Judgement
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 Securities & Exchange Board of India & anr.
Respondents with I.A. Nos. 14 and 17 in C.A. No. 733 of 2012
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 “Saharaâ€) 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.â€
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 justiceâ€. 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 lawâ€. 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;â€
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 devicesâ€). 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 processâ€.
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) [1979] ECHR 1; 2 EHRR 245], in the light of
which the English Contempt of Courts Act, 1981 (for short “the 1981 Actâ€)
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
Contemptâ€, 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] INSC
29; (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 communicationâ€, 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 contemptâ€
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 restraintâ€
26. In Brij Bhushan v. State of Delhi [1950] INSC
15; [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 [1957] INSC
63; [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 [1970] INSC
201; [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. [1988] INSC
297; [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 unimpairedâ€
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 dangerâ€. 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 [1966] INSC
64; [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)[1988] INSC
203; , 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, [1982] USSC
136; 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 [2004] EWCA Civ
844; [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 lawâ€. 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 courtâ€.
The second part says “includes the powers to punish for contemptâ€. 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
withâ€. 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.
35. Section 2 defines “contemptâ€, “civil contempt†and “criminal
contemptâ€. 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 proceedingâ€. 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 chambersâ€. Here the emphasis
is on “information†whereas in Section 4, emphasis is on “report of a
judicial proceedingâ€. This distinction between a “report of proceedingsâ€
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 interestâ€,
“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.â€
39. The question before us is whether such “postponement ordersâ€
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
lawsâ€. 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 courtâ€. 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 lawâ€, “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;
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