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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 Madras2, Brij Bhushan
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
1
John McEldowney, www.answers.com
2
(1950) S.C.R. 594
3
(1950) S.C.R, 605
4
Corazon Aquino
5
Janis, M., Kay, R., and Bradley, A. (1995), European Human Rights Law, (Oxford: Clarendon Press) P.157.
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
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
In U.S. prior restraint is a legal term related to ‘censorship’ referring to government actions that
William Blackstone defines “Freedom of Press” as the right to be free from prior restraints. Prior
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
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. Minnesota6. 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
6
283 U.S. 697 (1931)
state had no power to enjoin the publication of the paper in this way – that any such action would
“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
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
“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
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
"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
7
427 U.S. 539 (1979)
Any prior restraint on expression comes to this Court with a 'heavy presumption' against its
constitutional validity. Carroll v. Princess Anne8; Bantam Books, Inc. v. Sullivan9. 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 States10), 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.
In U.K. historically, restriction of the press has occurred in two ways. The first may be either
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
8
393 U.S. 175, 181 (1968)
9
372 U.S. 58, 70 (1963)
10
403 U.S. 713 (1971)
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
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
The Terrorism Act 2006 makes it an offence to "glorify" terrorism. There are concerns that this
DA-Notices are official but voluntary requests to news editors not to publish items on specified
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.
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.
11
Regina v. Wang Yam, [2008] EWCA Crim. 269, United Kingdom Court of Appeal, Criminal Division, 28
January 2008
12
London: BBC. 2008-11-20. Retrieved 2009-05-24.
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 Constitution13. Thus freedom of the
press by judicial interpretation has been accorded constitutional status14. 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
(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
(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 offence15. In its landmark judgment in the case of Sakal
Papers16, 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
13
Article 19 (1) All citizens shall have the right - (a) to freedom of speech and expression.
14
Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers Ltd. v. Union of India, AIR 1958 SC
578; Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305; Bennett Coleman Co. v. Union of India, AIR 1973 SC
106
15
Article 19(2) - Nothing in sub-clause (1) shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the
said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement
to an offence.
16
Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305
curtailed on such omnibus grounds as in the interest of the general public as in the case of the
(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,
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
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
17
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 at 119; State of Madras v. G. Rao, AIR 1952 SC
196 at 199, 200; Tikaramji v. State of Uttar Pradesh, AIR 1956 SC 676 at 711; Express Newspapers, AIR 1958 SC
578 at 621; State of Bihar v. R.N. Mishra, AIR 1971 SC 1667
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
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 government20. 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
18
(1931) 283 US 697
19
Supra at 3
20
Virendra Kumar v. State of Punjab, AIR 1957 SC 896
21
Ibid, at 903
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
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
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,
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
22
Sorabjee, Soli J (1977), The Emergency Censorship and the Press in India 1975-77, Central News Agency (Pvt.)
Ltd. p.13
23
Ibid, at 31, 27, 29
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,
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
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
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
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 TN26 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
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
25
C. Vaidya v. D'Penha in Sp. CA 141/1976, 22 March 1976 (unreported)
26
1994 (6) SCC 632 at 649
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
27
K.A. Abbas v. Union of India, AIR 1971 SC 481 at 489, 498
28
Bhagwati Charan v. Provincial Government, AIR 1947 Nag 1; Ramesh v. Union of India, 1988 (1) SCC 668 at
675; Binod Rao v. Masani, (1976) 78 Bom. L.R. 125 at 169
• 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
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
and Miscellaneous Provisions) Act, 1955 – It lays down the minimum standards of
• 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
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
• 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
• 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.
29
(1995) 2 SCC 161.
intermediary such as a cable operator. The Union Government has decided to permit
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
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
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
30
The prohibition on the reception and distribution of television signal in Ku band has been withdrawn by the
Government vide notification No. GSR 18 (E) dated 9th January 2001 of the Department of Telecommunications.
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