Musings on Right to Free Speech & Privacy Narasimhan Vijayaraghavan 3- Romesh Thapar v. State of Madras The petitioner Mr. Romesh Thapar was a well-known communist of his time and was very sceptical of the policies of the

Musings on Right to Free Speech & Privacy
Narasimhan Vijayaraghavan

3- Romesh Thapar v. State of Madras

The petitioner Mr. Romesh Thapar was a well-known communist of his time and was very sceptical of the policies of the then Prime Minister Pt. Jawaharlal Nehru, especially his foreign policy.He published a few articles in his weekly English magazine called Crossroads that expressed his scepticism in this regard. Romesh Thapar (1922–1987) was a journalist and political commentator. Affiliated with the Communist Party of India ( Marxist). Thapar was the founder-editor of the monthly journal Seminar, published from New Delhi,India. Romila Thapar, the historian with JNU connect is his sister.

Let us go digging for facts, in story telling style.Thankfully,no plagiarising or copyright issues arise.

Romesh Thapar launched CrossRoads on 29 April 1949. The journal had strong communist leanings, though neither he nor his wife Raj were members of the Party. The first issue gives an indication of the range of its interests: it included articles by Mulk Raj Anand, Pablo Neruda, Maurice Dobb, C.N. Vakil and Balraj Sahni. In an editorial titled ‘What another one!’ Thapar made the case for the new journal in forthright terms:

‘Why crossroads? Because as a people we are at the crossroads and must find a path out of the jungle of conflict on almost every aspect of life – politics, economics, art, drama, literature, human relations and what have you. In such an age, we are all assailed by many doubts, but we can still attempt to evolve a consistent and honest approach to the multitude of problems that confront us.’

Thapar did not hide his communist sympathies, noting that he was asked to give a security deposit when starting the magazine because, according to the officials at his interview, ‘The author is considered a staunch communist, likely to publish objectionable material.’

The journal was not going to hide behind the fig leaf of ‘neutrality’: ‘We shall not be afraid of being partisan, for in such an approach, there is more integrity than in the ways of the wishy-washy compromisers who pride themselves on their so-called ‘neutral’ attitude. Neutrality, today, means in effect a support for the status quo. We reject the policies of the status quo and the confusion that arises from them. We shall take a democratic path, measuring every act on the basis of how it affects the future of the broadest sections of the people.’
In the same editorial, Thapar also issued a stirring call to the values of dissent and free speech:

‘We go forward in the confident hope that the many friends of independent thought and action will rally to our side. People must have the courage to speak out if they believe certain things are important to say. In that way lies integrity, because criticism is the essence of democracy. And we are fully conscious of our responsibilities.’

CrossRoads was strongly anti-Congress, though it did not spare the socialists, and it was also critical of the ‘murderous activities’ of ‘reactionary Hindu organizations’ such as the Hindu Mahasabha and the RSS. It had a regular feature called ‘Our Congress’ which made fun of the current dispensation based on news snippets, as well as humourous cartoons and covers, some drawn by the well known artist, Chittoprasad.

In July 1949 it was banned by the Bombay government for ‘threatening the peace and tranquillity of Bombay Province’, under section 9A of the Bombay Public Security Measures Act. The offending article was the reprint of a message from the All-China Federation of Labour condemning government crackdowns on trade unionists and communists. The problem was with the title of the article (‘Criminal’) – the doing of Thapar’s sister, the distinguished historian Romila, then a college student in Pune, who was helping with the copy-editing while on holiday.
Thapar described this episode in an editorial titled ‘They Shall Not Gag Us’, when CrossRoads resumed publication in December, criticizing the Press Advisory Committee for having taken on ‘the role of a prosecutor’ instead of defending the press against attacks from the government and writing, ‘The demand for a servile apology and various undertakings met with the rebuff it deserved.’ He concluded:

‘At a time when the Congress-capitalist alliance is attempting to stifle all democratic and free opinion, the struggle for the freedom of the press assumes a new and immediate urgency. We, on our part, will continue to steadfastly battle for a democracy of the toilers, the India of our dreams. We appeal to our readers, friends and comrades to win legality for the democratic and free press, for it is they who, in the final analysis, must decide the issue between People’s Democracy and Congress fascism.’

CrossRoads continued from where it left off, with articles attacking the Constitution, covering the condition of detenus, police firing and strikes. In February 1950, it launched a series of sustained criticisms of the Madras government for a firing on communist prisoners in Salem central jail which left 22 prisoners dead. It was presumably for this series of articles (as well as other criticisms of the Madras administration), that the entry and circulation of CrossRoads was banned in Madras Province. The order of 1 March 1950 which Romesh Thapar eventually challenged read:

‘In exercise of the powers conferred by section 9 (I-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949) His Excellency the Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled CrossRoads an English weekly published at Bombay.’

Aggrieved by this government order Mr. Thapar approached the Supreme Court with the contention that the impugned order infringed upon his fundamental right to free speech and expression. The challenge was made directly before the Supreme Court under Art.32 of the Constitution which itself was a fundamental right. One of the earliest causes before the top court which had morphed from a Federal Court, after Independence, on and from Jan 27,1950.

All six judges FAZAL ALI, SAIYID KANIA, HIRALAL J. (CJ) SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN MUKHERJEA, B.K. who were on the court sat as a Constitution Bench under Art.145. If in AK Gopalan vis a vis vis Art.21 right to life and liberty, in this one, relating to Art.19(1)(a) – right to free speech and expression the apex court sort of redeemed its dented image. In both cases, it was the State of Madras, a Congress government which was ‘irrationally exuberant’ as Justice V R Krishna Iyer. And ‘paid the price’ as legal luminary M K Nambiar put it.

J. Patanjali Sastri (per KANIA C.J., PATANJALI SASTRI, MEHR CHAND
MAHAJAN, MUKHERJEA and DAS JJ.):
Security of the State is a reasonable restriction under Article 19 (2) of the Constitution. However, the words used in the impugned section of the Act are ‘public safety and public order’. The Court considered that the 2 terms have to be read together. The purpose for which restrictions were allowed under the Act for the wider purpose of public order. It drew parallels with the Indian Penal Code and other texts to show that public order has a very wide interpretation- including acts like rash driving. On the other hand, security of the State referred to extreme acts of violence that would threaten to overthrow the State. Therefore, the restriction under the Act was wider than what was Constitutionally permissible as a restriction on freedom of expression.
Further, where an Act may be used within the constitutional limits as well as outside the scope of these limits, it must be considered void. The impugned section was accordingly considered to be void for unconstitutionality, because it gave the State wide powers to restrict freedom of expression. The Court also quashed the order of the Government whereby the newspaper was banned.

In particular, Justice Patanjali Sastri was disdainfully dismissive of the State’s contention that Romesh Thapar ought not to have moved the apex court as if ‘court of first resort’. The court ruled that considering the paramountcy of the basic right at stake, the state’s opposition was not worthy of consideration. Romesh Thapar having invoked a fundamental right under Art.32 for vindicating his fundamental right to free speech, the challenge was fit to be heard on priority basis.

J. Fazl, dissenting-concluded that the maintenance of peace and tranquility was a part of maintaining security of the State. Therefore, he disagreed with the majority opinion and asserted that the Act imposed reasonable restrictions on freedom of expression and must be upheld as valid.Interestingly, it was the self same Fazal Ali who famously dissented in AK Gopalan and that dissent became law in R C Cooper and Maneka Gandhi. ‘ And here his dissent led to the first amendment to the Constitution even before we had our first ever general elections in 1952’, said Hari Vishnu Kamath, a prominent member of the Constituent Assembly.

Both Jawaharlal Nehru and Sardar Patel were behind this change. Not them alone, as we can see. That change has stood the test of time and differentiates abs differentiated between the free speech rights under US Constitution and ours. It is often said that the very same freedom fighters who had fought the British’ colonial mindset and oppressive regime, were themselves following it, after India became free. The naysayers would say that having gained our hard earned freedom after a near three century subjugation, India had to be very of anarchic and violent thought and methods of the naxalite philosophy. And communists were not too far from those movements. Unity of India to thwart subversive thoughts was uppermost and Executive, Legislature and Judiciary yielded to the higher and noble cause. In Romesh Thapar, the top court made a modest pivot, which too the interim administration did not warm up to.

The Statement of Objects and Reasons made explicit reference to Justice Sarjoo Prasad’s comment, “The citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.’

The bill sought to widen the scope of the Art. 19(2) exceptions, to protect speech-restrictive laws passed in the interests of the security of the state, friendly relations with foreign states, and public order, and make explicit that restrictions of incitement to an offence were constitutionally permitted.

The bill was criticized on a number of grounds as soon as it was introduced, both inside and outside Parliament, though supporters of the bill such as Nehru and Ambedkar argued that it was necessary because either the court had reasoned correctly on the basis of the constitutional text, but thereby revealed flaws in the text itself (Nehru), or the reasoning of the court was itself flawed as an instance of constitutional interpretation (Ambedkar). But even the greatest opponents of the bill such as Syama Prasad Mookerjee conceded that the Supreme Court’s decision with respect to the ‘public order’ exception was flawed and required correction.

We have cone a long way from Romesh Thapar. Long, long away. Yet, Romesh Thapar remains a remarkable milestone. A landmark. Freedom of Press was part of our free speech doctrine. The founders did debate on whether to include ‘press freedom’ as a separate and distinct fundamental right vis a vis the First Amendment to US’ Constitution. And chose to conclude that ‘freedom of speech and expression’ was all encompassing. Free press came within its umbrella. Romesh Thapar opened the innings to prove it was true