When words are held back: Law, literature, and the limits of control

There has always been a quiet tension between authority and literature. From Plato, who questioned the place of poets in an ordered society, to John Stuart Mill, who warned that silencing expression deprives society of truth, the concern has remained remarkably consistent. Words are not inert objects. They carry meaning, provoke reflection, and sometimes unsettle. That is precisely why they are read. It is also why attempts to restrain them have never been straightforward.

A recent development in Sri Lanka brings this enduring tension into focus. In late March, a consignment of Tamil-language books authored by Theepachelvan Piratheepan and printed in Chennai was detained by Sri Lanka Customs. At the time of writing, there is no formal prohibition order, no judicial determination, and no clearly articulated statutory basis explaining why the books are unlawful. Yet they remain unreleased, pending administrative review.

Freedom of speech and expression 

At first glance, this may appear to be a routine regulatory matter. However, the distinction between a formal legal ban and an open-ended administrative detention is not merely technical, but reflects important underlying legal principles. Article 14(1)(a) of the Sri Lankan Constitution guarantees freedom of speech and expression, including publication. This right is not absolute and may be restricted on recognised grounds such as racial and religious harmony, national security, public order, and the general welfare of a democratic society. However, such limitations must be prescribed by law and applied in a manner that is proportionate and procedurally fair. The constitutional structure does not reject regulation, but it does require that limitations on expression rest on a clear legal foundation rather than uncertain administrative instinct. International human rights law reflects the same approach. Sri Lanka, as a party to the International Covenant on Civil and Political Rights, is bound by Article 19, which protects freedom of expression, including artistic expression. The UN Human Rights Committee has consistently emphasised that any restriction must be necessary, proportionate, and grounded in law, particularly where there is no incitement to violence.

There is no formal prohibition order, no judicial determination, and no clearly articulated statutory basis explaining why the books are unlawful. Yet they remain unreleased, pending administrative review

Experience from other jurisdictions illustrates how similar tensions have been addressed. In the United States, the case of People v. Ferlinghetti (1957), concerning Allen Ginsberg’s Howl, marked a turning point in recognising that poetry must be assessed in its entirety and within its literary context. The court dismissed obscenity charges, emphasising that artistic value cannot be disregarded. In Europe, the European Court of Human Rights in Handyside v. United Kingdom(1976) affirmed that freedom of expression protects not only agreeable ideas but also those that may offend, shock, or disturb. In India, the Supreme Court in S. Rangarajan v. P. Jagjivan Ram (1989) held that expression cannot be curtailed on the basis of speculative fears, requiring a clear and proximate connection between the speech and the alleged harm. These decisions do not deny that restrictions may sometimes be justified. Rather, they emphasise that democratic systems carry a responsibility to tolerate a wide range of expression, particularly in the realm of art and literature, and that any departure from that tolerance must be carefully justified through clear legal standards.

Freedom of expression does not belong only to poetry and fiction; it also extends to columns, interviews, and public commentary. Yet different forms of writing raise different considerations. A novel or poem cannot be tested for factual accuracy in the same way as a column or interview built around verifiable claims. Where published material presents factual assertions, reasonable care as to accuracy and fairness remains important. That responsibility, however, must be applied with precision and should not be extended in a manner that restricts literary or creative expression, which by its nature operates beyond the boundaries of factual verification. In this context, the challenge lies in preserving space for imaginative expression while recognising the different considerations that arise in fact-based writing, a balance that carries particular significance in diverse and multi-ethnic societies.

Comparative experience shows that while many jurisdictions recognise the need to regulate publications that may threaten public order or national security, such regulation is typically carried out through clearly defined legal frameworks rather than open-ended administrative discretion. In countries such as India, restrictions may be imposed through customs controls or criminal law mechanisms, but these are usually accompanied by formal notifications and the possibility of judicial review. In the United Kingdom and the United States, restrictions on publications are even more tightly structured, with courts playing a central role in determining legality under established standards. Across these systems, a common principle emerges: where expression is to be limited, the process must be grounded in clear law, transparent reasoning, and the opportunity for challenge. Where legal standards are unclear and administrative discretion is applied without defined limits, the result is often a chilling effect on expression, as uncertainty discourages the freedom of expression even in the absence of a formal prohibition.

At first glance, this may appear to be a routine regulatory matter. However, the distinction between a formal legal ban and an open-ended administrative detention is not merely technical, but reflects important underlying legal principles. Article 14(1)(a) of the Sri Lankan Constitution guarantees freedom of speech and expression, including publication. This right is not absolute and may be restricted on recognised grounds such as racial and religious harmony, national security, public order, and the general welfare of a democratic society. However, such limitations must be prescribed by law and applied in a manner that is proportionate and procedurally fair

The Customs Ordinance of Sri Lanka provides powers to control the importation of prohibited goods, a function that is essential to border regulation. However, literature does not fit neatly within the category of goods that present an immediate or objectively measurable risk. Its meaning depends on context, interpretation, and readership. When customs powers are applied to books without clearly defined criteria or specialised review mechanisms, administrative discretion inevitably expands into an area where precision is particularly important. When administrative decisions are accompanied by vague or shifting explanations, they create space for misunderstanding. Ambiguity creates an information vacuum, and such vacuums rarely remain empty for long. They are quickly filled by rumour, partisan interpretation, and online speculation. In an environment shaped by rapid information flows and social media amplification, uncertainty can give rise to misinformation, which in turn risks eroding public confidence in governance processes, not because of the decision itself, but because of the lack of clarity surrounding it.

Principle of administrative law 

This is consistent with a long-settled principle of administrative law. As Wade and Forsyth explain, there is no such thing in public law as truly unfettered discretion. Discretion may be necessary, but it must operate within intelligible boundaries, for proper purposes, and in a manner that is capable of being explained. Otherwise, it ceases to reflect judgment and begins to appear arbitrary. Clearly established parameters governing administrative discretion are therefore not a matter of procedural formality alone; they are essential to ensuring that public power remains lawful.

No legal system can anticipate every factual situation in advance, and public authorities inevitably require room to respond to unexpected circumstances. However, where all eventualities cannot be foreseen, the answer is not boundless discretion, but the articulation of foundational principles such as legality, relevance, reason-giving, procedural fairness, consistency, and proportionality. These safeguards ensure that administrative judgment remains compatible with the rule of law. Socially, uncertainty in the treatment of literature can foster self-censorship, encourage communities to interpret administrative action through the lens of mistrust, and weaken confidence in the neutrality of public institutions.

There is no formal prohibition order, no judicial determination, and no clearly articulated statutory basis explaining why the books are unlawful. Yet they remain unreleased, pending administrative review

Principle of proportionality 

This is where the principle of proportionality becomes central. Even where a legitimate concern is identified, the response must be no more restrictive than necessary to address it. Proportionality, at its core, is a discipline of restraint. Courts examine whether a limitation pursues a legitimate aim, is rationally connected to that aim, and is no more restrictive than necessary. They then weigh the impact of the restriction against the value of the expression itself. This structured approach ensures that broad or loosely framed concerns are tested against evidence and reasoned justification, rather than accepted at face value. It allows courts to recalibrate outcomes where administrative decisions lack clarity or transparency, reinforcing both legal certainty and public confidence.

There is also a broader historical lesson. Attempts to suppress literature have rarely extinguished dissent. More often, they displace it, sometimes into less visible and less constructive forms. Courts and cultural institutions have therefore tended to converge on a simple idea: that the appropriate response to unsettling literature is engagement rather than suppression. At the same time, there is an evolving structural imbalance. Print media, including books, remains subject to identifiable regulatory frameworks and physical controls, while digital communication flows across borders with far fewer constraints. Even where restrictions are imposed on printed material, similar content can circulate widely through online platforms without equivalent oversight. This does not necessarily argue for expanded control of digital media. Rather, it highlights the absence of a level playing field and the need for policymakers to consider how regulatory approaches can remain coherent in a changing information environment. At a cultural level, these dynamics also shape the conditions under which literature survives, particularly at a time when serious reading already competes with the speed and distraction of digital communication.

The Customs Ordinance of Sri Lanka provides powers to control the importation of prohibited goods, a function that is essential to border regulation. However, literature does not fit neatly within the category of goods that present an immediate or objectively measurable risk. Its meaning depends on context, interpretation, and readership. When customs powers are applied to books without clearly defined criteria or specialised review mechanisms, administrative discretion inevitably expands into an area where precision is particularly important

Creating space for the expression 

In diverse and multi-ethnic societies, creating space for the expression and open discussion of ideas plays an important role in strengthening social cohesion. The open exchange of ideas allows competing worldviews to be scrutinised and better understood, reducing the risk that misconceptions harden into mistrust. In this sense, dialogue is not a source of instability, but a means through which social myths can be questioned and relationships between communities gradually strengthened.

The present moment, therefore, is not only about one consignment of books. It is about the clarity of legal processes, the consistency of administrative action, and the confidence that individuals and institutions place in those systems. As Hannah Arendt observed, the strength of a democratic society lies not merely in its formal guarantees, but in how those guarantees are applied in practice.

Democratic societies do not depend on the existence of law alone. They also depend on transparency, equal application of legal standards, and effective implementation that is consistent with the purposes for which powers were granted. Without these, even well-intentioned measures can generate uncertainty rather than stability. Perhaps the enduring reminder comes from John Milton, who wrote that truth emerges more clearly when it is allowed to grapple openly with error. It is in that openness, rather than restraint, that a society ultimately finds its balance.

(The author is an Attorney-at-Law. Views expressed in this article are entirely personal and do not represent the views of any organisation or institution with which the author is associated)

The present moment, therefore, is not only about one consignment of books. It is about the clarity of legal processes, the consistency of administrative action, and the confidence that individuals and institutions place in those systems