LexROMESH THAPPAR versus THE STATE OF MADRAS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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~
· 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 Excerpt shown. Read the full judgment & AI analysis in Lexace.