CITATIONS

1950 AIR 124, 1950 SCR 594.

BENCH

  • Justice Fazal Ali, Saiyid
  • (CJ) Kania, Harilal
  • Sastri, M. Patanjali
  • Mahajan, Mehr Chand
  • Das, Sudhi Ranjan
  • Mukherjea, B.K.

JUDGEMENT GIVEN ON

26 May 1950

FACTS AND BACKGROUND OF THE CASE

Romesh Thappar was a publisher of a weekly magazine called Crossroads; certain articles were published in his magazine regarding the doubtful nature of public policies especially foreign policy. These articles created suspicion among the public about governmental policies leading to a communist movement rising in some regions of Madras forcing the state government to impose a ban on circulation of the magazine in areas where the communist movement was going on with enthusiasm.

LAWS INVOLVED

  1. Madras Maintenance of Public Order Act, 1949 Section 9 (1-A): It allows the government to stop the circulation, selling, and distribution of any journal in any part of Madras to ensure ‘Public Safety’ or preserving ‘Public Order’.
  2. Constitution of India Article 19 (1) (a): Provides freedom of speech and expression to citizens of India. Freedom of speech and expression gives one a right to speak and express their opinions and ideas about something through traditional media or social media.
  3. Constitution of India Article 19 (2): Provides for the reasonable restrictions to freedom of speech and expression granted under Article 19 (1) (a). These restrictions include the sovereignty and integrity and security of the state and friendly relations with foreign states.
  4. Constitution of India Article 13: Provides for the laws that may or may not be passed before the commencement of the Constitution of India if violates fundamental rights mentioned in Part 3 of the Indian Constitution must be declared null and void.
  5. Constitution of India Article 32: Provides an Indian citizen right to approach Supreme Court if their fundamental right has been violated by any government authority. The article goes as ‘Heart & Soul of Indian Constitution’ due to its protective nature towards other fundamental rights specified in Part 3.  
  6. Constitution of India Article 226: Provides High Courts the power to issue writs for enforcement of fundamental rights.

ISSUES

  1. Whether the violation of the fundamental right can be dealt with by Supreme Court before State High Court?
  2. Whether the order passed by the government under Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) violate the freedom of Speech and Expression?
  3. Whether the existence of Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was itself unconstitutional for it violates fundamental rights mentioned in Part 3 of the Indian Constitution?  

DECISION OF COURT

On the issue of whether the Supreme Court can be approached before the State High Court, the court believed that Article 32 gives power to Supreme Court to issue writs if any government authority violates fundamental rights provided in part 3 of the Indian Constitution, which in itself as a fundamental right that cannot be denied. Hence, the Supreme Court as the guardian of fundamental rights cannot refuse to entertain any petition for seeking against infringements of fundamental rights.

The order passed by the Madras government was declared unconstitutional as it violates the Freedom of Speech and Expression mentioned under Article 19 (1) (a) of the Indian Constitution. The ban imposed by the state government on the circulation of magazines prevents the freedom to propagate ideas, opinions, and viewpoints regarding any issue that concerns the general public.

The Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was made with the interest of issues like ‘Public Safety’ and ‘Public Order’. Here, ‘Public Safety’ means the security of health of the general public from dangers that vary according to the situation. ‘Public Order’ means to deal with events that may lead to disruption of peace and tranquility of the province. Regarding the question of the unconstitutionality of the law, the Supreme Court invokes the ‘Doctrine of Severability’ to ensure if severing any law defeats the entire purpose of legislation or not. Thereby, declared that the said order contradicts the fundamental right given under Article 19 (1) (a) hence ultra vires. However, Court is of the view that entire legislation cannot be considered void as Article 13 of the Indian Constitution states that the law can be declared null and void only to the extent of its inconsistency with fundamental rights.

This article is written by Simran Gulia, pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

CITATION

5 US 137

APPELLANT

William Marbury

RESPONDENT

James Madison

DECIDED ON

24 February 1803

COURT

US Supreme Court

JUDGES

Justice John Marshall

AREA OF LAW

Doctrine of Judicial review

BACKGROUND

The most controversial election in the history of America is the one occurred in 1800, where the anti- federalists run by democratic republican and vice-president, Thomas Jefferson took the office. Due to the fright of losing the influence, the federalist led congress passed the midnight judges act which was earlier called as “judiciary act of 1801”.  Under this act, they re- organised the federal judiciary and the District of Columbia organic act by appointing new justiceship and judgeship. The head of federalist, john Adams appointed several federalists as judges and they are thus called as “midnight judges or midnight justices of peace” and were approved by congress. As a final step the commissions are supposed to be physically delivered to the appointees by the secretary of state and that was john Marshall.

ISSUE

John Marshall, the chief justice, was unable to deliver the commissions before the Jefferson sworn in the next day.  The undelivered commissions were still in the office even after Madison took in charge as the secretary of the nation. And he was instructed by Jefferson not to approve the new commissions. One among them who never got the commission was William marbury. Congress sanctioned US Supreme Court to issue the writ of mandamus under judiciary act, 1789 where a case was filed against Madison by marbury in United States Supreme Court under its original jurisdiction to bring Madison deliver the commission.

JUDGEMENT

At the initial stage, the chief justice, marshal stated that: “marbury had been lawfully appointed and confirmed as the justice of peace and therefore had a right to his commission”. But unfortunately, court denied to issue the writ by stating that the section of the judiciary act, 1789 is unconstitutional. The section was at odds with the article III of constitution which specifically lays out the original jurisdiction, though it empowers congress to pass laws related to court’s appellate jurisdiction.

RATIO DECIDENDI

  • In this landmark case, Supreme Court stated the act to be unconstitutional as it tends to expand the Supreme Court’s original jurisdiction beyond the limit referred in constitution.
  • It was through this case the idea of “judicial review” got established.

CONCLUSION

The case was stated as a landmark case in the history which led to the emergence of concept ‘Judicial review”.