Any study of censorship has to commence with the power of licensing. Shortly after the War for Independence, our colonial masters realised that it was inefficient to enforce criminal sanction for each distinct act of dissent when the mode of expression itself could be prevented by prescribing a set of licensing conditions. Simply, why pulp the paper when you can seize the printing press?
The establishment of a monopoly
The initial prohibition on vernacular publications slowly gained sophistication. The first feature of the licensing system was the express creation of a state monopoly through statute. Private industry had to then operate within a set of requirements prescribed in the statute. Take for instance, the licensing of telegraphs.
Though the physical apparatus of a telegraph has ceased operation, the Telegraph Act, 1885 still holds the field. Under Section 4, the Central Government has the exclusive privilege of establishing, maintaining, and working telegraphs in India. So, even after the process of liberalisation and iterations of the National Telecom Policy, every private telecom operator remains a mere licencee of the Central Government. This licence, which may be a Unified Access Services licence or an Internet Service Provider licence often becomes a unilateral contract prescribed by the Government. All private operators, and by extension their subscribers, have to adhere to the conditions in these contracts.
Licences in India control the medium of dissemination, the substantive content that is disseminated, and some times even the receipt of content. This is all done on the basis of the medium itself, as the law discriminates between newspapers printed on paper, movie exhibitions, television signals, and telephone conversations. Layered and complex, the law consists of law made by Parliament and the State Legislatures. The regulation of newspapers today illustrates this well.
Licensing through registration
One of the largest mediums in terms of reach, an absolute monopoly has not been expressly prescribed for newspapers. The relevant legal provisions of the system of licensing are contained in the Press and Registration of Books Act, 1867 (“the 1867 law”). Even though the Statement and Objectives state the innocent objective of ensuring that copies of every publication are properly archived by the State, the law goes much beyond ensuring a comprehensive catalogue of the news. The law, which also applies to books and pamphlets, calls for the compulsory declaration of the name of the printer and publisher and the registration of every printing press before the District Magistrate.
A.G. Noorani, in a series of articles published in the Economic and Political Weekly, has documented how this law has been used to enforce (often unlawful) censorship in smaller towns and areas outside metros. The smaller vernacular press also lacked the financial muscle and the professional networks to draw attention, and to resist these attempts. He has highlighted the fact that such declarations are often used by the state administration to harass owners and editors and has also cited one instance where a District Magistrate, relying on a highly technical rule, cancelled the registration of a local newspaper.
Indirect attempts at censorship
This 1867 law pales in comparison to the effort made by the Union Government to neuter the press with the enactment of the Newspaper (Price and Page) Act, 1956, which empowered the Union Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the allocation of space in newspapers for advertising. In Sakal Papers Ltd. v. Union of India, the Supreme Court determined the constitutionality of this law. The judges stated expressly that the attempt to limit monopolies by fixing prices against the number of pages printed was an attempt to interfere with the freedom of circulation of newspapers and declared parts of the law repugnant to the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India, and hence unconstitional.
This decision however, did not impede governments from regulating the content in newspapers through licensing. The Newsprint Policy for 1972-73 made under the Newsprint Control Order, 1962, attempted to ration newsprint. The owners of the Times of India approached the Supreme Court alleging that it violated their fundamental rights, and in Bennett Coleman and Co. and Others v. Union of India, Justice Sikri, speaking for the majority said that the measure was “not newsprint control but newspaper control.” While the Court declared the policy to be contrary to Article 21 for being arbitrary and against Article 19(1)(a), it also emphasised that the power of the government to import and control the distribution of newsprint cannot be denied. The exercise of such power however, has to be within the bounds of the Constitution.
Reframing the law
The Union Government has recently proposed an update to the antiquated 1867 law, increasing its thresholds. Firstly, the Draft Press and Registration of Books Bill, 2013 proposes to extend the coverage of the law to online editions of newspapers. Secondly, it proposes a substantive review of the application for registration itself and prohibits persons convicted of acts of terror and unlawful activity from making such publications. While a convicted terrorist may be guilty of terrorism, such a conviction does not extinguish fundamental rights and it is not understood how such an absolute and complete pre-censorship can be imposed.
A larger concern is the continuity in approach with the 1867 law and the proposals only seek to make the law more onerous. This colonial mistrust of the Press is misplaced with our aspirations of being a mature democracy that trusts its citizens and this amount of regulation is an indicator that rather than tackling such issues with better policing and increased transparency, State entities fear that publications will prompt law and order problems.
This will be a theme in my forthcoming columns as well, specifically focusing on the regulation and censorship of movies and the broadcast of television content. I hope to demonstrate that rather than merely extending the existing regulations, we need a nuanced debate impugning the basis of our colonial laws. With the spread of Internet and mobile communication, we are witnessing a change of season. Laws are becoming redundant, not with the progress of time, but with the progress of technology. Licensing regulations, which sprouted with a sepoy revolt and were then bonded in fabian socialism, need to be shed this autumn.
(Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.)