Thought Papers for the Friday Seminar (public order)
Gautam Bhatia
maithil...@gmail.com
Response Paper: Romesh Thapar Case
Maithili Pai
In Romesh Thapar vs State of Madras, the Government of Madras had imposed a ban on the entry and circulation in the state of Madras of the English weekly Crossroads “for the purpose of securing the public safety and the maintenance of public order.” The court held that while there were constitutionally permissible restrictions to the freedom of speech under Article 19(2) such as danger to the security of the state, these did not include perceived threats to public safety and public order, and thus held the ban to be unconstitutional.
The case is significant for various reasons:
First, the case is noteworthy for its explicit recognition of the freedom of circulation. The freedom of circulation of publications is also at the heart of freedom of speech and expression, because publication of thoughts and ideas is of little value if it is not allowed to be circulated or disseminated. Since the case was decided exactly 5 months from the date of enactment of the Constitution, there were no Indian precedents relied on in the decision and the case was decided solely on the basis of 2 U.S precedents.
However, this is the first case that attempts to define “public order”, which is “interpreted to be 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.” While the case also states that public safety and public order are distinct concepts, and an attempt is made to bring out the distinction between the two concepts, in my opinion the distinction does not come out clearly in this decision.
The case also raises the questions of whether the law must be considered to be void when the language is wide enough to cover both constitutionally permissible and impermissible restrictions In this case it was observed that the principle of severability does not apply and so long as the possibility of its being applied restrictions impermissible under the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. This line of reasoning has also been followed more recently in the Shreya Singhal case.
The dissenting opinion of Fazl Ali is significant primarily because it is here that the central question to be decided in this case is formulated aptly, namely whether "disorders involving menace to the peace and tranquillity of the Province" and affecting "public safety" will be a matter which undermines the security of the State or not. Another interesting aspect of the dissenting opinion is his incidental observations through the law of sedition. He emphasizes on the question of “degree of threat” to public order as a determinant of threat to the security of the state. He observes that seditious speech is considered to have the potential to undermine the security of the state solely due to its high tendency to destroy public order. If restriction on free speech is to be justified merely on the basis of the likelihood to undermine the security of the state, which is itself judged “in degrees” an argument could be made with respect to sedition laws as well that seditious speech must not be restricted or curtailed in any form unless it is sure to be a threat to the security of the State. Mere expressions of “hatred”, “contempt” or feelings of “disaffection”(as defined under Section 124A of the IPC) cannot be always be said to be a threat to the security of the State. If the potential to cause danger to security of the state is the yardstick for issues of public order, the potential to cause danger to the security of the state must also be the yardstick applicable to seditious speech, as seditious speech is intrinsically linked to the ability to create public disorder. Thus, it may not be constitutionally permissible to restrict those forms of speech that may be considered “seditious” under Section 124A IPC (if it satisfies the vague requirements under the Section), unless it can be shown that such speech also falls foul of the restrictions under Article 19(2) of the Constitution.