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.
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
Various conditions have been promulgated by courts [xiii] for prior
(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
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
[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.
[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.
[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
[xx] Study by Oxfam found that 86% of Indian movies use sexist humour.
[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