What is ‘Prior Restraint?’
The taking of legal action before an anticipated wrongdoing. Remedies to prevent a threatened illegality from taking place include the use of injunction or prohibition and declaration. In English law, an injunction may take the form of either a negative or positive requirement, depending on how best to deal with the illegality. In order to obtain an injunction, the plaintiff must show he has an arguable point of law and that on the balance of convenience an injunction ought to be given.[1]
Prior Restraint is not defined in Indian law and if someone puts a prior restraint it has been held unconstitutional be our own S.C. in cases like Ramesh Thapar v. State of Madras[2], Brij Bhushan v. State of Delhi[3], etc.
“Freedom of expression – in particular, freedom of the press – guarantees popular participation in the decision and actions of government, and popular participation is the essence of our democracy…” [4]
The Right to freedom of speech and expression is given under Art. 19(1) (a) of our Indian Constitution. It is probably the most universally accepted human right.[5] Freedom of Press is considered as the fourth pillar, it must be protected in every democratic society. This freedom can only be available in a society where there is a right to free speech and expression. Similarly, the freedom of information can be enjoyed only if there are sources from which information can flow. These sources, again, would be available where there is a right to speech and expression. The freedom of expression and the freedom to receive and impart information are corollary of one another. In fact, there is an overlap between the freedom of expression and the freedom to receive or impart information. The freedom to impart information can be considered as an expression of an opinion, of the informant or of a third person. The seeking of information, on the other hand, precedes the formation of an opinion by the person who seeks the information, and consequently also its expression. But with regard to the press, freedom of expression and information run parallel to each other. While the press might be the medium of expression, someone else might possess the information. Until and unless these two freedoms are exercised together both would be useless. In the case of information the only one who has the right of free distribution of that information is the party who is the author, originator or otherwise the intellectual owner of the information in question. In case of the press, however, the press can express opinions of others also, of course, held in good faith and believed to be true. It is incumbent on the press, with regard to the print media as well as audio-visual media, to impart information and ideas which the public has the right to receive. Otherwise, the press would not be able to play its role of ‘public watch dog’. Freedom of press is conferred on by virtue of article 19 (1) (a). This constitutional provision is getting obsolete in the newly evolved scenario and therefore it needs to be revised. Thus for exercising the freedom of expression one must have the freedom of information. In this regard, the approval of the Freedom of Information Bill, 2000 (Information Bill) by Indian Parliament would be a welcome move.
Prior Restraint in U.S.:
In U.S. prior restraint is a legal term related to ‘censorship’ referring to government actions that prevent communications from reaching the public.
William Blackstone defines “Freedom of Press” as the right to be free from prior restraints. Prior restraint is often considered a particularly oppressive form of censorship in American Jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as suits for libel, slander, defamation, or actions for criminal libel) generally involve punishment only after the offending material has been published. While such punishment might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes an idea or material completely out of the market place. Thus it is often considered to be the most extreme form of censorship.
U.S. Supreme Court has given many landmark judgments regarding the prior restraint. The first notable case in which the United States Supreme Court ruled on a prior restraint issue was, Near v. Minnesota[6]. In that case the Court held prior restraints to be unconstitutional, except in extremely limited circumstances such as national security issues. The ruling came about after Jay Near’s newspaper, The Saturday Press, a small local paper that ran countless exposés of Minneapolis’s elected officials’ alleged illicit activities, including gambling, racketeering, and graft, was silenced by the Minnesota Gag Law of 1925, also known as The Public Nuisance Law. Near’s critics called his paper a scandal sheet, and alleged that he tried to extort money threatening to publish attacks on officials and others. In the Near case the Court held that the state had no power to enjoin the publication of the paper in this way – that any such action would be unconstitutional under the First Amendment. It wrote:
“If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter — in particular that the matter consists of charges against public officers of official dereliction — and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.”
In Nebraska Press Assn. v. Stuart[7] S.C. noted:
“The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative.
“A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”
Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity. Carroll v. Princess Anne[8]; Bantam Books, Inc. v. Sullivan[9]. Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint.
This shows the strong later acceptance of what had been a disputed decision when it was first handed down
In the Pentagon Papers case (New York Times Co. v. United States[10]), the Nixon administration sought to enjoin the New York Times and the Washington Post newspapers from publishing excerpts from a top-secret United States Department of Defense history of the United States involvement in the Vietnam War from 1945 to 1971. The government tried to use the “national security” exception that had been suggested in the Near decision. The Supreme Court struck down the injunctions. However, the decision was fragmented, with nine separate opinions being filed in the case. It was not clear at the time what the effect would be on future prior restraint cases.
Prior Restraint in U.K.:
In U.K. historically, restriction of the press has occurred in two ways. The first may be either censorship or mandatory licensing by the government in advance of publication; the second is punishment for printed material, especially that considered by the government to be seditious libel, i.e., material that may “excite disaffection” against constituted authority. Censorship of the press began not long after the invention of the printing press. Pope Alexander VI issued (1501) a notice requiring printers to submit copy to church authorities before publication, in order to prevent heresy. Penalties for bypassing the censors included fines and excommunication. Stronger restrictive measures were taken by the later Tudor and Stuart monarchs, and censorship came to be applied more to political criticism than religious heresy. John Milton in his Areopagitica (1644) attacked the licensing law and called on Parliament to suppress offensive publications after their appearance if necessary. Milton’s objections to prior restraint eventually became a cornerstone of press freedom, but it was not until 1695 that the licensing and censorship laws were abolished. Severe restrictions on the press continued, however, in the form of seditious libel laws under which the government was able to arrest and punish any printer who published material in any way critical of the government.
There are several Acts of the United Kingdom Parliament for the protection of official information, mainly related to national security. The latest revision is the Official Secrets Act 1989(1989 chapter 6), which removed the public interest defence by repealing section 2 of the Official Secrets Act 1911. In 2004, a memo containing details of a possible US bombing of broadcaster Al Jazeera was leaked to the press. Attorney General Peter Goldsmith has warned newspapers that they could be prosecuted under the Official Secrets Act if they publish the contents of the memo, saying “You are reminded that to publish the contents of a document which is known to have been unlawfully disclosed by a crown servant is in itself a breach of section 5 of the Official Secrets Act 1989”.
The Terrorism Act 2006 makes it an offence to “glorify” terrorism. There are concerns that this could limit free speech.
DA-Notices are official but voluntary requests to news editors not to publish items on specified subjects, for reasons of national security.
In 2007/2008 It was announced that the trial of Wang Yam, accused of murdering Allan Chappelow would be held ‘in camera’. This was the first murder trial behind closed doors. The UK press was prohibited from speculating as to the reasons for this order.[11]
In 2008/2009 the press was barred from printing the names of concerned parties in the murder of Baby Peter, a 17 month old boy. Websites which published the names of the defendants and the boy came under police investigation for conducting an “internet hate campaign.” [12]
Thus, in U.K. prior restraint can be imposed on the publications, broadcasting of anything by the media.
Prior Restraint In India:
Freedom of the Press was one of the constitutional guarantees persistently demanded by India’s freedom fighters during British colonial rule. The British masters disdainfully turned down the demand on the ground that abstract declarations of rights are useless, unless there exist the will and the means to make them effective. Not surprisingly after Independence and during the framing of India’s Constitution in the Constituent Assembly, the Founding Fathers attached great importance to Freedom of the Press. They believed that central to the concept of a free press is the freedom of political opinion and at the core of that freedom lies the right to criticise and censure the government. Surprisingly freedom of the press is not specifically mentioned in the Chapter on Fundamental Rights in the Indian Constitution. The omission was noticed and criticised in the Constituent Assembly. Dr. B. R. Ambedkar, the principal architect of the Constitution, assured the members that freedom of the press was included in the guarantee of freedom of speech and expression and it was hardly necessary to provide for it specifically.
This view has been vindicated by the Supreme Court of India. In a series of decisions from 1950 onwards the Supreme Court has ruled that Freedom of the Press is implicit in the guarantee of freedom of speech and expression in Article 19(1) (a) of the Constitution[13]. Thus freedom of the press by judicial interpretation has been accorded constitutional status[14]. This is an instance of Constitutional implication. However there is a strong body of opinion, which favours specific mention of freedom of the press as a fundamental right. No fundamental right guaranteed by the Constitution of India is absolute. Freedom of the press also can be restricted provided three distinct and independent prerequisites are satisfied.
(1) The restriction imposed must have the authority of law to support it. Freedom of the Press, like any other fundamental right, cannot be curtailed by executive orders or administrative instructions, which lack the sanction of law.
(2) The law must fall squarely within one or more heads of permissible restrictions specified in Article 19(2), namely, (a) security of the State, (b) sovereignty and integrity of India, (c) friendly relations with foreign States, (d) public order, (e) decency or morality, (f) contempt of court, (g) defamation or (h) incitement to an offence[15]. In its landmark judgment in the case of Sakal Papers[16], the Supreme Court ruled that it is not open to the State to curtail the freedom of the press for promoting the general welfare of a section or a group of people unless its action can be justified by a law strictly falling under clause 2 of Article 19. Freedom of the Press cannot be curtailed on such omnibus grounds as in the interest of the general public as in the case of the freedom to carry on trade, business or profession.
(3) The restriction must be reasonable. In other words, it must not be excessive or disproportionate. The procedure and the manner of imposition of the restriction also must be just, fair and reasonable[17]
One of the vexed issues before the Court has been that of censorship by way of prior restraint. There is no provision in the Indian Constitution permitting or proscribing censorship. The sting of censorship lies in prior restraint which affects the heart and soul of freedom of the press. Expression is snuffed out before its birth. The communication in question may never see the light of day. Suppression by a stroke of the pen is more likely to be applied by the censoring authorities than suppression through a criminal process and thus there is far less scope for public appraisal and discussion of the matter. That is the real vice of prior restraint and its irresistible attraction to the censor. Is prior restraint intrinsically evil? Is it per se unconstitutional? There is unending debate on this question. In the Japanese Constitution (Article 21) and the German Constitution (Article 5) pre-censorship is prohibited. Again the American Convention on Human Rights (San Jose) 1969 (ACHR) expressly states in Article 13(2) that freedom of expression “shall not be subject to prior censorship”. There was strong American influence in the drafting of the Japanese and German Constitutions after World War II. Yet even in the land of the First Amendment, for which there is more reverence than to the Ten Commandments, and despite the robust American tradition and the thrust of US judicial opinion against censorship, there is no absolute rule against prior restraint. Indeed, its necessity has been recognised, albeit in exceptional cases, by the United States Supreme Court in the seminal case of Near v.Minnesota, the sheet anchor of the opponents of prior restraint. The Court observed that the protection even as to previous restraint is not absolutely unlimited and listed as exceptions obstructions to recruitment during war, publication of military movements, obscenity, incitements to acts of violence and the overthrow by force of orderly government, and words that “may have all the effect of force”[18].
The Supreme Court of India in May 1950 had to resolve the question in Brij Bhushan v. The State of Delhi.[19] Section 7(1)(c) of the East Punjab Safety Act 1949 provided for submission of material for scrutiny if the government was satisfied that such action was necessary for the purpose of preventing or combating any activity prejudicial to public safety or the maintenance of public order. The Court declared the statutory provision in question unconstitutional on the ground that the restrictions imposed were outside the purview of Article 19(2) as it then stood, which did not include public order as a permissible head of restriction. The Court did not rule that prior censorship is per se unconstitutional. Indeed, in 1957 the Court upheld censorship imposed under the Punjab Special Powers (Press) Act 1956 for a temporary period, which provided for a right of representation to the government[20]. It is noteworthy that another statutory provision imposing censorship without any time limit and without providing any right of representation was struck down by the Court in a judgment delivered on the same day.[21]
India’s worst brush with censorship occurred during the spurious emergency declared by the government of Prime Minister Indira Gandhi on 25 June 1975. Censorship of the Press was imposed for the first time in independent India by the promulgation of a Central Censorship Order, dated 26 June 1975. No censorship was imposed during two previous declarations of emergency, in 1962 and in 1971, when the nation was fighting a war. Under the Indian Constitution during an emergency, fundamental rights, including freedom of speech and expression and the freedom of the press, stand suspended. Censorship, which in normal times would be struck down, becomes immune from constitutional challenge. Taking advantage of the emergency, numerous repressive measures were adopted in the form of executive non-statutory guidelines, and instructions were issued by the censor to the press. One of the instructions of the censor was that “nothing is to be published that is likely to convey the impression of a protest or disapproval of a government measure[22].
Consequently anything that smacked of criticism of governmental measures or action was almost invariably banned, even if the criticism was sober and moderate. The censor’s scissors were applied arbitrarily and in a few cases its decisions bordered on the farcical. Quotations from Mahatma Gandhi, Tagore and Nehru were banned. A statement by the Chairman of the Monopolies and Restrictive Trade Practices Commission criticising the working of public sector undertakings was blacked out. Other ludicrous instances are the bans imposed on news about a member of a former royal family, Begum Vilayat Mahal, squatting at New Delhi railway station; a report about junior lawyers marching to the Delhi High Court; a London report of the arrest of a famous Indian actress for shoplifting; and the news about a meeting of the Wild Life Board, which considered the grant of a hunting licence to a certain Maharajah’s brother.[23]
These bans had nothing to do with the security of the State or preservation of public peace and order but reflected the capricious working of the censoring authorities. Some of the censors directives were sinister, like the ones prohibiting any reference to the transfer of State High Court judges, banning publication of judgments of High Courts which ruled against the censor, “killing” news of the opposition of certain State governments to proposed constitutional amendments, banning reports of alleged payoffs made during the purchase of Boeing aircraft and suppressing criticism of family planning programs. The object was not merely withholding of information but manipulation of news and views to legitimise the emergency and make it acceptable. One tragic consequence was that inhuman practices like forcible sterilisation of young men after removing them from buses and other excesses of over-enthusiastic family planning officials came to light much later after the events, by which time family planning had become an anathema to the rural masses. An urgent and important programme suffered a serious setback owing to suppression of freedom of the press by the censor.
The Indian judiciary, especially the State High Courts, displayed commendable courage in striking down the censor’s orders and upheld the right of dissent even during the emergency. The High Court of Bombay in its landmark judgment in Binod Rao v. Masani delivered on 10 February 1976 declared:
It is not the function of the censor acting under the Censorship Order to make all newspapers and periodicals trim their sails to one wind or to tow along in a single file or to speak in chorus with one voice. It is not for him to exercise his statutory powers to force public opinion in a single mould or to turn the Press into an instrument for brainwashing the public. Under the Censorship Order the censor is appointed the nursemaid of democracy and not its gravedigger. · Merely because dissent, disapproval or criticism is expressed in strong language is no ground for banning its publication[24].
The Court, however, cautioned that the voice of dissent cannot take the form of incitement of revolutionary or subversive activities, for then instead of serving democracy it would subvert it. The High Court of Gujarat in its judgment in C. Vaidya v. D Penha castigated the censorship directives for imposing upon the people “a mask of suffocation and strangulation”. In construing the expression “prejudicial report”, the Court observed: “To peacefully protest against any governmental action with the immediate object of educating public opinion and the ultimate object of getting the ruling party voted out of power at the next general elections is not a prejudicial report at all. Such a public education is the primary need of every democracy.[25] These judgments were delivered at a time when “inconvenient” judges during the emergency were transferred from one State to another in India. Notwithstanding this, the High Courts rose to the occasion. Indeed it was their finest hour. In R. Rajagopal v. State of TN[26] the Supreme Court held that neither the government nor the officials who apprehend that they may be defamed, had the right to impose a prior restraint upon the publication of the autobiography of Auto Shankar, a convict serving sentence of death in jail, which was likely to reveal a nexus between criminals and high ups in the police. The Court held that “The remedy of public officials/public figures, if any, will arise only after the publication.
The Court has however accepted prior restraint in the case of exhibition of motion pictures because. it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture … It, however, emphasised the necessity for a corrective machinery in the shape of an independent tribunal and also a reasonable time limit for the decision of the censoring authorities. In laying down certain guidelines for the censor, the Court was at pains to point out that the “standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom.”[27]
Courts in India have ruled that in adjudging the question of proscription of articles in the press or banning the exhibition of a movie or programs in the TV channels, the standards to be employed must be of reasonable, strong-minded human beings and not those of weak and vacillating minds nor of those who scent danger or perceive hurt and insult in every critical point of view. It is not permissible to stifle all free expression of opinion by imagining lurking dangers in every corner and discovering sharp curves and hairpin bends when all that exists is a straight road. The correct test is: what impression the article or movie as a whole would produce upon a man of ordinary commonsense.[28]
Indian Legislature has passed other legislations regarding the functioning of media:
- The Press and Registration of Books Act, 1867– This Act regulates printing presses and newspapers and makes registration with an appointed Authority compulsory for all printing presses.
- The Press (Objectionable Matters) Act, 1951-This enactment provides against the printing and publication of incitement to crime and other objectionable matters.
- The Newspaper (Prices and Pages) Act, 1956-This statute empowers the Central Government to regulate the price of newspapers in relation to the number of pages and size and also to regulate the allocation of space to be allowed for advertising matter.
- Defence of India Act, 1962- This Act came into force during the Emergency proclaimed in 1962. This Act aimed at restricting the Freedom of the Press to a large extent keeping in mind the unrest prevailing in India in lieu of the war against China. The Act empowered the Central Government to issue rules with regard to prohibition of publication or communication prejudicial to the civil defence/military operations, prevention of prejudicial reports and prohibition of printing or publishing any matter in any newspaper.
· Delivery of Books and Newspapers (Public Libraries) Act, 1954 – According to this Act, the publishers of books and newspapers are required to deliver, free of cost, a copy of every published book to the National Library at Calcutta and one copy each to three other public libraries specified by the Central Government.
- · The Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 – It lays down the minimum standards of service conditions for newspaper employees and journalists.
- · Civil Defence Act, 1968 – It allows the Government to make rules for the prohibition of printing and publication of any book, newspaper or other document prejudicial to the Civil Defence.
- · Press Council Act, 1978 – Under this Act, the Press Council was reconstituted (after 1976) to maintain and improve the standards of newspaper and news agencies in India. Although on one hand, the Constitution confers the fundamental right of freedom of the press, Article 105 (2) provides certain restrictions on the publications of the proceedings in Parliament.
Broadcast – the broadcast media was under complete monopoly of the Government of India. Private organizations were involved only in commercial advertising and sponsorships of programmes. However, in Secretary, Ministry of I&B v. CAB,[29] the Supreme Court clearly differed from the aforementioned monopolistic approach and emphasized that, every citizen has a right to telecast and broadcast to the viewers/listeners any important event through electronic media, television or radio and also provided that the Government had no monopoly over such electronic media as such monopolistic power of the Government was not mentioned anywhere in the Constitution or in any other law prevailing in the country.
- · The Broadcasting Code – adopted by the Fourth Asian Broadcasting Conference in 1962 listing certain cardinal principles to be followed buy the electronic media, is of prime importance so far as laws governing broadcast medium are concerned.
- · Cable Television Networks (Regulation) Act, 1995 – basically regulates the operation of Cable Television in the territory of India and regulates the subscription rates and the total number of total subscribers receiving programmes transmitted in the basic tier.
- · Direct-to-Home Broadcasting – Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV programmes in Ku Band by using a satellite system and by providing TV signals directly to the subscribers’ premises without passing through an intermediary such as a cable operator. The Union Government has decided to permit Direct-to-Home TV service in Ku band in India.[30]
Conclusion:
In keeping with its affirmation that freedom of expression is “one of the essential foundations of a [democratic] society”, the Court has clearly shown a preference for freedom of press. But this preference has many a times been a bane to our society; take for instance the 26/11 Mumbai Terror attack, Indian media failed to rise to the occasion, it was a tragedy that unfolded in Mumbai for 48 hrs but channels didn’t appear somber and regulated.
Instead, they were over-excited and showing everything as if it was a ‘live war reporting’ though wars isn’t reported in this manner either. There were alerts, flashes, scrawls and breaking new for 50 hrs.
The aim was to grab eyeballs. Ads were not shown as the viewer could switch to other channel in the meantime. The news channels wanted highest TRP in this troubled times, so that they can later demand higher rates for advertisements and stay up on chart.
Worst was the conduct of the so-called celebrity reporters who wanted their cameramen to zoom on everything as they lay on the ground. A star reporter-cum-anchor spoke lying on the ground to create the impact that he was reporting from warzone.
Others were not sure how to be on the ground and either grotesquely prostrated themselves on laid down on their back or side. The same anchor was drunk when he first appeared in the first hour of the tragedy. In the end I would like to conclude that media has social responsibility on its shoulder and if such instances happen they should not go overboard just for the sake of gaining TRP’s. They should be curbed from broadcasting each and everything they want to cover, either it should be done morally or a law should be made which should be followed strictly on media which should censor its activities. Take for instance in U.S. they don’t have laws for prior restraint on media but still during 9/11 attack they were not allowed to cover all the activities which happened, this shows that how socially responsible media should be. Thus prior restraint is a need of hour to some extent.