REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. Nos. 4-5, 10, 11, 12-13, 16-17, 18, 19, 20-21, 22-23, 24-25, 26-27,
30-31, 32-33, 34, 35-36, 37-38, 39-40, 41-42, 43-44, 45-46, 47-48, 49-
50, 55-56, 57, 58, 59, 61 and 62
in
C.A. No. 9813 of 2011 and C.A. No. 9833 of 2011
Sahara India Real Estate Corp. Ltd. & Ors. …Appellants
Vs.
Securities & Exchange Board of India & anr. …Respondents
with
I.A. Nos. 14 and 17 in C.A. No. 733 of 2012
J U D G M E N T
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.
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.
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 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.
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 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 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.
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 sub-
judice 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 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
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-a-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
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 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 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. 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 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 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 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 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, 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 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 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 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 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.
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 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 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 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.
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 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 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 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 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 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 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-a-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 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
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 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?
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].
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.”
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 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 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
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 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 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 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 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, 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 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-a-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 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-a-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 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 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 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 open-textured 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 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 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) 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
