REPORTABLE
IN THE SUPREME COURT OF INDIA
Dated;11september 2012
Sahara India Real Estate Corp. Ltd. & Ors. …Appellants
Vs.
Securities & Exchange Board of India & anr. …Respondents
with
S. H. KAPADIA, CJI
Introduction
1. Finding an acceptable constitutional balance between free
press and administration of justice is a difficult task in every
legal system. 2
Factual background
2. Civil Appeal Nos. 9813 and 9833 of 2011 were filed
challenging the order dated 18.10.2011 of the Securities
Appellate Tribunal whereby the appellants (hereinafter for short
“Sahara”) were directed to refund amounts invested with the
appellants in certain Optionally Fully Convertible Bonds
(OFCD) with interest by a stated date.
3. By order dated 28.11.2011, this Court issued show cause
notice to the Securities and Exchange Board of India (SEBI),
respondent No. 1 herein, directing Sahara to put on affidavit as
to how they intend to secure the liabilities incurred by them to
the OFCD holders during the pendency of the Civil Appeals.
4. Pursuant to the aforesaid order dated 28.11.2011, on
4.01.2012, an affidavit was filed by Sahara explaining the
manner in which it proposed to secure its liability to OFCD
holders during the pendency of the Civil Appeals. 3
5. On 9.01.2012, both the appeals were admitted for hearing.
However, IA No. 3 for interim relief filed by Sahara was kept for
hearing on 20.01.2012.
6. On 20.01.2012, it was submitted by the learned counsel
for SEBI that what was stated in the affidavit of 4.01.2012 filed
by Sahara inter alia setting out as to how the liabilities of
Sahara India Real Estate Corporation Ltd. (SIRECL) and Sahara
Housing and Investment Corporation (SHICL) were to be
secured was insufficient to protect the OFCD holders.
7. This Court then indicated to the learned counsel for
Sahara and SEBI that they should attempt, if possible, to reach
a consensus with respect to an acceptable security in the form
of an unencumbered asset. Accordingly, IA No. 3 got stood over
for three weeks for that purpose.
8. On 7.02.2012, the learned counsel for Sahara addressed a
personal letter to the learned counsel for SEBI at Chennai
enclosing the proposal with details of security to secure
repayment of OFCD to investors as pre-condition for stay of the 4
impugned orders dated 23.06.2011 and 18.10.2011 pending
hearing of the Civil Appeals together with the Valuation
Certificate indicating fair market value of the assets proposed to
be offered as security. This was communicated by e-mail from
Delhi to Chennai. Later, on the same day, there was also an
official communication enclosing the said proposal by the
Advocate-on-Record for Sahara to the Advocate-on-Record for
SEBI.
9. A day prior to the hearing of IA No. 3 on 10.02.2012, one
of the news channels flashed on TV the details of the said
proposal which had been communicated only inter parties and
which was obviously not meant for public circulation. The
concerned television channel also named the valuer who had
done the valuation of the assets proposed to be offered as
security.
10. On 10.02.2012, there was no information forthcoming
from SEBI of either acceptance or rejection of the proposal. 5
11. The above facts were inter alia brought to the notice of
this Court at the hearing of IA No. 3 on 10.02.2012 when Shri
F.S. Nariman, learned senior counsel for Sahara orally
submitted that disclosure to the Media was by SEBI in breach
of confidentiality which was denied by the learned counsel for
SEBI. After hearing the learned counsel for the parties, this
Court passed the following order:
“We are distressed to note that even
“without prejudice” proposals sent by
learned counsel for the appellants to the
learned counsel for SEBI has come on one
of the TV channels. Such incidents are
increasing by the day. Such reporting not
only affects the business sentiments but
also interferes in the administration of
justice. In the above circumstances, we
have requested learned counsel on both
sides to make written application to this
Court in the form of an I.A. so that
appropriate orders could be passed by this
Court with regard to reporting of matters,
which are sub-judice.”
12. Pursuant to the aforesaid order, IA Nos. 4 and 5 came to
be filed by Sahara. According to Sahara, IA Nos. 4 and 5 raise
a question of general public importance. In the said IA Nos. 4 6
and 5, Sahara stated that the time has come that this Court
should give appropriate directions with regard to reporting of
matters (in electronic and print media) which are sub judice. In
this connection, it has been further stated: “it is well settled
that it is inappropriate for comments to be made publicly (in
the Media or otherwise) on cases (civil and criminal) which are
sub judice; this principle has been stated in Section 3 of the
Contempt of Courts Act, which defines criminal contempt of
court as the doing of an act whatsoever which prejudices or
interferes or tends to interfere with the due course of any
judicial proceeding or tends to interfere or interfere with or
obstruct or tends to interfere or obstruct the administration of
justice”. In the IAs, it has been further stated that whilst there
is no fetter on the fair reporting of any matter in court, matters
relating to proposal made inter-parties are privileged from
public disclosure. That, disclosure and publication of pleadings
and other documents on the record of the case by third parties
(who are not parties to the proceedings in this court) can (under
the rules of this Court) only take place on an application to the
court and pursuant to the directions given by the court (see 7
Order XII, Rules 1, 2 and 3 of Supreme Court Rules, 1966). It
was further stated that in cases like the present one a thin line
has to be drawn between two types of matters; firstly, matters
between company, on the one hand, and an authority, on the
other hand, and, secondly, matters of public importance and
concern. According to Sahara, in the present case, no question
of public concern was involved in the telecast of news regarding
the proposal made by Sahara on 7.02.2012 by one side to the
other in the matter of providing security in an ongoing matter.
In the IAs, it has been further stated that this Court has
observed in the case of State of Maharashtra v. Rajendra J.
Gandhi [(1997) 8 SCC 386] that: “A trial by press, electronic
media or public agitation is the very antithesis of rule of law”.
Consequently, it has been stated in the IAs by Sahara that this
Court should consider giving guidelines as to the manner and
extent of publicity which can be given to pleadings/ documents
filed in court by one or the other party in a pending proceedings
which have not yet been adjudicated upon. 8
13. Accordingly, vide IA Nos. 4 and 5, Sahara made the
following prayers:
“(b) appropriate guidelines be framed with
regard to reporting (in the electronic and
print media) of matters which are subjudice in a court including public disclosure
of documents forming part of court
proceedings.
(c) appropriate directions be issued as to
the manner and extent of publicity to be
given by the print/ electronic media of
pleadings/ documents filed in a proceeding
in court which is pending and not yet
adjudicated upon;”
14. Vide IA No. 10, SEBI, at the very outset, denied that the
alleged disclosure was at its instance or at the instance of its
counsel. It further denied that papers furnished by Sahara
were passed on by SEBI to the TV Channel. In its IA, SEBI
stated that it is a statutory regulatory body and that as a
matter of policy SEBI never gives its comments to the media on
matters which are under investigation or sub judice. Further,
SEBI had no business stakes involved to make such
disclosures to the media. However, even according to SEBI, in
view of the incident having happened in court, this Court 9
should give appropriate directions or frame such guidelines as
may be deemed appropriate.
15. At the very outset, we need to state that since an
important question of public importance arose for decision
under the above circumstances dealing with the rights of the
citizens and the media, we gave notice and hearing to those
who had filed the IAs; the question of law being that every
citizen has a right to negotiate in confidence inasmuch as he/
she has a right to defend himself or herself. The source of
these two rights comes from the common law. They are based
on presumptions of confidentiality and innocence. Both, the
said presumptions are of equal importance. At one stage, it
was submitted before us that this Court has been acting suo
motu. We made it clear that Sahara was at liberty to withdraw
the IAs at which stage Shri Sidharth Luthra, learned senior
counsel stated that Sahara would not like to withdraw its IAs.
Even SEBI stated that if Sahara withdraws its IAs, SEBI would
insist on its IA being decided. In short, both Sahara and SEBI
sought adjudication. Further, on 28.03.2012, learned counsel 10
for Sahara filed a note in the Court citing instances (mostly
criminal cases) in which according to him certain aberration
qua presumption of innocence has taken place. This Court
made it clear that this Court is concerned with the question as
to whether guidelines for the media be laid down? If so,
whether they should be self-regulatory? Or whether this Court
should restate the law or declare the law under Article 141 on
balancing of Article 19(1)(a) rights vis-à-vis Article 21, the scope
of Article 19(2) in the context of the law regulating contempt of
court and the scope of Article 129/ Article 215.
16. Thus, our decision herein is confined to IA Nos. 4, 5 and
10. This clarification is important for the reason that some
accused have filed IAs in which they have sought relief on the
ground that their trial has been prejudiced on account of
excessive media publicity. We express no opinion on the merits
of those IAs.
Constitutionalization of free speech
Comparative law: differences between the US and other
common-law experiences 11
17. Protecting speech is the US approach. The First
Amendment does not tolerate any form of restraint. In US,
unlike India and Canada which also have written Constitutions,
freedom of the press is expressly protected as an absolute right.
The US Constitution does not have provisions similar to Section
1 of the Charter Rights under the Canadian Constitution nor is
such freedom subject to reasonable restrictions as we have
under Article 19(2) of the Indian Constitution. Therefore, in
US, any interference with the media freedom to access, report
and comment upon ongoing trials is prima facie unlawful. Prior
restraints are completely banned. If an irresponsible piece of
journalism results in prejudice to the proceedings, the legal
system does not provide for sanctions against the parties
responsible for the wrongdoings. Thus, restrictive contempt of
court laws are generally considered incompatible with the
constitutional guarantee of free speech. However, in view of
cases, like O.J. Simpson, Courts have evolved procedural
devices aimed at neutralizing the effect of prejudicial publicity
like change of venue, ordering re-trial, reversal of conviction on 12
appeal (which, for the sake of brevity, is hereinafter referred to
as “neutralizing devices”). It may be stated that even in US
as of date, there is no absolute rule against “prior restraint” and
its necessity has been recognized, albeit in exceptional cases
[see Near v. Minnesota, 283 US 697] by the courts evolving
neutralizing techniques.
18. In 1993, Chief Justice William Rehnquist observed:
“constitutional law is now so firmly grounded in so many
countries, it is time that the US Courts begin looking at
decisions of other constitutional courts to aid in their own
deliberative process”.
19. Protecting Justice is the English approach. Fair trials
and public confidence in the courts as the proper forum for
settlement of disputes as part of the administration of justice,
under the common law, were given greater weight than the
goals served by unrestrained freedom of the press. As a
consequence, the exercise of free speech respecting ongoing
court proceedings stood limited. England does not have a
written constitution. Freedoms in English law have been 13
largely determined by Parliament and Courts. However, after
the judgment of ECHR in the case of Sunday Times v. United
Kingdom [(1979) 2 EHRR 245], in the light of which the English
Contempt of Courts Act, 1981 (for short “the 1981 Act”) stood
enacted, a balance is sought to be achieved between fair trial
rights and free media rights vide Section 4(2). Freedom of
speech (including free press) in US is not restricted as under
Article 19(2) of our Constitution or under Section 1 of the
Canadian Charter. In England, Parliament is supreme. Absent
written constitution, Parliament can by law limit the freedom of
speech. The view in England, on interpretation, has been and
is even today, even after the Human Rights Act, 1998 that the
right of free speech or right to access the courts for the
determination of legal rights cannot be excluded, except by
clear words of the statute. An important aspect needs to be
highlighted. Under Section 4(2) of the 1981 Act, courts are
expressly empowered to postpone publication of any report of
the proceedings or any part of the proceedings for such period
as the court thinks fit for avoiding a substantial risk of
prejudice to the administration of justice in those proceedings. 14
Why is such a provision made in the Act of 1981? One of the
reasons is that in Section 2 of the 1981 Act, strict liability has
been incorporated (except in Section 6 whose scope has led to
conflicting decisions on the question of intention). The basis of
the strict liability contempt under the 1981 Act is the
publication of “prejudicial” material. The definition of
publication is also very wide. It is true that the 1981 Act has
restricted the strict liability contempt to a fewer circumstances
as compared to cases falling under common law. However,
contempt is an offence sui generis. At this stage, it is
important to note that the strict liability rule is the rule of law
whereby a conduct or an act may be treated as contempt of
court if it tends to interfere with the course of justice in
particular legal proceedings, regardless of intent to do so.
Sometimes, fair and accurate reporting of the trial (say a
murder trial) would nonetheless give rise to substantial risk of
prejudice not in the pending trial but in the later or connected
trials. In such cases, there is no other practical means short of
postponement orders that is capable of avoiding such risk of
prejudice to the later or connected trials. Thus, postponement 15
order not only safeguards fairness of the later or connected
trials, it prevents possible contempt. That seems to be the
underlying reason behind enactment of Section 4(2) of the 1981
Act. According to Borrie & Lowe on the “Law of Contempt”, the
extent to which prejudgment by publication of the outcome of a
proceedings (referred to by the House of Lords in Sunday
Times’s case) may still apply in certain cases. In the
circumstances to balance the two rights of equal importance,
viz., right to freedom of expression and right to a fair trial, that
Section 4(2) is put in the 1981 Act. Apart from balancing it
makes the media know where they stand in the matters of
reporting of court cases. To this extent, the discretion of courts
under common law contempt has been reduced to protect the
media from getting punished for contempt under strict liability
contempt. Of course, if the court’s order is violated, contempt
action would follow.
20. In the case of Home Office v. Harman [(1983) 1 A.C. 280]
the House of Lords found that the counsel for a party was
furnished documents by the opposition party during inspection 16
on the specific undertaking that the contents will not be
disclosed to the public. However, in violation of the said
undertaking, the counsel gave the papers to a third party, who
published them. The counsel was held to be in contempt on
the principle of equalization of the right of the accused to
defend himself/herself in a criminal trial with right to
negotiate settlement in confidence. [See also Globe and Mail
v. Canada (Procureur général), 2008 QCCA 2516]
21. The Continental Approach seeks to protect
personality. This model is less concerned with the issue of fair
trial than with the need for safeguarding privacy, personal
dignity and presumption of innocence of trial participants. The
underlying assumption of this model is that the media coverage
of pending trials might be at odds not only with fairness and
impartiality of the proceedings but also with other individual
and societal interests. Thus, narrowly focussed prior restraints
are provided for, on either a statutory or judicial basis. It is
important to note that in the common-law approach the
protection of sanctity of legal proceedings as a part of 17
administration of justice is guaranteed by institution of
contempt proceedings. According to Article 6(2) of the
European Convention of Human Rights, presumption of
innocence needs to be protected. The European Courts of
Human Rights has ruled on several occasions that the
presumption of innocence should be employed as a normative
parameter in the matter of balancing the right to a fair trial as
against freedom of speech. The German Courts have
accordingly underlined the need to balance the presumption of
innocence with freedom of expression based on employment of
the above normative parameter of presumption of innocence.
France and Australia have taken a similar stance. Article 6(2)
of the European Convention of Human Rights imposes a
positive obligation on the State to take action to protect the
presumption of innocence from interference by non-State
actors. However, in a catena of decisions, the ECHR has
applied the principle of proportionality to prevent imposition of
overreaching restrictions on the media. At this stage, we may
state, that the said principle of proportionality has been 18
enunciated by this Court in Chintaman Rao v. The State of
Madhya Pradesh [ (1950) SCR 759].
22. The Canadian Approach: Before Section 1 of Canadian
Charter of Rights, the balance between fair trial and
administration of justice concerns, on the one hand, and
freedom of press, on the other hand, showed a clear preference
accorded to the former. Since the Charter introduced an
express guarantee of “freedom of the press and other media of
communication”, the Canadian Courts reformulated the
traditional sub judice rule, showing a more tolerant attitude
towards trial-related reporting [see judgment of the Supreme
Court of Canada in Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 SCR 835 which held that a publication ban should be
ordered when such an order is necessary to prevent a serious
risk to the proper administration of justice when reasonably
alternative measures like postponement of trial or change of
venue will not prevent the risk (necessity test); and that
salutary effects of the publication bans outweigh the deleterious
effects on the rights and interests of the parties and the public, 19
including the effect on the right to free expression and the right
of the accused to open trial (i.e. proportionality test)]. The
traditional common law rule governing publication bans – that
there be real and substantial risk of interference with the right
to a fair trial – emphasized the right to a fair trial over the free
expressions interests of those affected by the ban. However, in
the context of post-Charter situation, the Canadian Supreme
Court has held that when two protected rights come in conflict,
Charter principles require a balance to be achieved that fully
respects both the rights. The Canadian Courts have, thus,
shortened the distance between the US legal experience and the
common-law experiences in other countries. It is important to
highlight that in Dagenais, the publication ban was sought
under common law jurisdiction of the Superior Court and the
matter was decided under the common law rule that the Courts
of Record have inherent power to defer the publication. In R. v.
Mentuck [2001] 3 SCR 442 that Dagenais principle was
extended to the presumption of openness and to duty of court
to balance the two rights. In both the above cases, Section 2(b)
of the Charter which deals with freedom of the press was 20
balanced with Section 1 of the Charter. Under the Canadian
Constitution, the Courts of Record (superior courts) have
retained the common law discretion to impose such bans
provided that the discretion is exercised in accordance with the
Charter demands in each individual case.
23. The Australian Approach: The Australian Courts impose
publication bans through the exercise of their inherent
jurisdiction to regulate their own proceedings. In Australia,
contempt laws deal with reporting of court proceedings which
interfere with due administration of justice. Contempt laws in
Australia embody the concept of “sub judice contempt” which
relates to the publication of the material that has a tendency to
interfere with the pending proceedings.
24. The New Zealand Approach: It recognizes the Open
Justice principle. However, the courts have taken the view that
the said principle is not absolute. It must be balanced against
the object of doing justice. That, the right to freedom of
expression must be balanced against other rights including the 21
fundamental public interest in preserving the integrity of justice
and the administration of justice.
Indian Approach to prior restraint
(i) Judicial decisions
25. At the outset, it may be stated that the Supreme Court is
not only the sentinel of the fundamental rights but also a
balancing wheel between the rights, subject to social control.
Freedom of expression is one of the most cherished values of a
free democratic society. It is indispensable to the operation of a
democratic society whose basic postulate is that the
government shall be based on the consent of the governed.
But, such a consent implies not only that the consent shall be
free but also that it shall be grounded on adequate information,
discussion and aided by the widest possible dissemination of
information and opinions from diverse and antagonistic
sources. Freedom of expression which includes freedom of the
press has a capacious content and is not restricted to
expression of thoughts and ideas which are accepted and
acceptable but also to those which offend or shock any section 22
of the population. It also includes the right to receive
information and ideas of all kinds from different sources. In
essence, the freedom of expression embodies the right to know.
However, under our Constitution no right in Part III is absolute.
Freedom of expression is not an absolute value under our
Constitution. It must not be forgotten that no single value, no
matter exalted, can bear the full burden of upholding a
democratic system of government. Underlying our
Constitutional system are a number of important values, all of
which help to guarantee our liberties, but in ways which
sometimes conflict. Under our Constitution, probably, no
values are absolute. All important values, therefore, must be
qualified and balanced against, other important, and often
competing, values. This process of definition, qualification and
balancing is as much required with respect to the value of
freedom of expression as it is for other values. Consequently,
free speech, in appropriate cases, has got to correlate with fair
trial. It also follows that in appropriate case one right [say
freedom of expression] may have to yield to the other right like
right to a fair trial. Further, even Articles 14 and 21 are subject 23
to the test of reasonableness after the judgment of this Court in
the case of Maneka Gandhi v. Union of India [(1978) 1 SCC
248].
Decisions of the Supreme Court on “prior restraint”
26. In Brij Bhushan v. State of Delhi [AIR 1950 SC 129], this
Court was called upon to balance exercise of freedom of
expression and pre-censorship. This Court declared the
statutory provision as unconstitutional inasmuch as the
restrictions imposed by it were outside Article 19(2), as it then
stood. However, this Court did not say that pre-censorship per
se is unconstitutional.
27. In Virendra v. State of Punjab [AIR 1957 SC 896], this
Court upheld pre-censorship imposed for a limited period and
right of representation to the government against such restraint
under Punjab Special Powers (Press) Act, 1956. However, in
the same judgment, another provision imposing pre-censorship
but without providing for any time limit or right to represent
against pre-censorship was struck down as unconstitutional. 24
28. In the case of K.A. Abbas v. Union of India [AIR 1971 SC
481], this Court upheld prior restraint on exhibition of motion
pictures subject to Government setting up a corrective
machinery and an independent Tribunal and reasonable time
limit within which the decision had to be taken by the
censoring authorities.
29. At this stage, we wish to clarify that the reliance on the
above judgments is only to show that “prior restraint” per se has
not been rejected as constitutionally impermissible. At this
stage, we may point out that in the present IAs we are dealing
with the concept of “prior restraint” per se and not with cases of
misuse of powers of pre-censorship which were corrected by the
Courts [see Binod Rao v. Minocher Rustom Masani reported in
78 Bom LR 125 and C. Vaidya v. D’Penha decided by Gujarat
High Court in Sp. CA 141 of 1976 on 22.03.1976 (unreported)]
30. The question of prior restraint arose before this Court in
1988, in the case of Reliance Petrochemicals Ltd. v. Proprietors
of Indian Express Newspapers Bombay (P) Ltd. [AIR 1989 SC
190] in the context of publication in one of the national dailies 25
of certain articles which contained adverse comments on the
proposed issue of debentures by a public limited company. The
validity of the debenture was sub judice in this Court. Initially,
the court granted injunction against the press restraining
publication of articles on the legality of the debenture issue.
The test formulated was that any preventive injunction against
the press must be “based on reasonable grounds for keeping
the administration of justice unimpaired” and that, there must
be reasonable ground to believe that the danger apprehended is
real and imminent. The Court went by the doctrine
propounded by Holmes J of “clear and present danger”. This
Court treated the said doctrine as the basis of balance of
convenience test. Later on, the injunction was lifted after
subscription to debentures had closed.
31. In the case of Naresh Shridhar Mirajkar v. State of
Maharashtra [AIR 1967 SC 1], this Court dealt with the power
of a court to conduct court proceedings in camera under its
inherent powers and also to incidentally prohibit publication
of the court proceedings or evidence of the cases outside the 26
court by the media. It may be stated that “open Justice” is the
cornerstone of our judicial system. It instills faith in the
judicial and legal system. However, the right to open justice is
not absolute. It can be restricted by the court in its inherent
jurisdiction as done in Mirajkar’s case if the necessities of
administration of justice so demand [see Kehar Singh v. State
(Delhi Administration), AIR 1988 SC 1883]. Even in US, the
said principle of open justice yields to the said necessities of
administration of justice [see: Globe Newspaper Co. v. Superior
Court, 457 US 596]. The entire law has been reiterated once
again in the judgment of this Court in Mohd. Shahabuddin v.
State of Bihar [(2010) 4 SCC 653], affirming judgment of this
Court in Mirajkar’s case.
32. Thus, the principle of open justice is not absolute. There
can be exceptions in the interest of administration of justice. In
Mirajkar, the High Court ordered that the deposition of the
defence witness should not be reported in the newspapers.
This order of the High Court was challenged in this Court
under Article 32. This Court held that apart from Section 151 27
of the Code of Civil Procedure, the High Court had the inherent
power to restrain the press from reporting where administration
of justice so demanded. This Court held vide para 30 that
evidence of the witness need not receive excessive publicity as
fear of such publicity may prevent the witness from speaking
the truth. That, such orders prohibiting publication for a
temporary period during the course of trial are permissible
under the inherent powers of the court whenever the court is
satisfied that interest of justice so requires. As to whether such
a temporary prohibition of publication of court proceedings in
the media under the inherent powers of the court can be said to
offend Article 19(1)(a) rights [which includes freedom of the
press to make such publication], this Court held that an order
of a court passed to protect the interest of justice and the
administration of justice could not be treated as violative of
Article 19(1)(a) [see para 12]. The judgment of this Court in
Mirajkar is delivered by a Bench of 9-Judges and is binding on
this Court. 28
33. At this stage, it may be noted that the judgment of the
Privy Council in the case of Independent Publishing Co. Ltd. v.
AG of Trinidad and Tobago [2005 (1) AC 190] has been doubted
by the Court of Appeal in New Zealand in the case of Vincent v.
Solicitor General [(2012) NZCA 188 dated 11.5.2012]. In any
event, on the inherent powers of the Courts of Record we are
bound by the judgment of this Court in Mirajkar. Thus, Courts
of Record under Article 129/Article 215 have inherent powers
to prohibit publication of court proceedings or the evidence of
the witness. The judgments in Reliance Petrochemicals Ltd.
and Mirajkar were delivered in civil cases. However, in
Mirajkar, this Court held that all Courts which have inherent
powers, i.e., the Supreme Court, the High Courts and Civil
Courts can issue prior restraint orders or proceedings,
prohibitory orders in exceptional circumstances temporarily
prohibiting publications of Court proceedings to be made in the
media and that such powers do not violate Article 19(1)(a).
Further, it is important to note, that, one of the Heads on which
Article 19(1)(a) rights can be restricted is in relation to
“contempt of court” under Article 19(2). Article 19(2) preserves 29
common law of contempt as an “existing law”. In fact, the
Contempt of Courts Act, 1971 embodies the common law of
contempt. At this stage, it is suffice to state that the
Constitution framers were fully aware of the Institution of
Contempt under the common law which they have preserved as
“existing law” under Article 19(2) read with Article 129 and
Article 215 of Constitution. The reason being that contempt is
an offence sui generis. The Constitution framers were aware
that the law of contempt is only one of the ways in which
administration of justice is protected, preserved and furthered.
That, it is an important adjunct to the criminal process and
provides a sanction. Other civil courts have the power under
Section 151 of Code of Civil Procedure to pass orders
prohibiting publication of court proceedings. In Mirajkar, this
Court referred to the principles governing Courts of Record
under Article 215 [see para 60]. It was held that the High
Court is a Superior Court of Record and that under Article 215
it has all the powers of such a court including the power to
punish contempt of itself. At this stage, the word “including” in
Article 129/Article 215 is to be noted. It may be noted that 30
each of the Articles is in two parts. The first part declares that
the Supreme Court or the High Court “shall be a Court of
Record and shall have all the powers of such a court”. The
second part says “includes the powers to punish for contempt”.
These Articles save the pre-existing powers of the Courts as
courts of record and that the power includes the power to
punish for contempt [see Delhi Judicial Service Association v.
State of Gujarat [(1991) 4 SCC 406] and Supreme Court Bar
Association v. Union of India [(1998) 4 SCC 409]. As such a
declaration has been made in the Constitution that the said
powers cannot be taken away by any law made by the
Parliament except to the limited extent mentioned in Article
142(2) in the matter of investigation or punishment of any
contempt of itself. If one reads Article 19(2) which refers to law
in relation to Contempt of Court with the first part of Article
129 and Article 215, it becomes clear that the power is
conferred on the High Court and the Supreme Court to see that
“the administration of justice is not perverted, prejudiced,
obstructed or interfered with”. To see that the administration
of justice is not prejudiced or perverted clearly includes power 31
of the Supreme Court/High Court to prohibit temporarily,
statements being made in the media which would prejudice or
obstruct or interfere with the administration of justice in a
given case pending in the Supreme Court or the High Court or
even in the subordinate courts. In view of the judgment of this
Court in A.K. Gopalan v. Noordeen [(1969) 2 SCC 734], such
statements which could be prohibited temporarily would
include statements in the media which would prejudice the
right to a fair trial of a suspect or accused under Article 21
from the time when the criminal proceedings in a subordinate
court are imminent or where suspect is arrested. This Court
has held in Ram Autar Shukla v. Arvind Shukla [1995 Supp (2)
SCC 130] that the law of contempt is a way to prevent the due
process of law from getting perverted. That, the words “due
course of justice” in Section 2 (c) or Section 13 of the 1971 Act
are wide enough and are not limited to a particular judicial
proceedings. That, the meaning of the words “contempt of
court” in Article 129 and Article 215 is wider than the
definition of “criminal contempt” in Section 2 (c) of the 1971
Act. Here, we would like to add a caveat. The contempt of 32
court is a special jurisdiction to be exercised sparingly and with
caution whenever an act adversely affects the
administration of justice [see Nigel Lowe and Brenda Sufrin,
Law of Contempt (Third Edition)]. Trial by newspaper comes in
the category of acts which interferes with the course of justice
or due administration of justice [see Nigel Lowe and Brenda
Sufrin, page 5 of Fourth Edition]. According to Nigel Lowe and
Brenda Sufrin [page 275] and also in the context of second part
of Article 129 and Article 215 of the Constitution the object of
the contempt law is not only to punish, it includes the power of
the Courts to prevent such acts which interfere, impede or
pervert administration of justice. Presumption of innocence is
held to be a human right. [See : Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra (2005) 5 SCC 294]. If in a given
case the appropriate Court finds infringement of such
presumption by excessive prejudicial publicity by the
newspapers (in general), then under inherent powers, the
Courts of Record suo motu or on being approached or on report
being filed before it by subordinate court can under its inherent
powers under Article 129 or Article 215 pass orders of 33
postponement of publication for a limited period if the applicant
is able to demonstrate substantial risk of prejudice to the
pending trial and provided he is able to displace the
presumption of open Justice and to that extent the burden will
be on the applicant who seeks such postponement of offending
publication.
34. The above discussion shows that in most jurisdictions
there is power in the courts to postpone reporting of judicial
proceedings in the interest of administration of justice. Under
Article 19(2) of the Constitution, law in relation to contempt of
court, is a reasonable restriction. It also satisfies the test laid
down in the judgment of this Court in R. Rajagopal v. State of
T.N. [(1994) 6 SCC 632]. As stated, in most common law
jurisdictions, discretion is given to the courts to evolve
neutralizing devices under contempt jurisdiction such as
postponement of the trial, re-trials, change of venue and in
appropriate cases even to grant acquittals in cases of excessive
media prejudicial publicity. The very object behind empowering
the courts to devise such methods is to see that the 34
administration of justice is not perverted, prejudiced,
obstructed or interfered with. At the same time, there is a
presumption of Open Justice under the common law.
Therefore, courts have evolved mechanisms such as
postponement of publicity to balance presumption of
innocence, which is now recognized as a human right in
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra
(supra) vis-à-vis presumption of Open Justice. Such an order
of postponement has to be passed only when other alternative
measures such as change of venue or postponement of trial are
not available. In passing such orders of postponement, courts
have to keep in mind the principle of proportionality and the
test of necessity. The applicant who seeks order of
postponement of publicity must displace the presumption of
Open Justice and only in such cases the higher courts shall
pass the orders of postponement under Article 129/Article 215
of the Constitution. Such orders of postponement of publicity
shall be passed for a limited period and subject to the courts
evaluating in each case the necessity to pass such orders not
only in the context of administration of justice but also in the 35
context of the rights of the individuals to be protected from
prejudicial publicity or mis-information, in other words, where
the court is satisfied that Article 21 rights of a person are
offended. There is no general law for courts to postpone
publicity, either prior to adjudication or during adjudication as
it would depend on facts of each case. The necessity for any
such order would depend on extent of prejudice, the effect on
individuals involved in the case, the over-riding necessity to
curb the right to report judicial proceedings conferred on the
media under Article 19(1)(a) and the right of the media to
challenge the order of postponement.
(ii) Contempt of Courts Act, 1971
35. Section 2 defines “contempt”, “civil contempt” and
“criminal contempt”. In the context of contempt on account of
publications which are not fair and accurate publication of
court proceedings, the relevant provisions are contained in
Sections 4 and 7 whereas Section 13 is a general provision
which deals with defences. It will be noticed that Section 4
deals with “report of a judicial proceeding”. A person is not 36
to be treated as guilty of contempt if he has published such a
report which is fair and accurate. Section 4 is subject to the
provisions of Section 7 which, however, deals with publication
of “information” relating to “proceedings in chambers”. Here
the emphasis is on “information” whereas in Section 4,
emphasis is on “report of a judicial proceeding”. This
distinction between a “report of proceedings” and “information”
is necessary because Section 7 deals with proceedings in
camera where there is no access to the media. In this
connection, the provisions of Section 13 have to be borne in
mind. The inaccuracy of reporting of court proceedings will be
contempt only if it can be said on the facts of a particular case,
to amount to substantial interference with the administration of
justice. The reason behind Section 4 is to grant a privilege in
favour of the person who makes the publication provided it is
fair and accurate. This is based on the presumption of “open
justice” in courts. Open justice permits fair and accurate
reports of court proceedings to be published. The media has a
right to know what is happening in courts and to disseminate
the information to the public which enhances the public 37
confidence in the transparency of court proceedings. As stated
above, sometimes, fair and accurate reporting of the trial (say a
murder trial) would nonetheless give rise to substantial risk of
prejudice not in the pending trial but in the later or connected
trials. In such cases, there is no other practical means short of
postponement orders that is capable of avoiding such risk of
prejudice to the later or connected trials. Thus, postponement
order not only safeguards fairness of the later or connected
trials, it prevents possible contempt by the Media.
(iii) “Order of Postponement” of publication- its nature
and Object
36. As stated, in US such orders of postponement are treated
as restraints which offend the First Amendment and as stated
courts have evolved neutralizing techniques to balance free
speech and fair trial whereas in Canada they are justified on
the touchstone of Section 1 of the Charter of Rights. What is
the position of such Orders under Article 19(1)(a) and under
Article 21? 38
37. Before examining the provisions of Article 19(1)(a) and
Article 21, it may be reiterated, that, the right to freedom of
speech and expression, is absolute under the First Amendment
in the US Constitution unlike Canada and India where we have
the test of justification in the societal interest which saves the
law despite infringement of the rights under Article 19(1)(a). In
India, we have the test of “reasonable restriction” in Article
19(2). In the case of Secretary, Ministry of Information &
Broadcasting, Govt. of India v. Cricket Association of Bengal
[(1995) 2 SCC 161] it has been held that “it is true that Article
19(2) does not use the words “national interest”, “interest of
society” or “public interest” but the several grounds mentioned
in Article 19(2) for imposition of restrictions such as security of
the State, public order, law in relation to contempt of court,
defamation etc. are ultimately referable to societal interest
which is another name for public interest” [para 189]. It has
been further held that, “the said grounds in Article 19(2) are
conceived in the interest of ensuring and maintaining
conditions in which the said right can meaningfully be
exercised by the citizens of this country” [para 151]. 39
38. In the case of E.M.S. Namboodripad v. T. Narayanan
Nambiar [AIR 1970 SC 2015] it has been held that “the
existence of law containing its own guiding principles, reduces
the discretion of the Courts to the minimum. But where the
law [i.e. 1971 Act] is silent the Courts have discretion” [para
30]. This is more so when the said enactment is required to be
interpreted in the light of Article 21. We would like to quote
herein below para 6 of the above judgment which reads as
under :
“The law of contempt stems from the
right of the courts to punish by
imprisonment or fines persons guilty of
words or acts which either obstruct or
tend to obstruct the administration of
justice. This right is exercised in India by
all courts when contempt is committed in
facie curaie and by the superior courts
on their own behalf or on behalf of
courts subordinate to them even if
committed outside the courts.
Formerly, it was regarded as inherent in
the powers of a court of record and now
by the Constitution of India, it is a part of
the powers of the Supreme Court and the
High Courts.” 40
39. The question before us is whether such “postponement
orders” constitute restrictions under Article 19(2) as read
broadly by this Court in the case of Cricket Association of
Bengal (supra)?
40. As stated, right to freedom of expression under the First
Amendment in US is absolute which is not so under Indian
Constitution in view of such right getting restricted by the test
of reasonableness and in view of the Heads of Restrictions
under Article 19(2). Thus, the clash model is more suitable to
American Constitution rather than Indian or Canadian
jurisprudence, since First Amendment has no equivalent of
Article 19(2) or Section 1 of the Canadian Charter. This has led
the American Courts, in certain cases, to evolve techniques or
methods to be applied in cases where on account of excessive
prejudicial publicity, there is usurpation of court’s functions.
These are techniques such as retrials being ordered, change of
venue, ordering acquittals even at the Appellate stage, etc. In
our view, orders of postponement of publications/ publicity in 41
appropriate cases, as indicated above, keeping in mind the
timing (the stage at which it should be ordered), its duration
and the right of appeal to challenge such orders is just a
neutralizing device, when no other alternative such as change
of venue or postponement of trial is available, evolved by courts
as a preventive measure to protect the press from getting
prosecuted for contempt and also to prevent administration of
justice from getting perverted or prejudiced.
(iv) Width of the postponement orders
41. The question is - whether such “postponement orders”
constitute restriction under Article 19(1)(a) and whether such
restriction is saved under Article 19(2)?
42. At the outset, we must understand the nature of such
orders of postponement. Publicity postponement orders should
be seen, in the context of Article 19(1)(a) not being an absolute
right. The US clash model based on collision between freedom
of expression (including free press) and the right to a fair trial
will not apply to Indian Constitution. In certain cases, even
accused seeks publicity (not in the pejorative sense) as 42
openness and transparency is the basis of a fair trial in which
all the stakeholders who are a party to a litigation including the
judges are under scrutiny and at the same time people get to
know what is going on inside the court rooms. These aspects
come within the scope of Article 19(1) and Article 21. When
rights of equal weight clash, Courts have to evolve balancing
techniques or measures based on re-calibration under which
both the rights are given equal space in the Constitutional
Scheme and this is what the “postponement order” does subject
to the parameters, mentioned hereinafter. But, what happens
when courts are required to balance important public interests
placed side by side. For example, in cases where presumption
of open justice has to be balanced with presumption of
innocence, which as stated above, is now recognized as a
human right. These presumptions existed at the time when the
Constitution was framed [existing law under Article 19(2)] and
they continue till date not only as part of rule of law under
Article 14 but also as an Article 21 right. The constitutional
protection in Article 21 which protects the rights of the person
for a fair trial is, in law, a valid restriction operating on the 43
right to free speech under Article 19(1)(a), by virtue of force of it
being a constitutional provision. Given that the postponement
orders curtail the freedom of expression of third parties, such
orders have to be passed only in cases in which there is real
and substantial risk of prejudice to fairness of the trial or to the
proper administration of justice which in the words of Justice
Cardozo is “the end and purpose of all laws”. However, such
orders of postponement should be ordered for a limited
duration and without disturbing the content of the publication.
They should be passed only when necessary to prevent real and
substantial risk to the fairness of the trial (court proceedings), if
reasonable alternative methods or measures such as change of
venue or postponement of trial will not prevent the said risk
and when the salutary effects of such orders outweigh the
deleterious effects to the free expression of those affected by the
prior restraint. The order of postponement will only be
appropriate in cases where the balancing test otherwise favours
non-publication for a limited period. It is not possible for this
Court to enumerate categories of publications amounting to
contempt. It would require the courts in each case to see the 44
content and the context of the offending publication. There
cannot be any straightjacket formula enumerating such
categories. In our view, keeping the above parameters, if the
High Court/ Supreme Court (being Courts of Record) pass
postponement orders under their inherent jurisdictions, such
orders would fall within “reasonable restrictions” under Article
19(2) and which would be in conformity with societal interests,
as held in the case of Cricket Association of Bengal (supra). In
this connection, we must also keep in mind the language of
Article 19(1) and Article 19(2). Freedom of press has been read
into Article 19(1)(a). After the judgment of this Court in
Maneka Gandhi (supra, p. 248), it is now well-settled that test
of reasonableness applies not only to Article 19(1) but also to
Article 14 and Article 21. For example, right to access courts
under Articles 32, 226 or 136 seeking relief against
infringement of say Article 21 rights has not been specifically
mentioned in Article 14. Yet, this right has been deduced from
the words “equality before the law” in Article 14. Thus, the test
of reasonableness which applies in Article 14 context would
equally apply to Article 19(1) rights. Similarly, while judging 45
reasonableness of an enactment even Directive Principles have
been taken into consideration by this Court in several cases
[see recent judgment of this Court in Society for Un-aided
Private Schools of Rajasthan v. U.O.I. 2012 (4) SCALE 272.
Similarly, in the case of Dharam Dutt v. Union of India reported
in (2004) 1 SCC 712, it has been held that rights not included
in Article 19(1)(c) expressly, but which are deduced from the
express language of the Article are concomitant rights, the
restrictions thereof would not merely be those in Article 19(4)].
Thus, balancing of such rights or equal public interest by order
of postponement of publication or publicity in cases in
which there is real and substantial risk of prejudice to the
proper administration of justice or to the fairness of trial and
within the above enumerated parameters of necessity and
proportionality would satisfy the test of reasonableness in
Articles 14 and 19(2). One cannot say that what is reasonable
in the context of Article 14 or Article 21 is not reasonable when
it comes to Article 19(1)(a). Ultimately, such orders of
postponement are only to balance conflicting public interests or
rights in Part III of Constitution. They also satisfy the 46
requirements of justification under Article 14 and Article 21.
Further, we must also keep in mind the words of Article 19(2)
“in relation to contempt of court”. At the outset, it may be
stated that like other freedoms, clause 1(a) of Article 19 refers
to the common law right of freedom of expression and does not
apply to any right created by the statute (see page 275 of
Constitution of India by D.D. Basu, 14th
edition). The above
words “in relation to” in Article 19(2) are words of widest
amplitude. When the said words are read in relation to
contempt of court, it follows that the law of contempt is treated
as reasonable restriction as it seeks to prevent administration
of justice from getting perverted or prejudiced or interfered
with. Secondly, these words show that the expression
“contempt of court” in Article 19(2) indicates that the object
behind putting these words in Article 19(2) is to regulate and
control administration of justice. Thirdly, if one reads Article
19(2) with the second part of Article 129 or Article 215, it is
clear that the contempt action does not exhaust the powers of
the Court of Record. The reason being that contempt is an
offence sui generis. Common law defines what is the scope of 47
contempt or limits of contempt. Article 142(2) operates only in
a limited field. It permits a law to be made restricted to
investigations and punishment and does not touch the inherent
powers of the Court of Record. Fourthly, in case of criminal
contempt, the offending act must constitute interference with
administration of justice. Contempt jurisdiction of courts of
record forms part of their inherent jurisdiction under Article
129/ Article 215. Superior Courts of Record have inter alia
inherent superintendent jurisdiction to punish contempt
committed in connection with proceedings before inferior
courts. The test is that the publication (actual and not
planned publication) must create a real and substantial risk of
prejudice to the proper administration of justice or to the
fairness of trial. It is important to bear in mind that sometimes
even fair and accurate reporting of the trial (say murder trial)
could nonetheless give rise to the “real and substantial risk of
serious prejudice” to the connected trials. In such cases,
though rare, there is no other practical means short of
postponement orders that is capable of avoiding the real and
substantial risk of prejudice to the connected trials. Thus, 48
postponement orders safeguard fairness of the connected trials.
The principle underlying postponement orders is that it
prevents possible contempt. Of course, before passing
postponement orders, Courts should look at the content of the
offending publication (as alleged) and its effect. Such
postponement orders operate on actual publication. Such
orders direct postponement of the publication for a limited
period. Thus, if one reads Article 19(2), Article 129/ Article 215
and Article 142(2), it is clear that Courts of Record “have all the
powers including power to punish” which means that Courts of
Record have the power to postpone publicity in appropriate
cases as a preventive measure without disturbing its content.
Such measures protect the Media from getting prosecuted or
punished for committing contempt and at the same time such
neutralizing devices or techniques evolved by the Courts
effectuate a balance between conflicting public interests. It is
well settled that precedents of this Court under Article 141 and
the Comparative Constitutional law helps courts not only to
understand the provisions of the Indian Constitution it also
helps the Constitutional Courts to evolve principles which as 49
stated by Ronald Dworkin are propositions describing rights [in
terms of its content and contours] (See “Taking Rights
Seriously” by Ronald Dworkin, 5th
Reprint 2010). The
postponement orders is, as stated above, a neutralizing device
evolved by the courts to balance interests of equal weightage,
viz., freedom of expression vis-à-vis freedom of trial, in the
context of the law of contempt. One aspect needs to be
highlighted. The shadow of the law of contempt hangs over our
jurisprudence. The media, in several cases in India, is the only
representative of the public to bring to the notice of the court
issues of public importance including governance deficit,
corruption, drawbacks in the system. Keeping in mind the
important role of the media, Courts have evolved several
neutralizing techniques including postponement orders subject
to the twin tests of necessity and proportionality to be applied
in cases where there is real and substantial risk of prejudice to
the proper administration of justice or to the fairness of trial.
Such orders would also put the Media to notice about possible
contempt. However, it would be open to Media to challenge
such orders in appropriate proceedings. Contempt is an 50
offence sui generis. Purpose of Contempt Law is not only to
punish. Its object is to preserve the sanctity of administration
of justice and the integrity of the pending proceeding. Thus,
the postponement order is not a punitive measure, but a
preventive measure as explained hereinabove. Therefore, in
our view, such orders of postponement, in the absence of any
other alternative measures such as change of venue or
postponement of trial, satisfy the requirement of justification
under Article 19(2) and they also help the Courts to balance
conflicting societal interests of right to know vis-à-vis another
societal interest in fair administration of justice. One more
aspect needs to be mentioned. Excessive prejudicial publicity
leading to usurpation of functions of the Court not only
interferes with administration of justice which is sought to be
protected under Article 19(2), it also prejudices or interferes
with a particular legal proceedings. In such case, Courts are
duty bound under inherent jurisdiction, subject to above
parameters, to protect the presumption of innocence which is
now recognised by this Court as a human right under Article
21, subject to the applicant proving displacement of such a 51
presumption in appropriate proceedings. Lastly,
postponement orders must be integrally connected to the
outcome of the proceedings including guilt or innocence of the
accused, which would depend on the facts of each case. For
aforestated reasons, we hold that subject to above parameters,
postponement orders fall under Article 19(2) and they satisfy
the test of reasonableness.
(v) Right to approach the High Court/ Supreme Court
43. In the light of the law enunciated hereinabove, anyone, be
he an accused or an aggrieved person, who genuinely
apprehends on the basis of the content of the publication and
its effect, an infringement of his/ her rights under Article 21 to
a fair trial and all that it comprehends, would be entitled to
approach an appropriate writ court and seek an order of
postponement of the offending publication/ broadcast or
postponement of reporting of certain phases of the trial
(including identity of the victim or the witness or the
complainant), and that the court may grant such preventive
relief, on a balancing of the right to a fair trial and Article 52
19(1)(a) rights, bearing in mind the abovementioned principles
of necessity and proportionality and keeping in mind that such
orders of postponement should be for short duration and
should be applied only in cases of real and substantial risk of
prejudice to the proper administration of justice or to the
fairness of trial. Such neutralizing device (balancing test)
would not be an unreasonable restriction and on the contrary
would fall within the proper constitutional framework.
Maintainability
44. As stated above, in the present case, we heard various
stake holders as an important question of public importance
arose for determination. Broadly, on maintainability the
following contentions were raised: (i) the proceedings were not
maintainable as there is no lis; (ii) there is a difference between
law-making and framing of guidelines. That, law can be made
only by Parliament. That, guidelines to be framed by the Court,
therefore, should be self-regulatory or at the most advisory.
(iii) under Article 142, this Court cannot invest courts or any 53
other authority with jurisdiction, adjudicatory or otherwise,
which they do not possess.
45. Article 141 uses the phrase “law declared by the Supreme
Court.” It means law made while interpreting the statutes or
the Constitution. Such judicial law-making is part of the
judicial process. Further under Article 141, law-making
through interpretation and expansion of the meanings of opentextured expressions such as “law in relation to contempt of
court” in Article 19(2), “equal protection of law”, “freedom of
speech and expression” and “administration of justice” is a
legitimate judicial function. According to Ronald Dworkin,
“Arguments of principle are arguments intended to establish an
individual right. Principles are propositions that describe
rights.” [See “Taking Rights Seriously” by Ronald Dworkin, 5th
Reprint 2010, p. 90]. In this case, this Court is only declaring
under Article 141, the constitutional limitations on free speech
under Article 19(1)(a), in the context of Article 21. The exercise
undertaken by this Court is an exercise of exposition of
constitutional limitations under Article 141 read with Article 54
129/Article 215 in the light of the contentions and large
number of authorities referred to by the counsel on Article
19(1)(a), Article 19(2), Article 21, Article 129 and Article 215 as
also the “law of contempt” insofar as interference with
administration of justice under the common law as well as
under Section 2(c) of 1971 Act is concerned. What constitutes
an offending publication would depend on the decision of the
court on case to case basis. Hence, guidelines on reporting
cannot be framed across the Board. The shadow of “law of
contempt” hangs over our jurisprudence. This Court is duty
bound to clear that shadow under Article 141. The phrase “in
relation to contempt of court” under Article 19(2) does not in
the least describe the true nature of the offence which consists
in interfering with administration of justice; in impending and
perverting the course of justice. That is all which is done by
this judgment. We have exhaustively referred to the contents of
the IAs filed by Sahara and SEBI. As stated above, the right to
negotiate and settle in confidence is a right of a citizen and
has been equated to a right of the accused to defend
himself in a criminal trial. In this case, Sahara has 55
complained to this Court on the basis of breach of
confidentiality by the Media. In the circumstances, it cannot be
contended that there was no lis. Sahara, therefore, contended
that this Court should frame guidelines or give directions which
are advisory or self-regulatory whereas SEBI contended that the
guidelines/directions should be given by this Court which do
not have to be coercive. In the circumstances, constitutional
adjudication on the above points was required and it cannot be
said that there was no lis between the parties. We reiterate
that the exposition of constitutional limitations has been done
under Article 141 read with Article 129/Article 215. When the
content of rights is considered by this Court, the Court has also
to consider the enforcement of the rights as well as the
remedies available for such enforcement. In the circumstances,
we have expounded the constitutional limitations on free
speech under Article 19(1)(a) in the context of Article 21 and
under Article 141 read with Article 129/Article 215 which
preserves the inherent jurisdiction of the Courts of Record in
relation to contempt law. We do not wish to enumerate
categories of publication amounting to contempt as the Court(s) 56
has to examine the content and the context on case to case
basis.
Conclusion
46. Accordingly, IA Nos. 4-5 and 10 are disposed of.
47. For the reasons given above, we do not wish to express
any opinion on the merit of the other IAs. Consequently, they
are dismissed.
…..……………………….......CJI
(S. H. Kapadia)
.........…………………………..J.
(D.K. Jain)
.........…………………………..J.
(Surinder Singh Nijjar)
.........…………………………..J.
(Ranjana Prakash Desai)
.........…………………………..J.
(Jagdish Singh Khehar)
New Delhi;
September 11, 2012
Print Page
IN THE SUPREME COURT OF INDIA
Dated;11september 2012
Sahara India Real Estate Corp. Ltd. & Ors. …Appellants
Vs.
Securities & Exchange Board of India & anr. …Respondents
with
S. H. KAPADIA, CJI
Introduction
1. Finding an acceptable constitutional balance between free
press and administration of justice is a difficult task in every
legal system. 2
Factual background
2. Civil Appeal Nos. 9813 and 9833 of 2011 were filed
challenging the order dated 18.10.2011 of the Securities
Appellate Tribunal whereby the appellants (hereinafter for short
“Sahara”) were directed to refund amounts invested with the
appellants in certain Optionally Fully Convertible Bonds
(OFCD) with interest by a stated date.
3. By order dated 28.11.2011, this Court issued show cause
notice to the Securities and Exchange Board of India (SEBI),
respondent No. 1 herein, directing Sahara to put on affidavit as
to how they intend to secure the liabilities incurred by them to
the OFCD holders during the pendency of the Civil Appeals.
4. Pursuant to the aforesaid order dated 28.11.2011, on
4.01.2012, an affidavit was filed by Sahara explaining the
manner in which it proposed to secure its liability to OFCD
holders during the pendency of the Civil Appeals. 3
5. On 9.01.2012, both the appeals were admitted for hearing.
However, IA No. 3 for interim relief filed by Sahara was kept for
hearing on 20.01.2012.
6. On 20.01.2012, it was submitted by the learned counsel
for SEBI that what was stated in the affidavit of 4.01.2012 filed
by Sahara inter alia setting out as to how the liabilities of
Sahara India Real Estate Corporation Ltd. (SIRECL) and Sahara
Housing and Investment Corporation (SHICL) were to be
secured was insufficient to protect the OFCD holders.
7. This Court then indicated to the learned counsel for
Sahara and SEBI that they should attempt, if possible, to reach
a consensus with respect to an acceptable security in the form
of an unencumbered asset. Accordingly, IA No. 3 got stood over
for three weeks for that purpose.
8. On 7.02.2012, the learned counsel for Sahara addressed a
personal letter to the learned counsel for SEBI at Chennai
enclosing the proposal with details of security to secure
repayment of OFCD to investors as pre-condition for stay of the 4
impugned orders dated 23.06.2011 and 18.10.2011 pending
hearing of the Civil Appeals together with the Valuation
Certificate indicating fair market value of the assets proposed to
be offered as security. This was communicated by e-mail from
Delhi to Chennai. Later, on the same day, there was also an
official communication enclosing the said proposal by the
Advocate-on-Record for Sahara to the Advocate-on-Record for
SEBI.
9. A day prior to the hearing of IA No. 3 on 10.02.2012, one
of the news channels flashed on TV the details of the said
proposal which had been communicated only inter parties and
which was obviously not meant for public circulation. The
concerned television channel also named the valuer who had
done the valuation of the assets proposed to be offered as
security.
10. On 10.02.2012, there was no information forthcoming
from SEBI of either acceptance or rejection of the proposal. 5
11. The above facts were inter alia brought to the notice of
this Court at the hearing of IA No. 3 on 10.02.2012 when Shri
F.S. Nariman, learned senior counsel for Sahara orally
submitted that disclosure to the Media was by SEBI in breach
of confidentiality which was denied by the learned counsel for
SEBI. After hearing the learned counsel for the parties, this
Court passed the following order:
“We are distressed to note that even
“without prejudice” proposals sent by
learned counsel for the appellants to the
learned counsel for SEBI has come on one
of the TV channels. Such incidents are
increasing by the day. Such reporting not
only affects the business sentiments but
also interferes in the administration of
justice. In the above circumstances, we
have requested learned counsel on both
sides to make written application to this
Court in the form of an I.A. so that
appropriate orders could be passed by this
Court with regard to reporting of matters,
which are sub-judice.”
12. Pursuant to the aforesaid order, IA Nos. 4 and 5 came to
be filed by Sahara. According to Sahara, IA Nos. 4 and 5 raise
a question of general public importance. In the said IA Nos. 4 6
and 5, Sahara stated that the time has come that this Court
should give appropriate directions with regard to reporting of
matters (in electronic and print media) which are sub judice. In
this connection, it has been further stated: “it is well settled
that it is inappropriate for comments to be made publicly (in
the Media or otherwise) on cases (civil and criminal) which are
sub judice; this principle has been stated in Section 3 of the
Contempt of Courts Act, which defines criminal contempt of
court as the doing of an act whatsoever which prejudices or
interferes or tends to interfere with the due course of any
judicial proceeding or tends to interfere or interfere with or
obstruct or tends to interfere or obstruct the administration of
justice”. In the IAs, it has been further stated that whilst there
is no fetter on the fair reporting of any matter in court, matters
relating to proposal made inter-parties are privileged from
public disclosure. That, disclosure and publication of pleadings
and other documents on the record of the case by third parties
(who are not parties to the proceedings in this court) can (under
the rules of this Court) only take place on an application to the
court and pursuant to the directions given by the court (see 7
Order XII, Rules 1, 2 and 3 of Supreme Court Rules, 1966). It
was further stated that in cases like the present one a thin line
has to be drawn between two types of matters; firstly, matters
between company, on the one hand, and an authority, on the
other hand, and, secondly, matters of public importance and
concern. According to Sahara, in the present case, no question
of public concern was involved in the telecast of news regarding
the proposal made by Sahara on 7.02.2012 by one side to the
other in the matter of providing security in an ongoing matter.
In the IAs, it has been further stated that this Court has
observed in the case of State of Maharashtra v. Rajendra J.
Gandhi [(1997) 8 SCC 386] that: “A trial by press, electronic
media or public agitation is the very antithesis of rule of law”.
Consequently, it has been stated in the IAs by Sahara that this
Court should consider giving guidelines as to the manner and
extent of publicity which can be given to pleadings/ documents
filed in court by one or the other party in a pending proceedings
which have not yet been adjudicated upon. 8
13. Accordingly, vide IA Nos. 4 and 5, Sahara made the
following prayers:
“(b) appropriate guidelines be framed with
regard to reporting (in the electronic and
print media) of matters which are subjudice in a court including public disclosure
of documents forming part of court
proceedings.
(c) appropriate directions be issued as to
the manner and extent of publicity to be
given by the print/ electronic media of
pleadings/ documents filed in a proceeding
in court which is pending and not yet
adjudicated upon;”
14. Vide IA No. 10, SEBI, at the very outset, denied that the
alleged disclosure was at its instance or at the instance of its
counsel. It further denied that papers furnished by Sahara
were passed on by SEBI to the TV Channel. In its IA, SEBI
stated that it is a statutory regulatory body and that as a
matter of policy SEBI never gives its comments to the media on
matters which are under investigation or sub judice. Further,
SEBI had no business stakes involved to make such
disclosures to the media. However, even according to SEBI, in
view of the incident having happened in court, this Court 9
should give appropriate directions or frame such guidelines as
may be deemed appropriate.
15. At the very outset, we need to state that since an
important question of public importance arose for decision
under the above circumstances dealing with the rights of the
citizens and the media, we gave notice and hearing to those
who had filed the IAs; the question of law being that every
citizen has a right to negotiate in confidence inasmuch as he/
she has a right to defend himself or herself. The source of
these two rights comes from the common law. They are based
on presumptions of confidentiality and innocence. Both, the
said presumptions are of equal importance. At one stage, it
was submitted before us that this Court has been acting suo
motu. We made it clear that Sahara was at liberty to withdraw
the IAs at which stage Shri Sidharth Luthra, learned senior
counsel stated that Sahara would not like to withdraw its IAs.
Even SEBI stated that if Sahara withdraws its IAs, SEBI would
insist on its IA being decided. In short, both Sahara and SEBI
sought adjudication. Further, on 28.03.2012, learned counsel 10
for Sahara filed a note in the Court citing instances (mostly
criminal cases) in which according to him certain aberration
qua presumption of innocence has taken place. This Court
made it clear that this Court is concerned with the question as
to whether guidelines for the media be laid down? If so,
whether they should be self-regulatory? Or whether this Court
should restate the law or declare the law under Article 141 on
balancing of Article 19(1)(a) rights vis-à-vis Article 21, the scope
of Article 19(2) in the context of the law regulating contempt of
court and the scope of Article 129/ Article 215.
16. Thus, our decision herein is confined to IA Nos. 4, 5 and
10. This clarification is important for the reason that some
accused have filed IAs in which they have sought relief on the
ground that their trial has been prejudiced on account of
excessive media publicity. We express no opinion on the merits
of those IAs.
Constitutionalization of free speech
Comparative law: differences between the US and other
common-law experiences 11
17. Protecting speech is the US approach. The First
Amendment does not tolerate any form of restraint. In US,
unlike India and Canada which also have written Constitutions,
freedom of the press is expressly protected as an absolute right.
The US Constitution does not have provisions similar to Section
1 of the Charter Rights under the Canadian Constitution nor is
such freedom subject to reasonable restrictions as we have
under Article 19(2) of the Indian Constitution. Therefore, in
US, any interference with the media freedom to access, report
and comment upon ongoing trials is prima facie unlawful. Prior
restraints are completely banned. If an irresponsible piece of
journalism results in prejudice to the proceedings, the legal
system does not provide for sanctions against the parties
responsible for the wrongdoings. Thus, restrictive contempt of
court laws are generally considered incompatible with the
constitutional guarantee of free speech. However, in view of
cases, like O.J. Simpson, Courts have evolved procedural
devices aimed at neutralizing the effect of prejudicial publicity
like change of venue, ordering re-trial, reversal of conviction on 12
appeal (which, for the sake of brevity, is hereinafter referred to
as “neutralizing devices”). It may be stated that even in US
as of date, there is no absolute rule against “prior restraint” and
its necessity has been recognized, albeit in exceptional cases
[see Near v. Minnesota, 283 US 697] by the courts evolving
neutralizing techniques.
18. In 1993, Chief Justice William Rehnquist observed:
“constitutional law is now so firmly grounded in so many
countries, it is time that the US Courts begin looking at
decisions of other constitutional courts to aid in their own
deliberative process”.
19. Protecting Justice is the English approach. Fair trials
and public confidence in the courts as the proper forum for
settlement of disputes as part of the administration of justice,
under the common law, were given greater weight than the
goals served by unrestrained freedom of the press. As a
consequence, the exercise of free speech respecting ongoing
court proceedings stood limited. England does not have a
written constitution. Freedoms in English law have been 13
largely determined by Parliament and Courts. However, after
the judgment of ECHR in the case of Sunday Times v. United
Kingdom [(1979) 2 EHRR 245], in the light of which the English
Contempt of Courts Act, 1981 (for short “the 1981 Act”) stood
enacted, a balance is sought to be achieved between fair trial
rights and free media rights vide Section 4(2). Freedom of
speech (including free press) in US is not restricted as under
Article 19(2) of our Constitution or under Section 1 of the
Canadian Charter. In England, Parliament is supreme. Absent
written constitution, Parliament can by law limit the freedom of
speech. The view in England, on interpretation, has been and
is even today, even after the Human Rights Act, 1998 that the
right of free speech or right to access the courts for the
determination of legal rights cannot be excluded, except by
clear words of the statute. An important aspect needs to be
highlighted. Under Section 4(2) of the 1981 Act, courts are
expressly empowered to postpone publication of any report of
the proceedings or any part of the proceedings for such period
as the court thinks fit for avoiding a substantial risk of
prejudice to the administration of justice in those proceedings. 14
Why is such a provision made in the Act of 1981? One of the
reasons is that in Section 2 of the 1981 Act, strict liability has
been incorporated (except in Section 6 whose scope has led to
conflicting decisions on the question of intention). The basis of
the strict liability contempt under the 1981 Act is the
publication of “prejudicial” material. The definition of
publication is also very wide. It is true that the 1981 Act has
restricted the strict liability contempt to a fewer circumstances
as compared to cases falling under common law. However,
contempt is an offence sui generis. At this stage, it is
important to note that the strict liability rule is the rule of law
whereby a conduct or an act may be treated as contempt of
court if it tends to interfere with the course of justice in
particular legal proceedings, regardless of intent to do so.
Sometimes, fair and accurate reporting of the trial (say a
murder trial) would nonetheless give rise to substantial risk of
prejudice not in the pending trial but in the later or connected
trials. In such cases, there is no other practical means short of
postponement orders that is capable of avoiding such risk of
prejudice to the later or connected trials. Thus, postponement 15
order not only safeguards fairness of the later or connected
trials, it prevents possible contempt. That seems to be the
underlying reason behind enactment of Section 4(2) of the 1981
Act. According to Borrie & Lowe on the “Law of Contempt”, the
extent to which prejudgment by publication of the outcome of a
proceedings (referred to by the House of Lords in Sunday
Times’s case) may still apply in certain cases. In the
circumstances to balance the two rights of equal importance,
viz., right to freedom of expression and right to a fair trial, that
Section 4(2) is put in the 1981 Act. Apart from balancing it
makes the media know where they stand in the matters of
reporting of court cases. To this extent, the discretion of courts
under common law contempt has been reduced to protect the
media from getting punished for contempt under strict liability
contempt. Of course, if the court’s order is violated, contempt
action would follow.
20. In the case of Home Office v. Harman [(1983) 1 A.C. 280]
the House of Lords found that the counsel for a party was
furnished documents by the opposition party during inspection 16
on the specific undertaking that the contents will not be
disclosed to the public. However, in violation of the said
undertaking, the counsel gave the papers to a third party, who
published them. The counsel was held to be in contempt on
the principle of equalization of the right of the accused to
defend himself/herself in a criminal trial with right to
negotiate settlement in confidence. [See also Globe and Mail
v. Canada (Procureur général), 2008 QCCA 2516]
21. The Continental Approach seeks to protect
personality. This model is less concerned with the issue of fair
trial than with the need for safeguarding privacy, personal
dignity and presumption of innocence of trial participants. The
underlying assumption of this model is that the media coverage
of pending trials might be at odds not only with fairness and
impartiality of the proceedings but also with other individual
and societal interests. Thus, narrowly focussed prior restraints
are provided for, on either a statutory or judicial basis. It is
important to note that in the common-law approach the
protection of sanctity of legal proceedings as a part of 17
administration of justice is guaranteed by institution of
contempt proceedings. According to Article 6(2) of the
European Convention of Human Rights, presumption of
innocence needs to be protected. The European Courts of
Human Rights has ruled on several occasions that the
presumption of innocence should be employed as a normative
parameter in the matter of balancing the right to a fair trial as
against freedom of speech. The German Courts have
accordingly underlined the need to balance the presumption of
innocence with freedom of expression based on employment of
the above normative parameter of presumption of innocence.
France and Australia have taken a similar stance. Article 6(2)
of the European Convention of Human Rights imposes a
positive obligation on the State to take action to protect the
presumption of innocence from interference by non-State
actors. However, in a catena of decisions, the ECHR has
applied the principle of proportionality to prevent imposition of
overreaching restrictions on the media. At this stage, we may
state, that the said principle of proportionality has been 18
enunciated by this Court in Chintaman Rao v. The State of
Madhya Pradesh [ (1950) SCR 759].
22. The Canadian Approach: Before Section 1 of Canadian
Charter of Rights, the balance between fair trial and
administration of justice concerns, on the one hand, and
freedom of press, on the other hand, showed a clear preference
accorded to the former. Since the Charter introduced an
express guarantee of “freedom of the press and other media of
communication”, the Canadian Courts reformulated the
traditional sub judice rule, showing a more tolerant attitude
towards trial-related reporting [see judgment of the Supreme
Court of Canada in Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 SCR 835 which held that a publication ban should be
ordered when such an order is necessary to prevent a serious
risk to the proper administration of justice when reasonably
alternative measures like postponement of trial or change of
venue will not prevent the risk (necessity test); and that
salutary effects of the publication bans outweigh the deleterious
effects on the rights and interests of the parties and the public, 19
including the effect on the right to free expression and the right
of the accused to open trial (i.e. proportionality test)]. The
traditional common law rule governing publication bans – that
there be real and substantial risk of interference with the right
to a fair trial – emphasized the right to a fair trial over the free
expressions interests of those affected by the ban. However, in
the context of post-Charter situation, the Canadian Supreme
Court has held that when two protected rights come in conflict,
Charter principles require a balance to be achieved that fully
respects both the rights. The Canadian Courts have, thus,
shortened the distance between the US legal experience and the
common-law experiences in other countries. It is important to
highlight that in Dagenais, the publication ban was sought
under common law jurisdiction of the Superior Court and the
matter was decided under the common law rule that the Courts
of Record have inherent power to defer the publication. In R. v.
Mentuck [2001] 3 SCR 442 that Dagenais principle was
extended to the presumption of openness and to duty of court
to balance the two rights. In both the above cases, Section 2(b)
of the Charter which deals with freedom of the press was 20
balanced with Section 1 of the Charter. Under the Canadian
Constitution, the Courts of Record (superior courts) have
retained the common law discretion to impose such bans
provided that the discretion is exercised in accordance with the
Charter demands in each individual case.
23. The Australian Approach: The Australian Courts impose
publication bans through the exercise of their inherent
jurisdiction to regulate their own proceedings. In Australia,
contempt laws deal with reporting of court proceedings which
interfere with due administration of justice. Contempt laws in
Australia embody the concept of “sub judice contempt” which
relates to the publication of the material that has a tendency to
interfere with the pending proceedings.
24. The New Zealand Approach: It recognizes the Open
Justice principle. However, the courts have taken the view that
the said principle is not absolute. It must be balanced against
the object of doing justice. That, the right to freedom of
expression must be balanced against other rights including the 21
fundamental public interest in preserving the integrity of justice
and the administration of justice.
Indian Approach to prior restraint
(i) Judicial decisions
25. At the outset, it may be stated that the Supreme Court is
not only the sentinel of the fundamental rights but also a
balancing wheel between the rights, subject to social control.
Freedom of expression is one of the most cherished values of a
free democratic society. It is indispensable to the operation of a
democratic society whose basic postulate is that the
government shall be based on the consent of the governed.
But, such a consent implies not only that the consent shall be
free but also that it shall be grounded on adequate information,
discussion and aided by the widest possible dissemination of
information and opinions from diverse and antagonistic
sources. Freedom of expression which includes freedom of the
press has a capacious content and is not restricted to
expression of thoughts and ideas which are accepted and
acceptable but also to those which offend or shock any section 22
of the population. It also includes the right to receive
information and ideas of all kinds from different sources. In
essence, the freedom of expression embodies the right to know.
However, under our Constitution no right in Part III is absolute.
Freedom of expression is not an absolute value under our
Constitution. It must not be forgotten that no single value, no
matter exalted, can bear the full burden of upholding a
democratic system of government. Underlying our
Constitutional system are a number of important values, all of
which help to guarantee our liberties, but in ways which
sometimes conflict. Under our Constitution, probably, no
values are absolute. All important values, therefore, must be
qualified and balanced against, other important, and often
competing, values. This process of definition, qualification and
balancing is as much required with respect to the value of
freedom of expression as it is for other values. Consequently,
free speech, in appropriate cases, has got to correlate with fair
trial. It also follows that in appropriate case one right [say
freedom of expression] may have to yield to the other right like
right to a fair trial. Further, even Articles 14 and 21 are subject 23
to the test of reasonableness after the judgment of this Court in
the case of Maneka Gandhi v. Union of India [(1978) 1 SCC
248].
Decisions of the Supreme Court on “prior restraint”
26. In Brij Bhushan v. State of Delhi [AIR 1950 SC 129], this
Court was called upon to balance exercise of freedom of
expression and pre-censorship. This Court declared the
statutory provision as unconstitutional inasmuch as the
restrictions imposed by it were outside Article 19(2), as it then
stood. However, this Court did not say that pre-censorship per
se is unconstitutional.
27. In Virendra v. State of Punjab [AIR 1957 SC 896], this
Court upheld pre-censorship imposed for a limited period and
right of representation to the government against such restraint
under Punjab Special Powers (Press) Act, 1956. However, in
the same judgment, another provision imposing pre-censorship
but without providing for any time limit or right to represent
against pre-censorship was struck down as unconstitutional. 24
28. In the case of K.A. Abbas v. Union of India [AIR 1971 SC
481], this Court upheld prior restraint on exhibition of motion
pictures subject to Government setting up a corrective
machinery and an independent Tribunal and reasonable time
limit within which the decision had to be taken by the
censoring authorities.
29. At this stage, we wish to clarify that the reliance on the
above judgments is only to show that “prior restraint” per se has
not been rejected as constitutionally impermissible. At this
stage, we may point out that in the present IAs we are dealing
with the concept of “prior restraint” per se and not with cases of
misuse of powers of pre-censorship which were corrected by the
Courts [see Binod Rao v. Minocher Rustom Masani reported in
78 Bom LR 125 and C. Vaidya v. D’Penha decided by Gujarat
High Court in Sp. CA 141 of 1976 on 22.03.1976 (unreported)]
30. The question of prior restraint arose before this Court in
1988, in the case of Reliance Petrochemicals Ltd. v. Proprietors
of Indian Express Newspapers Bombay (P) Ltd. [AIR 1989 SC
190] in the context of publication in one of the national dailies 25
of certain articles which contained adverse comments on the
proposed issue of debentures by a public limited company. The
validity of the debenture was sub judice in this Court. Initially,
the court granted injunction against the press restraining
publication of articles on the legality of the debenture issue.
The test formulated was that any preventive injunction against
the press must be “based on reasonable grounds for keeping
the administration of justice unimpaired” and that, there must
be reasonable ground to believe that the danger apprehended is
real and imminent. The Court went by the doctrine
propounded by Holmes J of “clear and present danger”. This
Court treated the said doctrine as the basis of balance of
convenience test. Later on, the injunction was lifted after
subscription to debentures had closed.
31. In the case of Naresh Shridhar Mirajkar v. State of
Maharashtra [AIR 1967 SC 1], this Court dealt with the power
of a court to conduct court proceedings in camera under its
inherent powers and also to incidentally prohibit publication
of the court proceedings or evidence of the cases outside the 26
court by the media. It may be stated that “open Justice” is the
cornerstone of our judicial system. It instills faith in the
judicial and legal system. However, the right to open justice is
not absolute. It can be restricted by the court in its inherent
jurisdiction as done in Mirajkar’s case if the necessities of
administration of justice so demand [see Kehar Singh v. State
(Delhi Administration), AIR 1988 SC 1883]. Even in US, the
said principle of open justice yields to the said necessities of
administration of justice [see: Globe Newspaper Co. v. Superior
Court, 457 US 596]. The entire law has been reiterated once
again in the judgment of this Court in Mohd. Shahabuddin v.
State of Bihar [(2010) 4 SCC 653], affirming judgment of this
Court in Mirajkar’s case.
32. Thus, the principle of open justice is not absolute. There
can be exceptions in the interest of administration of justice. In
Mirajkar, the High Court ordered that the deposition of the
defence witness should not be reported in the newspapers.
This order of the High Court was challenged in this Court
under Article 32. This Court held that apart from Section 151 27
of the Code of Civil Procedure, the High Court had the inherent
power to restrain the press from reporting where administration
of justice so demanded. This Court held vide para 30 that
evidence of the witness need not receive excessive publicity as
fear of such publicity may prevent the witness from speaking
the truth. That, such orders prohibiting publication for a
temporary period during the course of trial are permissible
under the inherent powers of the court whenever the court is
satisfied that interest of justice so requires. As to whether such
a temporary prohibition of publication of court proceedings in
the media under the inherent powers of the court can be said to
offend Article 19(1)(a) rights [which includes freedom of the
press to make such publication], this Court held that an order
of a court passed to protect the interest of justice and the
administration of justice could not be treated as violative of
Article 19(1)(a) [see para 12]. The judgment of this Court in
Mirajkar is delivered by a Bench of 9-Judges and is binding on
this Court. 28
33. At this stage, it may be noted that the judgment of the
Privy Council in the case of Independent Publishing Co. Ltd. v.
AG of Trinidad and Tobago [2005 (1) AC 190] has been doubted
by the Court of Appeal in New Zealand in the case of Vincent v.
Solicitor General [(2012) NZCA 188 dated 11.5.2012]. In any
event, on the inherent powers of the Courts of Record we are
bound by the judgment of this Court in Mirajkar. Thus, Courts
of Record under Article 129/Article 215 have inherent powers
to prohibit publication of court proceedings or the evidence of
the witness. The judgments in Reliance Petrochemicals Ltd.
and Mirajkar were delivered in civil cases. However, in
Mirajkar, this Court held that all Courts which have inherent
powers, i.e., the Supreme Court, the High Courts and Civil
Courts can issue prior restraint orders or proceedings,
prohibitory orders in exceptional circumstances temporarily
prohibiting publications of Court proceedings to be made in the
media and that such powers do not violate Article 19(1)(a).
Further, it is important to note, that, one of the Heads on which
Article 19(1)(a) rights can be restricted is in relation to
“contempt of court” under Article 19(2). Article 19(2) preserves 29
common law of contempt as an “existing law”. In fact, the
Contempt of Courts Act, 1971 embodies the common law of
contempt. At this stage, it is suffice to state that the
Constitution framers were fully aware of the Institution of
Contempt under the common law which they have preserved as
“existing law” under Article 19(2) read with Article 129 and
Article 215 of Constitution. The reason being that contempt is
an offence sui generis. The Constitution framers were aware
that the law of contempt is only one of the ways in which
administration of justice is protected, preserved and furthered.
That, it is an important adjunct to the criminal process and
provides a sanction. Other civil courts have the power under
Section 151 of Code of Civil Procedure to pass orders
prohibiting publication of court proceedings. In Mirajkar, this
Court referred to the principles governing Courts of Record
under Article 215 [see para 60]. It was held that the High
Court is a Superior Court of Record and that under Article 215
it has all the powers of such a court including the power to
punish contempt of itself. At this stage, the word “including” in
Article 129/Article 215 is to be noted. It may be noted that 30
each of the Articles is in two parts. The first part declares that
the Supreme Court or the High Court “shall be a Court of
Record and shall have all the powers of such a court”. The
second part says “includes the powers to punish for contempt”.
These Articles save the pre-existing powers of the Courts as
courts of record and that the power includes the power to
punish for contempt [see Delhi Judicial Service Association v.
State of Gujarat [(1991) 4 SCC 406] and Supreme Court Bar
Association v. Union of India [(1998) 4 SCC 409]. As such a
declaration has been made in the Constitution that the said
powers cannot be taken away by any law made by the
Parliament except to the limited extent mentioned in Article
142(2) in the matter of investigation or punishment of any
contempt of itself. If one reads Article 19(2) which refers to law
in relation to Contempt of Court with the first part of Article
129 and Article 215, it becomes clear that the power is
conferred on the High Court and the Supreme Court to see that
“the administration of justice is not perverted, prejudiced,
obstructed or interfered with”. To see that the administration
of justice is not prejudiced or perverted clearly includes power 31
of the Supreme Court/High Court to prohibit temporarily,
statements being made in the media which would prejudice or
obstruct or interfere with the administration of justice in a
given case pending in the Supreme Court or the High Court or
even in the subordinate courts. In view of the judgment of this
Court in A.K. Gopalan v. Noordeen [(1969) 2 SCC 734], such
statements which could be prohibited temporarily would
include statements in the media which would prejudice the
right to a fair trial of a suspect or accused under Article 21
from the time when the criminal proceedings in a subordinate
court are imminent or where suspect is arrested. This Court
has held in Ram Autar Shukla v. Arvind Shukla [1995 Supp (2)
SCC 130] that the law of contempt is a way to prevent the due
process of law from getting perverted. That, the words “due
course of justice” in Section 2 (c) or Section 13 of the 1971 Act
are wide enough and are not limited to a particular judicial
proceedings. That, the meaning of the words “contempt of
court” in Article 129 and Article 215 is wider than the
definition of “criminal contempt” in Section 2 (c) of the 1971
Act. Here, we would like to add a caveat. The contempt of 32
court is a special jurisdiction to be exercised sparingly and with
caution whenever an act adversely affects the
administration of justice [see Nigel Lowe and Brenda Sufrin,
Law of Contempt (Third Edition)]. Trial by newspaper comes in
the category of acts which interferes with the course of justice
or due administration of justice [see Nigel Lowe and Brenda
Sufrin, page 5 of Fourth Edition]. According to Nigel Lowe and
Brenda Sufrin [page 275] and also in the context of second part
of Article 129 and Article 215 of the Constitution the object of
the contempt law is not only to punish, it includes the power of
the Courts to prevent such acts which interfere, impede or
pervert administration of justice. Presumption of innocence is
held to be a human right. [See : Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra (2005) 5 SCC 294]. If in a given
case the appropriate Court finds infringement of such
presumption by excessive prejudicial publicity by the
newspapers (in general), then under inherent powers, the
Courts of Record suo motu or on being approached or on report
being filed before it by subordinate court can under its inherent
powers under Article 129 or Article 215 pass orders of 33
postponement of publication for a limited period if the applicant
is able to demonstrate substantial risk of prejudice to the
pending trial and provided he is able to displace the
presumption of open Justice and to that extent the burden will
be on the applicant who seeks such postponement of offending
publication.
34. The above discussion shows that in most jurisdictions
there is power in the courts to postpone reporting of judicial
proceedings in the interest of administration of justice. Under
Article 19(2) of the Constitution, law in relation to contempt of
court, is a reasonable restriction. It also satisfies the test laid
down in the judgment of this Court in R. Rajagopal v. State of
T.N. [(1994) 6 SCC 632]. As stated, in most common law
jurisdictions, discretion is given to the courts to evolve
neutralizing devices under contempt jurisdiction such as
postponement of the trial, re-trials, change of venue and in
appropriate cases even to grant acquittals in cases of excessive
media prejudicial publicity. The very object behind empowering
the courts to devise such methods is to see that the 34
administration of justice is not perverted, prejudiced,
obstructed or interfered with. At the same time, there is a
presumption of Open Justice under the common law.
Therefore, courts have evolved mechanisms such as
postponement of publicity to balance presumption of
innocence, which is now recognized as a human right in
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra
(supra) vis-à-vis presumption of Open Justice. Such an order
of postponement has to be passed only when other alternative
measures such as change of venue or postponement of trial are
not available. In passing such orders of postponement, courts
have to keep in mind the principle of proportionality and the
test of necessity. The applicant who seeks order of
postponement of publicity must displace the presumption of
Open Justice and only in such cases the higher courts shall
pass the orders of postponement under Article 129/Article 215
of the Constitution. Such orders of postponement of publicity
shall be passed for a limited period and subject to the courts
evaluating in each case the necessity to pass such orders not
only in the context of administration of justice but also in the 35
context of the rights of the individuals to be protected from
prejudicial publicity or mis-information, in other words, where
the court is satisfied that Article 21 rights of a person are
offended. There is no general law for courts to postpone
publicity, either prior to adjudication or during adjudication as
it would depend on facts of each case. The necessity for any
such order would depend on extent of prejudice, the effect on
individuals involved in the case, the over-riding necessity to
curb the right to report judicial proceedings conferred on the
media under Article 19(1)(a) and the right of the media to
challenge the order of postponement.
(ii) Contempt of Courts Act, 1971
35. Section 2 defines “contempt”, “civil contempt” and
“criminal contempt”. In the context of contempt on account of
publications which are not fair and accurate publication of
court proceedings, the relevant provisions are contained in
Sections 4 and 7 whereas Section 13 is a general provision
which deals with defences. It will be noticed that Section 4
deals with “report of a judicial proceeding”. A person is not 36
to be treated as guilty of contempt if he has published such a
report which is fair and accurate. Section 4 is subject to the
provisions of Section 7 which, however, deals with publication
of “information” relating to “proceedings in chambers”. Here
the emphasis is on “information” whereas in Section 4,
emphasis is on “report of a judicial proceeding”. This
distinction between a “report of proceedings” and “information”
is necessary because Section 7 deals with proceedings in
camera where there is no access to the media. In this
connection, the provisions of Section 13 have to be borne in
mind. The inaccuracy of reporting of court proceedings will be
contempt only if it can be said on the facts of a particular case,
to amount to substantial interference with the administration of
justice. The reason behind Section 4 is to grant a privilege in
favour of the person who makes the publication provided it is
fair and accurate. This is based on the presumption of “open
justice” in courts. Open justice permits fair and accurate
reports of court proceedings to be published. The media has a
right to know what is happening in courts and to disseminate
the information to the public which enhances the public 37
confidence in the transparency of court proceedings. As stated
above, sometimes, fair and accurate reporting of the trial (say a
murder trial) would nonetheless give rise to substantial risk of
prejudice not in the pending trial but in the later or connected
trials. In such cases, there is no other practical means short of
postponement orders that is capable of avoiding such risk of
prejudice to the later or connected trials. Thus, postponement
order not only safeguards fairness of the later or connected
trials, it prevents possible contempt by the Media.
(iii) “Order of Postponement” of publication- its nature
and Object
36. As stated, in US such orders of postponement are treated
as restraints which offend the First Amendment and as stated
courts have evolved neutralizing techniques to balance free
speech and fair trial whereas in Canada they are justified on
the touchstone of Section 1 of the Charter of Rights. What is
the position of such Orders under Article 19(1)(a) and under
Article 21? 38
37. Before examining the provisions of Article 19(1)(a) and
Article 21, it may be reiterated, that, the right to freedom of
speech and expression, is absolute under the First Amendment
in the US Constitution unlike Canada and India where we have
the test of justification in the societal interest which saves the
law despite infringement of the rights under Article 19(1)(a). In
India, we have the test of “reasonable restriction” in Article
19(2). In the case of Secretary, Ministry of Information &
Broadcasting, Govt. of India v. Cricket Association of Bengal
[(1995) 2 SCC 161] it has been held that “it is true that Article
19(2) does not use the words “national interest”, “interest of
society” or “public interest” but the several grounds mentioned
in Article 19(2) for imposition of restrictions such as security of
the State, public order, law in relation to contempt of court,
defamation etc. are ultimately referable to societal interest
which is another name for public interest” [para 189]. It has
been further held that, “the said grounds in Article 19(2) are
conceived in the interest of ensuring and maintaining
conditions in which the said right can meaningfully be
exercised by the citizens of this country” [para 151]. 39
38. In the case of E.M.S. Namboodripad v. T. Narayanan
Nambiar [AIR 1970 SC 2015] it has been held that “the
existence of law containing its own guiding principles, reduces
the discretion of the Courts to the minimum. But where the
law [i.e. 1971 Act] is silent the Courts have discretion” [para
30]. This is more so when the said enactment is required to be
interpreted in the light of Article 21. We would like to quote
herein below para 6 of the above judgment which reads as
under :
“The law of contempt stems from the
right of the courts to punish by
imprisonment or fines persons guilty of
words or acts which either obstruct or
tend to obstruct the administration of
justice. This right is exercised in India by
all courts when contempt is committed in
facie curaie and by the superior courts
on their own behalf or on behalf of
courts subordinate to them even if
committed outside the courts.
Formerly, it was regarded as inherent in
the powers of a court of record and now
by the Constitution of India, it is a part of
the powers of the Supreme Court and the
High Courts.” 40
39. The question before us is whether such “postponement
orders” constitute restrictions under Article 19(2) as read
broadly by this Court in the case of Cricket Association of
Bengal (supra)?
40. As stated, right to freedom of expression under the First
Amendment in US is absolute which is not so under Indian
Constitution in view of such right getting restricted by the test
of reasonableness and in view of the Heads of Restrictions
under Article 19(2). Thus, the clash model is more suitable to
American Constitution rather than Indian or Canadian
jurisprudence, since First Amendment has no equivalent of
Article 19(2) or Section 1 of the Canadian Charter. This has led
the American Courts, in certain cases, to evolve techniques or
methods to be applied in cases where on account of excessive
prejudicial publicity, there is usurpation of court’s functions.
These are techniques such as retrials being ordered, change of
venue, ordering acquittals even at the Appellate stage, etc. In
our view, orders of postponement of publications/ publicity in 41
appropriate cases, as indicated above, keeping in mind the
timing (the stage at which it should be ordered), its duration
and the right of appeal to challenge such orders is just a
neutralizing device, when no other alternative such as change
of venue or postponement of trial is available, evolved by courts
as a preventive measure to protect the press from getting
prosecuted for contempt and also to prevent administration of
justice from getting perverted or prejudiced.
(iv) Width of the postponement orders
41. The question is - whether such “postponement orders”
constitute restriction under Article 19(1)(a) and whether such
restriction is saved under Article 19(2)?
42. At the outset, we must understand the nature of such
orders of postponement. Publicity postponement orders should
be seen, in the context of Article 19(1)(a) not being an absolute
right. The US clash model based on collision between freedom
of expression (including free press) and the right to a fair trial
will not apply to Indian Constitution. In certain cases, even
accused seeks publicity (not in the pejorative sense) as 42
openness and transparency is the basis of a fair trial in which
all the stakeholders who are a party to a litigation including the
judges are under scrutiny and at the same time people get to
know what is going on inside the court rooms. These aspects
come within the scope of Article 19(1) and Article 21. When
rights of equal weight clash, Courts have to evolve balancing
techniques or measures based on re-calibration under which
both the rights are given equal space in the Constitutional
Scheme and this is what the “postponement order” does subject
to the parameters, mentioned hereinafter. But, what happens
when courts are required to balance important public interests
placed side by side. For example, in cases where presumption
of open justice has to be balanced with presumption of
innocence, which as stated above, is now recognized as a
human right. These presumptions existed at the time when the
Constitution was framed [existing law under Article 19(2)] and
they continue till date not only as part of rule of law under
Article 14 but also as an Article 21 right. The constitutional
protection in Article 21 which protects the rights of the person
for a fair trial is, in law, a valid restriction operating on the 43
right to free speech under Article 19(1)(a), by virtue of force of it
being a constitutional provision. Given that the postponement
orders curtail the freedom of expression of third parties, such
orders have to be passed only in cases in which there is real
and substantial risk of prejudice to fairness of the trial or to the
proper administration of justice which in the words of Justice
Cardozo is “the end and purpose of all laws”. However, such
orders of postponement should be ordered for a limited
duration and without disturbing the content of the publication.
They should be passed only when necessary to prevent real and
substantial risk to the fairness of the trial (court proceedings), if
reasonable alternative methods or measures such as change of
venue or postponement of trial will not prevent the said risk
and when the salutary effects of such orders outweigh the
deleterious effects to the free expression of those affected by the
prior restraint. The order of postponement will only be
appropriate in cases where the balancing test otherwise favours
non-publication for a limited period. It is not possible for this
Court to enumerate categories of publications amounting to
contempt. It would require the courts in each case to see the 44
content and the context of the offending publication. There
cannot be any straightjacket formula enumerating such
categories. In our view, keeping the above parameters, if the
High Court/ Supreme Court (being Courts of Record) pass
postponement orders under their inherent jurisdictions, such
orders would fall within “reasonable restrictions” under Article
19(2) and which would be in conformity with societal interests,
as held in the case of Cricket Association of Bengal (supra). In
this connection, we must also keep in mind the language of
Article 19(1) and Article 19(2). Freedom of press has been read
into Article 19(1)(a). After the judgment of this Court in
Maneka Gandhi (supra, p. 248), it is now well-settled that test
of reasonableness applies not only to Article 19(1) but also to
Article 14 and Article 21. For example, right to access courts
under Articles 32, 226 or 136 seeking relief against
infringement of say Article 21 rights has not been specifically
mentioned in Article 14. Yet, this right has been deduced from
the words “equality before the law” in Article 14. Thus, the test
of reasonableness which applies in Article 14 context would
equally apply to Article 19(1) rights. Similarly, while judging 45
reasonableness of an enactment even Directive Principles have
been taken into consideration by this Court in several cases
[see recent judgment of this Court in Society for Un-aided
Private Schools of Rajasthan v. U.O.I. 2012 (4) SCALE 272.
Similarly, in the case of Dharam Dutt v. Union of India reported
in (2004) 1 SCC 712, it has been held that rights not included
in Article 19(1)(c) expressly, but which are deduced from the
express language of the Article are concomitant rights, the
restrictions thereof would not merely be those in Article 19(4)].
Thus, balancing of such rights or equal public interest by order
of postponement of publication or publicity in cases in
which there is real and substantial risk of prejudice to the
proper administration of justice or to the fairness of trial and
within the above enumerated parameters of necessity and
proportionality would satisfy the test of reasonableness in
Articles 14 and 19(2). One cannot say that what is reasonable
in the context of Article 14 or Article 21 is not reasonable when
it comes to Article 19(1)(a). Ultimately, such orders of
postponement are only to balance conflicting public interests or
rights in Part III of Constitution. They also satisfy the 46
requirements of justification under Article 14 and Article 21.
Further, we must also keep in mind the words of Article 19(2)
“in relation to contempt of court”. At the outset, it may be
stated that like other freedoms, clause 1(a) of Article 19 refers
to the common law right of freedom of expression and does not
apply to any right created by the statute (see page 275 of
Constitution of India by D.D. Basu, 14th
edition). The above
words “in relation to” in Article 19(2) are words of widest
amplitude. When the said words are read in relation to
contempt of court, it follows that the law of contempt is treated
as reasonable restriction as it seeks to prevent administration
of justice from getting perverted or prejudiced or interfered
with. Secondly, these words show that the expression
“contempt of court” in Article 19(2) indicates that the object
behind putting these words in Article 19(2) is to regulate and
control administration of justice. Thirdly, if one reads Article
19(2) with the second part of Article 129 or Article 215, it is
clear that the contempt action does not exhaust the powers of
the Court of Record. The reason being that contempt is an
offence sui generis. Common law defines what is the scope of 47
contempt or limits of contempt. Article 142(2) operates only in
a limited field. It permits a law to be made restricted to
investigations and punishment and does not touch the inherent
powers of the Court of Record. Fourthly, in case of criminal
contempt, the offending act must constitute interference with
administration of justice. Contempt jurisdiction of courts of
record forms part of their inherent jurisdiction under Article
129/ Article 215. Superior Courts of Record have inter alia
inherent superintendent jurisdiction to punish contempt
committed in connection with proceedings before inferior
courts. The test is that the publication (actual and not
planned publication) must create a real and substantial risk of
prejudice to the proper administration of justice or to the
fairness of trial. It is important to bear in mind that sometimes
even fair and accurate reporting of the trial (say murder trial)
could nonetheless give rise to the “real and substantial risk of
serious prejudice” to the connected trials. In such cases,
though rare, there is no other practical means short of
postponement orders that is capable of avoiding the real and
substantial risk of prejudice to the connected trials. Thus, 48
postponement orders safeguard fairness of the connected trials.
The principle underlying postponement orders is that it
prevents possible contempt. Of course, before passing
postponement orders, Courts should look at the content of the
offending publication (as alleged) and its effect. Such
postponement orders operate on actual publication. Such
orders direct postponement of the publication for a limited
period. Thus, if one reads Article 19(2), Article 129/ Article 215
and Article 142(2), it is clear that Courts of Record “have all the
powers including power to punish” which means that Courts of
Record have the power to postpone publicity in appropriate
cases as a preventive measure without disturbing its content.
Such measures protect the Media from getting prosecuted or
punished for committing contempt and at the same time such
neutralizing devices or techniques evolved by the Courts
effectuate a balance between conflicting public interests. It is
well settled that precedents of this Court under Article 141 and
the Comparative Constitutional law helps courts not only to
understand the provisions of the Indian Constitution it also
helps the Constitutional Courts to evolve principles which as 49
stated by Ronald Dworkin are propositions describing rights [in
terms of its content and contours] (See “Taking Rights
Seriously” by Ronald Dworkin, 5th
Reprint 2010). The
postponement orders is, as stated above, a neutralizing device
evolved by the courts to balance interests of equal weightage,
viz., freedom of expression vis-à-vis freedom of trial, in the
context of the law of contempt. One aspect needs to be
highlighted. The shadow of the law of contempt hangs over our
jurisprudence. The media, in several cases in India, is the only
representative of the public to bring to the notice of the court
issues of public importance including governance deficit,
corruption, drawbacks in the system. Keeping in mind the
important role of the media, Courts have evolved several
neutralizing techniques including postponement orders subject
to the twin tests of necessity and proportionality to be applied
in cases where there is real and substantial risk of prejudice to
the proper administration of justice or to the fairness of trial.
Such orders would also put the Media to notice about possible
contempt. However, it would be open to Media to challenge
such orders in appropriate proceedings. Contempt is an 50
offence sui generis. Purpose of Contempt Law is not only to
punish. Its object is to preserve the sanctity of administration
of justice and the integrity of the pending proceeding. Thus,
the postponement order is not a punitive measure, but a
preventive measure as explained hereinabove. Therefore, in
our view, such orders of postponement, in the absence of any
other alternative measures such as change of venue or
postponement of trial, satisfy the requirement of justification
under Article 19(2) and they also help the Courts to balance
conflicting societal interests of right to know vis-à-vis another
societal interest in fair administration of justice. One more
aspect needs to be mentioned. Excessive prejudicial publicity
leading to usurpation of functions of the Court not only
interferes with administration of justice which is sought to be
protected under Article 19(2), it also prejudices or interferes
with a particular legal proceedings. In such case, Courts are
duty bound under inherent jurisdiction, subject to above
parameters, to protect the presumption of innocence which is
now recognised by this Court as a human right under Article
21, subject to the applicant proving displacement of such a 51
presumption in appropriate proceedings. Lastly,
postponement orders must be integrally connected to the
outcome of the proceedings including guilt or innocence of the
accused, which would depend on the facts of each case. For
aforestated reasons, we hold that subject to above parameters,
postponement orders fall under Article 19(2) and they satisfy
the test of reasonableness.
(v) Right to approach the High Court/ Supreme Court
43. In the light of the law enunciated hereinabove, anyone, be
he an accused or an aggrieved person, who genuinely
apprehends on the basis of the content of the publication and
its effect, an infringement of his/ her rights under Article 21 to
a fair trial and all that it comprehends, would be entitled to
approach an appropriate writ court and seek an order of
postponement of the offending publication/ broadcast or
postponement of reporting of certain phases of the trial
(including identity of the victim or the witness or the
complainant), and that the court may grant such preventive
relief, on a balancing of the right to a fair trial and Article 52
19(1)(a) rights, bearing in mind the abovementioned principles
of necessity and proportionality and keeping in mind that such
orders of postponement should be for short duration and
should be applied only in cases of real and substantial risk of
prejudice to the proper administration of justice or to the
fairness of trial. Such neutralizing device (balancing test)
would not be an unreasonable restriction and on the contrary
would fall within the proper constitutional framework.
Maintainability
44. As stated above, in the present case, we heard various
stake holders as an important question of public importance
arose for determination. Broadly, on maintainability the
following contentions were raised: (i) the proceedings were not
maintainable as there is no lis; (ii) there is a difference between
law-making and framing of guidelines. That, law can be made
only by Parliament. That, guidelines to be framed by the Court,
therefore, should be self-regulatory or at the most advisory.
(iii) under Article 142, this Court cannot invest courts or any 53
other authority with jurisdiction, adjudicatory or otherwise,
which they do not possess.
45. Article 141 uses the phrase “law declared by the Supreme
Court.” It means law made while interpreting the statutes or
the Constitution. Such judicial law-making is part of the
judicial process. Further under Article 141, law-making
through interpretation and expansion of the meanings of opentextured expressions such as “law in relation to contempt of
court” in Article 19(2), “equal protection of law”, “freedom of
speech and expression” and “administration of justice” is a
legitimate judicial function. According to Ronald Dworkin,
“Arguments of principle are arguments intended to establish an
individual right. Principles are propositions that describe
rights.” [See “Taking Rights Seriously” by Ronald Dworkin, 5th
Reprint 2010, p. 90]. In this case, this Court is only declaring
under Article 141, the constitutional limitations on free speech
under Article 19(1)(a), in the context of Article 21. The exercise
undertaken by this Court is an exercise of exposition of
constitutional limitations under Article 141 read with Article 54
129/Article 215 in the light of the contentions and large
number of authorities referred to by the counsel on Article
19(1)(a), Article 19(2), Article 21, Article 129 and Article 215 as
also the “law of contempt” insofar as interference with
administration of justice under the common law as well as
under Section 2(c) of 1971 Act is concerned. What constitutes
an offending publication would depend on the decision of the
court on case to case basis. Hence, guidelines on reporting
cannot be framed across the Board. The shadow of “law of
contempt” hangs over our jurisprudence. This Court is duty
bound to clear that shadow under Article 141. The phrase “in
relation to contempt of court” under Article 19(2) does not in
the least describe the true nature of the offence which consists
in interfering with administration of justice; in impending and
perverting the course of justice. That is all which is done by
this judgment. We have exhaustively referred to the contents of
the IAs filed by Sahara and SEBI. As stated above, the right to
negotiate and settle in confidence is a right of a citizen and
has been equated to a right of the accused to defend
himself in a criminal trial. In this case, Sahara has 55
complained to this Court on the basis of breach of
confidentiality by the Media. In the circumstances, it cannot be
contended that there was no lis. Sahara, therefore, contended
that this Court should frame guidelines or give directions which
are advisory or self-regulatory whereas SEBI contended that the
guidelines/directions should be given by this Court which do
not have to be coercive. In the circumstances, constitutional
adjudication on the above points was required and it cannot be
said that there was no lis between the parties. We reiterate
that the exposition of constitutional limitations has been done
under Article 141 read with Article 129/Article 215. When the
content of rights is considered by this Court, the Court has also
to consider the enforcement of the rights as well as the
remedies available for such enforcement. In the circumstances,
we have expounded the constitutional limitations on free
speech under Article 19(1)(a) in the context of Article 21 and
under Article 141 read with Article 129/Article 215 which
preserves the inherent jurisdiction of the Courts of Record in
relation to contempt law. We do not wish to enumerate
categories of publication amounting to contempt as the Court(s) 56
has to examine the content and the context on case to case
basis.
Conclusion
46. Accordingly, IA Nos. 4-5 and 10 are disposed of.
47. For the reasons given above, we do not wish to express
any opinion on the merit of the other IAs. Consequently, they
are dismissed.
…..……………………….......CJI
(S. H. Kapadia)
.........…………………………..J.
(D.K. Jain)
.........…………………………..J.
(Surinder Singh Nijjar)
.........…………………………..J.
(Ranjana Prakash Desai)
.........…………………………..J.
(Jagdish Singh Khehar)
New Delhi;
September 11, 2012
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