution there is no

such thing as "freedom of press". The press cannot claim any additional rights than what is Justly available to an average citizen. However under the American Constitution, the Freedom of Press is explicitly recognized. In India,the freedom of press is implicitly in the "Freedom of Speech and Expression". Article 19(1)(a) provides that "all citizens shall have the right to freedom of speech and expression". No right in any Judicial system is absolute. Even a Fundamental right can be subject to "reasonable restriction. The word 'restriction' has been a subject matter of serious Judicial debate,and the courts have concluded that the word 'restriction can include even deprivation' or total prohibition'. Article 19(1) (a) of the Indian Constitution states simply that 'all citizens shall have the eight to freedom of speech and expression'.

The companion Article, Article 19(2) qualifies this right by providing that the State can impose reasonable restriction on its exercise 'in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offense'.

Article 19(1)(a) does not refer specifically to the freedom of the press as does, say, the corresponding provision in the American Constitution, but Judicial decisions have repeatedly firmed that the Article is sufficiently wide to include the freedom of the press and, by extension, the freedom of other mass media. Len Romeos Taper's Case and in several subsequent cases strict and narrow limits have been placed on the Legislative powers to abridge the right conferred by Article 19(1) (a).

Any restriction on Article 19(1) (a) can

only be valid if three conditions are met:

  1. It is supported by the authority of law; The law in question is related to one or more of the permitted heads of restrictions laid down under Article 19(2);
  2. and the restriction is reasonable. It is also necessary that the procedure and the manner in which the restriction is imposed be Just, fair and reasonable.

However Art 19(2) authorizes the state to many so far as such law imposes reasonable restrictions on the exercise of right,in the interest of ,"- Security of the state Friendly relations with the foreign state To prevent contempt of court Defamation or Incitement to an offense Further restrictions have been imposed on the freedom of speech and expression by Article 51 A defining fundamental duties of a citizen (42nd Amendment in 1976).

Under Article 51 A, no one should in exercise of the freedom of expression or of the press do any of the following acts:

  1. To disparage the constitution, its ideals and institutions, the National Flag or the National Anthem;
  2. To undermine the sovereignty, unity and integrity of India;
  3. O disrupt the spirit of common brotherhood among all the people; and
  4. To insult the rich heritage of our composite culture.

In Romeos Taper Case the Supreme Court laid down an important principle and giving restrictive interference to clause 2 of Article 19 having allowed the imposition f restrictions on the freedom of speech and expression for specified purposes, any law imposing restriction which are capable of being applied in causes beyond the express purposes cannot be held to be constitutional or valid to any extent. On the other hand, 'Freedom of

Press' has been held to be a part of the Fundamental Right of 'Freedom of Speech and expression' guaranteed by Article 19(1) (a) to the citizens of India.

Is had been held that 'Freedom of Press' is necessary for exercise of fundamental freedom of citizens of 'speech and expression'. And so 'Freedom of Press' cannot be termed as unconstitutional and void. And as the Constitution says this can only be exercised till it does not harm the decency/morality of a person. The Constitution of India gives full liberty to press but with stings attached. On 18th June, 1951 Amended Article 19(2) by adding "reasonable" to restrictions. The restriction must be reasonable. In other words, it must not be excessive or misappropriate. The procedure and the manner of imposition of the restriction also must be Just, fair and reasonable.

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