The battle between throttling speech and protecting societal interests.

The Constitution provides freedom of speech and expression vide Article 19(1) to all its citizens but in the same breath imposes restrictions reasonable enough to act as a check on the use of this freedom. [i] These reasonable restrictions are eight in number and when it comes to prior restraint they have been collectively termed as societal interest [ii].

Since fundamental rights in our Constitution are not absolute, these act to control the exercise of the right to protect interests of the society at large and follow the test of justification in the societal interest [iii].

As was said by Oliver Wendell Holmes, Jr, The right to swing my fist ends where the other man’s nose begins, the freedom of speech of a person ends where it is in a position to cause damages to the other; societally (public order) or individually (defamation). This reasoning though just raises questions as to the nature of these restrictions, primary being whether they can be prior or only subsequent, in other words whether criminalisation follows after the commission of the act i.e. allowing for the commission of the act at the risk of subsequent legal repercussions on the doer OR restraining the act itself, without an enquiry into the act, since no enquiry into the effects of an act can operate without commission of the act.

Prior restraint refers to the concept of censorship/ ban on publication/ expression. It puts restrictions on the freedom of speech prior to expression unlike most legal restrictions which are subsequent in nature. The pillar of prior restraint is thus suspicion; suspicion that expression of the alleged speech could harm the societal interests. In other words, it refers to the act of imposing fetters on publication prior to its publication even though the same is subject to other consequences of law. Although after the promulgation of this doctrine it was held, The liberty of the Press consists in printing without any previous licence, subject to the consequences of law.[iv] The critiques of the doctrine press largely on this.

The concept of prior restraint has been extremely controversial, with some countries holding it entirely ultra vires their constitution, declaring the freedom of speech as an absolute right like in the US, while some like India and Canada, declare it constitutional with established guidelines.

Constitutionality

Broadly speaking, as produced earlier, the doctrine of prior restraint enjoys constitutional backing based on restrictions provided under Article 19(2), as the Constitution authorises restraining this freedom. However, a deeper problem rooted in this restriction is its prior nature, which curtails the very act of expression of primarily the artists, media, actors and authors as the sword of censorship is ever hanging in the realm of art, literature and news.

The importance of free speech, especially in a democracy, cannot be undermined. The following judgements are a testimony to the same since prior restraint acts as a hurdle in this freedom.

Although the press does not enjoy any excessive rights wrt freedom of speech, the Supreme Court has recognized its right to advance public interest and publish opinions and facts to enable making of responsible judgements in a democracy like India.[v]

Philosophically, the ultimate good in a free society can be reached only by a discovery of truth, [vi] and that can be achieved only by a free in ideas[vii]- good and bad. This forms the base of the argument of free speech, without a free trade of ideas, the truth of the matter cannot be ascertained. Considering these views, many have argued on the inherent unconstitutionality of this doctrine. Justice Douglas considered prior restraint as unconstitutional. According to him if a movie violated a valid law, the exhibitor could be prosecuted.[viii] This position has been easily found in the US where the argument is that such a restraint goes against the spirit of the First amendment which provided the freedom of speech and expression as an absolute right, unlike in India, where the Constitution itself provides for reasonable restrictions.

The Indian courts have thus held time and again such a prior restriction to be valid in the eyes of law. [ix] In these judgements however, prior restraint was in context of contempt of court, which is also authorised by the Contempt of Courts Act[x]. The courts have reiterated this position, in Mirajkar, this Court held that all Courts which have inherent powers, i.e., the Supreme Court, the High Courts and Civil Courts can issue prior restraint orders or proceedings, prohibitory orders in exceptional circumstances temporarily prohibiting publications of Court proceedings to be made in the media and that such powers do not violate Article 19(1)(a) [xi]. The dilemma being between right to free speech and right to free trial, priority was given to the latter. Such a dilemma is often found between free speech & public order and sovereignty and integrity of India, for instance where publication of a particular article/ release of a movie is likely to result in law and order situation. One such case was S. Rangrajan v P. Jagjivan Ram [xii], where a movie was not given clearance certificate based on the argument that it condemned the reservation policy of the government and that the reaction to the film in Tamil Nadu is bound to be volatile.

Various conditions have been promulgated by courts [xiii] for prior restraint-
(i) During exceptional circumstances and should be temporary.
(ii) During clear and present imminent danger.
(iii) To prevent real and substantial risk to the fairness of the trial.
(iv) Only if reasonable alternative methods fail.

In considering point (iv), it is important to take into account whether offences specified in the Indian Penal Code, 1860 like defamation[xiv], sedition[xv], promoting enmity between different religious groups[xvi] are not enough to act as a deterrent. As argued by many jurists, prior restraint is unnecessary when the author is subject to subsequent penalties by law. He must be left open to publish his ideas and suffer consequences if any violation takes place. It acts as a double punishment since in case of any consequences after publishing, the author attracts penalties by way of offences specified in the IPC in addition to consequences of acting against prior restraint (like contempt of court).

Proponents of the doctrine however argue on the lines of prevention is better than cure, since in many cases subsequent punishment would be of little effect when a lot of chaos has resulted from publication of ideas. A classic example would be the media coverage during 26/11 attacks which resulted in jeopardising the national security, with the terrorists receiving live reporting of all happenings from their coordinators abroad who kept an eye on all media channels.[xvii]

Is Prior Restraint Becoming A Device To Cement Intolerance?

In the realm of movies, The Cinematograph Act, 1952 vide Section 5(B)(1) permits censorship on movies by the Central Board of Film Certification (CBFC).[xviii] The grounds for not granting a certificate are the same as provided under Art 19(2). In practice however, the most common is ‘decency and morality’, trapping most films in the net of censorship.

The argument then advanced is that the task given to the CBFC must be only of certification and not censorship, adults being free to not watch a movie if it violates their subjective morality. This argument was followed by the Gujarat HC in 1976 where a person aggrieved by the movie ‘Jai Santoshi Maa’ approached the court seeking an injunction (however a certificate was issued in this case) [xix], the film is not publicly exhibited, that is to say it is not being shown to those who do not want to see it; it is being shown on payment; people have to use their volition to see the picture. There is no compulsion to see the film. If the feelings of the plaintiffs are hurt, they may not see the movie again.

The current position however, is that of sensitive censorship, where bans have been wide ranging for films receiving international accreditation. From ‘Lipstick Under My Burkha’ to ‘Water’, the central theme being the true picture of women; may it be their desires or their volatile situation.

Mainstream media has witnessed blockbuster movies which have consistently included harassment driven plots [xx] but the same has never been subject to censorship in the name of morality. It is argued by the author that prior restraint thus addresses a very selective (read: flawed) definition of morality/ decency mostly tailor-made according to the ideas of the censor board. Not everything which is theoretically constitutional remains equally constitutional in execution and prior restraint is the quintessential illustration. In these movies, patriarchy fuelled definition of ‘decency and morality’ is the guiding principle which thus can be linked to be representative only of , arguably, the majoritarian patriarchal society and not all. The question which it raises then is whether speech will be curtailed for being minority (here- lady oriented [xxi]) centric.

End-Notes
[i] Article 19(2), Constitution Of India
[ii] Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal MANU/SC/0246/1995
[iii] Sahara India Real Estate Corporation Ltd. and Ors. vs. Securities and Exchange Board of India and Ors AIR2012SC3829
[iv] R v Dean of St Asaph (1784) TR 428 (431)
[v] Indian Express v UOI AIR 1985 SC 515
[vi] Whitney v California (1927) 274 US 357 (375)
[vii] Abrams v U.S.
[viii] Kingsley International Pictures Corporation. v. Regents (1959) 360 U.S. 684
[ix] See Sahara India Real Estate Corporation Ltd. and Ors. vs. Securities and Exchange Board of India and Ors.
AIR2012SC3829 and Reliance Petrochemicals v . Proprietors of Indian Express Newspapers Bombay (1988) 4 SCC 592
[x] Section 7(1)(b) -where the court, on grounds of public policy or in exercise of any power vested in it, expressly prohibits the publication of all information relating to the proceeding or of information of the description which is published.
[xi] Supra 3
[xii] ( 1989 ) 2 SCC 574
[xiii] Supra 9
[xiv] 499, Indian Penal Code, 1860.
[xv] 124A, IPC, 1860.
[xvi] 153A, IPC, 1860.
[xvii] https://timesofindia.indiatimes.com/city/mumbai/26/11-attack-Media-pulled-by-Supreme-Court-for-its-role/articleshow/16054201.cms
[xviii] 5B. (1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of 1 [the sovereignty and integrity of India] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence.
[xix] Ushaben Navinchandra Trivedi and another vs. Bhagyalaxmi Chitra Mandir and others MANU/GJ/0177/1976
[xx] Study by Oxfam found that 86% of Indian movies use sexist humour. See https://www.facebook.com/feminisminindia/videos/273521943302585/UzpfSTEwMDAwMTk4MzQ0MDg0NToxOTcxMjA3NDYyOTU1MzQ5/
[xxi] This was the reason cited by CBFC for not certifying Lipstick Under My Burkha for release. See https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/photo-features/lipstick-under-my-burkha-times-when-the-controversial-film-made-headlines/CBFC-bans-release-of-Lipstick-Under-My-Burkha-in-India/photostory/59338173.cms