Prior Restraint and Pre-Censorship

In one line

Stopping something from being published is worse than punishing it afterwards, and Indian law treats prior restraint with a suspicion it does not extend to subsequent liability.

In the wording a student can write in an exam: a prior restraint is a restriction imposed before publication, whether by requiring official permission, by prohibiting publication of a class of matter, or by suppressing a particular item. It is distinguished from subsequent punishment, which leaves the speaker free to publish and answerable afterwards under the law of defamation, contempt, obscenity or sedition. Prior restraint is not per se unconstitutional in India, unlike the position under the First Amendment to the United States Constitution, but it must satisfy article 19(2) like any other restriction, and because it operates before anything has happened it is harder to justify: the apprehended harm is necessarily hypothetical, and the restriction suppresses matter that may turn out to be entirely lawful.

Why prior restraint is worse

Four reasons, and they should be given before any case.

It suppresses the lawful with the unlawful. A subsequent prosecution operates on a publication that exists and can be examined. A prior restraint operates on a prediction, and necessarily catches material that would have been perfectly lawful.

It reverses the burden. After publication the State must prove the offence. Before it, the publisher must persuade an official to permit him to speak.

It has no public record. Speech that is punished has at least been heard, and the punishment can be criticised. Speech that is prevented leaves nothing behind, so the restraint escapes the scrutiny that publication would have attracted.

It is administered by officials, not courts. A licensing or permission regime puts the decision in the hands of the executive, and the decision is usually unreviewable in practice because the applicant has nothing to show.

The Indian position

Unlike the American doctrine, which treats prior restraint as presumptively invalid and almost never permits it, Indian law has no separate rule. A prior restraint is a restriction, and it must satisfy the three requirements in [The Grounds of Reasonable Restriction]: a law, one of the eight grounds, and reasonableness meaning proportionality.

What follows in practice is that prior restraints are permitted in defined and narrow fields, and struck down where they operate as general licensing.

Permitted, in substance: pre-censorship of films, on the footing that the medium is uniquely powerful and reaches an undifferentiated audience, exercised under a statute with a right of appeal; restrictions on publication of court proceedings in defined circumstances; and temporary prohibitions under public order powers where the conditions are strictly satisfied.

Struck down: requirements of official permission before publishing a newspaper; controls on pages, price and circulation; and general powers to prohibit publication with no principle stated.