Supreme Court of India
SAHARA INDIA REAL ESTATE CORP. LTD. & ORS.versusSECURITIES & EXCHANGE BOARD OF INDIA & ANR.
- Citation
- 2012 INSC 388
- Decided
- 11 September 2012
- Disposal
- Disposed off
- Bench
- S H KAPADIA
Holding
Postponement orders of publication are a permissible, proportionate restriction under Article 19(2) when they prevent a real and substantial risk to the administration of justice, and the Court may issue non‑coercive guidelines balancing free speech with the right to a fair trial.
Summary
The Supreme Court was approached after a television channel disclosed confidential settlement proposals between Sahara India Real Estate Corp. Ltd. and SEBI during pending litigation, raising concerns about media reporting of sub‑judice matters. The Court examined whether it could issue guidelines or orders restricting such reporting and whether postponement orders constitute a permissible restriction on freedom of speech. It held that postponement of publication is a neutralising, preventive device, not punitive, and is a reasonable restriction under Article 19(2) when there is a real and substantial risk of prejudice to the administration of justice. The Court clarified that such orders must be limited in duration, proportionate, and only applied where alternatives like change of venue are unavailable. It further stated that the Court may issue non‑coercive, advisory guidelines balancing Article 19(1)(a) and Article 21, but cannot legislate a general rule. Consequently, the interim applications seeking guidelines (IA Nos. 4‑5 and 10) were dismissed, and no opinion was expressed on the merits of the other applications.
Issues considered
- Whether the Supreme Court can frame guidelines or issue orders restricting media reporting of sub‑judice matters.
- Whether an order of postponement of publication constitutes a restriction under Article 19(1)(a) and is justified under Article 19(2).
- Whether such postponement orders are within the inherent powers of courts under Articles 129 and 215 of the Constitution.
- Whether the Court may prescribe advisory or self‑regulatory guidelines without encroaching on legislative competence under Article 142.
- How to balance the right to freedom of expression (Article 19(1)(a)) with the right to a fair trial and dignity (Article 21).
- Whether the media can be subjected to prior restraint in the absence of a real and substantial risk of prejudice.
Legislation cited
- Constitution of Indias. Article 129, s. Article 141, s. Article 142, s. Article 19(1)(a), s. Article 19(2), s. Article 21, s. Article 215
- Contempt of Courts Act, 1971s. Section 13, s. Section 2, s. Section 4, s. Section 7
Subjects
sub‑judicemedia reportingfreedom of expressionArticle 19Article 21contempt of courtpostponement orderprior restraintbalancing testnecessityproportionality
Judgment
[2012] 12 S.C.R. 256
A SAHARA INDIA REAL ESTATE CORP. LTD. & ORS.
v.
SECURITIES & EXCHANGE BOARD OF INDIA & ANR.
I.A. Nos. 4-5, 10, 11, 12-13, 16-17, 18, 19, 20-21, 22-23,
B 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
SEPTEMBER 11, 2012
c
[S.H. KAPADIA, CJI., D.K. JAIN, SURINDER SINGH
NIJJAR, RANJANA PRAKASH DESAI AND
JAGDISH SINGH KHEHAR, JJ.]
D Constitution of India, 1950 - Articles 19(1)(a), 19(2), 21,
129 and 215 - Reporting of matters, which are sub-Judice -
Postponement of reporting - Rights of the citizens and the
media - Balancing of Article 19(1)(a) rights vis-a-vis Article
21, the scope of Article 19(2) in the context of the law
E regulating contempt of court and the scope of Article 1291
Article 215 - ·order of Postponement" of publication- its
nature and Object - Orders of postponement of publications!
publicity in appropriate cases, keeping in mind the timing (the
stage at which it should be ordered), its duration and the right
F 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
G of justice from getting perverted or prejudiced - Width of the
postponement orders - 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 is "the end and purpose
H 256
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 257
EXCHANGE BOARD OF INDIA
of all laws" - However, such orders of postponement should A
be ordered for a limited duration and without disturbing the
content of the publication - 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 - The principle underlying B
postponement orders is that it prevents possible contempt -
The postponement order is not a punitive measure, but a
preventive measure - Orders of postponement, in the
absence of any other alternative measures such as change
of venue or postponement of trial, satisfy the requirement of c
justification under Article 19(2) and they also help the Courts
to balance conflicting societal interests of right to know vis-a-
~·is another societal interest in fair administration of justice -
Excessive prejudicial publicity leading to usurpation of
functions of the Court not only interferes with administration
0
e>f justice which is sought to be protected under Article 19(2),
it also prejudices or interferes with a particular legal
proceedings - Right to approach the High CourV Supreme
Court - The court may grant preventive relief, on a balancing
of the right to a fair trial and Article 19(1)(a) rights, bearing in E
mind the principles of necessity and proportionality.
Constitution of India, 1950 - Articles 19(1)(a), 19(2), 21
- Freedom of expression - Constitutionalization of free
speech - Comparative law: differences between the US and
other common-law experiences - Discussed. F
Contempt of Courts Act, 1971 - s.4- Reporting ofjudicial
proceedings - Inaccuracy in reporting of court proceedings
- When contempt - Held: Only if it can be said on the facts
of a particular case, to amount to substantial interference with G
the administration of justice.
Pending legal proceedings between the parties
before this Court, one of the news channels flashed on
TV the details of a proposal communicated only inter
parties for purpose of negotiation and which was not H
258 SUPREME COURT REPORTS [2012] 12 S.C.R.
A meant for public circulation. The said incident was
brought to the notice of this Court which then requested
both the sides to make written application in the form of
I.A. so that appropriate orders could be passed by this
Court with regard to reporting of matters, which are sub-
B judice.
IA Nos. 4 and 5 came to be filed by the appellant
praying that i) appropriate guidelines be framed with
regard to reporting (in the electronic and print media) of
C matters which are sub-judice in a court including public
disclosure of documents forming part of court
proceedings and ii) that 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
D adjudicated upon. Vide IA No. 10, the respondent also
averred that in view of the said incident, this Court
should give appropriate directions or frame guidelines.
Important questions of public importance thus arose
E for consideration with regard to the rights of the citizens
and the media- 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)
F rights vis-ii-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.
Disposing of the IA Nos. 4-5 and 10, the Court
G HELD:
Constitutionalization of free speech - Comparative law:
differences between the US and other common-law
experiences
H 1.1. Protecting speech is the US approach.
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 259
EXCHANGE BOARD OF INDIA
Protecting Justice is the English approach. The A
Continental Approach seeks to protect personality.
[Paras 17, 19 and 21] [274-B, H; 277-A]
1.2. The Canadian approach: Since the Canadian
Charter of Rights introduced an express guarantee of B
"freedom of the press· and other media of
communication", the Canadian Courts reformulated the
traditional sub judice rule, s~owing a more tolerant
attitude towards trial-related reporting. In the context of
post-Charter situation, the Canadian Supreme Court has C
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. [Para 22] [278-A-B-E-F] D
1.3. The Australian Approach: The Australian Courts
impose publication bans through the exercise of their
inherent jurisdiction to regulate their own proceedings.
Contempt laws in Australia embody the concept of "sub E
judice .contempt" which relates to the publication of the
material that has a tendency to interfere with the pending
proceedings. [Para 23] [279-B-C]
1.4. The New Zealand Approach: It recognizes the
Open Justice principle. However, the courts have taken F
the view that the said principle is not absolute. It must be
balanced against the object of doing justice. [Para 24]
[279-C-D]
1.5. Indian Approach to prior restraint: Under our G
Constitution no right in Part Ill is absolute. Freedom of
expression is not an absolute value under our
Constitution. Underlying our Constitutional system are a
number of important values, all of which help to
guarantee our liberties, but in ways which sometimes H
260 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 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
B 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. [Para 25) [280-
B-D]
1.6. In most common law jurisdictions, discretion is
C 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
D to devise such methods is to see that the administration
of justice is not perverted, prejudiced, obstructed or
interfered with. At the same time, there is a presumption
of Open Justice under the common law. Therefore,
courts have evolved mechanisms such as postponement
E of publicity to balance presumption of innocence, which
is now recognized as a human right vis-a-vis
presumption of Open Justice. Such an order of
postponement has to be passed only when other
alternative measures such as change of venue or
F 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
G 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
H such orders not only in the context of administration of
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 261
EXCHANGE BOARD OF INDIA
justice but also in the context of the rights of the A
individua!s to be protected from prejudicial publicity or
mis-information, in other words, where the court is
s;atisfied 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 B
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 C
of the media to challenge the order of postponement.
[Para 34] [286-C-H; 287-A-C]
State of Maharashtra v. Rajendra J. Gandhi (1997) 8
SCC 386: 1997 (4) Suppl. SCR 68; Chintaman Rao v. The
State of Madhya Pradesh (1950) SCR 759; Maneka Gandhi D
v. Union of India (1978) 1 SCC 248: 1978 (2) SCR 621; Brij
Bhushan v. State of Delhi AIR (1950) SC 129; Virendra v.
State of Punjab AIR (1957) SC 896: 1958 SCR 308; K.A.
Abbas v. Union of India AIR (1971) SC 481: 1971 (2) SCR
446; Binod Rao v. Minocher Rustom Masani 78 Born LR E
125; C. Vaidya v. D' Penha decided by Gujarat High Court
in Sp. CA 141 of 1976; Reliance Petrochemicals Ltd. v.
Proprietors of Indian Express Newspapers Bombay (P) Ltd.
AIR 1989 SC 190: 1988 (3) Suppl. SCR 212; Naresh
Shridhar Mirajk11r v. State of Maharashtra AIR 1967 SC 1: F
1966 SCR 744; Kehar Singh v. State (Delhi Administration)
AIR 1988 SC 1883: 1988 (2) Suppl. SCR 24; Globe
Newspaper Co. v. Superior Court 457 US 596; Mohd.
Shahabuddin v. State of Bihar (2010) 4 SCC 653: 2010 (3 )
SCR 911; Delhi Judicial Service Association v. State of G
Gujarat (1991) 4 SCC 406: 1991 (3) SCR 936; Supreme
Court Bar Association v. Union of India (1S98) 4 SCC 409:
1998 (2) SCR 795; A.K. Gopalan v. Noordeen (1969) 2 SCC
734; Ram Autar Shukla v. Arvind Shukla 1995 Supp (2) SCC
130: 1994 (5) Suppl. SCR 707; Ranjitsing Brahmajeetsing H
262 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Sharma v. State of Maharashtra (2005) 5 SCC 294: 2005 (3)
SCR 345 and R. Rajagopal v. State of T.N. (1994) 6 SCC
632: 1994 (4) Suppl. SCR 353; - referred to.
Near v. Minnesota 283 US 697; Sunday Times v. United
Kingdom (1979) 2 EHRR 245; Home Office v. Harman
B (1983) 1 A.C. 280; Globe and Mail v. Canada Procureur
general (2008) QCCA 2516; Dagenais v. Canadian
Broadcasting Corp. (1994) 3 SCR 835; R. v. Mentuck (2001)
3 SCR 442; Independent Publishing Co. Ltd. v. AG of
Trinidad and Tobago 2005 (1) AC 190 and Vincent v.
C Solicitor General (2012) NZCA 188 - referred to.
Contempt of Courts Act, 1971
2. Section 4 of the Contempt of Courts Act, 1971
deals with "report of a judicial proceeding". The
D 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. Postponement order not only
safeguards fairness of the later or connected trials, it
E prevents possible contempt by the Media. [Para 35] [287-
E-G-H; 288-C-D]
"Order of Postponement" of publication- its nature
and Object
F 3. The orders of postponement of publications/
publicity in appropriate cases, 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
G 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. [Para 40] [290-D-E]
H
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 263
EXCHANGE BOARD OF INDIA
Secretary, Ministry of Information & Broadcasting, Govt. A
of India v. Cricket Association of Bengal (1995) 2 SCC 161:
1995 (1) SCR 1036 and E.M.S. Namboodripad v. T.
Narayanan Nambiar AIR 1970 SC 2015: 1971 (1) SCR 697
- referred to.
Width of the postponement orders B
4.1. Publicity postponement orders should be seen,
in the context of Article 19(1)(a) not being an absolute
right. Given that the postponement orders curtail the
freedom of expression of third parties, such orders have C
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 is "the end and
purpose of all laws". However, such orders of
postponement should be ordered for a limited duration D
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 E
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-
F
publication for a limited period. It is not possible for this
Court to enumerate categories of publications amounting
to contempt. It would require the courts in each case to
see the content and the context of the offending
publication. [Para 42] [290-G; 291-E-G; 292-A]
G
4.2. 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 H
264 SUPREME COURT REPORTS (2012] 12 S.C.R.
A 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. Postponement orders safeguard
fairness of the connected trials. The principle underlying
B 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.
C Such orders direct postponement of the publication for
a limited period. Thus, if one reads Article 19(2), Article
1291 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
D 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
E interests. [Para 42] [293-F-H; 294-8-E]
4.3. The postponement orders is a neutralizing device
evolved by the courts to balance interests of equal
weightage, viz., freedom of expression vis-a-vis freedom
F of trial, in the context of the law of contempt. 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
G 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.
H Contempt is an offence sui generis. Purpose of Contempt
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 265
• EXCHANGE BOARD OF INDIA
Law is not only to punish. Its object is to preserve the A
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.
Therefore, such orders of postponement, in the absence
of any other alternative measures such as change of B
venue or postponement of trial, satisfy the requirement
of justification under Article 19(2) and they also help the
Courts to balance conflicting societal interests of right to
know vis-a-vis another societal interest in fair
administration of justice. Excessive prejudicial publicity c
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.
Postponement orders must be integrally connected to the 0
outcome of the proceedings including guilt or innocence
of the accused, which would depend on the facts of each
case. [Para 42] [294-G; 295-A-E-F-G]
Society for Un-aided Private Schools of Rajasthan v.
U.0.1. 2012 (4) SCALE 272 and Dharam Dutt v. Union of India E
(2004) 1 sec 712: 2003 (6) Suppl. SCR 151 - referred to.
Right to approach the High Court/ Supreme Court
5. Anyone, be he an accused or an aggrieved person,
who genuinely apprehends on the basis of the content F
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 G
postponement of reporting of certain phases of the trial
(including identity of the victim or the witness or the
complainant), and that the court may grant such
preventive relief, on a balancing of the right to a fair trial
and Article 19(1 )(a) rights, bearing in mind the H
266 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 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
B 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. [Para 43] [296-A·E]
Case Law Reference
c
1997 (4) Suppl. SCR 68 referred to Para 12
283 us 697 referred to Para 17
(1979) 2 EHRR 245 referred to Para 19
D
(1983) 1 A.C. 280 referred to Para 20
(2008) QCCA 2516 referred to Para 20
(1950) SCR 759 referred to Para 21
E (1994) 3 SCR 835 referred to Para 22
(2001) 3 SCR 442 referred to Para 22
1978 (2) SCR 621 referred to Para 25
AIR (1950) SC 129 referred to Para 26
F
1958 SCR 308 referred to Para 27
1971 (2) SCR 446 referred to Para 28
78 Born LR 125 referred to Para 29
G
1988 (3) Suppl. SCR 212 referred to Para 30.
1966 SCR 744 referred to Para 31
1988 (2) Suppl. SCR 24 referred to Para 31
H 457 us 596 referred to Para 31
SAHARA INDIA REAL ESTATE CORP LTD. v. SECURITIES & 267
EXCHANGE BOARD OF INDIA
2010 (3) SCR 911 referred to Para 31 A
2005 (1) AC 190 referred to Para 33
(2012) NZCA 188 referred to Para 33
1991 (3) SCR 936 referred to Para 33
B
1998 (2) SCR 795 referred to Para 33
(1969) 2 sec 734 referred to Para 33
199( :s) Suppl. SCR 707 referred to Para 33
2005 (3) SCR 345 referred to Para 33 c
1994 (4) Suppl. SCR 353 referred to Para 34
1995 (1) SCR 1036 referred to Para 34
1971 (1) SCR 697 referred to Para 37
D
2012 (4) SCALE 272 referred to Para 37
2003 (6) Suppl. SCR 151 referred to Para 42
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- E
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
Civil Appeal No(s). 9813 and 9833 of 2011. F
From the Judgment and Order dated 18.10.2011 of the
Securities Appellate Tribunal in Appeal No. 131 of 2011.
WITH
G
I.A. Nos. 14 and 17 in Civil Appeal No. 733/2012.
Goolam E. Vahanvati, AG, Indra Jaising, ASG, Soli J.
Sorabjee, T.R. Andhyarujina, K.K. Venugopal, F.S. Nariman,
H
268 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Sidharth Luthra, Dr. Rajiv Dhavan, Shanti Bhushan, Anil Divan,
Ram Jethmalani, Kailash Vasdev, K.T.S. Tulsi, Parag P.
Tripathi, Harish N. Salve, Dr. Manish Singhvi, AAG, Mehernaz,
Soumik Ghosal, Ankur Talwar, Rohit Bhat, Shyam Mohan,
Ashwati Balraj, Pooja Dhar, Gaurav Kejriwal, C.D. Singh,
B Pratap Venugopal, Surekha Raman, Namrata Sood, Gaurav
Nair, Debdatt Kamat! (For K.J. John & Co.) Gagan Gupta, Rohit
Sharma, Nishanth Patil, Anoopam Prasad, Anand Kannan,
Supriya Jain, B.V. Balaram Das, Anup Bhambhani, Nisha
Bhambhani, Bhavita Modi, Lakshita Sethi, Sumita Hazarika,
C Manohar Lal Sharma (In-person), Ajit Sharma, Harsh Vardhan
Surana, Nikhil Nayyar, Rajshekhar Rao, Shekhar G. Devasa,
K.V. Dhananjay, Rohit Pandey, Adarsh Upadhyay, Wills
Mathews, Rabin Majumdar, Prashant Bhushan, Pranav
Sachdeva, Shailendra Swarup, Gopal Sankaranarayanan,
Vikas Mehta, Madhavi Divan, D. Bharat Kumar, Sayooj
D Mohandas M., Aabad H.H. Panda, lrshad Ahmad, Manju
Sharma Jelley, Nitya Ramakrishnan, Trideep Pais, Suhasini
Sen, S. Naved, Rahul Kripalini, Snehasish Mukherjee, Jyotika
Kalra, Annwesha Deb, Anukul Chandra Pradhan (In-person).
Dr. M.P. Raju, P. George Giri, Ashish Azad, Sandhya Raghav,
E Sunil Kumar Rana, (in-person) Balraj S. Malik, Dr. Sushi!
Balwada, Senthil Jagadeesan, Amit Sharma, Dr. Surat Singh,
Dr. Manish Arora, Arvind K. Gupta, Setu Nike!, E. Mazumdar,
Vijay Panjwani, Anip Sachthey, Anuradha Dutt, Ekta Kapil,
Vijayalakshmi Menon, Ritin Rai, Nakul Dewan, Siddhartha Jha,
F Anil Katiyar, Ashok Arora, Ravi Shankar Kumar, Kushagra
Arora, B.K. Choudhary, Arun Kumar, Subhiksh Vasudav, Nitin
Kumar Thakur, Amit Anand Tiwari, Mohit Kumar Shah for the
Appearing Parties.
G The Judgment of the Court was delivered by
S.H. KAPADIA, CJI.
Introduction
H 1. Finding an acceptable constitutional balance between
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 269
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
free press and administration of justice is a difficult task in every A
legal system.
Factual background
2. Civil Appeal Nos. 9813 and 9833 of 2011 were filed
challenging the order dated 18.10.2011 of the Securities 8
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.
c
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 o
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. E
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.
F
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 G
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
H
270 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 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
B at Chennai enclosing the proposal with details of security to
secure repayment of OFCD to investors as pre-condition for
stay of the impugned orders dated 23.06.2011 and 18.10.2011
pending hearing of the Civil Appeals together with the Valuation
Certificate indicating fair market value of the assets proposed
to be offered as security. This was communicated by e-mail
C 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.
D 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
E 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.
F 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
- G 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
H
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 271
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
channels. Such incidents are increasing by the day. Such A
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 B
by this Court with regard to reporting of matters, which are
sub-judice."
12. Pursuant to t~e 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 C
Nos. 4 and 5, Sahara stated that the time has come that this
Court should give appropriate directions with regard to
reporting of matters (in electronic and print media) which are
sub Judice. In this connection, it has been further stated: "it is
well settled that it is inappropriate for comments to be made D
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 E
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 F
public disclosure. That, disclosure and publication of pleadings
and other documents on the record of the case by third parties
(who are not parties to the proceedings in this court) can (under
the rules of this Court) only take place on an application to the
court and pursuant to the directions given by the court (see G
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 H
272 SUPREME COURT REPORTS [2012] 12 S.C.R.
A concern. According to Sahara, in the present case, no question
of public concern was involved in !he 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
8
[(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 !As by Sahara that this
Court should consider giving guidelines as to the manner and
C extent of publicity which can be given to pleadings/ documents
filed in court by one or the other party in a pending proceedings
which have not yet been adjudicated upon.
13. Accordingly, vide IA Nos. 4 and 5, Sahara made the
following prayers:
D
"(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.
E (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;"
F 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
G 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
H
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 273
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
should give appropriate directions or frame such guidelines as A
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 8
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 C
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 D
stated that if Sahara withdraws its IAs, SEBI would insist on
its IA being decided. In short, both Sahara and SEBI sought
adjudication. Further, on 28.03.2012, learned counsel for
Sahara filed a note in the Court citing instances (mostly criminal
cases) in which according to him certain aberration qua E
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 F
balancing of Article 19(1)(a) rights vis-a-Evis 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 G
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.
H
274 SUPREME COURT REPORTS [2012) 12 S.C.R.
A Constitutionalization of free speech
Comparative law: differences between the US and other
common-law experiences
17. Protecting speech is the US approach. The First
B 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
C 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
D 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
E cases, like O.J. Simpson, Courts have evolved procedural
devices aimed at neutralizing the effect of prejudicial publicity
like change of venue, ordering re-trial, reversal of conviction on
appeal (which, for the sake of brevity, is hereinafter referred to
as "neutralizing devices"). It may be stated that even in US
F as of date, there is no absolute rule against "prior restrain( 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:
G "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 Qwn
deliberative process".
H 19. Protecting Justice is the English approach. Fair
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 275
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
trials and public confidence in the courts as the proper forum A
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 8
written constitution. Freedoms in English law have been largely
determined by Parliament and Courts. However, after the
judgment of ECHR in the case of Sunday Times v. United
Kingdom [(1979) 2 EHRR 245], in the light of which the English
Contempt of Courts Act, 1981 (for short "the 1981 Act") stood C
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 D
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 E
highlighted. Under Section 4(2) of the 1981 Act, courts are
expressly empowered to postpone publication of any report of
the proceedings or any part of the proceedings for such period
as the court thinks fit for avoiding a substantial risk of prejudice
to the administration of justice in those proceedings. Why is F
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 G
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 H
276 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 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
8 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
C 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 Berrie & 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
D 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
E 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.
F 20. In the case of Home Office v. Harman [(1983) 1 A.C.
280] the House of Lords found that the counsel for a party was
furnished documents by the opposition party during inspection
on the specific undertaking that the contents will not be
disclosed to the public. However, in violation of the said
G 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
H Mail v. Canada (Procureur general), 2008 QCCA 2516]
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 277
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
21. The Continental Approach seeks to protect A
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 B
impartiality of the proceedings but also with other individual and
societal interests. Thus, narrowly focussed prior restraints are
provided for, on either a statutory or judicial basis. It is important
to note that in the common-law approach the protection of
sanctity of legal proceedings as a part of administration of c
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 D
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
E
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 F
proportionality to prevent imposition of overreaching restrictions
on the media. At this stage, we may state, that the said
principle of proportionality has been enunciated by this Court
in Chintaman Rao v. The State of Madhya Pradesh [ (1950)
SCR 759]. G
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 pr13ss, on the other hand, showed a clear preference H
278 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 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
B 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
c venue will not prevent the risk (necessity test); and that salutary
effects of the publication bans outweigh the deleterious effects
on the rights and interests of the parties and the public,
including the effect on the right to free expression and the right
of the accused to open trial (i.e. proportionality test)]. The
D ·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
E 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
F 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
G to balance the two rights. In both the above cases, Section 2(b)
of the Charter which deals with freedom of the press was
balanced with Section 1 of the Charter. Under the Canadian
Constitution, the Courts of Record (superior courts) have
retained the common law discretion to impose such bans
H
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 279
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.)
provided that the discretion is exercised in accordance with the A
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, B
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.
c
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 D
fundamental public interest in preserving the integrity of justice
and the administration of justice.
Indian Approach to prior restraint
{i) Judicial decisions E
25. At the outset, it may be stated that the Supreme Court
is not only the sentinel of t'ie 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 F
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, G
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
H
280 SUPREME COURT REPORTS (2012] 12 S.C.R.
A acceptable but also to those which offend or shock any section
of the population. It also includes the right to receive information
and ideas of all kinds from different sources. In essence, the
freedom of expression embodies the right to know. However,
under our Constitution no right in Part Ill is absolute. Freedom
B 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,
c 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
0
values. Consequently, free speech, in appropriate cases, has
got to correlate with fair trial. It also follows that in appropriate
case one right [say freedom of expression] may have to yield
to the other right like right to a fair trial. Further, even Articles
14 and 21 are subject to the test of reasonableness after the
E judgment of this Court in the case of Maneka Gandhi v. Union
of India [(1978) 1 sec 248).
Decisions of the Supreme Court on "prior restraint"
F 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
G 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
H
SAHARA INDIA REAL,,ESTATE CORP. LTD. v. SECURITIES & 281
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
under Punjab Special Powers (Press) Act, 1956. However, in A
the same judgment, another provision imposing pre-censorship
but without providing for any time limit or right to represent
against pre-censorship was struck down as unconstitutional.
28. In the case of K.A. Abbas v. Union of India [AIR 1971 pJ
SC 481], this Court upheld prior restraint on exhibition of motion
pictures subject to Government setting up a correctiv;e
machinery and an independent Tribunal and reasonable '1ime
limit within which the decision had to be taken by the C"'.:nsoring
authorities.
c
•:ne
29. At this stage, we wish to clarify that reliance on the
above judgments is only to show that "prior restrainr per se has
not been rejected as constitutionally irnpermissible. At this
stage, we may point out that in the pres'ent IAs we are dealing
with the concept of "prior restraint" pe·r se and not with cases D
of misuse of powers of pre-censorship which were corrected
by the Courts [see Binod Rao v. Minocher Rustom Masani
reported in 78 Born LR 125 and C. Vaidya v. D'Penha decided
by Gujarat High Court in Sp. CA 141 of 1976 on 22.03.1976
(unreported)] E
30. The question of prior restraint arose before this Court
in 1988, in the case of Reliance Pretrochemicals Ltd. v.
Proprietors of Indian Express Newspapers Bombay (P) Ltd.
[AIR 1989 SC 190] in the context of publication in one of the
national dailies of certain arfi~s which contained adverse F
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 G
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 H
282 SUPREME COURT REPORTS (2012] 12 S.C.R.
A 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
8 Maharashtra [AIR 1967 SC 1], this Court dealt with the power
of a court to conduct court proceedings in camera under its
inherent powers and also to incidentally prohibit publication
of the court proceedings or evidence of the cases outside the
court by the media. It may be stated that "open Justice" is the
C 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
D 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
E 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
F defence witness should not be reported in the newspapers.
This order of the High Court was challenged in this Court under
Article 32. This Court held that apart from Section 151 of the
Code of Civil Procedure, the High Court had the inherent power
to restrain the press from reporting where administration of
. _G 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
H under the inherent powers of the court whenever the court is
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 283
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
satisfied that interest of justice so requires. As to whether such A
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 B
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 Bencti of 9-Judges and is binding
on this Court.
33. At this stage, it may be noted that the judgment of the C
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 D
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 E
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 F
proceedings to be made in the media and that such powers
do not violate Article 19(1)(a). Further, it is important to note,
that, one of the Heads on which Article 19(1 )(a) rights can be
restricted is in relation to "contempt of court• under Article 19(2).
Article 19(2) preserves common law of contempt as an "existing G
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 H
284 SUPREME COURT REPORTS (2012) 12 S.C.R.
A 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
B 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
c is a Superior Court of Record and that under Article 215 it has
all the powers of such a court including the power to punish
contempt of itself. At this stage, the word "including• in Article
129/Article 215 is to be noted. It may be noted that each of the
Articles is in two parts. The first part declares that the Supreme
Court or the High Court "shall be a Court of Record and shall
0
have all the powers of such a court". The second part says
"includes the powers to punish for contempr. 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
E [(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
F 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
G is not perverted, prejudiced, obstructed or interfered with". To
see that the administration of justice is not prejudiced or
perverted clearly includes power of the Supreme Court/High
Court to prohibit temporarily, statements being made in the
media which would prejudice or obstruct or interfere with the
H administration of justice in a given case pending in the
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 285
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
Supreme Court or the High Court or even in the subordinate A
courts. In view of the judgment of this Court in AK. Gopalan v.
Noordeen [(1969) 2 sec 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 B
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 c
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
0
caveat. The contempt of court is a special jurisdiction to be
exercised sparingly and with caution whenever an act
adversely affects the administration of justice [see Nigel
Lowe and Brenda Sufrin, Law of Contempt (Third Edition)]. Trial
by newspaper comes in the category of acts which interferes
with the course of justice or due administration of justice [see E
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 F
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 G
publicity by the newspapers (in general), then under inherent
powers, the Courts of Record sue motu or on being
approached or on report being filed before it by subordinate
court can under its inherent powers under Article 129 or Article
215 pass orders of postponement of publication for a limited H
286 SUPREME COURT REPORTS [2012) 12 S.C.R.
A 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.
B
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
C 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
D appropriate cases even to grant acquittals in cases of
excessive media prejudicial publicity. The very object behind
empowering the courts to devise such methods is to see that
the administration of justice is not perverted, prejudiced,
obstructed or interfered with. At the same time, there is a
E 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-DEvis
F 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.
G The applicant who seeks order of postponement of publil.ity
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
H a limited period and subject to the courts evaluating in each
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 287
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.)
case the necessity to pass such orders not only in the context A
of administration of justice but also in the context of the rights
of the individuals to be protected from prejudicial publicity or
mis-information, in other words, where the court is satisfied that
Article 21 rights of a person are offended. There is no general
law for courts to postpone publicity, either prior to adjudication 8
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 C
the media to challenge the order of postponement.
{ii) Contempt of Courts Act, 1971
35. Section 2 defines "contempt", "civil contempt" and
"criminal contempf. In the context of contempt on account of D
publications which are not fair and accurate publication of court
proceedings, the relevant provisions are contained in Sections
4 and 7 whereas Section 13 is a general provision which deals
with defences. It will be noticed that Section 4 deals with "report
of a judicial proceeding". A person is not to be treated as E
guilty of contempt if hP 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 F
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 G
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
H
288 SUPREME COURT REPORTS [2012) 12 S.C.R.
A accurate. This is based on the presumption of "open justice"
in courts. Open justice permits fair and accurate reports of court
proceedings to be published. The media has a right to know
what is happening in courts and to disseminate the information
to the public which enhances the public confidence in the
B 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
c 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
D 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
E 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?
F 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
G 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
H
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 289
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
society" or "public interest" but the several grounds mentioned A
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 B
conceived in the interest of ensuring and maintaining conditions
in which the said right can meaningfully be exercised by the
citizens of this country" [para 151 ].
38. In the case of E.M.S. Namboodripad v. T. Narayanan
Nambiar [AIR 1970 SC 2015] it has been held that "the C
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 D
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 E
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 F
outside the courts. Formerly, it was regarded as inherent
in the powers of a court of record and now by the
Constitution of India, it is a part of the powers of the
Supreme Court and the High Courts."
39. The question before us is whether such "postponement G
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 H
290 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 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
B jurisprudence, since First Amendment has no equivalent of
Article 19(2) or Section 1 of the Canadian Charter. This has
Jed 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
c functions. These are techniques such as retrials being ordered,
change of venue, ordering acquittals even at the Appellate
stage, etc. In our view, orders of postponement of publications/
publicity in appropriate cases, as indicated above, keeping in
mind the timing (the stage at which it should be ordered), its
duration and the right of appeal to challenge such orders is just
0
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 .
E 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
F 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
G of expression (including free press) and the right to a fair trial
will not apply to Indian Constitution. In certain cases, even
accused seeks publicity (not in the pejorative sense) as
openness and transparency is the basis of a fair trial in which .
all the stakeholders who are a party to a litigation including the
H judges are under scrutiny and at the same time people get to
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 291
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.)
know what is going on inside the court rooms. These aspects A
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 B
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 C
human right. These presumptions existed at the time when the
Constitution was framed [existing law under Article 19(2)) and
they continue till date not only as part of rule of law under Article
14 but also as an Article 21 right. The constitutional protection
in Article 21 which protects the rights of the person for a fair
trial is, in law, a valid restriction operating on the right to free D
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 t0 be passed only in cases in which there is real and
substantial risk of prejudice to fairness of the trial or to the E
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 F
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 G
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 H
292 SUPREME COURT REPORTS [2012] 12 S.C.R.
A courts in each case to see the content and the context of the
offending publication. There cannot be any straightjacket
formula enumerating such categories. In our view, keeping the
above parameters, if the High Court/ Supreme Court (being
Courts of Record) pass postponement orders under their
B inherent jurisdictions, such orders would fall within "re~sonable
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).
C 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
D relief against infringement of say Article 21 rights has not been
specifically mentioned in Article 14. Yet, this right has been
deduced from the words "equality before the law" in Article 14.
Thus, the test of reasonableness which applies in Article 14
context would equally apply to Article 19(1) rights. Similarly,
while judging reasonableness of an enactment even Directive
E Principles have been taken into consideration by this Court in
several cases [see recent judgment of this Court in Societv for
Un-aided Private Schools of Rajasthan v. U.0.1. 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
F 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 !'lqual public interest
by order of postponement of publication or publicity in
G 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
H in the context of Article 14 or Article 21 is not reasonable when
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 293
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
it comes to Article 19(1)(a). Ultimately, such orders of A
postponement are only to balance conflicting public interests
-or rights in Part Ill of Constitution. They also satisfy the
requirements of justification under Article 14 and Article 21.
Further, we must also keep in mind the words of Article 19(2)
"in relation to contempt of court". At the outset, it may be stated B
that like other freedoms, clause 1(a) of Article 19 refers to the
common law right of freedom of expression and does not apply
to any right created by the statute (see page 275 of Constitution
of India by D.D. Basu, 14th edition). The above words "in
relation to" in Article 19(2) are words of widest amplitude. When c
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 D
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 E
defines what is the scope of contempt or limits of contempt.
Article 142(2) operates only in a limited field. It permits a law
to be made restricted to investigations and punishment and
does not touch the inherent powers of the Court of Record.
Fourthly, in case of criminal contempt, the offending act must F
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 a/ia inherent superintendent jurisdiction to
punish contempt committed in connection with proceedings G
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 H -
294 SUPREME COURT REPORTS [2012] 12 S.C.R.
A (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,
B 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.
c Such postponement orders operate on actual publication.
Such orders direct postponement of the publication tor 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
0
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
E interests. It is well settled that precedents of this Court under
Article 141 and the Comparative Constitutional law helps courts
not only to understand the provisions of the Indian Constitution
it also helps the Constitutional Courts to evolve principles which
as stated by Ronald Dworkin are propositions describing rights
F [in terms of its content and contours] (See "Taking Rights
Seriously" by Ronald Dworkin, 5th Reprint 2010). The
postponement orders is, as stated above, a neutralizing
device evolved by the courts to balance ir\terests of equal
weightage, viz., freedom of expression vis-DEvis freedom of
G 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,
js the only representative of the public to bring to the notice of
the court issues of public importance including governance
H deficit, corruption, drawbacks in the system. Keeping in mind
SAHARA INDIA REAL ESTATE CORP LTD. v. SECURITIES & 295
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
A
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 8
. possible contempt. However, it would be open to Media to
challenge such orders in appropriate proceedings. Contempt
is an offence sui generis. Purpose of Contempt Law is not only
)
to punish. Its object is to preserve the sanctity of administration
of justice and the integrity' of the pending proceeding. Thus, C
the postponement order is not a punitive measijl'e, but a
preventive measure as explained hereinabt:lve. 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 ~quirement of justification D
under Article 19(2) and they alsoilelp the Courts to balance
conflicting societal interests o'ftight to know vis- Evis 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 E
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 F
recognised by this Court as a human right under Article 21,
subject to the applicant proving displacement of such a
presumption in appropriate proceedings. Lastly,
postponement orders must be integrally connected to the
outcome of the proceedings including guilt or innocence of the G
accused, which would depend on the facts of each case. For
aforestated reasons, we hold that subject to above parameters,
postponem~nt orders fall under Article 19(2) and they satisfy
the test of reasonableness. · · ·
(v) Right to approach the High Court/ Supreme Court H
296 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 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
B 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
c relief, on a balancing of the right to a fair trial and Article
19(1 )(a) rights, bearing in mind the abovementioned principles
of necessity and proportionality and keeping in mind that such
orders of postponement should be for short duration and should
be applied only in cases of real and substantial risk of
. prejudice to the proper administration of justice or to the
0
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
E
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 rai~ed: (i) the proceedings were not
F maintainable as there is no lis; (ii) there is a difference between
law-making and framing of guidelines. That, law can be made
only by Parliament. That, guidelines to be framed by the Court,
therefore, should be self-regulatory or at the most advisory. (iii)
under Article 142, this Court cannot invest courts or any other
G 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
H the judicial process. Further under Article 141, law-making
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES &297
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJl.]
through interpretation and expansion of the meanings of open- A
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 B
individual right. Principles are propositions fhat describe rights."
[See "Taking Rights Seriously" by Ronald Dworkin, 5th Reprint
2010, p. 90]. In this case, this Court is only declaring under
Article 141, the constitutional limitations on free speech under
Article 19(1)(a), in the context of Article 21. The exercise ·C
undertaken by this Court is an exercise of exposition of
constitutional limitations under Article 141 read with Article
129/Article 215 in the light of the contentions and large number
of authorities referred to by the counsel on Article 19(1)(a),
Article 19(2), Article 21, Article 129 and Article 215 as also the.
"law of contempt" insofar as interference with administration of D
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" E
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 F
perverting the course ()f 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 G
himself in a criminal trial. In this case, Sahara has
complained· to this Court on the basis of breach of
confidentiality by the Media. In the circumstances, it cannot be
contended that there was no lis. Sahara, therefore, contended
that this Court should frame guidelines or give directions which H
298 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 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 /is between the parties. We reiterate
B 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 enforcemen.t of the rights as well as the
remedies available for sucn enforcement. In the circumstances,
c 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)
0
has to examine the content and the context on case to case
basis.
Conclusion
E 46. Accordingly, IA Nos. 4..S and 10 are disposed of.
47. For the reasons given above, we do not wish to
express any opiniqn on the merit of the other IAs. Consequently,
they are dismissed.
F B.B.B. IAs disposed ·of.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "sub‑judice"Sign in to search