Romesh Thappar v. The State of Madras (1950)

Article 13(1) says a pre-Constitution law is void only "to the extent of" its inconsistency with fundamental rights. That suggests a court should cut away the bad part and keep the good. Romesh Thappar sets a limit to that. Sometimes a single power is framed in words wide enough to cover both permitted and forbidden restrictions. Then there is no separate bad part to cut away, and the whole provision falls.

That is why the case appears in Interpretation of Statutes. It is the standard example of a provision that is inseverable on its own terms. It is usually contrasted with cases where the valid and invalid parts can be separated and the remainder can work by itself.

It is also a founding free-speech decision on the Art. 32 remedy and on freedom of circulation.

The petitioner was the printer, publisher and editor of Cross Roads, an English weekly printed and published in Bombay. Acting under s. 9(1-A) of the Madras Maintenance of Public Order Act 1949, the Government of Madras issued an order dated 1 March 1950. It banned the journal's entry into, and its circulation, sale or distribution in, the State of Madras. The order recited that this was necessary "for the purpose of securing the public safety and the maintenance of public order".

Section 9(1-A) let the Government act "for the purpose of securing the public safety or the maintenance of public order". At that time, Art. 19(2) saved only laws relating to libel, slander and similar matters, and laws relating to "any matter which undermines the security of, or tends to overthrow, the State." The petitioner came directly to the Supreme Court under Art. 32.

1. Must a petitioner first go to the High Court under Art. 226 before approaching the Supreme Court under Art. 32?
2. Does a ban on a journal's circulation infringe Art. 19(1)(a)?
3. Is s. 9(1-A) saved by Art. 19(2)?
4. If s. 9(1-A) is valid as applied to threats to the security of the State, can it be upheld to that extent and struck down only for the rest?

The petition was allowed and the ban was quashed: "The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner's journal in the State of Madras is hereby quashed."

Art. 32 is itself a guaranteed remedy. The preliminary objection failed. Article 32 provides a "guaranteed" remedy and is itself a fundamental right:

"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."

Circulation is part of free speech. The Court held that freedom of speech and expression includes the freedom to propagate ideas, and that this freedom "is ensured by the freedom of circulation."

Public order is wider than security of the State. The Court said "public order" is "an expression of wide connotation". Read in context, "public safety" in the Act could cover things like rash driving on a public way, not only the security of the State. In drafting Art. 19(2), the Constitution had drawn a line between serious disorder that endangers the State and "the relatively minor breaches of the peace of a purely local significance". The Court also noted that the word sedition had been deleted from the draft article. It concluded that s. 9(1-A) "falls outside the scope of authorised restrictions under clause (2)".

The severability point. The State argued that under Art. 13(1) the law was void only to the extent of the inconsistency. So it should be upheld at least in its application to the security of the State. The Court rejected this:

It said: "We are unable to accede to this contention." Where a law authorises 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", then:

"it is not possible to uphold it even so far as it may be applied within the constitutional"

limits, because it is not severable. The Court then explained:

"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."

A law that confers one undivided power to restrict a fundamental right, in words wide enough to cover both permitted and forbidden restrictions, is not severable. The court cannot rewrite it so that it applies only within the constitutional limits. So long as it may be used for purposes the Constitution does not sanction, the whole provision is void. Article 13(1) ("to the extent of the inconsistency") does not save it, because there is no separate valid part to keep.

• Explain the doctrine of severability with reference to Art. 13. Start with the words "to the extent of the inconsistency". Then use Romesh Thappar for the exception: where one power covers both valid and invalid ground and cannot be split, the whole provision falls. Contrast it with cases where the valid remainder can operate independently.
• Problem question: a State law lets an officer ban publications for the maintenance of public order, and the ban in question does relate to a threat to the State. Can the State argue that the law is valid as applied? No. Under Romesh Thappar, so long as the power can be used for purposes the Constitution does not sanction, it cannot be upheld to any extent.
• Can a petitioner approach the Supreme Court directly under Art. 32 without first going to the High Court? Yes. Quote the "protector and guarantor" passage.
• Cross-reference: in Constitutional Law, this is a leading authority on freedom of circulation as part of Art. 19(1)(a), and on the difference between "public order" and "security of the State".