Prior Restraint and Pre-Censorship
Chapter Sixty-One
Syllabus topic 5, "Freedom of press and challenges of new scientific development".
Pages 275 to 278 of 304
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.
Prior Restraint and Pre-Censorship
The circulation cases as prior restraint
The two great press cases are usually taught as circulation cases and they are also prior restraint cases, because both operated before publication.
Facts. Sakal Papers (P) Ltd v. Union of India, AIR 1962 SC 305, (1962) 3 SCR 842, decided 25 September 1961. An Act and Order fixed the pages and size a newspaper might publish in relation to its price, and regulated advertisement space, to prevent unfair competition and help smaller papers.
Held. Void as violating article 19(1)(a) and not saved by article 19(2). The freedom includes the freedom of the press; the right extends not merely to the matter a citizen may circulate but to the volume of circulation; and article 19(2) does not permit abridgement in the interests of the general public.
Facts. Bennett Coleman & Co v. Union of India, AIR 1973 SC 106, (1972) 2 SCC 788, decided 30 October 1972. The newsprint policy limited pages, prevented a common ownership unit from starting a new paper, and restricted interchange of quota. The Union called it rationing of a scarce commodity.
Held. By the majority, shareholders do not lose their fundamental rights by incorporating, and their locus standi is beyond challenge. On the merits the policy fell: a restriction on pages operates directly on circulation and content and cannot be defended as mere rationing.
Why the pair matters here. Neither measure censored a word. Both determined, before anything was written, how much could be published. That is prior restraint by resource control, and the answer to it is the effect test: what a measure does to speech decides its character, not what it is called.
Restraint on reporting court proceedings
Facts. Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, (1966) 3 SCR 744, decided 3 March 1966 by nine judges. In a defamation suit a witness asked that his evidence not be published, saying his business would suffer. The trial judge orally prohibited publication of the evidence. Journalists, not parties to the suit, moved the Supreme Court under article 32, saying the High Court had no inherent power to make the order, that it violated article 19(1)(a), and that it was amenable to article 32.
Held. By the majority, the order was within the inherent power of the High Court: a court has inherent jurisdiction to hold a trial in camera where the ends of justice clearly and necessarily require it, and the power to prohibit excessive publication of part of the proceedings is a facet of that power. On the constitutional question, Sarkar J. held that if a judicial tribunal makes an order it has jurisdiction to make, applying a law valid in all respects, the order cannot offend a fundamental right; and that the law empowering a court to prohibit publication of its proceedings is in any event protected by article 19(2), relating as it does to contempt of court. Hidayatullah J. dissented, holding that a court which had heard a witness in open court could not suppress publication of that evidence on the witness's request that his business would suffer.
Prior Restraint and Pre-Censorship
Why it matters. It is the authority for a court's power to restrain reporting, and it locates that power in the contempt ground of article 19(2). The modern practice is narrower than the case might suggest: such orders are treated as exceptional, must be for a limited period, must be the least restrictive means of protecting the administration of justice, and are recognised as postponement orders rather than permanent bans.
Restraint by executive order
Facts. Anuradha Bhasin v. Union of India, decided 10 January 2020. Internet and telecom services were suspended in Jammu and Kashmir and movement restricted under section 144 of the Code of Criminal Procedure; a newspaper editor said print media had halted.
Held, among fifteen directions: orders under section 144 and for suspension of telecom services must be published so they can be challenged; speech and trade over the internet are protected by articles 19(1)(a) and 19(1)(g) and restrictions must meet article 19(2) and (6) including proportionality; indefinite suspension is impermissible and suspension may be temporary only, not beyond the necessary duration, and is judicially reviewable; section 144 may be used on apprehension of danger but the danger must be in the nature of an emergency, cannot be used to suppress legitimate expression of opinion or grievance, must state material facts, must apply the least intrusive measure, and repetitive orders are an abuse of power.
Why it matters. It is the modern law on prior restraint by executive action, and its most useful contribution is procedural: an unpublished order is in practice unchallengeable, so requiring publication is what makes the substantive limits real.
A worked example
A State enacts a law requiring every periodical to submit each issue to a District Magistrate before publication, who may withhold permission if in his opinion the issue is likely to disturb public order. There is no appeal, no time limit for the decision, and no requirement of reasons.
Is there a law? Yes, so the first requirement is met.
Is the ground within article 19(2)? Public order is a named ground, so the second is met in form.
Is it reasonable, meaning proportionate? It fails on every limb.
Prior Restraint and Pre-Censorship
Necessity. The State has a wide range of less intrusive measures: prosecution after publication, a prohibition confined to specified inflammatory matter, a short order in a genuine emergency under section 144. A standing permission requirement for every issue is the most intrusive measure available, not the least.
Procedural unreasonableness. No time limit means the Magistrate can suppress by delay; no reasons means the decision cannot be challenged; no appeal means there is no correction. A restriction must be reasonable procedurally as well as substantively.
Unguided discretion. "In his opinion likely to disturb public order" states no principle. On the Anwar Ali Sarkar reasoning in [Reasonable Classification], a power to pick who is treated differently with no principle to guide it is bad in itself.
The Anuradha Bhasin points. The order must state material facts and must be published; and the danger must be in the nature of an emergency, which a standing regime by definition is not.
Answer. Void. Note that it fails not because prior restraint is per se unconstitutional in India, but because this prior restraint is disproportionate, procedurally unreasonable and unguided.
Quick revision
- Prior restraint stops publication; subsequent punishment answers for it afterwards. Four reasons the first is worse: it suppresses the lawful, reverses the burden, leaves no record, and is administered by officials.
- India has no per se rule against prior restraint, unlike the United States. It is a restriction and must satisfy article 19(2) and proportionality.
- Sakal Papers and Bennett Coleman are prior restraint by resource control; the answer is the effect test.
- Mirajkar: a court has inherent power to restrain reporting, located in the contempt ground; a judicial order within jurisdiction cannot offend a fundamental right; Hidayatullah J. dissented. Modern practice treats such orders as exceptional and as postponement.
- Anuradha Bhasin: publication of the order, material facts, proportionality, least intrusive measure, no indefinite suspension, no repetitive section 144 orders.
- Pre-censorship of films is permitted; general licensing of the press is not.
Test yourself
1. Distinguish prior restraint from subsequent punishment, and give four reasons the first is treated more strictly.
2. How does the Indian position differ from the American, and what follows?
3. Why are Sakal Papers and Bennett Coleman prior restraint cases, and what test answers them?
4. Where did Mirajkar locate a court's power to restrain reporting, and how is that power exercised today?
5. Which of the Anuradha Bhasin directions are procedural, and why do the procedural ones matter most?
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.