Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. Nos. 4-5, 10, 11, 12-13, 16-17, 18, 19, 20-21, 22-23, 24-

25, 26-27, 30-31, 32-33, 34, 35-36, 37-38, 39-40, 41-42, 43-

44, 45-46, 47-48, 49-50, 55-56, 57, 58, 59, 61 and 62

in

C.A. No. 9813 of 2011 and C.A. No. 9833 of 2011

Sahara India Real Estate Corp. Ltd. & Ors. …Appellants

Vs.

Securities & Exchange Board of India & anr.…Respondents

with

I.A. Nos. 14 and 17 in C.A. No. 733 of 2012

J U D G M E N T

S. H. KAPADIA, CJI

Introduction

1. Finding an acceptable constitutional balance between free

press and administration of justice is a difficult task in every

legal system.

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Factual background

2.Civil Appeal Nos. 9813 and 9833 of 2011 were filed

challenging the order dated 18.10.2011 of the Securities

Appellate Tribunal whereby the appellants (hereinafter for short

“Sahara”) were directed to refund amounts invested with the

appellants in certain Optionally Fully Convertible Bonds

(OFCD) with interest by a stated date.

3. By order dated 28.11.2011, this Court issued show cause

notice to the Securities and Exchange Board of India (SEBI),

respondent No. 1 herein, directing Sahara to put on affidavit as

to how they intend to secure the liabilities incurred by them to

the OFCD holders during the pendency of the Civil Appeals.

4. Pursuant to the aforesaid order dated 28.11.2011, on

4.01.2012, an affidavit was filed by Sahara explaining the

manner in which it proposed to secure its liability to OFCD

holders during the pendency of the Civil Appeals.

Page 3 3

5. On 9.01.2012, both the appeals were admitted for hearing.

However, IA No. 3 for interim relief filed by Sahara was kept for

hearing on 20.01.2012.

6. On 20.01.2012, it was submitted by the learned counsel

for SEBI that what was stated in the affidavit of 4.01.2012 filed

by Sahara inter alia setting out as to how the liabilities of

Sahara India Real Estate Corporation Ltd. (SIRECL) and Sahara

Housing and Investment Corporation (SHICL) were to be

secured was insufficient to protect the OFCD holders.

7. This Court then indicated to the learned counsel for

Sahara and SEBI that they should attempt, if possible, to reach

a consensus with respect to an acceptable security in the form

of an unencumbered asset. Accordingly, IA No. 3 got stood over

for three weeks for that purpose.

8. On 7.02.2012, the learned counsel for Sahara addressed a

personal letter to the learned counsel for SEBI at Chennai

enclosing the proposal with details of security to secure

repayment of OFCD to investors as pre-condition for stay of the

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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.

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11. The above facts were inter alia brought to the notice of

this Court at the hearing of IA No. 3 on 10.02.2012 when Shri

F.S. Nariman, learned senior counsel for Sahara orally

submitted that disclosure to the Media was by SEBI in breach

of confidentiality which was denied by the learned counsel for

SEBI. After hearing the learned counsel for the parties, this

Court passed the following order:

“We are distressed to note that even

“without prejudice” proposals sent by

learned counsel for the appellants to the

learned counsel for SEBI has come on one

of the TV channels. Such incidents are

increasing by the day. Such reporting not

only affects the business sentiments but

also interferes in the administration of

justice. In the above circumstances, we

have requested learned counsel on both

sides to make written application to this

Court in the form of an I.A. so that

appropriate orders could be passed by this

Court with regard to reporting of matters,

which are sub-judice.”

12. Pursuant to the aforesaid order, IA Nos. 4 and 5 came to

be filed by Sahara. According to Sahara, IA Nos. 4 and 5 raise

a question of general public importance. In the said IA Nos. 4

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and 5, Sahara stated that the time has come that this Court

should give appropriate directions with regard to reporting of

matters (in electronic and print media) which are sub judice. In

this connection, it has been further stated: “it is well settled

that it is inappropriate for comments to be made publicly (in

the Media or otherwise) on cases (civil and criminal) which are

sub judice; this principle has been stated in Section 3 of the

Contempt of Courts Act, which defines criminal contempt of

court as the doing of an act whatsoever which prejudices or

interferes or tends to interfere with the due course of any

judicial proceeding or tends to interfere or interfere with or

obstruct or tends to interfere or obstruct the administration of

justice”. In the IAs, it has been further stated that whilst there

is no fetter on the fair reporting of any matter in court, matters

relating to proposal made inter-parties are privileged from

public disclosure. That, disclosure and publication of

pleadings and other documents on the record of the case by

third parties (who are not parties to the proceedings in this

court) can (under the rules of this Court) only take place on an

application to the court and pursuant to the directions given by

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the court (see Order XII, Rules 1, 2 and 3 of Supreme Court

Rules, 1966). It was further stated that in cases like the

present one a thin line has to be drawn between two types of

matters; firstly, matters between company, on the one hand,

and an authority, on the other hand, and, secondly, matters of

public importance and concern. According to Sahara, in the

present case, no question of public concern was involved in the

telecast of news regarding the proposal made by Sahara on

7.02.2012 by one side to the other in the matter of providing

security in an ongoing matter. In the IAs, it has been further

stated that this Court has observed in the case of State of

Maharashtra v. Rajendra J. Gandhi [(1997) 8 SCC 386] that: “A

trial by press, electronic media or public agitation is the very

antithesis of rule of law”. Consequently, it has been stated in

the IAs by Sahara that this Court should consider giving

guidelines as to the manner and extent of publicity which can

be given to pleadings/ documents filed in court by one or the

other party in a pending proceedings which have not yet been

adjudicated upon.

Page 8 8

13. Accordingly, vide IA Nos. 4 and 5, Sahara made the

following prayers:

“(b) appropriate guidelines be framed with

regard to reporting (in the electronic and

print media) of matters which are sub-

judice in a court including public disclosure

of documents forming part of court

proceedings.

(c)appropriate directions be issued as to

the manner and extent of publicity to be

given by the print/ electronic media of

pleadings/ documents filed in a proceeding

in court which is pending and not yet

adjudicated upon;”

14. Vide IA No. 10, SEBI, at the very outset, denied that the

alleged disclosure was at its instance or at the instance of its

counsel. It further denied that papers furnished by Sahara

were passed on by SEBI to the TV Channel. In its IA, SEBI

stated that it is a statutory regulatory body and that as a

matter of policy SEBI never gives its comments to the media on

matters which are under investigation or sub judice. Further,

SEBI had no business stakes involved to make such

disclosures to the media. However, even according to SEBI, in

view of the incident having happened in court, this Court

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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

Page 10 10

for Sahara filed a note in the Court citing instances (mostly

criminal cases) in which according to him certain aberration

qua presumption of innocence has taken place. This Court

made it clear that this Court is concerned with the question as

to whether guidelines for the media be laid down? If so,

whether they should be self-regulatory? Or whether this Court

should restate the law or declare the law under Article 141 on

balancing of Article 19(1)(a) rights vis-à-vis Article 21, the scope

of Article 19(2) in the context of the law regulating contempt of

court and the scope of Article 129/ Article 215.

16.Thus, our decision herein is confined to IA Nos. 4, 5 and

10. This clarification is important for the reason that some

accused have filed IAs in which they have sought relief on the

ground that their trial has been prejudiced on account of

excessive media publicity. We express no opinion on the merits

of those IAs.

Constitutionalization of free speech

Comparative law: differences between the US and other

common-law experiences

Page 11 11

17. Protecting speech is the US approach. The First

Amendment does not tolerate any form of restraint. In US,

unlike India and Canada which also have written Constitutions,

freedom of the press is expressly protected as an absolute right.

The US Constitution does not have provisions similar to Section

1 of the Charter Rights under the Canadian Constitution nor is

such freedom subject to reasonable restrictions as we have

under Article 19(2) of the Indian Constitution. Therefore, in

US, any interference with the media freedom to access, report

and comment upon ongoing trials is prima facie unlawful. Prior

restraints are completely banned. If an irresponsible piece of

journalism results in prejudice to the proceedings, the legal

system does not provide for sanctions against the parties

responsible for the wrongdoings. Thus, restrictive contempt of

court laws are generally considered incompatible with the

constitutional guarantee of free speech. However, in view of

cases, like O.J. Simpson, Courts have evolved procedural

devices aimed at neutralizing the effect of prejudicial publicity

like change of venue, ordering re-trial, reversal of conviction on

Page 12 12

appeal (which, for the sake of brevity, is hereinafter referred to

as “neutralizing devices”). It may be stated that even in US

as of date, there is no absolute rule against “prior restraint” and

its necessity has been recognized, albeit in exceptional cases

[see Near v. Minnesota, 283 US 697] by the courts evolving

neutralizing techniques.

18.In 1993, Chief Justice William Rehnquist observed:

“constitutional law is now so firmly grounded in so many

countries, it is time that the US Courts begin looking at

decisions of other constitutional courts to aid in their own

deliberative process”.

19. Protecting Justice is the English approach. Fair trials

and public confidence in the courts as the proper forum for

settlement of disputes as part of the administration of justice,

under the common law, were given greater weight than the

goals served by unrestrained freedom of the press. As a

consequence, the exercise of free speech respecting ongoing

court proceedings stood limited. England does not have a

written constitution. Freedoms in English law have been

Page 13 13

largely determined by Parliament and Courts. However, after

the judgment of ECHR in the case of Sunday Times v. United

Kingdom [(1979) 2 EHRR 245], in the light of which the English

Contempt of Courts Act, 1981 (for short “the 1981 Act”) stood

enacted, a balance is sought to be achieved between fair trial

rights and free media rights vide Section 4(2). Freedom of

speech (including free press) in US is not restricted as under

Article 19(2) of our Constitution or under Section 1 of the

Canadian Charter. In England, Parliament is supreme. Absent

written constitution, Parliament can by law limit the freedom of

speech. The view in England, on interpretation, has been and

is even today, even after the Human Rights Act, 1998 that the

right of free speech or right to access the courts for the

determination of legal rights cannot be excluded, except by

clear words of the statute. An important aspect needs to be

highlighted. Under Section 4(2) of the 1981 Act, courts are

expressly empowered to postpone publication of any report of

the proceedings or any part of the proceedings for such period

as the court thinks fit for avoiding a substantial risk of

prejudice to the administration of justice in those proceedings.

Page 14 14

Why is such a provision made in the Act of 1981? One of the

reasons is that in Section 2 of the 1981 Act, strict liability has

been incorporated (except in Section 6 whose scope has led to

conflicting decisions on the question of intention). The basis of

the strict liability contempt under the 1981 Act is the

publication of “prejudicial” material. The definition of

publication is also very wide. It is true that the 1981 Act has

restricted the strict liability contempt to a fewer circumstances

as compared to cases falling under common law. However,

contempt is an offence sui generis. At this stage, it is

important to note that the strict liability rule is the rule of law

whereby a conduct or an act may be treated as contempt of

court if it tends to interfere with the course of justice in

particular legal proceedings, regardless of intent to do so.

Sometimes, fair and accurate reporting of the trial (say a

murder trial) would nonetheless give rise to substantial risk of

prejudice not in the pending trial but in the later or connected

trials. In such cases, there is no other practical means short of

postponement orders that is capable of avoiding such risk of

prejudice to the later or connected trials. Thus, postponement

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order not only safeguards fairness of the later or connected

trials, it prevents possible contempt. That seems to be the

underlying reason behind enactment of Section 4(2) of the 1981

Act. According to Borrie & Lowe on the “Law of Contempt”, the

extent to which prejudgment by publication of the outcome of a

proceedings (referred to by the House of Lords in Sunday

Times’s case) may still apply in certain cases. In the

circumstances to balance the two rights of equal importance,

viz., right to freedom of expression and right to a fair trial, that

Section 4(2) is put in the 1981 Act. Apart from balancing it

makes the media know where they stand in the matters of

reporting of court cases. To this extent, the discretion of courts

under common law contempt has been reduced to protect the

media from getting punished for contempt under strict liability

contempt. Of course, if the court’s order is violated, contempt

action would follow.

20.In the case of Home Office v. Harman [(1983) 1 A.C. 280]

the House of Lords found that the counsel for a party was

furnished documents by the opposition party during inspection

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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

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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

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enunciated by this Court in Chintaman Rao v. The State of

Madhya Pradesh [ (1950) SCR 759].

22. The Canadian Approach: Before Section 1 of Canadian

Charter of Rights, the balance between fair trial and

administration of justice concerns, on the one hand, and

freedom of press, on the other hand, showed a clear preference

accorded to the former. Since the Charter introduced an

express guarantee of “freedom of the press and other media of

communication”, the Canadian Courts reformulated the

traditional sub judice rule, showing a more tolerant attitude

towards trial-related reporting [see judgment of the Supreme

Court of Canada in Dagenais v. Canadian Broadcasting Corp .,

[1994] 3 SCR 835 which held that a publication ban should be

ordered when such an order is necessary to prevent a serious

risk to the proper administration of justice when reasonably

alternative measures like postponement of trial or change of

venue will not prevent the risk (necessity test); and that

salutary effects of the publication bans outweigh the

deleterious effects on the rights and interests of the parties and

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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

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the press was balanced with Section 1 of the Charter. Under

the Canadian Constitution, the Courts of Record (superior

courts) have retained the common law discretion to impose

such bans provided that the discretion is exercised in

accordance with the Charter demands in each individual case.

23. The Australian Approach: The Australian Courts impose

publication bans through the exercise of their inherent

jurisdiction to regulate their own proceedings. In Australia,

contempt laws deal with reporting of court proceedings which

interfere with due administration of justice. Contempt laws in

Australia embody the concept of “sub judice contempt” which

relates to the publication of the material that has a tendency to

interfere with the pending proceedings.

24. The New Zealand Approach: It recognizes the Open

Justice principle. However, the courts have taken the view that

the said principle is not absolute. It must be balanced against

the object of doing justice. That, the right to freedom of

expression must be balanced against other rights including the

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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

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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

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to the test of reasonableness after the judgment of this Court in

the case of Maneka Gandhi v. Union of India [(1978) 1 SCC

248].

Decisions of the Supreme Court on “ prior restraint ”

26.In Brij Bhushan v. State of Delhi [AIR 1950 SC 129], this

Court was called upon to balance exercise of freedom of

expression and pre-censorship. This Court declared the

statutory provision as unconstitutional inasmuch as the

restrictions imposed by it were outside Article 19(2), as it then

stood. However, this Court did not say that pre-censorship per

se is unconstitutional.

27. In Virendra v. State of Punjab [AIR 1957 SC 896], this

Court upheld pre-censorship imposed for a limited period and

right of representation to the government against such restraint

under Punjab Special Powers (Press) Act, 1956. However, in

the same judgment, another provision imposing pre-censorship

but without providing for any time limit or right to represent

against pre-censorship was struck down as unconstitutional.

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28.In the case of K.A. Abbas v. Union of India [AIR 1971 SC

481], this Court upheld prior restraint on exhibition of motion

pictures subject to Government setting up a corrective

machinery and an independent Tribunal and reasonable time

limit within which the decision had to be taken by the

censoring authorities.

29.At this stage, we wish to clarify that the reliance on the

above judgments is only to show that “prior restraint” per se

has not been rejected as constitutionally impermissible. At this

stage, we may point out that in the present IAs we are dealing

with the concept of “prior restraint” per se and not with cases of

misuse of powers of pre-censorship which were corrected by the

Courts [see Binod Rao v. Minocher Rustom Masani reported in

78 Bom LR 125 and C. Vaidya v. D ’ Penha decided by Gujarat

High Court in Sp. CA 141 of 1976 on 22.03.1976 (unreported)]

30.The question of prior restraint arose before this Court in

1988, in the case of Reliance Petrochemicals Ltd . v. Proprietors

of Indian Express Newspapers Bombay (P) Ltd . [AIR 1989 SC

190] in the context of publication in one of the national dailies

Page 25 25

of certain articles which contained adverse comments on the

proposed issue of debentures by a public limited company. The

validity of the debenture was sub judice in this Court. Initially,

the court granted injunction against the press restraining

publication of articles on the legality of the debenture issue.

The test formulated was that any preventive injunction against

the press must be “based on reasonable grounds for keeping

the administration of justice unimpaired” and that, there must

be reasonable ground to believe that the danger apprehended is

real and imminent. The Court went by the doctrine

propounded by Holmes J of “clear and present danger”. This

Court treated the said doctrine as the basis of balance of

convenience test. Later on, the injunction was lifted after

subscription to debentures had closed.

31.In the case of Naresh Shridhar Mirajkar v. State of

Maharashtra [AIR 1967 SC 1], this Court dealt with the power

of a court to conduct court proceedings in camera under its

inherent powers and also to incidentally prohibit publication

of the court proceedings or evidence of the cases outside the

Page 26 26

court by the media. It may be stated that “open Justice” is the

cornerstone of our judicial system. It instills faith in the

judicial and legal system. However, the right to open justice is

not absolute. It can be restricted by the court in its inherent

jurisdiction as done in Mirajkar’s case if the necessities of

administration of justice so demand [see Kehar Singh v. State

(Delhi Administration) , AIR 1988 SC 1883]. Even in US, the

said principle of open justice yields to the said necessities of

administration of justice [see: Globe Newspaper Co . v. Superior

Court, 457 US 596]. The entire law has been reiterated once

again in the judgment of this Court in Mohd. Shahabuddin v.

State of Bihar [(2010) 4 SCC 653], affirming judgment of this

Court in Mirajkar’s case.

32.Thus, the principle of open justice is not absolute. There

can be exceptions in the interest of administration of justice. In

Mirajkar, the High Court ordered that the deposition of the

defence witness should not be reported in the newspapers.

This order of the High Court was challenged in this Court

under Article 32. This Court held that apart from Section 151

Page 27 27

of the Code of Civil Procedure, the High Court had the inherent

power to restrain the press from reporting where administration

of justice so demanded. This Court held vide para 30 that

evidence of the witness need not receive excessive publicity as

fear of such publicity may prevent the witness from speaking

the truth. That, such orders prohibiting publication for a

temporary period during the course of trial are permissible

under the inherent powers of the court whenever the court is

satisfied that interest of justice so requires. As to whether such

a temporary prohibition of publication of court proceedings in

the media under the inherent powers of the court can be said to

offend Article 19(1)(a) rights [which includes freedom of the

press to make such publication], this Court held that an order

of a court passed to protect the interest of justice and the

administration of justice could not be treated as violative of

Article 19(1)(a) [see para 12]. The judgment of this Court in

Mirajkar is delivered by a Bench of 9-Judges and is binding on

this Court.

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33.At this stage, it may be noted that the judgment of the

Privy Council in the case of Independent Publishing Co. Ltd. v.

AG of Trinidad and Tobago [2005 (1) AC 190] has been doubted

by the Court of Appeal in New Zealand in the case of Vincent v.

Solicitor General [(2012) NZCA 188 dated 11.5.2012]. In any

event, on the inherent powers of the Courts of Record we are

bound by the judgment of this Court in Mirajkar. Thus, Courts

of Record under Article 129/Article 215 have inherent powers

to prohibit publication of court proceedings or the evidence of

the witness. The judgments in Reliance Petrochemicals Ltd.

and Mirajkar were delivered in civil cases. However, in

Mirajkar, this Court held that all Courts which have inherent

powers, i.e., the Supreme Court, the High Courts and Civil

Courts can issue prior restraint orders or proceedings,

prohibitory orders in exceptional circumstances temporarily

prohibiting publications of Court proceedings to be made in the

media and that such powers do not violate Article 19(1)(a).

Further, it is important to note, that, one of the Heads on which

Article 19(1)(a) rights can be restricted is in relation to

“contempt of court” under Article 19(2). Article 19(2) preserves

Page 29 29

common law of contempt as an “existing law”. In fact, the

Contempt of Courts Act, 1971 embodies the common law of

contempt. At this stage, it is suffice to state that the

Constitution framers were fully aware of the Institution of

Contempt under the common law which they have preserved as

“existing law” under Article 19(2) read with Article 129 and

Article 215 of Constitution. The reason being that contempt is

an offence sui generis. The Constitution framers were aware

that the law of contempt is only one of the ways in which

administration of justice is protected, preserved and furthered.

That, it is an important adjunct to the criminal process and

provides a sanction. Other civil courts have the power under

Section 151 of Code of Civil Procedure to pass orders

prohibiting publication of court proceedings. In Mirajkar, this

Court referred to the principles governing Courts of Record

under Article 215 [see para 60]. It was held that the High

Court is a Superior Court of Record and that under Article 215

it has all the powers of such a court including the power to

punish contempt of itself. At this stage, the word “including” in

Article 129/Article 215 is to be noted. It may be noted that

Page 30 30

each of the Articles is in two parts. The first part declares that

the Supreme Court or the High Court “shall be a Court of

Record and shall have all the powers of such a court”. The

second part says “includes the powers to punish for contempt”.

These Articles save the pre-existing powers of the Courts as

courts of record and that the power includes the power to

punish for contempt [see Delhi Judicial Service Association v.

State of Gujarat [(1991) 4 SCC 406] and Supreme Court Bar

Association v. Union of India [(1998) 4 SCC 409]. As such a

declaration has been made in the Constitution that the said

powers cannot be taken away by any law made by the

Parliament except to the limited extent mentioned in Article

142(2) in the matter of investigation or punishment of any

contempt of itself. If one reads Article 19(2) which refers to law

in relation to Contempt of Court with the first part of Article

129 and Article 215, it becomes clear that the power is

conferred on the High Court and the Supreme Court to see that

“the administration of justice is not perverted, prejudiced,

obstructed or interfered with”. To see that the administration

of justice is not prejudiced or perverted clearly includes power

Page 31 31

of the Supreme Court/High Court to prohibit temporarily,

statements being made in the media which would prejudice or

obstruct or interfere with the administration of justice in a

given case pending in the Supreme Court or the High Court or

even in the subordinate courts. In view of the judgment of this

Court in A.K. Gopalan v. Noordeen [(1969) 2 SCC 734], such

statements which could be prohibited temporarily would

include statements in the media which would prejudice the

right to a fair trial of a suspect or accused under Article 21

from the time when the criminal proceedings in a subordinate

court are imminent or where suspect is arrested. This Court

has held in Ram Autar Shukla v. Arvind Shukla [1995 Supp (2)

SCC 130] that the law of contempt is a way to prevent the due

process of law from getting perverted. That, the words “due

course of justice” in Section 2 (c) or Section 13 of the 1971 Act

are wide enough and are not limited to a particular judicial

proceedings. That, the meaning of the words “contempt of

court” in Article 129 and Article 215 is wider than the

definition of “criminal contempt” in Section 2 (c) of the 1971

Act. Here, we would like to add a caveat. The contempt of

Page 32 32

court is a special jurisdiction to be exercised sparingly and with

caution whenever an act adversely affects the

administration of justice [see Nigel Lowe and Brenda Sufrin,

Law of Contempt (Third Edition)]. Trial by newspaper comes in

the category of acts which interferes with the course of justice

or due administration of justice [see Nigel Lowe and Brenda

Sufrin, page 5 of Fourth Edition]. According to Nigel Lowe and

Brenda Sufrin [page 275] and also in the context of second part

of Article 129 and Article 215 of the Constitution the object of

the contempt law is not only to punish, it includes the power of

the Courts to prevent such acts which interfere, impede or

pervert administration of justice. Presumption of innocence is

held to be a human right. [See : Ranjitsing Brahmajeetsing

Sharma v. State of Maharashtra (2005) 5 SCC 294]. If in a given

case the appropriate Court finds infringement of such

presumption by excessive prejudicial publicity by the

newspapers (in general), then under inherent powers, the

Courts of Record suo motu or on being approached or on report

being filed before it by subordinate court can under its inherent

powers under Article 129 or Article 215 pass orders of

Page 33 33

postponement of publication for a limited period if the applicant

is able to demonstrate substantial risk of prejudice to the

pending trial and provided he is able to displace the

presumption of open Justice and to that extent the burden will

be on the applicant who seeks such postponement of offending

publication.

34.The above discussion shows that in most jurisdictions

there is power in the courts to postpone reporting of judicial

proceedings in the interest of administration of justice. Under

Article 19(2) of the Constitution, law in relation to contempt of

court, is a reasonable restriction. It also satisfies the test laid

down in the judgment of this Court in R. Rajagopal v. State of

T.N. [(1994) 6 SCC 632]. As stated, in most common law

jurisdictions, discretion is given to the courts to evolve

neutralizing devices under contempt jurisdiction such as

postponement of the trial, re-trials, change of venue and in

appropriate cases even to grant acquittals in cases of excessive

media prejudicial publicity. The very object behind empowering

the courts to devise such methods is to see that the

Page 34 34

administration of justice is not perverted, prejudiced,

obstructed or interfered with. At the same time, there is a

presumption of Open Justice under the common law.

Therefore, courts have evolved mechanisms such as

postponement of publicity to balance presumption of

innocence, which is now recognized as a human right in

Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra

(supra) vis-à-vis presumption of Open Justice. Such an order

of postponement has to be passed only when other alternative

measures such as change of venue or postponement of trial are

not available. In passing such orders of postponement, courts

have to keep in mind the principle of proportionality and the

test of necessity. The applicant who seeks order of

postponement of publicity must displace the presumption of

Open Justice and only in such cases the higher courts shall

pass the orders of postponement under Article 129/Article 215

of the Constitution. Such orders of postponement of publicity

shall be passed for a limited period and subject to the courts

evaluating in each case the necessity to pass such orders not

only in the context of administration of justice but also in the

Page 35 35

context of the rights of the individuals to be protected from

prejudicial publicity or mis-information, in other words, where

the court is satisfied that Article 21 rights of a person are

offended. There is no general law for courts to postpone

publicity, either prior to adjudication or during adjudication as

it would depend on facts of each case. The necessity for any

such order would depend on extent of prejudice, the effect on

individuals involved in the case, the over-riding necessity to

curb the right to report judicial proceedings conferred on the

media under Article 19(1)(a) and the right of the media to

challenge the order of postponement.

(ii)Contempt of Courts Act, 1971

35. Section 2 defines “contempt”, “civil contempt” and

“criminal contempt”. In the context of contempt on account of

publications which are not fair and accurate publication of

court proceedings, the relevant provisions are contained in

Sections 4 and 7 whereas Section 13 is a general provision

which deals with defences. It will be noticed that Section 4

deals with “report of a judicial proceeding”. A person is not

Page 36 36

to be treated as guilty of contempt if he has published such a

report which is fair and accurate. Section 4 is subject to the

provisions of Section 7 which, however, deals with publication

of “information” relating to “proceedings in chambers”. Here

the emphasis is on “information” whereas in Section 4,

emphasis is on “report of a judicial proceeding”. This

distinction between a “report of proceedings” and “information”

is necessary because Section 7 deals with proceedings in

camera where there is no access to the media. In this

connection, the provisions of Section 13 have to be borne in

mind. The inaccuracy of reporting of court proceedings will be

contempt only if it can be said on the facts of a particular case,

to amount to substantial interference with the administration of

justice. The reason behind Section 4 is to grant a privilege in

favour of the person who makes the publication provided it is

fair and accurate. This is based on the presumption of “open

justice” in courts. Open justice permits fair and accurate

reports of court proceedings to be published. The media has a

right to know what is happening in courts and to disseminate

the information to the public which enhances the public

Page 37 37

confidence in the transparency of court proceedings. As stated

above, sometimes, fair and accurate reporting of the trial (say a

murder trial) would nonetheless give rise to substantial risk of

prejudice not in the pending trial but in the later or connected

trials. In such cases, there is no other practical means short of

postponement orders that is capable of avoiding such risk of

prejudice to the later or connected trials. Thus, postponement

order not only safeguards fairness of the later or connected

trials, it prevents possible contempt by the Media.

(iii)“Order of Postponement” of publication- its nature and

Object

36.As stated, in US such orders of postponement are treated

as restraints which offend the First Amendment and as stated

courts have evolved neutralizing techniques to balance free

speech and fair trial whereas in Canada they are justified on

the touchstone of Section 1 of the Charter of Rights. What is

the position of such Orders under Article 19(1)(a) and under

Article 21?

Page 38 38

37.Before examining the provisions of Article 19(1)(a) and

Article 21, it may be reiterated, that, the right to freedom of

speech and expression, is absolute under the First Amendment

in the US Constitution unlike Canada and India where we have

the test of justification in the societal interest which saves the

law despite infringement of the rights under Article 19(1)(a). In

India, we have the test of “reasonable restriction” in Article

19(2). In the case of Secretary, Ministry of Information &

Broadcasting, Govt. of India v. Cricket Association of Bengal

[(1995) 2 SCC 161] it has been held that “it is true that Article

19(2) does not use the words “national interest”, “interest of

society” or “public interest” but the several grounds mentioned

in Article 19(2) for imposition of restrictions such as security of

the State, public order, law in relation to contempt of court,

defamation etc. are ultimately referable to societal interest

which is another name for public interest” [para 189]. It has

been further held that, “the said grounds in Article 19(2) are

conceived in the interest of ensuring and maintaining

conditions in which the said right can meaningfully be

exercised by the citizens of this country” [para 151].

Page 39 39

38.In the case of E.M.S. Namboodripad v. T. Narayanan

Nambiar [AIR 1970 SC 2015] it has been held that “the

existence of law containing its own guiding principles, reduces

the discretion of the Courts to the minimum. But where the

law [i.e. 1971 Act] is silent the Courts have discretion” [para

30]. This is more so when the said enactment is required to be

interpreted in the light of Article 21. We would like to quote

herein below para 6 of the above judgment which reads as

under :

“The law of contempt stems from the

right of the courts to punish by

imprisonment or fines persons guilty of

words or acts which either obstruct or

tend to obstruct the administration of

justice. This right is exercised in India by

all courts when contempt is committed in

facie curaie and by the superior courts

on their own behalf or on behalf of

courts subordinate to them even if

committed outside the courts.

Formerly, it was regarded as inherent in

the powers of a court of record and now

by the Constitution of India, it is a part of

the powers of the Supreme Court and the

High Courts.”

Page 40 40

39.The question before us is whether such “postponement

orders” constitute restrictions under Article 19(2) as read

broadly by this Court in the case of Cricket Association of

Bengal (supra)?

40. As stated, right to freedom of expression under the First

Amendment in US is absolute which is not so under Indian

Constitution in view of such right getting restricted by the test

of reasonableness and in view of the Heads of Restrictions

under Article 19(2). Thus, the clash model is more suitable to

American Constitution rather than Indian or Canadian

jurisprudence, since First Amendment has no equivalent of

Article 19(2) or Section 1 of the Canadian Charter. This has led

the American Courts, in certain cases, to evolve techniques or

methods to be applied in cases where on account of excessive

prejudicial publicity, there is usurpation of court’s functions.

These are techniques such as retrials being ordered, change of

venue, ordering acquittals even at the Appellate stage, etc. In

our view, orders of postponement of publications/ publicity in

Page 41 41

appropriate cases, as indicated above, keeping in mind the

timing (the stage at which it should be ordered), its duration

and the right of appeal to challenge such orders is just a

neutralizing device, when no other alternative such as change

of venue or postponement of trial is available, evolved by courts

as a preventive measure to protect the press from getting

prosecuted for contempt and also to prevent administration of

justice from getting perverted or prejudiced.

(iv)Width of the postponement orders

41.The question is - whether such “postponement orders”

constitute restriction under Article 19(1)(a) and whether such

restriction is saved under Article 19(2)?

42.At the outset, we must understand the nature of such

orders of postponement. Publicity postponement orders should

be seen, in the context of Article 19(1)(a) not being an absolute

right. The US clash model based on collision between freedom

of expression (including free press) and the right to a fair trial

will not apply to Indian Constitution. In certain cases, even

accused seeks publicity (not in the pejorative sense) as

Page 42 42

openness and transparency is the basis of a fair trial in which

all the stakeholders who are a party to a litigation including the

judges are under scrutiny and at the same time people get to

know what is going on inside the court rooms. These aspects

come within the scope of Article 19(1) and Article 21. When

rights of equal weight clash, Courts have to evolve balancing

techniques or measures based on re-calibration under which

both the rights are given equal space in the Constitutional

Scheme and this is what the “postponement order” does subject

to the parameters, mentioned hereinafter. But, what happens

when courts are required to balance important public interests

placed side by side. For example, in cases where presumption

of open justice has to be balanced with presumption of

innocence, which as stated above, is now recognized as a

human right. These presumptions existed at the time when the

Constitution was framed [existing law under Article 19(2)] and

they continue till date not only as part of rule of law under

Article 14 but also as an Article 21 right. The constitutional

protection in Article 21 which protects the rights of the person

for a fair trial is, in law, a valid restriction operating on the

Page 43 43

right to free speech under Article 19(1)(a), by virtue of force of it

being a constitutional provision. Given that the postponement

orders curtail the freedom of expression of third parties, such

orders have to be passed only in cases in which there is real

and substantial risk of prejudice to fairness of the trial or to the

proper administration of justice which in the words of Justice

Cardozo is “the end and purpose of all laws”. However, such

orders of postponement should be ordered for a limited

duration and without disturbing the content of the publication.

They should be passed only when necessary to prevent real and

substantial risk to the fairness of the trial (court proceedings), if

reasonable alternative methods or measures such as change of

venue or postponement of trial will not prevent the said risk

and when the salutary effects of such orders outweigh the

deleterious effects to the free expression of those affected by the

prior restraint. The order of postponement will only be

appropriate in cases where the balancing test otherwise favours

non-publication for a limited period. It is not possible for this

Court to enumerate categories of publications amounting to

contempt. It would require the courts in each case to see the

Page 44 44

content and the context of the offending publication. There

cannot be any straightjacket formula enumerating such

categories. In our view, keeping the above parameters, if the

High Court/ Supreme Court (being Courts of Record) pass

postponement orders under their inherent jurisdictions, such

orders would fall within “reasonable restrictions” under Article

19(2) and which would be in conformity with societal interests,

as held in the case of Cricket Association of Bengal (supra). In

this connection, we must also keep in mind the language of

Article 19(1) and Article 19(2). Freedom of press has been read

into Article 19(1)(a). After the judgment of this Court in

Maneka Gandhi (supra, p. 248), it is now well-settled that test

of reasonableness applies not only to Article 19(1) but also to

Article 14 and Article 21. For example, right to access courts

under Articles 32, 226 or 136 seeking relief against

infringement of say Article 21 rights has not been specifically

mentioned in Article 14. Yet, this right has been deduced from

the words “equality before the law” in Article 14. Thus, the test

of reasonableness which applies in Article 14 context would

equally apply to Article 19(1) rights. Similarly, while judging

Page 45 45

reasonableness of an enactment even Directive Principles have

been taken into consideration by this Court in several cases

[see recent judgment of this Court in Society for Un-aided

Private Schools of Rajasthan v. U.O.I. 2012 (4) SCALE 272.

Similarly, in the case of Dharam Dutt v. Union of India reported

in (2004) 1 SCC 712, it has been held that rights not included

in Article 19(1)(c) expressly, but which are deduced from the

express language of the Article are concomitant rights, the

restrictions thereof would not merely be those in Article 19(4)].

Thus, balancing of such rights or equal public interest by order

of postponement of publication or publicity in cases in

which there is real and substantial risk of prejudice to the

proper administration of justice or to the fairness of trial and

within the above enumerated parameters of necessity and

proportionality would satisfy the test of reasonableness in

Articles 14 and 19(2). One cannot say that what is reasonable

in the context of Article 14 or Article 21 is not reasonable when

it comes to Article 19(1)(a). Ultimately, such orders of

postponement are only to balance conflicting public interests or

rights in Part III of Constitution. They also satisfy the

Page 46 46

requirements of justification under Article 14 and Article 21.

Further, we must also keep in mind the words of Article 19(2)

“in relation to contempt of court”. At the outset, it may be

stated that like other freedoms, clause 1(a) of Article 19 refers

to the common law right of freedom of expression and does not

apply to any right created by the statute (see page 275 of

Constitution of India by D.D. Basu, 14

th

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

Page 47 47

contempt or limits of contempt. Article 142(2) operates only in

a limited field. It permits a law to be made restricted to

investigations and punishment and does not touch the inherent

powers of the Court of Record. Fourthly, in case of criminal

contempt, the offending act must constitute interference with

administration of justice. Contempt jurisdiction of courts of

record forms part of their inherent jurisdiction under Article

129/ Article 215. Superior Courts of Record have inter alia

inherent superintendent jurisdiction to punish contempt

committed in connection with proceedings before inferior

courts. The test is that the publication (actual and not

planned publication) must create a real and substantial risk of

prejudice to the proper administration of justice or to the

fairness of trial. It is important to bear in mind that sometimes

even fair and accurate reporting of the trial (say murder trial)

could nonetheless give rise to the “real and substantial risk of

serious prejudice” to the connected trials. In such cases,

though rare, there is no other practical means short of

postponement orders that is capable of avoiding the real and

substantial risk of prejudice to the connected trials. Thus,

Page 48 48

postponement orders safeguard fairness of the connected trials.

The principle underlying postponement orders is that it

prevents possible contempt. Of course, before passing

postponement orders, Courts should look at the content of the

offending publication (as alleged) and its effect. Such

postponement orders operate on actual publication. Such

orders direct postponement of the publication for a limited

period. Thus, if one reads Article 19(2), Article 129/ Article 215

and Article 142(2), it is clear that Courts of Record “have all the

powers including power to punish” which means that Courts of

Record have the power to postpone publicity in appropriate

cases as a preventive measure without disturbing its content.

Such measures protect the Media from getting prosecuted or

punished for committing contempt and at the same time such

neutralizing devices or techniques evolved by the Courts

effectuate a balance between conflicting public interests. It is

well settled that precedents of this Court under Article 141 and

the Comparative Constitutional law helps courts not only to

understand the provisions of the Indian Constitution it also

helps the Constitutional Courts to evolve principles which as

Page 49 49

stated by Ronald Dworkin are propositions describing rights [in

terms of its content and contours] (See “Taking Rights

Seriously” by Ronald Dworkin, 5

th

Reprint 2010). The

postponement orders is, as stated above, a neutralizing device

evolved by the courts to balance interests of equal weightage,

viz., freedom of expression vis-à-vis freedom of trial, in the

context of the law of contempt. One aspect needs to be

highlighted. The shadow of the law of contempt hangs over our

jurisprudence. The media, in several cases in India, is the only

representative of the public to bring to the notice of the court

issues of public importance including governance deficit,

corruption, drawbacks in the system. Keeping in mind the

important role of the media, Courts have evolved several

neutralizing techniques including postponement orders subject

to the twin tests of necessity and proportionality to be applied

in cases where there is real and substantial risk of prejudice to

the proper administration of justice or to the fairness of trial.

Such orders would also put the Media to notice about possible

contempt. However, it would be open to Media to challenge

such orders in appropriate proceedings. Contempt is an

Page 50 50

offence sui generis. Purpose of Contempt Law is not only to

punish. Its object is to preserve the sanctity of administration

of justice and the integrity of the pending proceeding. Thus,

the postponement order is not a punitive measure, but a

preventive measure as explained hereinabove. Therefore, in

our view, such orders of postponement, in the absence of any

other alternative measures such as change of venue or

postponement of trial, satisfy the requirement of justification

under Article 19(2) and they also help the Courts to balance

conflicting societal interests of right to know vis-à-vis another

societal interest in fair administration of justice. One more

aspect needs to be mentioned. Excessive prejudicial publicity

leading to usurpation of functions of the Court not only

interferes with administration of justice which is sought to be

protected under Article 19(2), it also prejudices or interferes

with a particular legal proceedings. In such case, Courts are

duty bound under inherent jurisdiction, subject to above

parameters, to protect the presumption of innocence which is

now recognised by this Court as a human right under Article

21, subject to the applicant proving displacement of such a

Page 51 51

presumption in appropriate proceedings. Lastly,

postponement orders must be integrally connected to the

outcome of the proceedings including guilt or innocence of the

accused, which would depend on the facts of each case. For

aforestated reasons, we hold that subject to above parameters,

postponement orders fall under Article 19(2) and they satisfy

the test of reasonableness.

(v)Right to approach the High Court/ Supreme Court

43. In the light of the law enunciated hereinabove, anyone, be

he an accused or an aggrieved person, who genuinely

apprehends on the basis of the content of the publication and

its effect, an infringement of his/ her rights under Article 21 to

a fair trial and all that it comprehends, would be entitled to

approach an appropriate writ court and seek an order of

postponement of the offending publication/ broadcast or

postponement of reporting of certain phases of the trial

(including identity of the victim or the witness or the

complainant), and that the court may grant such preventive

relief, on a balancing of the right to a fair trial and Article 19(1)

Page 52 52

(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

Page 53 53

other authority with jurisdiction, adjudicatory or otherwise,

which they do not possess.

45.Article 141 uses the phrase “law declared by the Supreme

Court.” It means law made while interpreting the statutes or

the Constitution. Such judicial law-making is part of the

judicial process. Further under Article 141, law-making

through interpretation and expansion of the meanings of open-

textured expressions such as “law in relation to contempt of

court” in Article 19(2), “equal protection of law”, “freedom of

speech and expression” and “administration of justice” is a

legitimate judicial function. According to Ronald Dworkin,

“Arguments of principle are arguments intended to establish an

individual right. Principles are propositions that describe

rights.” [See “Taking Rights Seriously” by Ronald Dworkin, 5

th

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

Page 54 54

129/Article 215 in the light of the contentions and large

number of authorities referred to by the counsel on Article 19(1)

(a), Article 19(2), Article 21, Article 129 and Article 215 as also

the “law of contempt” insofar as interference with

administration of justice under the common law as well as

under Section 2(c) of 1971 Act is concerned. What constitutes

an offending publication would depend on the decision of the

court on case to case basis. Hence, guidelines on reporting

cannot be framed across the Board. The shadow of “law of

contempt” hangs over our jurisprudence. This Court is duty

bound to clear that shadow under Article 141. The phrase “in

relation to contempt of court” under Article 19(2) does not in

the least describe the true nature of the offence which consists

in interfering with administration of justice; in impending and

perverting the course of justice. That is all which is done by

this judgment. We have exhaustively referred to the contents of

the IAs filed by Sahara and SEBI. As stated above, the right to

negotiate and settle in confidence is a right of a citizen and

has been equated to a right of the accused to defend

himself in a criminal trial. In this case, Sahara has

Page 55 55

complained to this Court on the basis of breach of

confidentiality by the Media. In the circumstances, it cannot be

contended that there was no lis. Sahara, therefore, contended

that this Court should frame guidelines or give directions which

are advisory or self-regulatory whereas SEBI contended that the

guidelines/directions should be given by this Court which do

not have to be coercive. In the circumstances, constitutional

adjudication on the above points was required and it cannot be

said that there was no lis between the parties. We reiterate

that the exposition of constitutional limitations has been done

under Article 141 read with Article 129/Article 215. When the

content of rights is considered by this Court, the Court has also

to consider the enforcement of the rights as well as the

remedies available for such enforcement. In the circumstances,

we have expounded the constitutional limitations on free

speech under Article 19(1)(a) in the context of Article 21 and

under Article 141 read with Article 129/Article 215 which

preserves the inherent jurisdiction of the Courts of Record in

relation to contempt law. We do not wish to enumerate

categories of publication amounting to contempt as the Court(s)

Page 56 56

has to examine the content and the context on case to case

basis.

Conclusion

46.Accordingly, IA Nos. 4-5 and 10 are disposed of.

47. For the reasons given above, we do not wish to express

any opinion on the merit of the other IAs. Consequently, they

are dismissed.

…..……………………… .......CJI

(S. H. Kapadia)

.........………………………… ..J.

(D.K. Jain)

.........………………………… ..J.

(Surinder Singh Nijjar)

.........………………………… ..J.

(Ranjana Prakash Desai)

.........………………………… ..J.

(Jagdish Singh Khehar)

New Delhi;

September 11, 2012.