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-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
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-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 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-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 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 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.
