UNDERSTANDING CENSORSHIP LAWS IN INDIA: A CRITICAL LEGAL ANALYSIS

Author: Rishabh Kandari, Law College Dehradun,  Uttaranchal University.

Censorship in India illustrates a complex interaction between constitutional liberties, statutory restrictions, and socio-political sensitivities. This paper presents a critical legal analysis of the censorship system in India. It evaluates the theoretical basis underlying censorship, constitutional obligations under article 19(1)(a), and statutory restraints such as the Cinematograph Act, Press laws, and the Information Technology framework. This study traces important judicial analysis that has defined the scope of acceptable expression including expansive digital censorship under the Information Technology Rules, 2021. The paper also touches upon cultural and religious sensitivity, political dissent, and comparative thoughts on regimes, such as those of the USA, the European Union, and China. This paper concludes with a critique of the breadth and vagueness of censorship frameworks and highlights the need for a fair, transparent and democratic regime for censorship. The present analysis underscores the tension between state power and personal freedoms beyond the broad discretion of censorship law, and presents important recommendations for reform which respect the values of free speech in a constitutional democracy.

KEY WORDS 

Censorship, Article 19, Free speech, Digital regulation, India, Reasonable restrictions, IT Rules, Landmark cases

Censorship describes the suppression, regulation, or control of communication and expression by authority, typically a government, when deemed harmful, offensive, or threatening to public order and morality. In the Indian legal context, censorship has both constitutional standing and troublesome application. Article 19(1)(a) of the Constitution of India gives the right to freedom of speech and expression, but Article 19(2) permits reasonable restrictions to sovereignty, public order, morality, and other types of rationale. 

Censorship laws in India cover a range of subject matter such as films, books, press, electronic platform audit and are prescribed under several laws such as Cinematograph Act, 1952, and the Information Technology Act of 2000. As these censorship laws have continued to evolve, courts have explained the reach of these laws to harmonize individual freedoms in the context of a pluralistic, diverse society. However, censorship has been used as a tool of control rather than protection in political dissent, religious sensitivity, and digital expression.

The purpose of this article is to evaluate India’s censorship framework with regard to constitutional, statutory and judicial perspectives. It also explores changing censorship with respect to the digital age and comparative views of censorship in other systems of law in arriving at whether India’s approach upholds the values of a democracy.

Censorship Defined and Scope

Censorship involves careful examination and regulation (or suppression) of speech, or written work, or expressions deemed objectionable. It may be pre-emptive as in prior restraint that blocks speech before it happens, or as punitive (post-publication punishment). In India, censorship relates to speech in various ways in many media formats, such as print, broadcast, cinema, and digital forms of media. It cuts across other issues, such as, public morality, social fabric (communal harmony), state security, reputation/protected image from defamation .

Censorship is not anti-democratic; it becomes anti-democratic when it capriciously denies the exercise of basic rights without justification. In India, censorship operates in a very broad scope; from banning movies and books to internet shutdowns to acts to take down content. The absence of a statutory legal framework in India governing censorship creates a significant space for exercising unrestrained discretion, limiting its scope and application to arbitrary limits.

Theoretical Justifications: Harm Principle, Paternalism, and Moral Policing

The theoretical basis for censorship arises from classical liberal and communitarian traditions. John Stuart Mill’s “Harm Principle” allows states to intervene in freedoms of expression only when expression harms others. But in practice, proponents of censorship often abandon the strict limitations of this principle in favor of moral, cultural, and cognitive rationales.

Paternalism describes an idea about censorship, roughly the position that some expressions should be constrained to protect some citizens against harmful influences—even if those citizens do not, themselves, recognize the influence as dangerous. This worldview is quite common in India when people demand that sexually explicit or politically charged expressions be censored, de facto.

Moral policing extends the further justification for censorship by empowering the state or society to privilege majoritarian opinions at the expense of autonomy.

While no justification is entirely illegitimate, the application in India is tenuous and inconsistent, and often skirts the lines of political appropriateness, application, and

misapplication. Distinguishing between reasonable limits of expression, infringement of freedoms of expression, and censorship is challenging, and leads to a “chilling effect” on expression freedoms in India.

Article 19(1)(a) and Reasonable Restrictions

The Indian Constitution's Article 19(1)(a) guarantees every citizen the fundamental right to freedom of speech and expression.  This crucial clause lays the groundwork for democratic engagement, which encompasses sharing information, voicing ideas, and taking part in public discussions.  In the sake of India’s sovereignty and integrity, security of the State, relations with friendly foreign states, public order, decency or morality, contempt of court, defamation, or incitement to an offense, Article 19(2) permits “reasonable restrictions” to be placed on that freedom.

The phrase "reasonable restrictions" is subject to judicial interpretation with cases where courts have emphasized that restrictions must never be excessive, arbitrary or disproportionate. In the case Romesh Thappar v. State of Madras3 the Supreme Court said that freedom of speech is the most fundamental of all freedoms and that any restriction must be very narrow in scope.

Statutory Laws Governing Censorship

Cinematography Act 1952

The Cinematography Act, 1952  vests the authority to certify films submitted to the Central Board of Film Certification (CBFC) for public display in India . It also prohibits the exhibition of films that are likely to undermine public order, decency, or morality. While the Act’s intention is to protect audiences, it has drawn severe criticism for the standard of censorship undertaken by the CBFC, which has often been seen to be opaque and excessively moralistic.

Press and Registration of Books Act, 1867

This colonial-era legislation requires books and newspapers to be registered with the Registrar of Newspapers for India. While it serves a primarily administrative purpose it is also regularly combined with other laws available to the authorities, to intervene with printed material that is deemed subversive or inflammatory.

Information Technology Act, 2000

The Information Technology Act, 2000, especially Section 69A, authorizes the government to regulate online content where it is reasonably necessary to block the content in the interests of sovereignty, integrity, or order. The application of the Act has questioned issues of transparency and process especially in light of the introduction of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which places additional duties on intermediaries and digital platforms, which raises questions regarding over-regulation and contents suppression.

As a combined, the statutory instruments produce a regime for censorship yet are inconsistent and often intersect, resulting in selective enforcement which is at times politically motivated. There is an urgent requirement for harmonized reform which respects constitutional rights while also serving as an appropriate regulatory review mechanism.

The judiciary in India has been important in defining the contours of free speech and the boundaries of censorship. The courts have included various landmark judgments that illustrate the court’s commitment to uphold the spirit of Article 19(1)(a), while acknowledging the underlying concept of reasonable restrictions in Article 19(2).

Romesh Thappar  v. State of Madras  (1950)  

Romesh Thappar v. The state of Madras was one of India’s earliest freedom of speech cases and the foundational case of the right to free expression is one of the fundamental pillars of democracy . The Court struck down a state prohibition over a publication, indicating that use of the public order restriction must be understood narrowly. The Court noted that any law limiting free speech must have justification and be proportionate.

K.A. Abbas  v. Union of  India (1970)

In K.A. Abbas v. Union of India, the petitioner assailed the pre-censorship of films as violating the provisions of the Cinematograph Act, 1952. The Supreme Court upheld film censorship as constitutional, but it established that artistic freedom must be afforded respect, and censorship ought not to be arbitrary. The judgement acknowledged that films differ from any other form of expression to which a person may be addicted because of the strength of their vision, and legislated grounds for some regulation.

S. Rangarajan  v. P. Jagjivan  Ram (1989)

This case reiterated the need for tolerance in a plural society. The Supreme Court said that mere threat of violence or disturbance to public order could not warrant censorship. It famously opined, “Freedom of expression cannot be suppressed on account of threat of demonstration and processions or threat of violence”, unless the court can see clear and present danger

Shreya Singhal  v. Union of India  (2015)

A relatively new Landmark case , Shreya Singhal v. U.O.I  concerned Section 66A of the IT Act, 2000, which made  it a criminal offense to send offensive messages by means of communication device. The Supreme Court struck down the section as unconstitutional because it was vague and had a chilling effect. The case established an important precedent for digital free speech in India, and asserted that vague standards should never be used to restrict speech on the internet. 

These judgements highlight the courts’ changing approach to balancing state interest and individual liberties. While previous cases focused on establishing the primacy of free speech, recent judgements appear to consider proportionality, reasonableness and procedural safeguards of censorship.

Digital evolution has changed how, where and what counts as expression, with social media, online news and Over the Top (OTT) platforms emerging as dominant forms of communication which challenge traditional forms of censorship. Consequently, the Indian government has created new regulatory mechanisms that also increase the state’s ability to moderate and restrict online expression.

IT Rules, 2021 and the Extension of Executive Power

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 greatly expanded the government’s oversight of digital content, required social media intermediaries to trace the origin of messages, appoint grievance officers and ensure removal of content under 36 hours from getting a government or court order.

The press and OTT platforms are subject to a three-tier regulatory regime of self-regulation, oversight by industry bodies, and a government-appointed inter-departmental committee. The critics of such a three-layered mechanism argue that it is unnecessary, and permits the executive to play the role of judge, jury, and censor, potentially infringing the constitutional doctrine of separation of powers.

In addition, concepts like “decency”, “morality” and “public order” are still poorly defined, allowing authorities broad discretion to censor content they determine to be undesirable. The rules have been challenged in different ways by the High court and the Supreme court  for vagueness and overbreadth.

Social Media  and Algorithmic Moderation 

In addition to legal censorship, platforms such as Facebook, Instagram, YouTube, and Twitter employ algorithmic tools to moderate user-generated content. Although these tools are typically intended to identify hate speech, misinformation, and graphic content, they also risk overstating or over-censoring legitimate speech with opaque moderation standards. Unlike state censorship, which can be subject to some degree of oversight and accountability, algorithmic regulation operates without full transparency or accountability, thereby leaving open questions about due process. More specifically, content moderation decisions are typically automated, with little external review, thereby undermining users’ rights to free expression. 

At times, the Indian government has pressured online platforms to remove content that is critical of government policy, particularly during elections, public protests, or global public health emergencies. This dual model of expression state control and private moderation makes the digital domain a contested space for free expression.

OTT Platforms and Creative Freedom

While OTT Platforms such as Netflix , Amazon Prime and Hotstar , have democratized the art of storytelling, these platforms have also come under scrutiny. Shows such as Tandav, Leila and Sacred Games have faced backlash and/or legal issues for allegedly offending religious sentiments or were seen to be pushing a political agenda.

Although OTT platforms were generally outside the realm of official censorship, the IT Rules, 2021 brought them under regulation. Many critics argue that the introduction of censorship threatens artistic creativity and leads to self-censorship. Filmmakers now face the same complexities like film makers working in traditional cinema; however, they do not have predictability with established censorship boards.

7. CULTURAL, POLITICAL, AND RELIGIOUS SENSITIVITIES

7.1 Cultural Sensitivities and Artistic Expression

Given India’s cultural diversity, it is particularly voracious towards censorship based on public feeling. Filmmakers, writers and artists routinely face opposition from special interest groups that argue specific depictions or representation inflict damage on national pride, instead promote obscenity, or distort history. The controversy and protests over the film Padmavat (2018) reinforced the extent cultural, historical fiction can instigate public protests and threats of violence against the CBFC recommending modifications.

Similarly, the painter M.F. Husain faced lawsuits and exile for representing nude depictions of Hindu deities, which increased his cultural sensitivities and offered complaints that suited two meanings. These are examples of how cultural sensitivities often morph into legally or extra-legally based censorship that curbs creative freedoms.

7.2 Political Dissent and Safety of the Narrative 

Political sensitivities can also be a major source of censorship. Governments have relied on sedition laws, defamation claims, and national security justifications to censor dissent. In the Emergency (1975-1977), the government implemented blanket censorship on press and cultural output, representing one of the historic low points of free speech in India.

Censorship has increasingly emerged in more neurotic ways by simply refusing to certify documentaries that critique state policies or decisions- for example, India: The Modi Question. This documentary was subject bans and takedowns in as many digital spheres we can imagine. Censorship often takes the form of maintaining narrative hegemony through the suppression of alternative or oppositional views. 

7.3 Religious sentiments and legal recourse

Religious groups have often relied on legislative provisions (Sections 153A, 295A and 298 of the Indian Penal Code) to object to content that is offensive to them. Courts have often upheld such complaints which were intended to prevent any communal tensions, regardless of the protection afforded by freedom of art or scholarship. 

Some legal provisions are akin to blasphemy in a secular legal system and have been retrospectively recognised by their chilling effect on speech. The institution of the judiciary has sought to balance free expression with maintaining public order; however, there have also been instances of anticipatory censorship outweighing fundamental rights.

United States: The First Amendment  Model

The U.S. Constitution  First Amendment offers substantial protections for freedom of speech and expression . In Brandenburg v. Ohio (1969), the U.S. Supreme Court established that speech could only be limited if it incited “imminent lawless action.” Even hate speech is typically protected, unless that speech is directly promoting violence. 

The model established In the United States sets a very strong threshold for any government interference in speech, including that any prior restraint would be presumptively unconstitutional. This juridical approach expresses a strong public policy commitment to individual liberty, albeit an aesthetic liberty, even if it might offend societal sensibilities.

Compared to India’s “reasonable restrictions ” under Article 19(2), the American position assumes a presumption in favor of speech and supports the “marketplace of ideas” notion.

China: State-Controlled Information Eco-System

China represents the other end of the spectrum, with thorough and institutionalized censorship. The Communist Party of China controls practically all media, public literature, academic institutions, and Internet use. The Great Firewall of China prohibits access to external platforms and social media, such as Google, Facebook, and Twitter, and has implemented widespread filtering capabilities and surveillance.

While the Chinese Constitution provides for free speech, any criticism of the State or the Communist Party is usually quickly silenced with vague and subjective charges of “subversion” or “endangering national security.”

China’s model demonstrates how censorship can be employed as a tool of authoritarian rule, consolidating power in the political class and repressing dissent and transparency.

European Union: Proportionality and Human Rights 

The European Union following the broader European Convention on Human Rights (ECHR)  engages with various liberties, including freedom of expression, and balances freedom of expression with other rights competing interests  such as dignity, privacy, and protecting people from hate

speech. Article 10 of  ECHR provides protection for freedom of speech while allowing for restrictions, provided that these restrictions are “mandated by law” and “essential in a democratic society.”.

In practice, European courts apply the proportionality test to determine whether limitations are justified, and to ensure that limitations on expression are not arbitrary, but are limited to what is strictly necessary. For example, in Germany and France, there is legislation outlawing Holocaust denials and incitement to racial hatred, and with all laws, these laws must be enforced with trial by jury and transparency under judicial review.

This rights-based framework offers a balanced arms-length model for pluralistic societies like India, where expression may interfere with community niceties and collective harmony, but must still be accompanied by significant procedural safeguards.

The Indian censorship regime contains an ironic tension between constitutional guarantees and statutory restrictions. The Constitution affords freedom of speech and expression under Article 19(1)(a), while Article 19 (2) affords a much wider scope of “reasonable restrictions” that has allowed the state to impose broad and often arbitrary restrictions on speech. This has created a regime that is legally vague and abusive. 

Overbreadth and Vagueness

Diversity of laws exists in India, including the Cinematograph Act, provisions of the Information Technology Act or regressive provisions in the Indian Penal Code (IPC) that contain vague terms such as “morality,” “decency,” “public order,” and “national interest.” Each of these standards, which are ultimately ill-defined by law, play a role in expanding the discretionary power of the authorities, increasing the likelihood of abuse and chilling the exercise of free speech. The Supreme court  in Shreya Singhal v. Union of India on correctly noted that sec  66A contained both vagueness and overbreadth, but there are similar concerns across other laws.

Chilling Effect and Self- censorship

One important consequence of the existing censorship regime is the chilling effect, which influences both individuals and creators to self-censor to prevent any legal repercussions or social backlash. The chilling effect has a high prevalence in digital spaces, where online harassment, FIRs and platform takedowns act as disincentives for creators to be critical or controversial. The pre-certification regime for films and the increase of takedowns of digital content show an increasing normalisation of ahead-of-time censorship. 

Politicisation of Censorship Mechanisms

More often than not, decisions around censorship tend to be motivated by political correctness rather than following the rules of law. Every government has used censorship, regardless of party-lines, to control the narrative around dissent, to silence critics, and to suppress public discourse. The examples of banning documentaries, infringing upon press rights during protests and applying archaic colonial laws like sedition are available all across India. The lack of an independent regulatory body serves to politicise censorship further to the extent that due process is not clearly defined, and the censorship decision is made opaque, arbitrary, and non accountable.

Need for Institutional Reform

There is an increasing need for codified, clear and narrowly defined standards for imposing restrictions on free speech. There can be independent bodies of oversight with judicial powers or quasi-judicial powers to assess whether a measure amounting to censorship is necessary and proportionate in its scope. In addition to this, the proportionality test and judicial reviews from European jurisdictions can also serve as guiding examples to implement a rights-based balance. 

Additionally, protection against online speech. Blanket takedown powers under the IT Rules 2021 conflict with the principles of natural justice and due process. There is a need for transparency reports, content removal guidelines, and appellate mechanisms to ensure fairness and accountability in digital censorship.

Censorship in India occupies a complicated terrain between constitutional freedoms and state logics that include a unique combination of historical legacy, socio-political pluralities and legal ambiguities. The Constitution of India guarantees freedom of speech and expression in Article 19(1)(a), but Article 19(2) allows for “reasonable restrictions,” which the state is able to shape with looseness, therefore enabling the state to inhibit dissent, regulate creativity, and control narratives.

This legal analysis also finds that the censorship regulations in India are plagued with systematic weaknesses: vague statutory language, a lack of transparent standards, politicized enforcement, and an absence of institutional accountability. This problem is particularly exacerbated in the digital context, where IT Rules 2021 and arbitrary takedown requests threaten to undermine the democratic process that the internet facilitates.

Comparative perspectives suggest that although absolute freedom (like that found in the U.S.) is not really possible in India and other comparable situations, the proportionality model suggested by the EU provides useful lessons in managing conflicting interests between realms. Judicial decisions like Shreya Singhal and Rangarajan are useful efforts to limit state overreach, but a consistent approach to jurisprudence and statutory amendments is also needed. 

To protect democracy, India must transition from a control-centric censorship regime to a rights-based regulatory regime and strengthen judicial oversight, define statutory limits, and increase transparency to ensure that censorship remains narrowly construed as a necessary disexception to the rule of free speech rather than a mechanism to silence legitimate speech.

• Books

• Barendt  E, Freedom of Speech (2nd edn, Oxford University Press 2005)

• Singh MP and Shukla VN, Constitution of India (Eastern Book Company 2022)

• Noorani  AG, Constitutional Questions in India: The President, Parliament and the States (Oxford University Press 2000)

• Statutes

• Constitution of India, 1950

• Bharatiya Nyaya Sanhita, 2023

• Information Technology Act, 2000

• Information Technology ( I.T ) (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

• Unlawful Activity  (Prevention) Act, 1967

• National Security Act, 1980

• Case Law

• Romesh Thappar v State of Madras, AIR 1950 SC 124

• K.A. Abbas  v Union of India, AIR 1971 SC 481

• S. Rangarajan  v P. Jagjivan Ram, AIR 1989 SC 149

• Shreya Singhal  v Union of India, (2015) 5 SCC 1

• Ajay Goswami  v Union of India, (2007) 1 SCC 143

• Articles and Journals

• McGonagle T, ‘The Council of Europe against Online Hate Speech: Conundrums and Challenges’ (2013) 1(1) Journal on Ethnopolitics and Minority Issues in Europe 1

• Sen R, ‘Digital Authoritarianism and Internet Censorship in India’ (2022) Economic & Political Weekly 57(14) 15

• Menon N, ‘Freedom of Expression and Censorship in India’ (2021) Indian Journal of Constitutional Law 9(2) 113

• Sharma A, ‘Censorship, Content Moderation and the Indian Legal Landscape’ (2023) NUJS Law Review 16(1) 34

• Bhushan P, ‘Contempt of Court and the Judiciary: Need for Reconsideration’ (2020) Indian Journal of Law and  Society 11(2) 1

• Reports and Official Documents

• Law Commission of India , 267th Report on Hate Speech  (2017)

• Ministry of Electronics and Information Technology , Press Note on IT Rules, 2021 (Government of India, 2021)

• Supreme Court of India, Annual Report 2022-2023