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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.  

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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?

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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].

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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.”

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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

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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

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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

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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

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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

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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

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requirements of justification under Article 14 and Article 21.  

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

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

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

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

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

Constitution of India by D.D. Basu, 14th edition).  The above  

words “in relation to”  in Article 19(2) are words of widest  

amplitude.  When the said words are read in relation to  

contempt of court, it follows that the law of contempt is treated  

as reasonable restriction as it seeks to prevent administration  

of justice from getting perverted or prejudiced or interfered  

with.  Secondly, these words show that the expression  

“contempt of court”  in Article 19(2) indicates that the object  

behind putting these words in Article 19(2) is to regulate and  

control administration of justice.  Thirdly, if one reads Article  

19(2) with the second part of Article 129 or Article 215, it is  

clear that the contempt action does not exhaust the powers of  

the Court of Record.  The reason being that contempt is an  

offence sui generis.   Common law defines what is the scope of

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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,

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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

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stated by Ronald Dworkin are propositions describing rights [in  

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

Seriously”  by Ronald Dworkin, 5th Reprint 2010).  The  

postponement orders is, as stated above, a neutralizing device  

evolved by the courts to balance interests of equal weightage,  

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

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

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

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

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

issues of public importance including governance deficit,  

corruption, drawbacks in the system.  Keeping in mind the  

important role of the media, Courts have evolved several  

neutralizing techniques including postponement orders subject  

to the twin tests of necessity and proportionality to be applied  

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

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

Such orders would also put the Media to notice about possible  

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

such orders in appropriate proceedings.  Contempt is an

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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

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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)

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(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

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other authority with jurisdiction, adjudicatory or otherwise,  

which they do not possess.

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

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

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

judicial process.  Further under Article 141, law-making  

through interpretation and expansion of the meanings of open-

textured expressions such as “law in relation to contempt of  

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

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

legitimate judicial function.  According to Ronald Dworkin,  

“Arguments of principle are arguments intended to establish an  

individual right.  Principles are propositions that describe  

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

Reprint 2010, p. 90].  In this case, this Court is only declaring  

under Article 141, the constitutional limitations on free speech  

under Article 19(1)(a), in the context of Article 21. The exercise  

undertaken by this Court is an exercise of exposition of  

constitutional limitations under Article 141 read with Article

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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

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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)

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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.