The Author, Udita Dalal is a­­ second year student of LL.B. at Jindal Global Law School, O.P. Jindal Global University, NCR.

FACTS

The petitioner Romesh Thappar was a well-known communist of his times. He was the printer, publisher, and editor of a new English weekly journal known as ‘Crossroads’ in Bombay. He had published a few articles that were suggestive of him being sceptical of Prime Minister Jawaharlal Nehru’s policies especially the ones about foreign policy. During that time, a communist movement in western Madras had started to gather momentum. The Government of Madras feared that the content propounded by the magazine would add to the disquiet in that region. In order to avoid such a situation, the government of Madras on 1st March 1950, issued an order imposing a ban on the entry and circulation of the weekly journal in that area. The order was issued pursuant to Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 (hereafter referred to as ‘Act’), which empowered the government to prohibit the circulation, sale or distribution of the journal in the province of Madras for the purpose of ensuring ‘public safety’ or preserving ‘public order.’ Thus, the petitioner filed a petition before the Supreme Court arguing that the order passed by the government infringes upon his fundamental right to free speech and expression.[1]

  • ISSUE
  1. Whether Section 9(1-A) of the Act is violative of petitioner’s right to freedom of speech and expression as conferred on him by Article 19(1)(a) of the Constitution or will it fall within the reservation of Article 19(2)?
  2. Whether Section 9(1-A) of the Act is void under Article 13(1) of the Constitution by reason of it being inconsistent with his fundamental right and thus ultra vires?
  • RULE

Literal rule is the primary rule of interpretation, which works on the principle that the will of the legislature is the supreme law of the land and thus the text of the statute is to be interpreted in its ordinary or grammatical meaning. The court is bound to expound the law as it stands. Where the language of the statute is clear, the court is duty-bound to give full effect to the same without adding or modifying anything, which is not consistent with the expressed intent of the lawmaker.[2]

Golden rule of interpretation is used in cases where the grammatical meaning of the language used in the statute by the legislature is contrary or inconsistent with the declared purpose of the statute and thus requires some modification or alteration. However, if the words used are plain and unambiguous, the courts are bound to interpret them in their ordinary sense.[3]

Rule of noscitur-a-sociis is applied when the meaning of a word is unclear and is determined with the help of its surrounding words. According to Maxwell, “when two or more words which are susceptible of analogous meaning are coupled together, they are understandable to be used in their cognate sense.”[4]

Rule of severability is applied where it is possible to separate the invalid part from the valid part of an Act. Article 13(1) of the Constitution[5] states that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

  • ANALYSIS

The judges in this case adopted the ‘intentionalism’ approach while dealing with the facts of the case wherein they were required to discover the original intent of the drafters of the statute and use this intent while interpreting it. Supporters of this theory assert that it is the original intention of the drafters of the statute which should govern as the “true law”, and it is the job of the judge to retrieve that intent from the statute itself. They contend that the intention of the legislature is primary; whereas the statute is the secondary piece of evidence which leads the judges back to the legislature’s intent.[6] According to Maxwell, “the object of all interpretation of statute is to determine what intention is conveyed, either expressly or implied by the language used, so far as it is necessary for determining whether the particular case or state of facts presented to the interpreter, falls within it.”[7] The maxim “A Verbis Legis Non East Recedendum” reiterates the approach of intentionalism.

In this case, the Advocate General, on behalf of the State of Madras, first raised a preliminary objection with respect to the petitioner’s application for claiming relief under Article 32 of the Constitution in the first instance. He argued that the petitioner should have exhausted his relief under Article 226 of the Constitution by resorting to the High Court of Madras at first. The Court applied the literal rule of interpretation to the Article and opined that the Article confers power of the Supreme Court as a part of its general jurisdiction to issue writs in cases where the fundamental rights of the citizen have been infringed. The object of the interpretation is to discover the intention of the Legislature and should be taken at face value from the language used.[8] The textualists, on the other hand make an assumption that whatever the intention of the legislators was while framing the law has already been incorporated in the statute which is why there is no need to look beyond the text.[9] Therefore, it was held that there is nothing in the Constitution which could suggest that a citizen needs to exhaust his remedy under Article 226 of the Constitution before resorting to the Supreme Court for the same. The Court pointed out that as far as the United States Constitution is concerned, it does not provide with such a provision and thus the Advocate General wrongly referred to international cases and statutes in this regard.

The second question that the Court dealt was with respect to Section 9(1-A) of the Act and whether it is violative of Article 19(1)(a) of the Constitution. The Act was passed by the Legislature in exercise of the power bestowed on it by Section 100 of the Government of India Act, 1935 read with Entry I of List II of the Seventh schedule of the Act which includes ‘public order.’ The Court had to decide whether the disorders involved a threat to the peace, tranquillity of the state and public safety and whether it was a matter which sabotaged the security of the state or not.[10]

Justice Patanjali Sastri wrote the majority judgment in this case and relied on external aids of interpretation such as the early drafts of the Constituent Assembly and their views with respect to right to freedom of speech and expression. He pointed out that terms such as ‘sedition’ and ‘public order’ were not mentioned in the original Article 19(2) of the Constitution. While on the other side, the words ‘public order’ and ‘public safety’ had a rather wide connotation in the Madras Maintenance of Public Order Act, 1949, and it could be inferred that not every speech that affected public order was capable of hindering the security of the state or attempting to overthrow the government. In literal terms, ‘public safety’ means security of the public from any imminent danger.

However, the Court went on to say that the meaning of the term must vary according to the context. Here, the Court went ahead and applied the golden rule of interpretation which states that ‘the words in the statute may be modified and varied by the  judiciary where their import is doubtful or ambiguous or resulting in injustice’ and thus ended up clarifying the meaning of terms- ‘public order’ and ‘public safety.’[11] The Court defined ‘public order’ as that ‘state of tranquillity which prevails among the members of a political society[12]’ and found that the term ‘public safety’ in this context meant the same thing. Here, the Court applied the rule of noscitur-a-sociis which states the meaning of a word is to be judged by the company it keeps as explained by Lord Macmillan.[13] On the other hand the phrase ‘undermining the security of the state’ as mentioned in Article 19(2) of the Constitution meant ‘nothing less than endangering the foundations of the State or threatening its overthrow.’[14]

Thus, it was clear that both the clauses differed in terms of degree. Essentially, a speech that has potential to create a local disturbance could be one that affected the ‘public safety’ or ‘public order.’ Despite this, Article 19(2) of the Constitution allowed the government to impose restrictions on freedom of speech only if the speech that is in question has the tendency to create a political upheaval that could later result in overthrowing of the government. A communal riot at a local level would not have such a tendency. The restriction imposed under the Act was considered to be wider than what was constitutionally permissible as a restriction on freedom of expression.

As a result, Section 9(1-A) of the Act was considered to be found violative of the petitioner’s right to freedom of speech and expression as conferred on him by Article 19(1)(a) of the Constitution as it did not fall within the reservation of Article 19(2) of the Constitution.[15]  Therefore, the Court held that unless a law which restricts the freedom envisaged in Article 19(1) of the Constitution is directly affecting the state security, such law cannot fall within the reservation of Article 19(2) of the Constitution. The Court opined that freedom of propagation of ideas which is guaranteed by freedom of circulation falls well within the ambit of freedom of speech and expression. State can be allowed to regulate a newspaper only if it is done with an intention to combat or prevent practices that could weaken or overthrow the government.

Finally, on the question of the validity of Section 9(1-A) of the Act, the Supreme Court noted that intention of the legislature has to be kept in mind while deciding whether the valid parts of a statute are separable from the invalid ones. While ascertaining the legislative intent, the Court has to take into consideration the internal aids of interpretation such as the history of legislation, its object, and the Preamble. The test to be applied is had the legislature known that the rest of the statute was invalid, would they’ve enacted the valid part. In situations where the valid and invalid portions are so inextricably intertwined that they cannot be separated from each other, the entire Act would be deemed to be void. Nonetheless, if after omitting the invalid portions of the Act, what remains is in itself a complete code independent of the rest which has been declared invalid and has become unenforceable; it must be upheld. Otherwise, the presumption that lies is always in favour of the constitutionality of the statute as it is to be considered that the legislature is mindful of the needs of its people and is aware of competency of the law.[16] Here, it can be said that it is not form but the substance of the matter that is important and that has to be ascertained on an examination of the Act as a whole.[17] As a result, in this case, the Court applied the rule of severability to Section 9(1-A) of the Act and held it to be void under Article 13(1) of the Constitution and thus ultra vires as it was inconsistent with the provisions of Part III of the Constitution.

However, Justice Saiyid Fazl Ali in his dissenting opinion concluded that the maintenance of peace and tranquillity was a part of maintaining state security. He propounded that the Act imposed reasonable restrictions on freedom of speech and expression and that it must be held valid.

  • CONCLUSION

The Court in this case correctly used all the rules of interpretation such as the literal rule, golden rule, noscitur-a-sociis, and the rule of severability. It is submitted that the case of ‘Romesh Thappar v. State of Madras[18] AIR 1950 SC 124 is a healthy precedent in the field of freedom of press. In a democratic country like India, freedom of press is one of the most cherished rights and is also known as an institutional limb of the modern age democratic states. It incorporates the right to freedom of publication i.e. dissemination and circulation of news. The validity of the judgment cannot be questioned as its rationale is being applied by other courts and in subsequent judgments. It should be noted that it is after this landmark case that the Constitution has had its first amendment. The term ‘public order’ was added as a reasonable restriction under Article 19(2) of the Constitution. However, the term ‘public safety’ is still considered to be beyond the scope of reasonable restrictions.

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References:

[1] Global Freedom of Expression. 2020. Thappar V. Madras - Global Freedom Of Expression. [online] Available at: https://globalfreedomofexpression.columbia.edu/cases/thappar-v-madras/ [Accessed 26 April 2020].

 

[2] Everycrsreport.com. n.d. Statutory Interpretation: General Principles And Recent Trends. [online] Available at: https://www.everycrsreport.com/reports/97-589.html#_Toc407006243  [Accessed 2 June 2020].

[3] IILS Blog. n.d. Golden Rule Of Interpretation. [online] Available at: https://www.iilsindia.com/blogs/golden-rule-of-interpretation/  [Accessed 2 June 2020].

[4] Maxwell, P., 1875. Interpretation Of Statutes. 11th ed. p.321.

[5] The Constitution of India

[6] Harvard University Press, 1994. 'Just Do It! Escridge's Critical Pragmatic Theory Of Statutory Interpretation. [online] p.721. Available at: https://lawjournal.mcgill.ca/wp-content/uploads/pdf/2840051-41.Michell.pdf  [Accessed 2 June 2020].

[7] Kafaltiya, A., 2020. Textbook On Interpretation Of Statutes. 2nd ed. Universal, p.13. [Kafaltiya]

[8] Rosen, A., 2016. Statutory Interpretation and the Many Virtues of Legislation: Table 1. Oxford Journal of Legal Studies, p.138.

[9] Eskridge, W. and Frickey, P., n.d. Statutory Interpretation As Practical Reasoning. p.21.

[10] Singh, M. (2017). V.N. Shukla's Constitution of India. 13th ed. Lucknow: Eastern Book Company, pp.137-138.

[11] Kafaltiya, Supra, note 7, p.45.

[12] Bhatia, G., 2020. Free Speech And Public Order – I: Before The Amendment, And The Idea Of Responsibility. [online] Indian Constitutional Law and Philosophy. Available at: https://indconlawphil.wordpress.com/2013/08/08/free-speech-and-public-order-i-before-the-amendment-and-the-idea-of-responsibility/ [Accessed 30 April 2020]. [Bhatia]

[13] M.K. Ranganathan v. Government of Madras AIR 1955 SC 604

[14] Bhatia, Supra, note 12. [Accessed 27 April 2020].

[15] Bhatia, Supra, note 12. [Accessed 27 April 2020].

[16] Kafaltiya, Supra, note 7, p.206.

[17] Kafaltiya, Supra, note 7, p.399.

Picture Source :

 
Udita Dalal