A

B

RELIANCE PETROCHEMICALS LTD.

v.

PROPRIETORS OF INDIAN EXPRESS NEWSPAPERS,

BOMBAY PVT. LTD. & ORS.

SEPTEMBER 23, 1988

[SABYASACHI MUK.HARJI AND S. RANGANATHAN JJ.)

Co_nstitution of India, 1950: Article 19(1)( a)-Public Limited

Compan}i-Issue of debentures--Ril(ht of newspaper to publish and

prim article on the debenture issue-Court litigatililf· m regard to

C debenture issue-Risk caused by publication of article and obligation of

Press to keep people informed-Appraisal of by Court before grant/

continuance

of injunction to publication of article.

Contempt of Court Act, 1971: Public Limited Company-Issue

of debentures-Litigation in respect

of-Press publishing article in

D respect of debenture issue-Whether prejudging of issue and inter­

ference with administration of justice-Whether Court entitled to injunct

press from publication of article-Newspapers right of freedom of

speech. -

The petitioner company had offered for public subscription

E secured convertible debentures after obtaining the consent of the Con­

troller of Capital Issues. Before the p11blic issue was due to open, cer­

tain writ petitions etc. were filed in ~me fligh Courts challenging the

grant of consent or sanction for the public issue. The petitioner there­

upon filed an application under Article 139A of the Constitution seeking

transfer of those cases to this Court and prayed

inter alia for vacation of

F any injunction

or stay granted by the High Courts.

On August 19, 1988

this Court, while issuing notice on the transfer applications, directed

that the public issue be proceeded with "without let or hindrance", and

vacated

\all orders of injunction in respect of the

said issue.

On August 25, 1988 an article appeared in the Indian Express to

G tlie effect that the Controller of Capital Issues had not acted properly

and legally in granting the sanction

to the issue, and that the issue was

not a prudent or a reliable venture. The petitioner moved the

Court for

initiating contempt proceedings against the respondents for alleged

interference with the due administration of justice by publication of an

article commenting on a matter which

was sub-judice. The petitioner fl also sought injunction against the th;eate~eo or expected: publication

212

""

h::}-

RELIANCE PETROCHEMICALS v. EXPRESS NEWSPAPER 213

of similar comments. The Court, while declining to take cognizance of

A

contempt in the absence of the consent of the Attorney General, issued

an order of injunction restraining publication of articles, etc. question-

ing the legality

or validity of any of the consents, approvals or permis-

sions for the public issue.

The matter came up before the Court again

to consider the ques- B

tion whether there was any necessity for the continuance of the order of

injunction.

It was contended that pre-stoppage of newspaper article or

publication on maiters of public importance was uncalled

for and con-

trary to freedom of press enshrined in the Constitution and the laws;

that public had a right to know about this issue of debentures which was

a matter of public concern, and the newspapers had an obligation to

c

inform; and that there was no jury trial involved her11 and no likelihood

of the trial being prejudiced because triatwas by professionally traiDed

Judges. On the other hand, it was contended that there was an Inherent

.>

jurisdiction to restrain by injunction any publication that Interfered

with a fair trial of a pending case or with the administration of justice in

general,

that publication was permissible provided

It did not amount to D

prejudgment or prejudice of a matter in Court; that liberty or freedom

of Press must subserve the due administration of justice, and that there

was need

to continue the Injunction because contribution to the

debentures could

be withdrawn as the final

allotment had not yet been

made.

E .While disposing of the application for the continuance of· the

Injunction, it was,

HELD:

Per Sabyasachi Mukharji, J.

(1) The Constitution of India Is not !Jhsolute with respect to free-F

dom of speech and expression, as enshrined by the First Amendment to

the American Constitut1on. l223F J

(2) A judiciary Is not Independent unless courts of justice are

enabled to administer law by absence of pressure frQm without,

whether exerted through the blandishments of reward 01· the menace of G

disfavour. A free Press Is vital to a democratic society for Its freedom

_gives It power. [227F)

(3) The law of contempt must be judged In a particular 'Situation.

The process of due course of administration of justice must remain

unlmpah'ed. Public Interest demands that there should be no Inter-H

214 SUPREME COURT REPORTS l1988] Supp. 3 S.C.R.

A ference with judicial process and the effect of the judicial decision

should not

be pre-empted or circumvented by public agitation or

publications. At the

same time, right to know is a basic right which

citizens

of a free country aspire in the broader horizon of the right to

live in this age in our

land under Article 21 of our Constitution. A

B balance has to

be struck between the requirements of

free Press and fair

. trial. [23SB-C; A]

c

D

E

F

(4) The Court must examine the gravity of the evil. I~ other

words, a bafance of convenience in the conventional phrase of lglo­

Saxon Common Law Jurisprudence would, perhaps, be the proper test

to follow.

[228B

I -

( S) The Court must see whether there was a present and

imminent danger for the issuance/continuance of injunction.

It is

dif­

ficult to lay down a fixed standard to judge as to bow clear, remote or

.imminent the danger is. [234D]

(6) The orders passed on 19th A~gust, 1988 as reiterated on 25th

August, 1988 stated that there must be no legal impediment in the issue

of the debentures or in the progress of the debentures, taking into

account the overall

balance of convenience and having due regard to th•

sums of money involved and the progress already made. [234D]

(7) The continuance of this injunction would amount to inter­

ference with the freedom of Press in the form of preventive injunction

and it must therefore be based on reasonable grounds for the sole

purpose of keeping the administration of justice unimpaired. _[l34E I

(8) There must be reasonable ground to believe that the danger

apprehended

is

real and.imminent. The subscription to debentures hav~

ing been oversubscribed, there is no such imminent danger of the sub­

scription being withdrawn before the allotment so as to make the issue

vulnerable by any publication of article. [i35D]

(9) As the issue is not going to affect the general public or public

G life,

nor any injury is involved, it would be proper and legal, on an appraisal of the batance of convenience between toe risk wblch will be

cansed by the publication

of the

article and the damage to the funda­

mental right of freedom of knowledge of the people concerned and the

obligation of Press to keep people informed, that the injunction should

H

not continue

any further. [23SG-HT

RELIANCE PETROCHEMICALS v. EXPRESS NEWSPAPER 215

(10) Publication, if any, however, would be subject to the deci­

sion of the Court on the question of the contempt of court, namely,

pr;ejudging the i~s_ue_a11d_thereby interfering with the due administra­

tion of justice.1[236A]

( ll) Preventive remedy in the form of an injunction is no longer

necessary. Whether punitive remedy will be available

or not, will

depend upon the facts and the decision

of the matter after Rscertaining

the consent

or refusal of the Attorney-General. [236B]

Per Ranganathan, J.

(1) It would not be correct to say that when the Court passed the

order dated 19.9.1988, it had formed any prima facie opinion on the

question whether the debenture issue had been validly approved

or

consented to by the various authorities. What predominantly influenced

the

Court was that, even assuming, primafacie, as was contended in the

writ petitions, that there could

be some doubt regarding the validity or

otherwise of the consent orders etc., the restraint by any court or

tribunal on the issue of

·debentures at a late stage might p_rove

catastrophic, and cause irreparable loss or damage to the petitioner.

The balance

of convenience required that there should be no order of

any court

or tribunal staying the debenture issue. [238C-E]

•

(2) The article published by the respondents, though not viola-

tive

of the terms of the injnnction granted by this Court, could have

the effect

of circumventing the order of this Court and rendering it

ineffective.

It had, prima facie, a tendency to affect the efficacy of,

and defeat the object with which this Court had passed, the interim

order dated 19.8.1988. That is the reason why the second order dated

25.8.1988 was passed. The said order was rightly passed and the

contention that no such injunction ought to have been granted

at all

is not acceptable

.. [239A-Bl ·

(3) The position has radically changed. The danger apprehended

by the petitioner is not so real

or substantial as to warrant the

con­

tinuance of the injunction ordern. [239C]

Attorney-General v. British Broadcasting Corporation., [1981]

A.C. 303; 354; Harry Bridges v. State of.California, 86 L.Ed. 252 at

page 260;Express Newspapers (Pvt.) Ltd. & A~r. v. Union of India'&·

Ors., [1959] SCR 12; Ramesh Thapar v. State of Madras, [1950] SCR

594 at 597; Brij Bhushan & Anr. v. State of Delhi, [1950] SCR 605;

A

B

c

D

E

F

G

H

216 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A State of Travancore-Cochin & Ors. v. Bombay Co. Ltd. [1952] SCR

1112; State of Bombay v. R.M.D. Chamarbaugwala, l1957] SCR 874 at

918; P.C. Sen's case, [1969] 2 SCR 649; C.K. Daphtary & Ors. v. O.P.

Gupta,

[1971]

Suppl SCR 76; Indian Express Newspapers (Bombay)

Pvt. Ltd.

& Ors. v. Union of India & Ors., [1985] 1 SCC 641; Abrams

v.

United States, [1963] L.Ed. 1173 at 1180; P.N. Duda v. P. Shiv

B Shanker & Ors., AIR 1988 SC 1208; John D. Pennekamp v. State of

Florida, [1945] 90 L.Ed. 331; Nebraska Press Association v. Hugh

Stuart,

49 L.Edn. 683; Attorney General v. British Broadcasting

Corpn.,

[1979] 3 AER 45; Attorney General v.

B.B.C., [1981] AC 303;

Attorney General v. Times Newspapers Ltd., [1974] AC 273; Ex Parle

Bread Manufacturers Ltd., [1937] 37 SR (NSW) 242 and Charlotte

C . Anita Whitney v. People of the State of California, 71 L.Edn. 1095 at

1106.

CIVIL/CRIMINAL ORIGINAL JURISDICTION: C.M.P.

Nos. 21903-06of1988.

D IN

Transfer Petitions Nos.

192 & 193 of 1988. (Under Article 139(A)(i) of the Constitution of India).

I

E F.S. Nariman, V.C. Kotwal, M.H. Baig, Harish N. Salve, Mrs.

P.S. Shroff, S.A. Shroff, A.K. Desai and S.S. Shroff for the Peti­

. tioner.

G. Ramaswamy, Additional Solicitor General, Ram Jethmalani,

C. V. Subba Rao, Ms. A. Subhashini, Mrs. Sushma Suri; P. Parmesh-

F waran, Mukul Rohtagi,

Ms. Bina Gupta, Ms. Madhu Khatri,

Parveen

Anand, Anip Sachthey, B.L. Bagaria, P.K. Jain, P.S. Goyal, Arun

Jatley, R.F. Nariman, Rajan Karanjawala and Mrs. Manik Karanja­

wala for the Respondents.

G

The following Judgments ot the Court were delivered:

SABYASACHI MUKHARJI, J, At this stage, we are concerned

with the question whether there is need for the continuance of the

Order of injunction passed by this Court on 25th August, 1988. In

order to appreciate the question.it is necessary to state a few facts. A

petition

was. moved before this Court

on 19th August, 1988 under the

H Contempt

of Courts Act, 1971 for initiation

of.i;ontempt proceedings

RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER (MUKHARJI, J.]217

against the proprietors of Indian Express Newspapers Bombay l'vt. A

Ltd., Shri Arun Shourie, Indian Bxpress Newspapers Bombay Pvt.

Ltd., Shri Hari Jaisingh, Resident Editor, Indian Express Newspapers

Bombay Pvt. Ltd., Shri A.C. Saxena, News Editor, Indian Express

Newspaper Pvt.

Ltd., Delhi, Shri H.K. Dua, Chief, New Delhi

Bureau, Indian Express Newspaper Pvt. Ltd., New Delhi, and Shri V.

Ranganathan, Indian Express Bombay Pvt. Ltd. The petition

was

moved on behalf of Reliance Petrochemicals Ltd. (hereinafter called

"Reliance Petrochemicals"). It was stated therein that this Court

should take cognisance of the contempt alleged to have been commit-

B

ted by the respondents and it was further prayed that pending the

consideration of the question of criminal contempt, this Court should

pass an

order restraining the Express Group of Newspapers and their c

related publications from publishing any materials or articles in

rela­

tion to the subject matter of the proceedings in the Transfer Petitions

Nos.

192 and 193 of 1988 which was sub-judice issue in Writ Petition

No.

1276 of 1988 in Karnataka High Court, Writ Petition No. 1791 of

1988 in Delhi High Court, Writ Petition No. of 1988 Radhey

Shyam

Goel v. Union of India, Suit No. 1172 of 1988 K.S. Brahmabhatt v.

Reliance Petrqchemica/s Ltd and MRTP proceedings instituted in J.P.

Sharma v. Reliance Petrochemicals Ltd. as the same was alleged to be

calculated to affect the Reliance debenture issue which

was to open on

22nd August,

1988 till the decision of the

trafisfer petitions pending

herein.

D

The subject-matter of dispute related to the Public Issue by the

petitioner company of 12.5% Secured Convertible Debentures of Rs.200 each for cash at par aggregating to Rs.593.40 crores (inclusive

of retention of 15% excess subscription of Rs.77.40 crores). It was

stated that Reliance Petrochemicals was to set up what was claimed to

E

be the largest petrochemical complex in the private sector for the F

manufacture of critically scarce raw-material known as Mono Ethylene

G!ycole

(MEG) and plastic raw-materials like High Density

Polyeth­

lene (HOPE) and Poly Vinyl Chloride (PVC) which are used for mak-

ing various articles from films IQ pipes, auto parts to cable coating,

containers to furnishings.

It was asserted that the issue was of global

and national importance.

It was claimed that Reliance's public issue G

was the largest public issue in India till date and the second largest

issue in the world. The public issue was due to open

ori Monday, the

22nd August,

1988 and was scheduled to be closed on 31st August,

1988.

It was the claim of the petitioner that the debentures were being H

A

B

c

D

E

F

G

218 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

issued after obtaining the consent of the Controller of Capi•al Issues

and on the basis

of schedule indicated therein, and after complying

with all the requirements of the Companies Act and otherwise. Certain

writ petitions and a suit had been filed in some High Courts, namely,

Karnataka, Bombay, Rajasthan, Delhi and later on

in Allahabad chal-

lenging the grant of consent or sanction for the issue of debentures.

Such applications in the different High Courts and the Courts were

filed at the last moment when enormous amount of money had already

been spent, it was claimed.

It was stated that enormous monies on

publicity had been spent. In some of these proceedings orders of

injunction had been obtained.

It was contended that issue was prima

facie

legal and valid and the consent and permission of the necessary

authorities specially the Controller of Capital Issues had been

obtained properly.

In such circumstances an application for transfer of

these proceedings under Article

139A of the Constitution of India read

with

Part IV-A of the Supreme Court Rules 1966 was moved by

Reliance Petrochemicals Ltd. against the Union of India, Controller of

Capital Issues and the petitioner

in the suit in Bangalore and writ

petition in Delhi.

It was stated that the Certificate of Incorporation

was granted to the petitioner on

or about 11th

January., 1988 and the

Certificate of Commencement of Business

was granted on 21st

January,

1988.

On 4th May, 1988 an application was made to the

Controller of Capital Issues

for raising Equity

Share Capital/Cumula-

tive Convertible Preference Shares/Convertible Debentures for

financing the proposed projects for manufacture of PVC, HOPE and

MEG. On 4.th July, 1988, as mentioned before., the consent of the

Controller of Capital Issues was granted to the petitioner for capital

issue

of 5,

75,00,000 Equity Shares of Rs. JO each inclusive ofretainable

excess subscription

of Rs. 7 .5

· crores and for 2,96,70,000 12.5%

Secured Fully Convertible Debentures of Rs.200 each for cash at par

to public.

It is not necessary for the present purpose to set out the·

details of the same. It is stated that the consent of the Controller of

Capital Issues was given on 4th July, 1988 on certain terms which are

again the relevant to be set out for the present purpose. The consent

order of the Controller was modified and further condition of obtain-

ing the Reserve Bank

of India's permission for

•llotment of deben­

tures of Non-Residents

as required under FERA 1973 and for allot­

ment

of debentures to employees on certain terms was imposed on

19th July,

1988.

On 27th July, 1988 a prospectus was filed with the

Registrar

of Companies, Gujarat, Ahmedabad, for the public issue of

12.5%

Secured Fully Convertible Debentures of Rs.200 each for cash

H

at par, as indicated before.

RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER {MUKHARJI, J .J219

A petition was filed in the Karnataka High Court on 17th

August,

1988 by one

Shri Balkrishna Pillai. In the Delhi High Court

another writ petition was filed on 18th August, 1988. On 18th August,

1988 a transfer petition was filed in this Court. It was claimed that any

in junction

order after the satisfaction of the Central Government,

through the Controller of Capital Issues would make the public

issue

stillborn and sums in excess of Rs.4.5 crores had already been incurred

for the public issue as pre-Issue expenses and a sum of Rs.20 crores

was allocated as Issue Expenses for what

was popularly known as

'Mega

Issue" as mentioned hereinbefore. It was claimed that grave

prejudice would be caused to the petitioner company

as well as the

public at large who were investing

in the issue, if the issue is not

allowed to go through.

It was claimed that there was no ground for the

High Court to grant injunction or stay order

in the facts and cir­

cumstances of this Issue and this Court should vacate those orders and

transfer the applications pending

in different Courts to this Court.

A

B

c

On that application being moved on 19th August, 1988, this

Court issued notices to all concerned making the same returnable on D

9th September,

1988 in terms of prayer (a) and paragraphs 2 and 4 of

the affidavit of Mr. Balkrishna Bhandari affirmed on 18th/ 19th

August,

1988. This Court further directed as follows: "The issue of 2,96,70,000, 12.5% secured convertible

debentures of Rs.200 each

by the petitioner company E

under the prospectus dated July

27, 1988 filed with the

Registrar of Companies Gujarat and with the stock

exchanges at Ahmedabad and Bombay to be proceeded

with, without let or hindrance, notwithstanding any pro­

ceedings instituted or that may be instituted

in or before

any Court or tribunal or other authority. F

Any order direction or injunction of any Court,

tribunal or authority in any proceeding already passed or

which may be passed

will by operation of this order be and

remain suspended till further orders of this

Court."

In substance the order was that the issue be proceeded with

"without let or hindrance", notwithstanding any proceedings

instituted

or that may be instituted in or-before any Court or tribunal

or other authority. This Court vacated all orders of injunction

in

respect of the said issue. It was asserted on behalf of the petitioner that

G

this Court must have heen prima facie satisfied that there was no legal H

A

B

220 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

infirmity which should stand in the way of the public issue of the said

debentures going through and further,

in any event, must have been

satisfied that there should not

be any let or hindrance to the said public

issue. The petitioner had drawn our attention to

an article published

on 25th August,

1988, under the heading

"Infractions of Law has

Unique Features RPL Debentures". It is not necessary for the present

purpose to set out the said article.

It was claimed in the said article that

the Controller of Capital Issues had not acted properly and legally

in

granting the sanction to the issue for various reasons stated therein. It

was further sta_ted that the issue was not a prudent or a reliable venture.

It was contended that by this article the respondents have commented

on a matter which

is sub-judice and was intended to undermine the

effect of the interim order passed

by this Court and the ultimate

decision of the Court and they threatened to publish such articles

unless restrained

by this Court. It was contended that trial by

news­

papers on issues which are sub-judice is one of the grossest modes of

interference with the due administration of justice and any threat of

that interference should be prevented

by both punitive action of

D contempt and preventive order of injunction of wrong anticipated to

be committed

by the delinquent. The publication threatened or

expected to be published would cause very grave interference with the

due administration of justice, and should, therefore, be prohibited.

On that application being moved on 25th August, 1988, this

E Court directed that cognizance of contempt would only be considered

after the necessary sanction from the Attorney General

is obtained.

This Court on the facts of the alleged contempt declined to take

cogni­

zance on that application without the views of the Attorney General.

This Court, however, issued an order of

in junction restraining all the

six respondents mentioned therein from publishing any article, com-

F men!, report

or editorial in any of the issues of the Indian Express or

their related publications questioning the legality or validity of

any of

the consents, approvals or permissions to which the petitioners in the

Transfer Petitions Nos.

192-193

cif 1988 have made reference in the

Prospectus dated 27th July,

1988

forthe issue of 12.5% Secured Full

Convertible Debentures. Notice of that application

was made retum-0 able on 9th September, 1988 and the same was to come up with other

related matters. The respondents were farther given liberty to move

this Court for variation· or vacation of the order upon notice to the

petitioner. Upon that the six respondents had filed an affidavit in

opposition on 26th August,

1988 the very next day asking for variation

or vacation of the interim order passed by this Court on

25th August,

Ii 19.88. Attention ofthe Court was drawn to an article proposed to be

RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER [MUKHARJI, J.]221

published in the Indian Express which was Annexure 'B' to the said

A

affidavit. Submissions were made on the validity or the propriety of

the interim order. U pan hearing learned counsel for both the parties,

this Court observed that it

was sufficient to say that the article pro-

r

posed to be published and forming part of Annexure 'B' did not violate

the order

of injunction passed by this Court on 25th August, 1988. In

other words, this Court was of the view that the article in question B

which was intended to be published and shown to this Court on 26th

August,

1988 did not question the legality or the validity of the order

which was in issue in the proceedings

in this Court. In those cir-

cumstances no question of variation or vacation of the said interim

order arose. The said article proposed at that time has since been

published before 31st August,

1988. It was stated in the affidavit as

c

well as in the submissions made from the Bar that the shares have been

over-subscribed but the day of allotment, of course, has not yet

expired and before the allotment the subscribers, it

was submitted,

could withdraw their subscriptions. In those circumstances, this Court

was invited to consider the question whether there

was any necessity

for the continuance of the order of injunction granted

by this Court on D

25th August, 1988.

On behalf of the petitioner it was submitted that

the danger still persists and the injunction should continue. On the

other hand on behalf of the respondents it was submitted that the

injunction should be vacated.

Elaborate arguments were advanced

by counsel for both sides. It E

was contended that there

was no contempt of Courts involved herein

and furthermore, it was contended that pre-stoppage of newspaper

article

or publication on matters of public importance was uncalled for

and contrary to freedom of Press enshrined

in our Constitution and in

'";;· our laws. The publication was on a public matter so public debate

cannot and should not be stopped. On the other hand, it was submitted F

that due administration of justice must be unimpaired. We have to

balance in the words of Lord Scarman

in the House of Lords in

Attorney-General v.

British Broadcasting Corporation, [1981] A.C.

303 at page 354 between the two interests of great public importance,

freedom of speech and administration of justice. A balance, in our

opinion, has to

be struck between the requirements of iree Press and G

fair trail in the words of the Justice Black in Harry Bridges v.

State of

California, 86 L. Ed. 252 at page 260.

Therefore, in considering the question posed before us whether

there should be continuance of the order of injunction

we have to bear

in mind and

apply_ the basic principles

of.law to the facts and cir-H

-i

,--·1

-;•

A

B

c

D

E

F

222 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

cumstances of this case. The point at issue has been canvassed very

ably and vehemently on behalf of the petitioner

by

Sh. M.H. Baig,

assisted as

he was by

Sh. S.S. Shroff and Smt. P .S. Shroff. They submit

that the danger still persists and the publication of any article which

would jeopardise the allotment of rhose debentures, should

be pre­

vented.

On the other hand, Sh. Ram Jethmalani and Sh. Anil B.

Diwan, senior counsel assisted as they were

by

Sh. R.F. Nariman and

Sh. C.R. Karanjawalla, urged before us that the injunction should no

longer continue. In view of the delicacy of the problem

in the question

posed before us, it

is well to remember the legal background. We may

refer to our constitutional provisions

in Article 19( 1)

& (2) which

provides as follows:

19. Protection of certain rights regarding freedom of

speech,

etc.-( 1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations. or unions;

(d) to move freely throughout the territory of!ndia;

( e) to reside and settle

in any part of the territory of India;

(f) (Omitted by ibid.

Sub-cl. (f) read to "to acquire, hold

and dispose of property; and")

(g) to practise any profession, or to carry on any occupa­

tion, trade or business.

(2) Nothing

in sub-clause (a) of clause (1) shall affect the

operation of any existing law, or prevent the

State from

making any law,

in so far as such law imposes reasonable

restrictions on the exercise of the right conferred by the

G

said sub-clause in the interests of (the sovereignty and

integrity of India,) the security of the State, friendly rela­

tions with foreign States, public order, decency or morality

or in relation to contempt of court, defamation or incite­

ment to an offence."

H The effect of Article 19 on th~ freedom of Press, was analysed in

RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER IMUKHARJI, J.1223

the decision of this Court in Express Newspapers (Pvt) Ltd. & Anr. v.

The Union of India & Ors., [ 1959] SCR 12, where at page 120 onwards

of the report Bhagwati J. referring to the decision of this Court in

Ramesh Thapar v. The State of Madras, [1950] SCR 594 at 597, refer­

red to the observations of Justice Patanjali Sastri, and further referred

to the decision of this Court

in Brij Bhushan & Anr. v. The

State of

Delhi, [1950] SCR 605. Referring to these two decisions, Bhagwati J.

expressed his view that these were the only two decisions

which

evolved the interpretation of Article 19(l){a) of the Constitution and they

only laid down that the freedom of speech and expression included

freedom of propagation of ideas which freedom

was ensured by the

freedom

of circulation and that the liberty of the press consisted in

allowing no previous restraint upon publication. Referring to the fact

that there is a considerable body of authority to be found in the deci­

sions of the Supreme Court of America bearing on this concept of the

freedom of speech and expression, Justice Bhagwati observed that it

was trite knowledge that the fundamental right to the freedom of

speech and expression enshrined

in our Constitution was based on the

provisions

in the First Amendment to the Constitution of the

U.S.A.

and, hence, it would be legitimate and proper to refer to those deci­

sions of the Supreme Court· of the U.S.A., in order to appreciate the

true nature, scope and extent of this right in spite of the warning

administered by this Court against the use of American and other

cases, in State of Travancore-Cochin & Ors. v: Bombay Co. Ltd.,

[1952] SCR 1112 and State of Bombay v. R.M.D. Chamarbaugwala,

[

1957]

SCR 874 at 918.

Our Constitution is not absolute with respect to freedom of

speech and expression, as enshrined

by the first Amendment to the

American Constitution.

Our attention was drawn to the decision of this

Court in Re:

P.

C. Sen, [ 1969] 2 SCR 649 where this Court upheld the

ordeF

of conviction against the Chief Minister of West Bengal for

broadcasting a speech justifying an order, the validity of

which was

challenged in proceedings pending before the Court. The West Bengal

Govt.

had issued an order under Rule 125 of the Defence of India

Rules, placing certain restrictions upon the right of persons carrying

on business

in milk products. The validity of this order was challenged

by

a writ petition. After the Rule nisi had been issued on the petition

and served on the State Govt., the State Chief Minister broadcast a

speech seeking to justify the propriety of the order. The High Court

issued a Rule requiring the Chief Minister to show cause

why he

should not be committed for contempt of Court. The High Court

found him

guilty_ of contempt and fined him. The matter came up

A

B

c

D

E

F

G

H

224 SUPREME COURT REPORTS l1988] Supp. 3 S.C.R.

A before this Court and the conviction was upheld. It was held that the

speech was

ex facie calculated to interfere with the administration of

justice. This Court reiterated that in

all cases of comment on pending

proceedings, the question

is not whether the publication did interfere,

but whether it tended to interfere, with the due course of justice. The

question

is not so much of the intention of the contemnor as whether it

B

is calculated to interfere with the administration of justice. But for the

instant case this decision cannot be of much assistance. Firstly,

the

contents of the speech of the Chief Minister were entirely different.

The Chief Minister in his speech had characterised the preparation of

any food with milk product

as amounting to a crime. There was a

tendency

in the speech of the Chief Minister of intimidating the

liti·

C gants or the potential litigants in respect of the issue pending in the

Court.

In the instant case

we are, however, not concerned directly with

the question

of whether the respondents have in fact committed

con­

tempt of Court by interfering with the due administration of justice.

D The· question whether comments on an issue, directly or indirectly, in

Court amount to pre-judging of an issue and transferring a trial

by the

Court to the trial

by the newspapers,

is another matter which will be

decided when the contempt application

will be taken up. At the

moment, we are concerned with the short but difficult question i.e.

whether there

is need for preventing publication of an article on a

E matter of public interest but on an issue which

is sub judice. In this

case,

as at this stage we are not dealing with the question of punitive

action

of committal for contempt of Court for publication pending trial

of an issue in Court, the decision of this Court

in

P. C. Sen's case

(supra) in view of the facts invo\ved,

is not of much aid to us. The case

of gross contempt was discussed by this Court in

C. K. Daphtary &

F Ors. v. O.P. Gupta & Ors., [1971] Suppl SCR 76. However, in view of

the facts involved therein, that decision cannot

give us much guidance

at present.

The law on this aspect

ha~ ~en adverted to in the decision of this

Court in Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v.

G Union of India & Ors., [1985] 1 SCC 641, where at page 659 of the

report, Justice Venkataramiah referred to the importance of freedom

of Press in a democratic society and the role of Courts. Though the

Indian Constitution does not use the expression 'freedom of press' in

Article

19 but it is included as one

bf the guarantees in Article

19(1)(a). The freedom of Press, as noted by Venkataramiah J., is one

H

of the items around which the greatest and the bitterest of

constitu·

RELIANCE PETROCHEMICALS v:.EXP. NEWSPAPER [MUKHARJI, J.]225

,--, ..

tional struggles have been waged in all countries where liberal con-

A

stitutions prevail. Article

19 of the

Universal Declaration of Human

Rights,

1948 declares the freedom of Press and so does Article 19 of

the International Covenant on Civil and

PQlitical Rights,, 1966. Article

10 of the European Convention on Human Rights, provides as follows:

I' "Article 10-(1) Everyone has the right to freedom of B

~\

expression. This right shall include freedom to hold

opinions and to receive and impart information and ideas

without interference by public authority and regardless of

frontiers. This Article shall not prevent States from requir-

( ing the licensing of broadcasting, television or cinema

enterprise.

c

(2) The exercise of these freedoms, since it carries

with it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties

as are pre-

scribed

by law and are necessary in a democratic society, in

.. the interests of national security, territorial integrity or D

'.

public safety, for the prevention of disorder or crime, for

the protection of health or morals, for the protection of the

reputation

or rights of others, for preventing the disclosure

of information received

in confidence, or for maintaining

the authority and impartiality of the

judiciary."

E

The First Amendment to the Constitution of the U.S.A. pro-

vided

as follows:

'

-T

"Amendment-I Congress shall made no law respecting an

establishment of religion, or prohibiting the free exercise

:f "

thereof; or abridging the freedom of speech or of the press;

or the right of the people peaceably to assemble, and to

F

petition the Government for a redress of grievances."

~ Keeping the constitutional requirements of the Indian law in the

_,,,

background, it would be appropriate to refer to certain American

I decisions to which our attention was drawn. We have mentioned the G

~- observations of Justice Black in the case of Harry Bridges v. State of

~l

California (supra). There, Justice Black observed that free speech and

fair trial are the two most cherished values of our civilisation and it

.. ( would be a trying task, and if we may say so, a difficult one to choose

c:.v

;;; between them. But in case of need a choice has to be made. He ,,

emphasised that a public utterance or publication is not to be denied H

A

B

c

226

SUPREME COURT REPORTS I 1988] Supp. 3 S.C.R.

the constitutional protection of freedom of speech and Press merely

because it concerns a judicial proceeding still pending

in the Courts,

upon the theory that in such a case it must necessarily tend to obstruct

the orderly and fair administration of justice. In America, in view of

the absolute terms of the First Amendment, unlike the conditional

right of freedom of speech under Article 19(1)(a) of our Constitution,

it would be

worth\"hile to bear in mind the "present and imminent

danger" theory.

Justice Black quoted from the observations of Justice Holmes

in

Abrams

v: United Staies, (1963] L. Ed. 1173 at 1180, where the latter

had observed that to justify suppression of free speech there must be

reasonable ground to fear that serious

evil will result if free speech is

practiced. There must be reasonable ground to believe that the danger

apprehended

is imminent. Justice Black concluded that there must be

clear and present danager and that would provide a workable principle

in preventing publication consistent with the First Amendment. But

in

our case Mr. Baig submitted that our article 19(1)(a) as it is termed

D anything that interferes with the due administration of justice, should

be prevented if it is a threat to the due administration of justice. His

submission was that the Article published or proposed to be published

herein, undermines the effect

or pre-empts the effect of the order of

in junction which was to help or boost

up tne chances of the debentures

being subscribed.

E.

Mr. Baig drew our attention to page 282 of the said report where

Justice Frankfurter had observed that

free speech was not so absolute

or irrational a conception as to imply paralysis of the means for effec­

tive protection of all the freedoms secured

by the Bill of Rights. The

administration of justice

by an impartial judiciary has been basic to the

F conception '.of freedom ever since Magna Carta. Justice Frankfurter

further reiterated that the

dependence of society upon an unswerved

judiciary

is such a common place in the history of freedom that the

means by which it

is maintained are too frequently taken for granted

without heed

to the conditions which alone make it possible. (Emphasis

supplied). The role of Courts of justice

in our society has been the

G theme of statesmen and historians and constitution makers, and

best

illustrated in the Massachusetts Declaration of

Rights as the right of

every citizen to be tried by Judge as free, impartial and independent as

the lot of humanity will admit.

Justice Frankfurter dissenting in his Judgment with whom

H Justice Stone, Justice Roberts and Justice Byrnes agreed, reiterated at

"

RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER [MUKHARJI, J.]227

page 284 of the report that the Constitution is an instrument of

Government and is not conceived as a doctrinaire document, nor was

the Bill of Rights intended as a collection of popu·l~r slogans. It is well

to remember that Justice Frankturte-r recognlSed that we-cannofread .

into the

14th Amendment the freedom of

~eech and of the Press

protected-by the 1st Amendment ana-at the same time leaveoJlt the

A

age old means employed by States. for securing the calm course of · B·

justice. He emphasised that the 14th Amendment does not forbid ~

State to continue the histo.ric process of prohibiting expression~

calculated to subvert a specific exercise of judicial power. So to assure

the impartial accomplishment of justice is not an abridgement of free­

dom of speech or Press, as these phases of lib~_ha"._e he_ret9J1efore

been conceived even by the-stoutestlibertarians. Actually, these

liberties themselves .depend "upon an untrammeled judiciary whose

passions are not even unconsciously aroused and whose minds are not

distorted

by extrajudicial considerations."

c

The test of imminent and present danger as the basis of Justice

Holmes's.ideas has been referred to

by this Court iri P.N. Duda v. p

P. Shiv Shanker & Ors., AIR 1988 SC 1208.

· Thi!_9uestion again cropped up in John D. Pennekamp v. State of

Florida, I [1945] 90-L.Ed." 331 and-Justice Frankfurte1: reiterated that

the 'clear' and present danger•-conception was' -never used by

Mr. Justice Holmes to express a technical legal doctrine or to convey a . E

formula for adjudicating cases.

It was a literary phrase not to be

disto­

iteif oy beif!8 taken from its context. He reiteratea that ihe, judiciary

couid not . function properiy 'it what the Press does is r~asonably

calculated to disturb the judicial judgment in its duty and capacity to

act solely on the basis of what

is before the Court. A judiciary is not

independent unless courts of justice are enabled to administer law

by F

.

'

absence of pressure from without, whether exerted through the

blandishments

of reward or the mance of disfavour. A free

Press is

vital to a democratic society for its freedom gives it power.

In 1976, in Nebraska Press Association v. Hugh Stuart, 49 L.Edn.

683, where the facts of the case were entireiy different to the present G

ones, Chief Justice Burger delivered the opinion of the Court saying

· that to the extent that the order prohibited the reporting of eviden'ce

adduced at the open preliminary hearing

in a

murder trial was bad.

Chief Justice Burger reiterated that a responsible Press

has always

been regarded

as the handmaiden of effective judicial administration,

especially

in the

c~iminal field. The observations of Learned Hand H

228 SUPREME COURT REPORTS [ 1988] Supp. 3 S.C.R.

A referred to at page

683 indicate

"the gravity of the evil, discounted by

its improbability, justifies such invasion of free speech as is· necessary

to avoid the danger", as the test. Hence, we must examine the gravity

of the evil. In other words, a balance of convenience in the conven­

tional phrase ·of Anglo-Saxon Common Law Jurisprudence would,

perhaps be the proper test to follow.

B

(

In this background it would be appropriate to refer to some of

the English decisions to which our attention was drawn. Mr. Jethma­

lani relied on the observations of Lord Denning in the Court of Appeal

in Attorney General v. British Broadcasting Corpn., [1979] 3 AER 45,

where the Master of

Rolls· Lord Denning characterised some of these

similar type of injunctions

as

"gagging injunctions". Mr. Baig, how­

ever,' protested that in view of the terms

in which the injunction was

issued in the instant case, the order did not

"gag" anything that was

legitimate. The House of Lords, however, did not approve the obser­

vations

of Lord Denning. We may refer to the observations of the

House

of Lords in Attorney General v.

B.B.C., [1981] AC 303,

D wherein the Attorney General brought proceedings for an injunction

to restrain the defendants from broadcasting a programme dealing

with matters which related to an appeal pending· before a local va111a­

tion court on the ~round that the broadcast would be a contempt of

court. The Divisional Court of the Queen's Bench Division, on the

single issue before it, held that a local valuation court

was a court for

E

the purposes of the powers of the High Court relating to contempt.

On

appeal:the Court of Appeal, by a majority, affirmed that decision.

The House of Lords, however, allowed the appeal and held that the

jurisdiction of the Divisional Court

in relation to contempt did not

extend to a local valuation court because it was a court which dis-

p

charged administrative functions and was not a court of law and the

Divisional Court's jurisdiction only extended to courts of

law and

when it referred to 'Inferior courts' must be taken

as inferior courts of

law and though the local valuation court has some of the attributes of

the long-established 'Inferior Courts' public policy required

in the

interests

of freedom of speech and freedom of the press that the princi­

ples relating to contempt of court should not apply to it or to the. host

d of other modern tribunals which might be regarded as 'inferior

courts'.

There, however, Lord Scarman emphasised that the due

administration

of justice should not, at all, be hampered. Lord

Denning in the Court of Appeal referred to Borrie

& Lowe, The Law

H

of Contempt (1973) and mentioned that professionally trained Judges

RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER [MUKHARJI, J.]229

are not easily influenced by publications. This is a point which was

emphasised before us also. Lord Denning referred· to the question

whether there was contempt of court

by the

B.B.C. He eniphasised

tl'flt there was no accused. The House of Lords, however, in appeal

held that valuation court

is not a court where the concept of contempt

of court would apply. But it did make observations that such broad­

casting

or publication might affect a Judge. Viscount Dilhorne at page

'.135 of the report observed as follows:

"It is sometimes asserted that no judge will be influenced in

his judgment

by anything said by the media and con­

sequently that the need to prevent the publication of mat­ter· prejudicial to the hearing oi a case only exists where the

decision rests with laymen. This claim to judicial superio­

rity over human frailty

is one that.I find some difficulty in

accepting. Every holder of a judicial office does his utmost

not to let his mind be affected

by what he has seen or heard

of read outside the court and he

will not knowingly let

himself be influenced in any

way by the media, nor in my

view

will any layman experienced in the discharge of judi­

cial duties. Nevertheless it should, t think, be recognised

that a man may not be able to put that which he has seen,

heard

or read entirely out of his mind and that he mav oe

subconsciously affected by it. As Lord Denning M.R. said

the stream

of justice must be kept clean and pure. It is the

law, and it remains the

law until it is changed by Parliament

that the publication of matter likely to prejudice the hear­

ing of a case before a court of law will constitute a con­

tempt of court punishable

by fine or imprisonment or both.

A

B

c

D

E

In this appeal we do not have to pronounce on whether the F

proposed broadcast would have prejudicially affected the

hearing before the local valuation court. Although it

clearly was likely to have aroused hostility to the Exclusive

Brethi;:m, it by no means follows that it would have pre­

judiced their claim to relief from rates. The mere assertion

in the course ot:. the broadcast that they were not entitled to G

that relief was

in my view unlikely to have affected in any

way a decision on whether their meeting room was a place

of public religious worship coming

withiJ;i section 39."

Lord Edmund-Davies at page 354 of the report emphasised that

only a very short question arose, namely, whether the local. valuation H

230 SUPREME COURT REPORTS [ 1988] Supp. 3 S.C.R.

court comes within the jurisdiction of the High Court or not. Before

,,. that, Lord Scarman had occasion to refer to the observations of the

Eurbpean Court of Human Rights which criticised the judgment ,of the

House

of Lords in Attorney General v. Times Newspapers Ltd.;

119741

AC 273 and emphasised that neither the Convention nor the European

Court's decision, as part of the English law, which related to Article

B 10(2) of the Convention for the Protection of Human Rights and

Fundamental Freedoms. ·

'

In Attorney General v. Times Newspapers Ltd., (supra), between

1959-61 a company made and marketed under licence a drug contain­

ing thalidomide about 450 children were born with gross deformities

(: to mothers who had taken that drug during pregnancy. In l968; 62

actions against the company begun within 3 years of the births of the

children were compromised

by lump sum payments conditional on the

allegations of negligence against the company being withdrawn.

Thereafter leave to issue writs out of time

was granted ex parte in 261

cases, but apart from a statement of claim in one case and a defence

Ji> delivered in 1969 no further steps had been taken in those actions.

A further

123 claims had been notified in correspondence. In 1971

negotiations began on the company's proposal to set up a 3 1/4 million

charitable trust fund for those children outside the 1968 settlement

conditional on all the parents accepting the proposal. Five parents

refused.

An application to replace those parents by the Official

~ Solicitor as next friend was refused by the Court of Appeal in April,

1972. Negotiations for the proposed settlement were resumed. On

September 24, 1972, a national Sunday newspaper published the first

of a series of articles to draw attention to the plight of the thalidomide

children. The company complained to the Attorney. General that the

article was a contempt of court because litigation against them

by the

Ji' parents of some of the children was still pending. The editor of the

newspaper justified the article and at the same time sent to the

Attorney General and to the company for comment

an article in draft,

for.

which he claimed complete factual accuracy, on 'the testing,

manufacture and marketing of the drug. On the Attorney-General's

motion, the Divisional Court of the Queen's Bench Division granted

d; an injunction restraining publication on the ground that it would be a

contempt of court. After the grant of the injunction on November

17,

1972, and while the newspaper's appeal was pending, the thalidomide

tragedy was on November

29 debated in Parliament and speeches were

made and reported which expressed opinions and stated facts similar

to those in the banned article. Thereafter, there

was a national

H campaign in the press and amon~ ~~e ge11eral public directed to bring-

,._,~-~ •-' r

'"'"'"

RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER IMUKHARJI, J.]231

ing pressure on the company to make a· better offer for the children

A

and their parents; and the company in fact made a substantially

increased offer.

The Court of Appeal having discharged the injunction, the

Attorney-General appealed to the House of Lords. It was held that the

contempt. of court to publish matenal

which prejudged the issue of B

pending litigation or was likely to cause public prejudgment of that

issue, and accordingly the publication of this article, which

in effect

charged the company with negligence, would constitute a contempt,

since negligence was one of the issues

in the litigation. The House of

Lords granted injunction prohibiting the Times Newspaper from pub-

lishing the proposed publication. Reference

was made to

Oswald's

c

Contempt of Court, 3rd Edn. (1910), where it was emphasised that the

contempt of court involves 3 objects, namely, (i) to enable the parties

to come to the courts without interference; (ii) to enable the courts to

try cases without interference; and (iii) to ensure that the authority

and administration of the law

is maintained. There was no room for the

balancing suggested

by the respondents between the public interest in D

free discussion of matters of public concern and the public interest that

judicial proceedings should not be interfered with .

(Emphasised by

Mr. Baig).

Lord Reid referred to the observations of the Chief Justice

Jordan in

Ex

Parle Bread Manufacturers Ltd., [1937] 37 SR (NSW) 242

E

to the following effect:

I

"It is of extreme public interest that no conduct should be

permitted which

is likely to prevent a litigant in a court of

I

justice from having his case tried free from all matter of

prejudice. But the administration of justice, important

F

though it undoubtedly

is, is not the only matter in which

the public

is vitally interested; and if in the course of the

ventilation of a question of public concern matter

is

published which may prejudice a party in the conduct of a

law suit, it does not follow that a contempt has been

committed.The case

may be one in which as between com-

G

peting matters of public interest the possibility of prejudice

to a litigant may be required to yield to other and superior

considerations. The discussion of public affairs and the

denunciation of public abuses, actual or supposed, cannot

be required to be suspended merely because the discussion

or the denunciation may,

as an incidental but not intended H

A

B

SUPREME COURT REPORTS ( 1988] Supp. 3 S.C.R.

by-product, cause some likelihood of prejudice to a person

who happens at the time to be a litigant.

It is well settled

that a person cannot be prevented

by process of contempt

from continuing to discuss publicly a matter which may

fairly be regarded

as one of public interest, by reason

merely of the fact that the matter in question has become

the subject of litigation,

or that a person whose conduct is

being publicly criticised has become a party to litigation

either

as plaintiff or as defendant, and whether in relation

to the matter which

is under discussion or with respect to

some other

matter."

C Lord Reid made certain observation upon which Mr. Baig relied,

i.e. at page 300 which is as follows:

D

E

F

"I think that anything in the nature of prejudgment of a

case or of specific issues in it

is objectionable, not only

because of its possible effect on that particular case but also

because of its side effects which niay be far reaching.

Responsible

"mass media" will do their best to be fair, but

there will also be ill-informed, slapdash or prejudiced

attempts to influence the public.

If people are led to think

that it

is easy to find the truth, disrespect for the processes

of the law could follow, and, if mass media are allowed to

judge, unpopular people and unpopular causes

will fare

very badly. Most cases of prejudging of issues fall within

the existing authorities on contempt. I do not think that the

freedom

of the press would suffer; and I.think that the law

would be clearer and easier to apply

in practice if it is made

a general rule that it is not permissible to prejudge issues in

pending cases." (Emphasis supplied)

Lord Diplock stated at page 309 of the report that the due

administration

of justice requires first that all citizens should have

unhindered access to the constitutionally established courts of criminal

or civil jurisdiction for the determipation of disputes as to their legal

q rights and liabilities; secondly; that they should be able to rely upon

obtaining in the courts the arbitrament of a tribunal which

is free from

bias against any party and whose decision

will be based upon those

facts only that have ·been proved in evidence adduced before it

in

accordance with the procedure adopted in courts of law; and thirdly

that, once the dispute has been submitted to a court of law, they

If should be able to rely upon their being no usurpation by any other_

RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER (MUKHARJI, J.)233

person of the function of that court to decide it according to law. A

Lord Simon of Glaisdale at page 315 emphasised as follows:

"The first public interest involved is that of freedom of

discussion in democratic society. People cannot adequately

influence the decisions which affect their lives unless they

can be adequately informed on facts and arguments rele­

vant to the decisions. Much of such fact•finding and

argumentation necessarily has to be conducted vicariously,

B

the public press

being a principal instrument. This is the

justification for Investigative and campaign journalism. Of

course it can be abused-but so may anything of value. The C

law provides some safeguatds against abuse; though

important ohes (such as professional propriety and responsi­

bility) lie outside the law." (Emphasis supplied)

Lord Cross of Chelsea at page 322 of the report observed as D

follows:

E

" "Contempt of Court" means an interference wit!t the

administration

of justice

and it is unfortunate that the

offence should continue to be known by a name which

suggests to the modem mind that its essence

is a supposed

affront to the dignity of the court.

Nowadays'' wlien

sympathy is readily acc0rded to anyone who defies con­

stituted authority the very name of the offence predisposes

many people in favour of the alleged offender. Yet the due

administration of justice is something which all citizens,

whether

on

the left or the right or in the centre, should be

anxious to safeguard. When the alleged contempt consists F

in giving utterance either publicly or privately to opinions

with regard to or connected with legal proceeding~,

whether civil or criminal, the law of contempt constitutes

an interference With freedom of speech, and I agree with

my noble and learned friend that we should maintain the

rule

that any

"prejudging" of issues, whether of fact or of 0

law, in pending proceedings-whether civil or ,i:rlininal-is in

principle an interference with the administration of justice

although in any partieular case the offence lnay be so trifl-

1 . '

ing that to bring it to the notice of the court would be

unjustifiable." !

I

I

A

234 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

Mr. Baig emphasised that there is an inherent jurisdiction to

restrain by injunction any publication that interferes with a fair trial or

.a pending case

or with the administration of justice in general. He

further urged that trial of newspaper in sub judice matter

is wrong.

Publication

is permissible provided it does not amount to prejudgment

or prejudice of a matter in Court. Liberty or freedom of

Press must

subserve the due administration of justice. He submitted that there

is need to continue the injunction because contribution to the deben­

tures could be withdrawn

as the final allotment has not yet been made.

On the other hand, Mr. Diwan submitted th.at there is no jury

trial involved here and no likelihood of the trial being prejudiced

because trial

is by professionally trained Judges.

Public have a right to

know about this issue of debentures which

is a matter of public con­

cern.

It affects the public interest, so public have a right to know and

the newspapers have an obligation to inform.

We must see whether there

is a present and imminent danger for

Il> the continuance of the injunction. It is difficult to.lay down a fixed

standard .to judge as to how clear,. remote or imminent the danger is.

The order. passed on 19th August,

1988 as reiterated on 25th August,

1988 stated that there must be no legal impediment in the issue of

the

debentures or in the progress of the debentures, taking into ·account

·ihe overall balance and convenience and having due regard to the sums

JI: of money involved and the progress already made. It is necessary to

reiterate that the continuance of this injunction would amount to

interference with the freedom

of

PTess in the form of preventive

injunction and it must, therefore, be based on reasonable grounds for

the sole purpose of keeping the administration of justice unimpaired.

In the words of Mr. Justice Brandeis of the American Supreme Court

J' concurring in Charlotte Anita Whitney v. People of the State of I' ...

California, 71 L. Edn. 1095 at 1106, there must be reasonable ground

to believe that the danger apprehended

is real and imminent. This test

we accept on the basis of balance of convenience. This Court has not

yet

found or laid down any formula or test to determine how the

balance

of convenience in· a situation of this type, or how the real and G imminent danger should be judged in case of prevention by injunction·

of Publication of an article in a pending matter. In the context of the

facts.

of this case we must judge whether there is such an imminent

danger which calls for continuance of the injunction. Incidentally, it

may be mentioned that the so-called informed

Press may misrepresent

the Court proceedings .. We must remember that the people at large

f1' have a right to know in' order to be able to take part in a participatof)'

..

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RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER [MUKHARJJ, J.]235

development in the industrial life and democracy. Right to Know is a

basic right which citizens of a free country aspire in the broader

horizon

of the right to live in this age in our land under Article 21 of

our Constitution. That right has reached new dimensions and urgency.

That right puts greater responsibility upon those

who take upon

the·

responsibility to inform.

The question of contempt must be judged in a particular situa­

tion. TI1t process of due course of administration of justice must

remain unimpaired. Public interest demanas that there should be 110

interference with judicial process and-the effect of the judicial decision

should not be pre-empted

or circumvented by public agitation or

publications. It

.has to

Jie remembered that even at turbulent times

through which the developing countries

_are passmg., contempt of

court means interference with the due administration of justice.

In the peculiar facts of this case now that the subscription to

debentures has closed and, indeed, the debentures have been over­

subscribed, we are inclined to think that there

is no such imminent

danger of the subscription being withdrawn before the allotment and

as to make the issue vulnerable

by any publication of article.

On a

balance

of convenience, we are of the opinion that

contii:tuance of

injunction is no longer necessary.

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In this peculiar situation our task has been difficult and complex. E

The task

of a modem Judge, as has been said, is increasingly becoming

complex.

Furthermo~e;-the lot of a democratic Jucige· is. heavier and

thus nobler. We cannot escape the burden of indMdual responsibili-

ties in a particular situation in

view of the peculiar facts and cir­

cumstances

of the case. There is no escape in absolute. Having regard

however, to different aspects of

law and the

ratio of the several ded' F

sions, by which though

we are not bound, except the decisions of this'

Court referred

to hereinbefore, about which we have mentioned, there

is no decision dealing with this particular problem,

we are of the

opinion that

as the Issue is not going to affect the

!;~heral public or

public life nor any injury

is involved, it would be proper and legal, on

an appraisal

of the balance of convenience between the risk which will G

be caused by the publication

of the article and the damage to the

fundamental right of freedom of knowledge of the people concerned

and the obligation of Press to keep people informed, that the injunc­

tion should not continue any

fj,irther.

In .the aforesaid, view-0f the matter, we direct that there is no . .H

236 SUPREME COURT REPORTS [1988) Supp. 3 S.C.R.

further need for tn~ continuance of the injunct10n. Publications, if

A any., however, would be subject to the decision

of

the Court on the

question

of the contempt of court, namely, prejudging the issue and

.

thereby interfering with the due administration of justice. Preventive

~emedy in the form of an injunction is no longer necessary. Whether

punitive remedy will be available

or not. will depend upon

'""' tacts

B .and .the .dP.cision of the matter after ascertaining the consent or refusal

of the Attorney-General.

The application for the present purpose is, therefore. disposed

of

with the direction that the injunction against publication in

·the·order

dated 25th August, 1988, need not further.continue. ·

RANGANATHAN, J. I agree. I would, how'ever, like •to add a

few

words, having regard to the range of the arguments

addressed

before.us.

The principal ground urged in support

of the prayer for the

·con-

0 tinuance of the injunction already granted is that it was very restricted

in terms and injuncted only the publication of articles, comments and

reports on the validity or legality of the various consents, approvals

and permissions obtained by Reliance in relation to the debenture

issue. This is precisely the subject matter

of the writ petitions and suit

withdrawn to this

Court in the Transfer Petitions.

It is urged, strongly

IE relying on the speeches of the various Law Lords in the Thalidomide

.case Attorney Generalv. Times Newspapers Limited, [1974] A.C. 273

the observations of this Court in Re: P.C. Sen, !1969] 2 SCR 649 and

the provision contained in S. 2(c)(iii) of the Contempt of Courts Act,

1971,

that any such publication would tend to interfere with the fair

administration

of justice and so constitute criminal contempt and

F would be liable not merely to punitive action after publication but also

to stoppage by a preventive order before publication. On the other

hand, for the respondents, it is contended that, in the decisions relied

upon for the petitioners, the publications alleged to constitute con­

tempt were of such a nature that they were seen to affect the course of

actions actually pending in courts, that even other\vise the decision of

<Ji the House of Lords has been widely criticised and should not be

followed and that the views expre"SWa by Lord Denning, M.R. in

Attorney Generalv. BBC, [1979] 3 AER 45-though reversed by the

House of Lords in 1981 A.C. 303-and by the American Courts in

Bridges v. State of California, 86 L. Ed. 252 and in John

D. Pennekamp

v.

State of Florida, 90 L. Ed. 1295 should be preferred

Ill as more .appropriate to present day conditions, particularly in the

RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER [RANGANATIIAN, J] 237"

context of the freedom of press guaranteed under Act 19(1)(a).of the

Constitution of India, and also incorporated

in Article 19 of the Uni­

versal Declaration of Human Rights,

1948, Art.

10 of the European

Convention

of Human Rights and Art. 19 of the International Conven­

tion on Civil and Political Rights,

1966. I do not think we are called

upon to decide this wider question at this stage.

A.s already pointed

out, the contempt petition filed

by the petitioners in respect of the

article published

by the respondents on 25.8.88 has not

been taken

cognisance

of by us in the absence of the consent of the Learned

Attorney General.

At the moment we have to assess whether any

.article that may be published by the respondents, even assuming that it · ·

touches on the issues of validity or legality of the approvals, consents ·

and permissions referred to in our order of 19 .8.88, will so clearly and

obviously prejudice or tend to prejudice the course of the proceedings,

now pending

in this Court, that such publication should be injuncted

by, what the respondents describe as, a

"gagging order". I agree with

my learned brother that there

is no such imrninent danger or

apprehension in the circumstances present here,

as calls for such an

extreme step curtailing the freedom of a newspaper.

It is sufficient, I

think, to clarify, if at all any such clarification were needed, that

should any newspaper publish any such matter, it

will be doing so ,at its

own risk and subject to its liability for being proceeded against

by the

petitioner

or others for defamation, contempt of court or otherwise.

A somewhat narrower ground,

as I understand it, put forward

for the petitioner was that the grant of

ex parte injunction by us on

19.8.88 and 25.8.88 was the result of our

prima facie conclusion that

consents, approvals

or permissions from the concerned authorities for

the debenture issue had been duly and validly obtained

by the

petitioner and that any article, liberty for the publication of which

is

sought for by the vacation of the interim order, would contain views

contrary to or inconsistent with the prima facie view of this Court.

·P,ersons reading the newspaper might be taken in by and believe in the

statements made by the respondents in such articles and, if they start

acting upon such beliefs, then the effect of the order of this Court,

upholding,

prima facie, the validity of the debenture issue on the

above aspects would stand undermined. In

my view this contention is

untenable. I do not think

that the contention proceeds on a correct

analysis of the ratio of our order dated

25 .8.88 or the earlier order

dated 19.8.88. It should be remembered that the proceedings, which

gave rise to the transfer applications, were writ petitions and a suit

filed in various courts challenging

inter alia, the validity or regularity

of the debenture issue of the petitioner company. If these matters had

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238

SUPREME COURT REPORTS [1988) Supp. 3 S.C .. R.

been heard

by the various High Courts or other subordinate courts,

there

was a possibility that one or more of the courts, satisfied with the

prima facie tenability of the contentions of the petitioners therein

might issue an order· staying the debenture issue pending disposal of

the suit or writ petition.

In fact, also, it seems that interim orders of

this nature had been obtained. The petitioner

was apprehensive that,

if

ariy such interim order was passed, all the time, labour and money

expended in tloating the debenture issue might

be nullified at

tl}e last

moment. The petitioner, therefore, moved for the transfer of all the

various proceedings to this Court and for an interim order permitting it

to issue the debentures

as planned without Jet or hindrance and

with­

out being hampered by any interim stay order from any court. I do not

think it would be correct to

say that, when we pass,ed the order dated

19.8.88,

we formed

any prima facie opinion on the question whether

the. debenture issue had been validly approved or consented to by the

various authorities. Though it

is true that there were averments in the

transfer petitions stating that all the legal formalities had been

pro­

perly complied wilh, what predominantly influenced us to pass the

order dated

19 .8.88 was that, even assuming, prima facie, as

con­

tended in the various writ petitions and suits, that there could-be some

doubt regarding the validity or otherwise of the cons~nt orders etc.,

the restraint

by any court or tribunal on the issue of debentures at a

late

stage might prove catastrophic, and cause irreparable Joss or dam­

age, to the petitioner. We were also of the opinion that, pending

adjudication on the issue of validity raised in the various suits,

th'e

balance of convenience required that there should be no order of any

court

or tribunal staying the debenture issue.

Now, I shall turn to the circumstances in

which the order dated

25.8.88 were passed. Subscriptions

to the debenture issue were open

between 22nd August,

88

.and 31st August, 88. It was during this

interim period that the first article

was published by the respondent

newspaper attacking the validity

of the consent granted by the

Con­

troller of Capital Issues to the issue of the debentiires. I do not go into

the merits

of the article. But, when it was pointed out to us that this

article had been published at a very crucial time when the subscription

to the issue had started flowing in,

we saw that it would have the

indirect effect of achieving exactly what this Court wanted to prevent

by its order dated 19.8.88. Though this Court,

in view of the

allega­

tions raised in the transfer petitions, referred in its order only to stay

orders from courts restraining the progress of the debenture issue,'it

was the intention of this Court that the debenture, issue should go

ahead without any obstacles placed in the way of the collection· of

'

RELIANCE PETROCHEMICALS v, EXP. NEWSPAPER [RANGANATHAN, JI 239

subscriptions therefor on the grounds on which stay orders had been

sought to be obtained from courts. The article published

by the

respondents, though not violative of the terms of the injunction

granted by this Court, could have the effect of circumventing the order Qf this Court and rendering it ineffective. It had, prima facie, a

tendency to affect the efficacy of, and defeat the object with which this

Court had passed the interim order dated 19.8.88. This

is the reason

why

we passed the second order dated 25.8.88 and also declined to

modify

or vary it at the request of the counsel for the newspapers on

the next day, I am

of opinion that the said order was rightly passed and

that the contention of learned counsel for

the.•respondent that no such

injunction ought to have been granted at all

is not acceptable.

The position

today, however, has radically changed. We are told

that the issue has been over-subscribed.

In

my opinion, this. stage

having been completed, there

is no necessity to continue the interim

order passed

by us on the 25th of August, 1988.

Counsel for the petitioner, however, vehemently contended that

there has been no material change in the situation. He submitted that

many lakhs of people have subscribed to the debentures and, within a

strict time schedule laid down

by the statute, the petitioner is bound to

scrutinise all the applications, decide

on the issue of allotment and

send out allotment letters

or refund the application moneys received.

It is submitted that even at this stage there

is a potential danger that

continued publication of articles by the respondents attacking the

validity of the debenture issue

will have the effect of causing a large

number

of applicants for the debentures to panic and to seek refund of

the application moneys already paid

by them. In fact, it is said, a writ

petition

of that nature has already been filed in the Allahabad High

Court. Counsel submitted that,

in a sensitive matter like issue of

debentures, even the request for return of money

by any one person

could trigger off several applications of the same type and that the

danger, that the petitioner company might be asked

to refund moneys

sent in respect of subscriptions already made on the basis of the allega­

tions in such articles as the one already published, is ,real and

imminent.

He submitted that it is therefore as much necessary today to

continue the injunction

as it was when it was granted on

the 25th of

August,

1988.

I have given careful thought to this contention urged on behalf of ·the petitioner company, It is of course difficult in the absence of any

reliable data for any person to come to a conclusion as to how exactly

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240 SUPREME COURT REPORTS ( 1988] Supp. 3 S.C.R.

the publication of articles of the type published by the respondents

would cause prejudice

in the manner contended for by the petitioner.

It seems to me, however, that the danger apprehended by the

petitioner company

is not so real or substantial as to warrant the

continuance

of the in junction order passed by us on the 25th

oJ

August, 88. Even if, for the purpose of argument, one were to assume

that such claims for refund will be made, they cannot straightaway

harm. the interests

of the petitioner company. There is no possibility

that, pending determination of the issues raised, any court

will order

interim relief to such applicants

by way of grant of such refunds. The.

petitioner will be liable to make any such refund only if it is ultimately.

decided by this court

or any other court that the issue of debentures is

C invalid and that the application moneys have to be refunded. That of

course the

company. will have to do in any event. There is, however, no

immediate cause for apprehension on the part of the petitioner that

the publication of any such article could abort the debenture issue in

the manner it could have done before

3.1.8.88. I, therefore, agree that

there is no justification for the continuance of the interim order dated

Ii> 25.8.88 any longer.

R.S.S.

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