Romesh Thappar v. State of Madras

Madras banned a weekly journal printed in Bombay from entering the State. The ban rested on a law that allowed restrictions for public safety and public order (the state of tranquillity in a society). The Supreme Court held that Article 19(2), as it then stood, did not cover that wide purpose, and it struck the law down.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

Romesh Thappar — petitioner; the printer, publisher and editor of the weekly journal Cross Roads, printed and published in Bombay.

The State of Madras — respondent; the Government of Madras, which issued the order banning the journal. It appeared through the Advocate-General of Madras.

Procedural History

1. The Government of Madras issued order No. MS. 1333 dated 1 March 1950 under section 9(1-A) of the Madras Maintenance of Public Order Act, 1949.
2. The petitioner filed Petition No. XVI of 1950 directly in the Supreme Court. It was an application under Article 32 of the Constitution for a writ of prohibition and certiorari (court orders to stop and set aside the ban).
3. The Advocate-General of Madras raised a preliminary objection. He did not dispute the Court's jurisdiction. He said the petitioner should first go to the High Court at Madras under Article 226.
4. The Supreme Court overruled the preliminary objection and decided the petition on the merits.
5. On 26 May 1950, Patanjali Sastri J. delivered the judgment of Kania C.J., Mahajan, Mukherjea and Das JJ. Fazl Ali J. delivered a separate judgment.

Facts

1. The petitioner was the printer, publisher and editor of a recently started weekly journal in English called Cross Roads. It was printed and published in Bombay.
2. On 1 March 1950, the Government of Madras issued order No. MS. 1333. It acted under section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 (called the impugned Act).
3. The order banned the entry and circulation of the journal in the State of Madras. It was published in the Fort St. George Gazette.
4. In the notification, the Governor of Madras said he was satisfied that the ban was necessary for securing the public safety and the maintenance of public order.
5. The notification prohibited the entry into the State of Madras, or any part of it, of the newspaper Cross Roads. It also prohibited its circulation, sale or distribution there.
6. The ban took effect from the date of publication of the order in the Gazette.
7. The petitioner said the order violated his fundamental right (a basic right guaranteed by Part III of the Constitution) to freedom of speech and expression under Article 19(1)(a).
8. He also challenged section 9(1-A) as void under Article 13(1), because it was inconsistent with that fundamental right.

Issues Raised

1. Could the petitioner come directly to the Supreme Court under Article 32, without first going to the High Court at Madras under Article 226?
2. Did the order banning the entry and circulation of Cross Roads violate the petitioner's right under Article 19(1)(a)?
3. Was section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, a law relating to any matter which undermines the security of or tends to overthrow the State under Article 19(2)?
4. Did public safety in section 9(1-A) mean the security of the State?
5. Could section 9(1-A) be held void only to the extent of its inconsistency, and valid for the rest?

Arguments Contended

For the petitioner (Romesh Thappar):

• The order violates his fundamental right to freedom of speech and expression under Article 19(1)(a).
• Section 9(1-A) of the impugned Act is void under Article 13(1), because it is inconsistent with that right.
• The judgment records no other argument of the petitioner in the main opinion.

For the respondent (State of Madras, through the Advocate-General):

• Preliminary objection: the petitioner should first go to the High Court at Madras, which has concurrent jurisdiction under Article 226. This was a matter of orderly procedure. He did not question this Court's jurisdiction.
• The Advocate-General cited examples of a rule of practice where two courts have concurrent jurisdiction:
  • criminal revision petitions under section 435 of the Criminal Procedure Code;
  • applications for bail (release from custody pending trial);
  • applications for transfer under section 24 of the Civil Procedure Code.
• He cited Emperor v. Bisheswar Prasad Sinha, I.L.R. 56 All. 158, where this rule of practice was enforced in a criminal revision case.
• He cited the American decisions Urquhart v. Brown, 205 U.S. 179, and Hooney v. Kolohan, 294 U.S. 103. They show that the US Supreme Court ordinarily requires other judicial remedies to be exhausted first.
• On the merits, public safety in the Act means the security of the Province. It therefore means the security of the State in Article 19(2), as the State in Article 12 includes the Government and Legislature of each former Province. This was not disputed as to public safety being part of public order.
• The respondents relied on Rex v. Wormwood Scrubbs Prison, L.R. [1920] 2 K.B. 805, on the phrase for securing the public safety and the defence of the realm.
• It was said (the judgment does not name who said it) that an enactment with drastic remedies, such as preventive detention (detaining a person without trial) and a ban on newspapers, must relate to the security of the State. It cannot relate to trivial offences like rash driving or an affray.
• It was argued that section 9(1-A) could not be wholly void. Under Article 13(1), an existing law (a law already in force when the Constitution began) inconsistent with a fundamental right is void only to the extent of the inconsistency. Where public safety and public order include the security of the State, the provision is valid for that purpose. The judgment does not name who made this argument.

Other arguments addressed to the Court (side not named in the judgment):

• A seditious document could be kept out, because sedition (inciting bad feeling against the Government) undermines the security of the State. A document that disturbs public tranquillity and affects public safety could not be kept out, because public disorder does not undermine that security. This is Fazl Ali J.'s description of the arguments addressed to the Court.
• A small riot or an affray will not undermine the security of the State.
• The State executive may misuse the law as it stands.

Court's Reasoning

The judgment does not number its paragraphs. The steps below follow the order of the opinions and cite no paragraph numbers.

Opinion of Patanjali Sastri J. (for Kania C.J., Mahajan, Mukherjea and Das JJ.)

1. Noted: The Court sets out the facts, the order of 1 March 1950 and the text of the notification. The petitioner relies on Article 19(1)(a) and Article 13(1).
2. Noted: The Advocate-General raised a preliminary objection. He did not challenge the Court's jurisdiction under Article 32. He said the petitioner should first go to the Madras High Court.
3. Noted: The Advocate-General's examples were criminal revisions under section 435 of the Criminal Procedure Code, bail applications and transfer applications under section 24 of the Civil Procedure Code. He relied on Emperor v. Bisheswar Prasad Sinha and the American cases Urquhart v. Brown and Hooney v. Kolohan.
4. Held: Neither the Indian instances nor the American decisions are analogous to the remedy under Article 32.
5. Why: Article 32 does not merely give this Court power to issue writs as part of its general jurisdiction, as Article 226 does for the High Courts. If it did, it would sit more naturally among Articles 131 to 139.
6. Why: Article 32 provides a guaranteed remedy for enforcing the rights in Part III. This remedial right is itself made a fundamental right by being included in Part III.
7. Held: This Court is the protector and guarantor of fundamental rights. It cannot, consistently with that responsibility, refuse to entertain applications seeking protection against infringements of such rights.
8. Noted: The Constitution of the United States has no similar provision, so the American decisions are not in point.
9. Held: Freedom of speech and expression includes freedom of propagation of ideas. That freedom is ensured by the freedom of circulation. The Court quotes Ex parte Jackson: "Liberty of circulation is as essential to that freedom as the liberty of publication."
10. Noted: Ex parte Jackson, 96 U.S. 727, also says that without circulation the publication would be of little value. The Court also refers to Lovell v. City of Griffin, 303 U.S. 444.
11. Held: The order of the Madras Government violates the petitioner's right under Article 19(1)(a), unless section 9(1-A) is saved by Article 19(2).
12. Noted: Article 19(2), leaving out the words on libel, slander and similar matters, saves an existing law only so far as it relates to a matter that "undermines the security of, or tends to overthrow, the State".
13. Noted: The question is whether section 9(1-A) is such a law. That section lets the Provincial Government prohibit or regulate the entry, circulation, sale or distribution of any document for the purpose of securing the public safety or the maintenance of public order.
14. Noted: The Provincial Legislature passed the Act under section 100 of the Government of India Act, 1935, read with Entry 1 of List II of the Seventh Schedule. That entry includes public order.
15. Noted: Public order is an expression of wide meaning. It signifies the state of tranquillity among the members of a political society, which results from internal regulations enforced by their government.
16. Held: Public safety in section 9(1-A) must be read as part of the wider concept of public order.
17. Why: If public safety meant something outside public order, the Madras Legislature could not have enacted that part of the provision. The respondents did not dispute this.
18. Noted: The respondents argued that public safety in a law-and-order Act means the security of the Province. That would be the security of the State, as Article 12 defines the State to include the Government and Legislature of each former Province.
19. Noted: The respondents relied on Rex v. Wormwood Scrubbs Prison. It held that for securing the public safety and the defence of the realm in section 1 of the Defence of the Realm (Consolidation) Act, 1914, covers internal disorder such as rebellion, not only a foreign enemy.
20. Held: That decision is not of much help to the respondents. The context in which public safety appeared in that Act showed that the security of the State was the aim.
21. Noted: No definition of public safety was cited. The words have no technical meaning as words of art.
22. Noted: Public safety ordinarily means the security of the public or their freedom from danger. In that sense, preventing dangers to public health can also be public safety. The meaning varies with the context.
23. Noted: The Indian Penal Code groups offences in different chapters:
    • Chapter XIV, on offences affecting public health, safety, convenience, decency and morals, includes rash driving or riding (section 279) and rash navigation of a vessel (section 280).
    • Chapter VI treats waging war against the Queen (section 121) and sedition (section 124-A) as offences against the State.
    • Chapter VIII defines offences against public tranquillity, including unlawful assembly (section 141), rioting (section 146), promoting enmity between classes (section 153-A) and affray (section 159).
24. Held: In a law-and-order statute, securing public safety may mean securing the public against rash driving and the like. It does not necessarily mean the security of the State.
25. Noted: It was said that an enactment with drastic remedies such as preventive detention and a ban on newspapers must relate to the security of the State, not to trivial offences.
26. Held: Whatever ends the Act was meant to serve, its application and scope cannot be restricted to aggravated forms of prejudicial activity that endanger the security of the State. The statute itself has no limiting words.
27. Noted: There is also no guarantee that those who exercise the powers under the Act will distinguish between those who act against the security of the State and those who do not.
28. Noted: The Government of India Act, 1935 nowhere used the expression security of the State. Section 57 dealt with crimes of violence intended to overthrow the Government.
29. Noted: Under that Act, a Minister elected by the people was in charge of law and order, including public order. The Governor was responsible for combating persons who endangered the peace or tranquillity of the Province by crimes of violence intended to overthrow the Government.
30. Noted: Article 352 of the Constitution lets the President proclaim an Emergency when the security of India or any part of it is threatened by war, external aggression or internal disturbance.
31. Noted: These provisions recognise that a disturbance of public peace may become so grave that it threatens the security of the State.
32. Noted: The Court quotes Stephen's Criminal Law of England, Vol. II, p. 242. Unlawful assemblies, riots, insurrections, rebellions and levying of war run into each other. All of them disturb the normal tranquillity of a civilised society, by actual force or by the show and threat of it.
33. Noted: These offences all disturb public tranquillity and are in theory offences against public order. The difference is only one of degree. The Indian Penal Code still grades them into categories for fixing punishment.
34. Held: Likewise, in setting the criteria for restrictions on the rights in Article 19(1), the Constitution puts in a distinct category those offences against public order that aim at undermining the security of the State or overthrowing it. It made their prevention the sole justification for restricting freedom of speech and expression.
35. Held: Nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailing the rights to freedom of speech and expression.
36. Noted: The rights of peaceable assembly (sub-clause (b)) and association (sub-clause (c)) can be restricted under clauses (3) and (4) of Article 19 in the interests of public order. That term in those clauses includes the security of the State.
37. Noted: Entry 3 of List III (Concurrent List) in the Seventh Schedule also treats security of a State and maintenance of public order as distinct subjects of legislation.
38. Held: The Constitution thus requires a line to be drawn in the field of public order. It marks off, roughly, the serious forms of disorder that endanger the security of the State from minor breaches of the peace of purely local significance.
39. Noted: The Constitution treats differences in degree here as if they were differences in kind.
40. Noted: The word sedition appeared in article 13(2) of the Draft Constitution prepared by the Drafting Committee. It was deleted before the article was passed as Article 19(2).
41. Noted: The Federal Court, in Niharendu Dutt Majumdar v. The King Emperor, [1942] F.C.R. 38, defined sedition as acts or words that incite to disorder or are meant or likely to do so.
42. Noted: The Privy Council overruled that decision in King Emperor v. Sadashiv Narayan Bhalerao, L.R. 74 I.A. 89. It reaffirmed the view in Tilak's case (22 Bom. 112). The offence lay in exciting bad feelings towards the Government, not in exciting mutiny, rebellion or any actual disturbance.
43. Held: Deleting sedition from the draft article shows that criticism of the Government that excites disaffection or bad feelings is not a ground for restricting free expression and the press. It becomes one only if it undermines the security of the State or tends to overthrow it.
44. Noted: The Irish formula undermining the public order or the authority of the State in Article 40(6)(i) of the Constitution of Eire, 1937, did not apparently find favour with the framers of the Indian Constitution.
45. Held: Very narrow and stringent limits were set on permissible legislative curbs on free speech and expression.
46. Why: This was doubtless due to the realisation that freedom of speech and of the press lies at the foundation of all democratic organisations. Without free political discussion, the public education needed for popular government is not possible.
47. Noted: Such a wide freedom might risk abuse. The framers may have thought, with Madison, that it is better to leave a few noxious branches of the freedom to grow than to injure its vigour by pruning them away. Madison is quoted in Near v. Minnesota (reported in the text as 282 U.S. 607, at 717-8).
48. Held: 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", it cannot fall within the reservation in clause (2) of Article 19. This is so even though the restrictions may have been conceived generally in the interests of public order.
49. Held: Section 9(1-A) allows restrictions for the wider purpose of securing public safety or maintaining public order. It falls outside the restrictions authorised by clause (2), and is therefore void and unconstitutional.
50. Noted: It was argued that section 9(1-A) was not wholly void, because under Article 13(1) an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency. Where public safety or public order includes the security of the State, the provision, as applied to that purpose, is covered by clause (2) and must be held valid.
51. Held: The Court is unable to accept this contention.
52. Held: Where a law authorises restrictions on a fundamental right in language wide enough to cover restrictions both within and outside constitutional limits, "even so far as it may be applied within the constitutional limits, as it is not severable".
53. Held: So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, the law is wholly unconstitutional and void.
54. Held: Clause (2) allows restrictions on free speech only where danger to the State is involved. An enactment capable of being applied where no such danger could arise cannot be constitutional and valid to any extent.
55. Held: The application is allowed, and the order of the respondents prohibiting the entry and circulation of the petitioner's journal in Madras is quashed.

Opinion of Fazl Ali J. (dissenting)

1. Noted: Fazl Ali J. relies on the reasons he gave in Brij Bhushan and Another v. The State, [1950] S.C.R. 605. He says that case practically involves the same question as this one.
2. Held: The reliefs sought by the petitioner cannot be granted. He would dismiss the petition. He adds a few observations to supplement what he said in the other case.
3. Noted: In his view, the real question is whether disorders involving menace to the peace and tranquillity of the Province and affecting public safety undermine the security of the State.
4. Noted: He borrowed those words from the preamble (the introductory statement) of the Act, which shows its scope and necessity.
5. Held: In his view, the answer to that question must be yes. The impugned law, which prohibits entry into Madras of any document or class of documents for securing public safety and maintaining public order, then meets the requirements of Article 19(2).
6. Noted: He describes the argument addressed to the Court. A seditious document could be kept out, as sedition undermines the security of the State. A document likely to disturb public tranquillity and public safety could not be kept out. He says he cannot understand that argument.
7. Noted: In Brij Bhushan, he quoted authority to show that sedition owes its gravity to its tendency to create disorders. Sir James Stephen, an authority on criminal law, classed sedition as an offence against public tranquillity.
8. Held: If sedition undermines the security of the State, public disorders and disturbance of public safety must also be such a matter.
9. Noted: It was argued that a small riot or an affray will not undermine the security of the State. He gives a two-fold answer.
10. Held: First, the Act, as its preamble shows, is not meant for petty disorders. It is meant for disorders menacing the peace and tranquillity of the Province.
11. Held: Second, there are degrees of gravity in sedition also. An isolated, mildly seditious piece of writing by one insignificant person may not undermine the security of the State, from a layman's point of view. That would not affect a law that aims at checking sedition.
12. Noted: It was also said that the State executive may misuse the law.
13. Held: "Misuse of the law is one thing and its being unconstitutional is another." The Court is concerned only with the latter.
14. Noted: He adds nothing more, as he said enough on the subject in the connected case.

Provisions discussed

• Article 19(1)(a): the right to freedom of speech and expression. The Court held that it includes freedom of propagation of ideas, which is ensured by freedom of circulation.
• Article 19(2) as it then stood: it saved an existing law only so far as it related to libel, slander or similar matters, or to a matter that undermines the security of the State or tends to overthrow it.
• Article 19(1)(b) and (c), with clauses (3) and (4): the rights of peaceable assembly and association. They may be restricted in the interests of public order, which in those clauses includes the security of the State.
• Article 13(1): an existing law inconsistent with a fundamental right is void to the extent of the inconsistency. The Court held that this did not save section 9(1-A), as it was not severable.
• Article 13(2) of the Draft Constitution: it had the word sedition. The word was deleted before the final Article 19(2).
• Article 32: it gives a guaranteed remedy for enforcing Part III rights. That remedial right is itself a fundamental right.
• Article 226: it gives the High Courts power to issue writs. The Court distinguished it from Article 32.
• Articles 131 to 139: they define this Court's general jurisdiction. The Court said Article 32 would otherwise have been placed among them.
• Part III of the Constitution: the part that holds the fundamental rights.
• Article 12: it defines the State. The respondents relied on it to equate the security of the Province with the security of the State.
• Article 352: it lets the President proclaim an Emergency when the security of India is threatened by war, external aggression or internal disturbance.
• Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 (Madras Act XXIII of 1949): it lets the Provincial Government prohibit or regulate the entry, circulation, sale or distribution of documents, for the purpose of securing public safety or maintaining public order.
• Sections 57 and 100 of the Government of India Act, 1935: section 57 dealt with crimes of violence meant to overthrow the Government. Section 100 and Entry 1 of List II gave the Provincial Legislature power over public order.
• Entry 3 of List III of the Seventh Schedule: it lists security of a State and maintenance of public order as distinct subjects.
• Indian Penal Code, sections 121, 124-A, 141, 146, 153-A, 159, 279 and 280: the Court used them to show how offences are grouped.
• Criminal Procedure Code, section 435, and Civil Procedure Code, section 24: the Advocate-General cited them as instances of a rule of practice between courts with concurrent jurisdiction.
• Section 1 of the Defence of the Realm (Consolidation) Act, 1914: its phrase public safety and the defence of the realm was held to cover internal disorder in Rex v. Wormwood Scrubbs Prison.
• Article 40(6)(i) of the Constitution of Eire, 1937: it has the formula undermining the public order or the authority of the State. The Court noted that it was not adopted.
• First Amendment of the Federal Constitution of the United States: Madison was called its leading spirit, in a quotation the Court used.

Authorities

• Emperor v. Bisheswar Prasad Sinha, I.L.R. 56 All. 158: cited by the Advocate-General for a rule of practice enforced in a criminal revision case. The Court held it not analogous to Article 32 (Patanjali Sastri J.).
• Urquhart v. Brown, 205 U.S. 179: cited by the Advocate-General to show that US courts require other remedies to be exhausted first. Not in point, as the US Constitution has no similar provision (Patanjali Sastri J.).
• Hooney v. Kolohan, 294 U.S. 103: cited for the same purpose and treated in the same way (Patanjali Sastri J.).
• Ex parte Jackson, 96 U.S. 727: quoted on liberty of circulation being as essential as liberty of publication (Patanjali Sastri J.).
• Lovell v. City of Griffin, 303 U.S. 444: referred to with Ex parte Jackson (Patanjali Sastri J.).
• Rex v. Wormwood Scrubbs Prison, L.R. [1920] 2 K.B. 805: relied on by the respondents on public safety. Held not of much help, as the context showed the security of the State was the aim (Patanjali Sastri J.).
• Stephen, Criminal Law of England, Vol. II, p. 242: quoted on unlawful assemblies, riots, insurrections and rebellions running into each other (Patanjali Sastri J.).
• Niharendu Dutt Majumdar v. The King Emperor, [1942] F.C.R. 38: the Federal Court's definition of sedition, which the Privy Council overruled (Patanjali Sastri J.).
• King Emperor v. Sadashiv Narayan Bhalerao, L.R. 74 I.A. 89: the Privy Council overruled Niharendu and reaffirmed Tilak's case (Patanjali Sastri J.).
• Tilak's case, 22 Bom. 112: the view that sedition lay in exciting bad feelings towards the Government, reaffirmed by the Privy Council (Patanjali Sastri J.).
• Near v. Minnesota (reported in the text as 282 U.S. 607, at 717-8): used for Madison's remark on the noxious branches of freedom of the press (Patanjali Sastri J.).
• Brij Bhushan and Another v. The State, [1950] S.C.R. 605 (the footnote calls it Brij Bhushan v. The State of Delhi): the connected case. Fazl Ali J. relies on his reasons there and on his authorities on sedition (Fazl Ali J.).
• Also cited in footnotes: none beyond the reports listed above.

Judgement

1. The preliminary objection to the petition being made directly to the Supreme Court is overruled.
2. The application is allowed.
3. The order of the Government of Madras prohibiting the entry and circulation of the petitioner's journal in the State of Madras is quashed.
4. Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, is void and unconstitutional.
5. Kania C.J., Mahajan, Mukherjea and Das JJ. agreed with Patanjali Sastri J. Fazl Ali J. gave a separate judgment and would have dismissed the petition.
6. The judgment does not state any order as to costs.

Legal Principle / Ratio

Under Article 19(2) as it then stood, a law restricting freedom of speech and expression was saved only if it was directed solely at undermining the security of the State or its overthrow. A law that permitted restrictions for the wider purpose of public safety or public order was void, and it could not be saved in part.

Key holding: a law that is "directed solely against the undermining of the security of the State or the overthrow of it" can alone fall within clause (2).

Subsequent Treatment

This section is based on three later judgments. Only what each says about this case is stated.

Kedar Nath Singh v. State of Bihar

• 1962 AIR 955, 1962 SCR Supl. (2) 769 (Supreme Court; Sinha C.J., S.K. Das, A.K. Sarkar, N. Rajagopala Ayyangar and J.R. Mudholkar JJ.; decided 20 January 1962). The judgment is not numbered by paragraph.
• The Court said this case and Brij Bhushan were decided on the same day by the same six judges. In this case, the majority held section 9(1-A) in excess of clause (2) of Article 19 and therefore void.
• It said the majority's observations on sedition were meant to bring out the difference between the security of the State and public order. As public order was not in Article 19(2) as originally enacted, the section was struck down.
• It set out Fazl Ali J.'s dissent. It said Parliament amended clause (2) by the Constitution (First Amendment) Act, 1951, with retrospective effect. This showed that Parliament accepted that the security of the State is allied to public order. Restrictions in the interest of public order could therefore be valid.

Shreya Singhal v. Union of India

• AIR 2015 SUPREME COURT 1523, 2015 (5) SCC 1 (Supreme Court; R.F. Nariman and J. Chelameswar JJ.; decided 24 March 2015).
• Para 9: the Court cited this case as an early case that said freedom of speech lay at the foundation of all democratic organisations.
• Paras 30-31: the Court said public order was absent from Article 19(2) as it originally stood. It noted that this case held an order under section 9(1)(a) (sic; section 9(1-A)) of the Madras Maintenance of Public Order Act unconstitutional. It was not justified as a measure connected with the security of the State. It recorded that Brij Bhushan reached the same result.
• Para 94: the Court said this case rejected a contention of severability when the courts enforce the fundamental right under Article 19(1)(a). It set out the Court's reasoning in full.
• Para 95: the Court held that section 66A applies to purposes the Constitution does not sanction, so it is wholly void. It noted that R.M.D. Chamarbaugwalla v. The Union of India had distinguished this case for a right under Article 19(1)(g).
• Para 96: for a violation of Article 19(1)(a), the judgment in this case applies on all fours. In an Article 19(1)(g) challenge, no law can be applied for purposes the Constitution does not sanction.

Kaushal Kishor v. State of UP

• Writ Petition (Criminal) No. 113 of 2016 (Supreme Court Constitution Bench; S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian and B.V. Nagarathna JJ.; decided 3 January 2023).
• Ramasubramanian J., paras 15-17: he described this case as a challenge to a ban on the weekly Cross Roads under section 9(1-A). He reproduced the holding in paragraph 12 of the report. He called this a Seven Member Constitution Bench, although the report of this case names six judges. He said the severability argument was rejected because the section was not severable. He said Brij Bhushan, decided the same day, followed this case.
• Ramasubramanian J., para 18: after these two decisions, Parliament moved the Constitution (First Amendment) Bill, 1951. The judgment sets out Article 19(2) before and after that amendment in a table.
• Nagarathna J., paras 12.6(i) and 15.1: she said this case held that freedom of speech includes freedom of the press. She also cited it for the point that, without circulation, publication would be of little value.
• Nagarathna J., para 15.3(i): she said this case recognised that criticism or dissent against the Government was not to be curtailed. This cemented the idea that free speech covers the right to dissent.

Other later cases (not summarized): R.M.D. Chamarbaugwalla v. The Union of India, [1957] S.C.R. 930, State of Bombay v. F.N. Balsara, [1951] S.C.R. 682, and State of Bombay v. United Motors (India) Ltd., [1953] S.C.R. 1069, are named in Shreya Singhal para 95 as having referred to or distinguished this case. Ramji Lal Modi v. The State of U.P., (1957) S.C.R. 860, is named in the Kedar Nath Singh headnote as referred to.

Critical Analysis

Analysis based on the judgment text.

• The majority accepted that serious disorder can threaten the security of the State. It still drew a rough line between grave disorder and minor local breaches, and it treated differences in degree as differences in kind.
• The Act itself had no limiting words. The majority held that a law fitting both permitted and unpermitted purposes cannot be saved in part, so one wide word defeated the whole provision.
• Fazl Ali J. rested on a different reading of the same preamble. He read disorders involving menace to the peace and tranquillity of the Province as matters that undermine the security of the State.
• The judgment does not number its paragraphs. Later courts cite it by quoting its words, and one later judgment reproduces it as paragraph 12 of a report.

Significance

• The Court held that the guaranteed remedy in Article 32 can be used directly, without first going to a High Court.
• The case treats the freedom of circulation as part of the freedom of speech and expression and of the press.
• The case shows the narrow limits that the original Article 19(2) placed on restrictions of speech. Public order alone was not a ground.
• It sets the rule that a law too wide in its terms cannot be saved by severing it, which Shreya Singhal later applied.
• The later cases link the decision to the Constitution (First Amendment) Act, 1951, which amended clause (2).

Exam-Important Points

• Rule: Article 32 gives a guaranteed remedy. The Supreme Court must entertain a direct petition for a fundamental right. Trap: Article 226 is a general power and does not displace Article 32.
• Rule: freedom of speech and expression includes freedom of circulation. Trap: a ban on entry and circulation of a journal violates Article 19(1)(a).
• Rule: under the original Article 19(2), only laws directed solely at the security of the State or its overthrow were saved. Trap: public order and public safety were wider and were not saved.
• Rule: a law written wide enough to cover permitted and unpermitted purposes is not severable. It is wholly void. Trap: Article 13(1) voids an existing law only to the extent of inconsistency, but that did not rescue this section.
• Result: 5 to 1. Fazl Ali J. dissented and held that grave public disorder does undermine the security of the State.
• Trap: do not apply this case to the amended clause (2). It was decided before the First Amendment of 1951.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so no paragraph numbers are cited for this case. The citation 1950 AIR 124 and 1950 SCR 594 is printed in the judgment text.