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Exactly a month after India celebrated 75 years of independence, the Government of Manipur issued a contentious executive order, which caught national attention. The order provides for pre-censorship of books on “the history, culture, tradition and geography of the State”, purportedly to ensure that they are published “with accurate information”. The order raises important constitutional questions and has a nationwide impact. It not only covers everyone publishing books on the aforesaid subjects even though they are not residents or domiciles of the state but it might trigger, if not challenged and nipped in the bud, similar orders by other governments. If pre-censorship becomes a norm, it would ring the death knell for freedom.
The Manipur order notifies the constitution of a 15-member committee to examine manuscripts of books on the aforesaid subjects and “accord approval for (their) publication” and requires any person or group desirous of publication of books on any such subjects to submit an application along with the manuscript seeking approval for publication. Though the words used i.e., “may submit” seem to be directory, the requirement is intended to be mandatory as the order ends with a warning that any publication without complying with the requirement “shall be liable to be punished under relevant law.”
The stated reason for issuing the said order is that the government has come to know of the publication of “some books” containing “material which may either distort facts or disturb the peaceful co-existence amongst the various communities in the State or both”. That seems to be the reason why the order aims at subjecting only books to censorship and not other publications such as research papers or articles on the very same subjects.
Constitutionality of the order
The order prima facie infringes the right to equality and the right to freedom of expression guaranteed under the constitution of India.
It violates the right to equality in as much as it makes a distinction between those who intend to publish books and those who intend to publish research papers, articles, notes, or comments in journals. The former are required to submit for censorship whereas the latter are free to publish. There may be intelligible differentia between the two but the same does not have any rational nexus with the object sought to be achieved – preventing publication of materials “which may either distort facts or disturb the peaceful co-existence amongst the various communities in the State or both”. It is implausible to argue that such materials would have a greater impact when published in the form of a book compared to other forms. It fails the twin test of reasonable classification under Article 14.
It is trite that freedom of speech and expression guaranteed under Article 19(1)(a) of the constitution is not absolute. But there is no absolute power to curtail it either. The state is permitted to impose only reasonable restrictions. The first requirement is that such restrictions can be imposed only by an Act passed by the competent legislature and not through mere executive order. Even though it is true that in India every executive order need not have prior legal sanction for its validity, the same is not true with respect to those orders which seek to restrict or curtain fundamental rights. Such orders must necessarily have the sanction of law. The executive order in question does not have legal sanction. There is no Union or state legislation that authorises the state government to subject all books to submit to pre-censorship.
The second requirement is that the restriction imposed should be in the interest of any of the eight grounds mentioned in Article 19(2) and, third, such restriction must be reasonable. Though, looking at the stated reasons for issuing the order in question, it may be argued that the same is issued in the interest of ‘public order’, imposition of pre-censorship on all books on the aforesaid subjects is totally disproportionate and unquestionably unreasonable. As there is no timeline for processing such applications, publishers may have to wait for long periods after submitting manuscripts for scrutiny. In some cases, it might defeat the very purpose of publication itself.
Further, how will the committee verify the accuracy of facts? Does it have the competence and expertise to find incontrovertible facts or information? Will there be unanimity among the members of the committee all the time? How will the differences of opinion among the members be addressed? These are different but important questions. Experience shows that accurate facts or truth often emerge from a clash of opinions. We will be well advised to remember what Friedrich Nietzsche said: “There are no facts, only interpretations”.
When the state claims the authority to decide what facts are accurate, it might prevent true facts from emerging. The state must encourage claims and counter-claims so that in the process, greater clarity may emerge. Thus, it is in the greater public interest to allow researchers to find, interpret and present facts as they see them. Pre-censorship is an unreasonable restriction on their freedom.
Specious threat of punishment
The order says those who do not obtain approval for publication “shall be liable to be punished under relevant law.” It does not state the exact provision under which they are punishable. In order to understand it, let’s consider the possibilities in two different scenarios.
First, when the book is published without obtaining approval but proves to be non-controversial and the material contained therein does amount to any offence under any law for the time being in force. In such a case, is the author/publisher punishable simply because of non-compliance with the executive order requiring them to obtain prior approval? Which law prescribes punishment for non-compliance with an executive order? One may think of Section 188 of the Indian Penal Code (IPC) but it only seeks to punish disobedience of “an order promulgated by a public servant lawfully empowered to promulgate such order”. Here in this case, as mentioned earlier, the order in question has no legal sanction. As such, its disobedience shall not attract punishment under the said provision.
In the second scenario, if the book is published with approval, does it mean that no legal liability ensues for anything contained therein? What if someone files a case alleging that the material contained in the book promotes enmity between groups (offence under section 153A, IPC) and/or such material is conducing to public mischief (offence under section 505, IPC)? Will the approval obtained by them protect the author/publisher? Can it be used as defence in a court of law? The answer seems to be no.
In the worst-case scenario, it may be possible to prosecute even the members of the committee as accomplices. They don’t have immunity from prosecution for actions done in good faith in their official capacity. The executive order has not, as it could not have, conferred such immunity on them. The threat seems to be specious and hardly a reason to worry.
P. Puneeth is an associate professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi.