LEGAL LANGUAGE AND LEGAL WRITING
Romesh Thappar v. State of Madras
NAME : SURAJ C
CLASS : 3 B.A.LL.B ‘C’
ROLL NO : 1216246
The petitioner is the printer, publisher and editor of a recently started weekly journal in English called Cross Roads printed and published in Bombay. The Government of Madras, the respondents herein, in exercise of their powers under section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 (hereinafter referred to as the Madras Maintenance of Public Order Act) whereby they imposed a ban upon the entry and circulation of the journal in that State. 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 Cross Roads an English weekly published at Bombay. The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of speech and expression conferred on him by article 19(1)(a) of the Constitution and he challenges the validity of section 9(1-A) of the Madras Maintenance of Public Order Act as being void under article 13(1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid.
• Whether fundamental right of the petitioner to freedom of speech and expression conferred on him by article 19(1)(a) of the Constitution is violated? • Is Section 9(1-A) of the Madras Maintenance of Public Order Act being void under article 13(1) of the Constitution?
The Advocate-General of Madras appearing on behalf of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resorting to this Court directly for such relief in the first instance. He contended that, as a matter of orderly procedure, the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Criminal Procedure Code, applications for bail and applications for transfer under section 24 of the civil Procedure Code as instances where, concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court. He referred to Emperor v. Bisheswar Prasad Sinha , where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions Urquhart v. Brown and , as showing that the Supreme Court of the United States ordinarily required that whatever judicial remedies remained open to the applicant in Federal and State Courts should be exhausted before the remedy in the Supreme Court - be it habeas corpus or certiorari - would be allowed. We are of opinion that neither the instances mentioned by the learned Advocate-General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this Court, as article 226 does on the High Court, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this...
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