Prior Restraint

The answer. The Constitution (First Amendment) Act 1951 amended article 19(2) to add public order and other grounds and to insert the word "reasonable". The two decisions are therefore not authority for the proposition that pre-censorship is unconstitutional in India; they are authority for what the clause said before 1951.

The modern position. Pre-censorship is permitted where it is a reasonable restriction within a ground of article 19(2). Film certification under the Cinematograph Act 1952 is prior restraint and is constitutional, on the ground that the medium's impact justifies a scheme of prior classification, subject to guidelines that are not vague and to a right of appeal. Injunctions restraining publication are granted, and the Court has cautioned that they should not issue merely because a publication is defamatory.

The British position

There was no constitutional bar, and the equitable jurisdiction to restrain a threatened breach of confidence or defamation was available, subject to the rule in defamation that an injunction will not be granted where the defendant intends to justify.

Section 12 of the Human Rights Act 1998 changed the balance. Where a court considers whether to grant relief which if granted might affect the exercise of the Convention right to freedom of expression, it must have particular regard to the importance of that right, and by section 12(3) no relief restraining publication before trial is to be granted unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

That is a higher threshold than the ordinary balance of convenience, and it moves the British position towards the American one without adopting the presumption.

Comparison

A worked example

A newspaper obtains a classified official report and announces publication.

United States. The government must overcome a heavy presumption against prior restraint; on the Pentagon Papers record it could not.

India. The State would rely on the security of the State or public order under article 19(2), and the question would be whether an injunction was a reasonable restriction; the Court would ask whether the material posed a proximate danger and whether a narrower order would do.

United Kingdom. An interim injunction requires the applicant to satisfy the court that it is likely to establish at trial that publication should not be allowed, under section 12(3).

The cases

Facts. Brij Bhushan v. State of Delhi, AIR 1950 SC 129, concerned an order under the East Punjab Public Safety Act 1949 requiring the printer and publisher of an English weekly to submit for scrutiny, in duplicate, all communal matter and news and views about Pakistan before publication.

Held, by the Supreme Court. The order was a prior restraint on the liberty of the press and was unconstitutional, since the clause as it then stood permitted restriction only on grounds relating to the security of the State or its overthrow, and the order was not so limited.

Why it matters here. It is the Indian pre-censorship case, and it is also the case that produced the First Amendment of 1951, so it must be cited with that sequence attached.

Facts. New York Times Co. v. United States, 403 U.S. 713 (1971), concerned the Government's application to enjoin two newspapers from publishing a classified study of United States decision making in Vietnam.

Held, per curiam. The injunctions were refused. Any system of prior restraints of expression comes to the Court bearing a heavy presumption against its constitutional validity, and the Government had not met its heavy burden of justification.

Why it matters here. It is the strongest statement of the American rule and the sharpest contrast with the Indian position, since in India the same facts would be tested for reasonableness under article 19(2) rather than against a presumption.

Distinctions

What beginners get wrong

"Brij Bhushan holds pre-censorship unconstitutional in India." It held that particular order bad under the pre-1951 clause, and article 19(2) was amended in direct response.

"Prior restraint is per se void in the United States." The presumption is heavy but rebuttable, and Near itself listed exceptions.

"Film censorship is unique to India." Many systems classify films; what varies is whether classification may prohibit rather than label.

"Section 12 of the Human Rights Act bans injunctions." It raises the threshold for interim relief; it does not remove the jurisdiction.

Limits and criticism

The presumption protects the powerful publisher and not the small one, because resisting an injunction costs money.

Film pre-censorship in India rests on the assumption that the medium is uniquely powerful, an assumption made before television and the internet and not revisited.

Interim injunctions decide cases. A restraint that lasts until trial will often make the publication worthless, so the interim stage is the whole contest, which is why section 12(3) matters more than it looks.

Quick revision

1. Prior restraint stops speech before it happens; subsequent punishment follows it.
2. Near v. Minnesota, 283 U.S. 697 (1931): the chief purpose of the press guaranty is to prevent previous restraints.
3. New York Times Co. v. United States, 403 U.S. 713 (1971): a heavy presumption against constitutional validity; the Government failed to discharge it.
4. Romesh Thappar, AIR 1950 SC 124: circulation is part of the freedom.
5. Brij Bhushan, AIR 1950 SC 129: pre-censorship of communal matter struck down under the pre-1951 clause.
6. Both cases produced the Constitution (First Amendment) Act 1951, which added public order and "reasonable".
7. Section 12(3), Human Rights Act 1998: no pre-trial restraint unless the applicant is likely to establish that publication should not be allowed.

Test yourself

1. Why is prior restraint treated as a distinct and graver evil? Because the expression never occurs, so there is nothing for a court to assess afterwards and nothing for the public to weigh; because a censor's incentives are one-sided, blame attaching to permitting harm and not to suppressing value; because an administrative scheme has none of the burden of proof, publicity and appeal that a criminal trial supplies unless they are expressly built in; and because the censor must judge what a publication will do rather than what it has done.

2. State the effect of the 1950 Indian cases. Romesh Thappar v. State of Madras, AIR 1950 SC 124, struck down a ban on the entry and circulation of a journal, holding that the freedom includes the propagation of ideas and so the freedom of circulation. Brij Bhushan v. State of Delhi, AIR 1950 SC 129, struck down an order requiring communal matter to be submitted before publication. Both turned on the narrowness of article 19(2) as originally enacted, and both were answered by the Constitution (First Amendment) Act 1951, which added public order among other grounds and inserted the requirement of reasonableness, so they do not establish that pre-censorship is now unconstitutional in India.

3. Compare the treatment of a threatened publication of classified material. In the United States the Government must overcome a heavy presumption against the validity of any system of prior restraint, and in New York Times Co. v. United States, 403 U.S. 713 (1971), it failed to discharge that burden on the record before the Court. In India the question is whether an injunction is a reasonable restriction in the interests of the security of the State or public order under article 19(2), which is a balancing enquiry with no presumption against restraint. In the United Kingdom section 12(3) of the Human Rights Act requires the applicant to satisfy the court that it is likely to establish at trial that publication should not be allowed.

4. Why does the interim stage matter more than it appears? Because news has a shelf life. A restraint lasting until trial commonly destroys the value of the publication, so the interim decision determines the outcome even though it decides nothing finally. That is why section 12(3) of the Human Rights Act raises the interim threshold above the ordinary balance of convenience, and why the American presumption is directed at the injunction rather than at the eventual liability.