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.

INTRODUCTION

Terrorism is not an unknown concept to society and it has always been there. Even in the 1st century, the Zealots of Judea were the first ones that came into the limelight as an example of ‘Terrorism’ to society of mankind, from there it grew in the form of assassins. Even after so many years, it is still associated with ‘Terrorism’ and remembered well. Terrorism has become a threat to the national security of countries. Terrorism works against the principle of humanity which may harm people around the world. To prevent terrorist attacks on any country one must pay attention to the security situation of any country and must work to improvise it. New laws must be made about anti-terrorism and the States must make amends with the changing world and with the need of the hour. 

TERRORISM

Terrorism is the use of violence or threat that violence may be used against civilians intentionally and indiscriminately. Terrorism is also used when the terrorist groups are unsatisfied with the doings of the ruling government. Civilians are an easy target for these groups, they may use the unhappiness of the general public to manipulate them against the ruling government. The term ‘TERRORISM’ found its origin in French Revolution in the 18th century. But, came in limelight during the time of the Basque Conflict and Palestinian Conflict in the 1970s. The data recorded by the Global Terrorism Database shows that 61,000 terrorist events took place during the year 2004-2014.

Terrorism may vary from one country to another depending upon the political system of the concerned country. These are as follows—

Civil Disorder: An act that interferes with the peace, security, and democratic functioning of any country.  

Political Terrorism: This act is aimed at the inducement of fear as well as a political objective.

Non-Political Terrorism: The act is aimed at just inducement of fear in eyes of the general public and not for the political objective which may or may not is achieved.   

Anonymous Terrorism: If an act of terrorism is committed then either the perpetrators or the government may put a tag that a certain terrorist group committed the act but, in reality, no one knows the actual sinner.

Quasi Terrorism: Terrorist activities are intended to create fear in the mind of general public; in quasi-terrorism, the act was done with the methods and techniques of actual terrorism but its aim isn’t to induce fear among the general public.    

Limited Political Terrorism: Government may deceive the general public by going for the ideological approach whereas, in reality, the only intention was to control the state.

State Terrorism: Government rule which is laid down with the fear and oppression of the general public, qualifies as an act of terrorism.

INTERNATIONAL LAWS

The laws to combat terrorism have been introduced since 1937, with the attack of 2001 on the twin towers in the U.S. It pushed the government to make more stringent laws with regard to anti-terrorism resultantly, we see the passing of U.S.A PATRIOT Act in 2001 with the objective of punishing the terrorist attackers in U.S.A. and anywhere in the world. U.K implemented the Act of Prevention of Terrorism in 1974, the Anti-Terrorism and Security Act of 2001 for preventing terrorist activities.     

Code of Conduct Towards Achieving a World Free of Terrorism was adopted in the year 2018 when the 73rd session of the United Nations General Assembly was introduced by the then Kazakhstan President namely, Nursultan Nazarbayev, aimed at laying down commitments by countries around the world and collective working of countries against the terrorism and same was signed by around 70 countries.

INDIAN TERRORISM

In India, terrorism is a major threat to the community of people. Here, these groups are in the names of Islam Terror, Separatist Terror, and Left-Wing terror. With the number of states, we have different forms of labeled terrorism, Kashmir-Islam, Punjab-Separatists, Assam-Secessionist, and in the east we have Naxalism. In the year, 2017 there were about 900 terrorist incidents that led to the death of 465 people. Indian Terrorism mainly consists of—

Ethnicity: Aimed at creating a separate state within India based on ethnicity and Emphasis on opinions of one ethnic origin over the other;

Religious: Terror act done by people of a specific religious community may lead other religious community to target the community that planned the attack and generates hatred among two different religious community;

Left-Wing: This is related to economic exploitation and to deal with it they may use unnecessary violence;

Narcoterrorism: Creation of Narcotics Traffic Zones illegally.

It was reported that over 180 terrorist groups have been operating in India for the last 20 years and more than half of them are terrorist networks that flow through the South Asian continent.

RECENT INCIDENTS OF TERRORISM IN INDIA

High Court Bombing 2011

The morning of 7 September 2011 claimed 15 lives injuring about 75 people during the blast. The responsibility was accepted by Harkat-ul-Jihad-al-Islami, they demanded that convicted accused Mohammed Afzal Guru responsible for Parliamentary Attack in Delhi should not be hanged as decided in trial by Supreme Court. Later another group called IM took the responsibility for the attack. Eventually, Wasim Akram Malik, Junaid Akram Malik, Amir Abbas Dev, Shakir Hussain Seikh, and Amir Kamal were arrested, questioned, and held responsible for the attack, and the charge of waging a war against the nation was framed.  

Dantewada Attack 2019

In the year 2019 according to a report compiled by South Asia Terrorism Portal, this was the 39th incident based on Maoist Insurgency that took place in India. During the attack 41 insurgents, 19 civilians, and 7 security personnel lost their lives. Major Maoist attacks have been taking place since the NDA government came into power and it’s a serious issue that needs to be looked into by the central government.  

Sukma – Bijapur Attack 2021

It was a planned attack by Naxalite Maoist Insurgents related to the Communist Party of India (Maoist) against the security forces of India on April 3 in 2021, killing 9 Naxalites and 22 Security Personnel, injuring 30 people. The attack was launched from Sukma and Bijapur districts targeting South Bastar forests. The central government stated that a befitting reply would be given to terrorists at an appropriate time.

INDIA COMBATING TERRORISM

Unlawful Activities (Prevention) Act, 1967 was created to answer the questions of the territorial integrity of India. The act was mainly for declaring secessionist organizations as illegal under the purview of the central government.   

With the attack on the Indian Parliament and Mumbai attacks, the Indian government formed a new agency called National Investigation Agency with the authority to deal with activities related to terror without any permission from states. The powers of states must not be affected by any provision of this law. Unlawful Activities (Prevention) Act (Amendment), 2008 aimed at changing procedure to allow the NIA to act effectively on any act of terrorism. With this amendment, the period of police custody increased to 30 days and a charge sheet can be filed within 180 days if reasonable reasons are given. Code of Criminal Procedure, 1973 amended from time to time with the changing times and does not solely depend on the terrorist attacks but also on the sufferings of victims.

Terrorism and Disruptive Activities, 1985 (TADA) was passed after the assassination of Indira Gandhi, former Prime Minister of India granting more powers to the government to deal with acts of terrorism. India witnessed major terrorist acts after repealing of TADA including hijacking flights in 1999 and an attack on the Indian Parliament in 2001. With these going on, the need for a stringent law was felt and eventually Prevention of Terrorist Activities Act, 2002 was passed with the objective of strengthening anti-terrorism operations within India.

Unlawful Activities (Prevention) Amendment Act, 2019 expands its power by allowing an individual to be declared a terrorist without trial if enough evidence is there. The investigation done by any officer of the National Investigation Agency requires prior approval of the Director General of NIA to seize any property that might be connected with terrorism. NIA officers may undertake the investigation in such cases. However, this amendment was criticized worldwide due to its failure to follow the process as mentioned in the law and violated many human rights mentioned in the Universal Declaration of Human Rights. It was deemed that allowing provisions that make one a terrorist without trial itself shows the lawlessness of laws that are made to protect people.   

CONCLUSION

Many people around the world question the reasonability of law. These people must take note of the people who are concerned with the said law. Law framers while making the laws must ensure that no one should suffer due to the laws being favorable for one while not for others. Here, Human Rights Lawyers keep on claiming that the human rights of terrorists must not be denied, but what about those who are still suffering and will continue to suffer in the future due to the loss of their loved ones, who would be there to stand by their side to give them encouragement to fight and live with the harsh reality of the world. ‘Everything comes with a price when one commits the crime of killing another human being and they must pay for their sins but as per following due process of law.

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

Pro bono is a condensing for the Latin expression free public or, which deciphers as “for a long term benefit.” The expression regularly alludes to proficient administrations that are accommodated free or at a diminished expense. Experts from various disciplines offer free types of assistance to not-for-profit associations. Medical clinics, colleges, public causes, holy places, and establishments are among these associations. It is additionally conceivable to accomplish free work for people who can’t pay. The expression free is fundamentally utilized in the legitimate calling. Free attorneys serve the public interest by offering free legitimate administrations to individuals out of luck. Rather than working for benefit, the professional is accepted to work to assist the bigger great.

Like M.K Gandhi said “there is sufficient asset for everybody’s necessities except not voracity” conversely, these days equity is available to the people who can bear the cost of it not to the people who are out of luck. So fundamentally, Pro bono is the way through which legal counselors, NGOs, and other legitimate foundations like these days’ law schools through their regulation understudies attempt to give a legitimate guide to the oppressed ones at zero-cost so equity ought to arrive at all classes.

PRO BONO IN INDIA

The option to free lawful guidance is revered in Article 39A of the Indian Constitution. Part IV (Directive Principles of State Policy), added by the Constitution (42nd Amendment) Act 1976, states that the State is committed to ensuring that the general set of laws gives equivalent equity to every one of its residents. The state should offer free lawful help to people who can’t get equity because of monetary imperatives.

However, it is unavoidably given under Article 39E for the state to ensure equivalent equity to all still India has been far away from the free exercises taken by many nations like the USA, UK, South Korea, and so on. Aside from the established rules, the government has likewise framed another demonstration that is Legal Service Authority Act 1987. This Act permits the middle and state legislatures to set up free lawful guide authority at the middle, state, and region levels. On account of Hussainara Khatoon v. Home Secretary, State of Bihar the Supreme Court held that the right to an expedient preliminary is a right ensured under Article 21 of the Constitution. Moreover, as per Article 22(1) of the Constitution, the denounced for a situation has the privilege to be addressed by any legitimate professional of his decision.

While pro bono work is energized under the Indian regulation, it is laden with challenges. In any case, India’s developing requirement for business lawyers smothers free area improvement. Besides, India’s colossal variety, its liberal regulations, and law concerning legitimate administrations for the oppressed, its enormous populace living in destitution, its set of experiences and current status as a common, vote based, republic and its new monetary development, as well as the assumptions that development has raised, all consolidate to establish a special and testing climate where the free legitimate administration area is creating. There are a few public grievances about the formal overall set of laws, including debasement, legal productivity, and absence of public confidence in the legal executive, all of which prompt casual clash settlement.

CHANGES IN PRO BONO SERVICE

Free Legal Service program which is ‘Nyaya Bandu’ was sent off by Mr. Ravi Shankar Prasad in April 2017. It expects to arrive at each minimized or penniless one through the method for an application and to bring every one of the individuals from the free support of one spot. To additional improve the assistance of free Department of Justice arrived at 25 HCs mentioning them to set up an incorporated board of free legal counselors. By 31st 2020, 502 promoters have been enlisted as naysay band under 14 HCs.

In the wake of making a few strides, the number of members was not pleasant because of an absence of time with the supporters. So to adapt to this Department of Justice chose to permit regulation understudies to help free promoters. Then in June 2020, a module of Pro Bono Club was planned. The graduate school needs to pass 3 rules to get into it. After which DOJ has rebuilt the PB Club report for the FY 2021-21 after noticing the Coronavirus circumstance to more extensive the idea of PB Club in Pan India plan to admittance to equity named ” Designing Innovative Solutions And Holistic Access to Justice (DISHA).”

Regardless of this, the lawful guide framework in India has shown to be ineffectual. The significant obstruction is the serious deficiency of achieved attorneys who will work under the aegis of the Legal Services Authorities. Now and again, attributable to low compensation, attorneys are uninterested in giving skilled lawful help. In particular, attributable to clients being alluded to the attorneys through the Legal Services Authorities, a trust situated and proficient legal counselor-client relationship rarely fructifies. The legal counselors remain incredibly careful as the clients are seen to be pushed onto them and clients will generally have ridiculous assumptions. The way that the legal advisor is being paid for his administration by the Legal Services Authorities causes a client to feel that the promoter owes more noteworthy openness and higher help quality. The legal counselor doesn’t see the expense to be equivalent to the work done and endeavors made.

Free administrations are liberated from such biases. The legal advisors take up free tasks with the readiness and respectable aim to serve. There is a chance for both the legal advisor and the client to survey their similarity. The client is likewise mindful that the legal counselor is working for nothing and with the well-being of the client as a top priority. This prompts the development of common regard, trust, and a strong working relationship. One more significant element that works to the advantage of the free framework is that both the client and the legal counselor have an option to stop the commitment without any inquiries being posed. In the legitimate guide framework, these issues will generally cause a commotion.

Throughout recent many years, authoritative, institutional, and jurisprudential changes in India have given the preparation to the oppressed to get free lawful administrations. Practically speaking, notwithstanding, a couple of associations productively offer these types of assistance, depending on India’s special PIL process for legitimate help.

Additionally, it is to be noted here that, as of now, unfamiliar qualified lawyers are disallowed from addressing free clients under homegrown Indian regulation. Unfamiliar qualified lawyers can, nonetheless, effectively add to free legitimate administrations by contributing exploration and composing abilities in individual cases, as well as by implication, by joining forces with Indian associations to construct limits. The interest for free legitimate administrations in India extraordinarily dwarfs the stockpile, and in, not set in stone, coordinated endeavors by the lawful experts would go quite far towards guaranteeing a lawful guide to the destitute and admittance to equity to all as specified by the Constitution.

NEED FOR PRO BONO SCHEMES

  1. Restricted Participation of Law school: As of now, DOJ’s attention is just on the NLUs and Central Universities and dismisses other Law schools. As practically all NLUs climate is corporate for that reason their understudies get away from themselves to enjoy prosecution exercises.
  2. The low soul is shown by promoters in these cases: Numerous free promoters show low interest or say put fewer endeavors into these cases because of the absence of acknowledgment.
  3. Free plan neglected to arrive at mass: Indeed, even in the wake of going to lengths still, more individuals have no lawful help.

To advance free legitimate administrations, the Department of Justice has done whatever it takes to make a data set of legal advisors who give and will offer free types of assistance with the goal that such legal counselors can be considered for the arrangement to suitable positions. After the judgment of the Supreme Court in Indira Jaisingh v. Supreme Court of India, free work has become one of the passing boundaries for assignment as a Senior Advocate. Rather than giving an obligatory free administration structure that will in general have its entanglements, there is a rising need to facilitate boost free lawful administrations. This will go far in coordinating the way of life of free work in the lawful local area. A sound mix of lawful guides and free administrations will go far in empowering our country to accomplish the much-blessed objective of admittance to equity.

CONCLUSION

In the wake of assessing the free plan and its need, we finish up by saying that DOJs ought to move their concentration from just NLUs and Central Universities to State Universities where numerous understudies themselves come from such foundations that experienced due to non-accessibility of free administrations. Furthermore, DOJs should perceive crafted by the PB advocates by giving them grants, monetary rewards, and so on and last new advances should be taken to arrive at the grass-root level of the issue of free reach.


CITATIONS

  1. 1979 AIR 1369, 1979 SCR (3) 532.
  2. (2017) 9 SCC 766.
  3. Pro Bono work: A case for its integration into legal services in India, https://www.scconline.com/blog/post/2018/08/04/pro-bono-work-a-case-for-its-integration-into-legal-services-in-india/ ( Last accessed on 12 July, 2022).

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC, HOSHIARPUR.

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