Prior restraint and Article 19

Subject: Polity

Context:

• Different courts recently gave conflicting rulings involving the broadcast of two shows. In each case, one court restricted the broadcast and another refused to interfere.
• These raise questions on the fundamental right to freedom of speech and expression, and whether these can be restrained prior to broadcast or publishing.

Concept:

• Section 5 of Cable Television Network (Regulation) Act, 1995 prescribes that no person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code.
• Section 19 gives the power to prohibit a broadcast in the public interest if the programme is likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquility.
• Prior restraint is prohibiting the exercise of free speech before it can take place.
• Imposition of pre-censorship or prior restraint on speech is a violation of the fundamental right to freedom of speech and expression enshrined in Article 19 (1) (a) of the Constitution.
• Any restrictions imposed on this right have to be found under Article 19(2) of the Constitution, which lists out “reasonable restrictions” that include interests of the sovereignty and integrity of India, security of the state, public order, and incitement to an offence.
• Any legislation that imposes a prior restraint on speech usually has the burden to show that the reason for such restraint can be found under Article 19(2). It is generally allowed only in exceptional circumstances.
• The idea is that speech can be restricted only when judged on its actual content and not pre-emptively based on perceptions of what it could be.
• The court has adopted the “proximity” test to determine if public order would be affected to allow prior restraint — the state is required to demonstrate a proximate link between public order and the speech.