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PETITIONER: RELIANCE PETROCHEMICALS LTD.

       Vs.

RESPONDENT: PROPRIETORS OF INDIAN EXPRESS NEWSPAPERS,BOMBAY PVT. LTD. &

DATE OF JUDGMENT23/09/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1989 AIR  190            1988 SCR  Supl. (3) 212  1988 SCC  (4) 592        JT 1988 (3)   749  1988 SCALE  (2)748

ACT:     Constitution  of India, 1950:  Article  19(1)(a)--Public Limited Company--Issue of debentures--Right of newspaper  to publish  and  print article on  the  debenture  issue--Court litigation  in  regard to debenture  issue--Risk  caused  by publication  of  article  and obligation of  Press  to  keep people    informed--Appraisal    of    by    Court    before grant/continuance of injunction to publication of article. %     Contempt  of  Court Act, 1971: Public  Limited  Company- Issue   of  debentures--Litigation  in   respect   of--Press publishing  article in respect of  debenture  issue--Whether prejudging of issue and interference with administration  of justice--Whether  Court  entitled  to  injunct  press   from publication  of  article--Newspapers  right  of  freedom  of speech.

HEADNOTE:     The   petitioner   company  had   offered   for   public subscription secured convertible debentures after  obtaining the consent of the Controller of Capital Issues. Before  the public  issue was due to open, certain writ  petitions  etc. were  filed  in some High Courts challenging  the  grant  of consent  or  sanction for the public issue.  The  petitioner there-upon  filed an application under Article 139A  of  the Constitution  seeking transfer of those cases to this  Court and prayed inter alia for vacation of any injunction or stay granted  by the High Courts. On August 19, 1988 this  Court, while issuing notice on the transfer applications, directed that  the  public issue be proceeded with  "without  let  or hindrance". and vacated all orders of injunction in  respect of the said issue .     On  August  25, 1988 an article appeared in  the  Indian Express to the effect that the Controller of Capital  Issues had not acted properly and legally in granting the  sanction to  the  issue, and that the issue was not a  prudent  or  a reliable  venture.  The  petitioner  moved  the  Court   for initiating contempt proceedings against the respondents  for alleged interference with the due administration of  justice by  publication of an article commenting on a  matter  which was  sub-judice.  The  petitioner  also  sought   injunction

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against  the threatened or expected publication  of  similar                                                   PG NO 212                                                   PG NO 213 comments.  The Court, while declining to take cognizance  of contempt  in  the  absence of the consent  of  the  Attorney General,   issued   an  order  of   injunction   restraining publication  of articles, etc. questioning the  legality  or validity  of any of the consents, approvals  or  permissions for the public issue.     The  matter came up before the Court again  to  consider the  question  whether  there  was  any  necessity  for  the continuance  of  the order of injunction. It  was  contended that  pre-stoppage  of newspaper article or  publication  on matters  of public importance was uncalled for and  contrary to  freedom of press enshrined in the Constitution  and  the laws;  that public had a right to know about this  issue  of debentures  which  was a matter of public concern,  and  the newspapers  had an obligation to inform; and that there  was no  jury trial involved here and no likelihood of the  trial being prejudiced because trial was by professionally trained Judges.  On the other hand, it was contended that there  was an  inherent  jurisdiction  to restrain  by  injunction  any publication  that interfered with a fair trial of a  pending case or with the administration of justice in general,  that publication  was permissible provided it did not  amount  to prejudgment or prejudice of a matter in Court; that  liberty or freedom of Press must subserve the due administration  of justice, and that there was need to continue the  injunction because contribution to the debentures could be withdrawn as the final allotment had not yet been made.     While  disposing of the application for the  continuance of the injunction, it was,     HELD: Per Sabyasachi Mukharji, J.     (1)  The  Constitution  of India is  not  Absolute  with respect to freedom of speech and expression, as enshrined by the First Amendment to the American Constitution. {223F]     (2)  A  judiciary is not independent  unless  courts  of justice are enabled to administer law by absence of pressure from  without, whether exerted through the blandishments  of reward or the menace of disfavour. A free Press is vital  to a democratic society for its freedom given it power. 1227F]     [3]  The law of contempt must be judged in a  particular situation.  The process of due course of  administration  of justice  must  remain. Public interest  demands  that  there should  be  no interference with judicial  process  and  the                                                   PG NO 214 effect of the judicial decision should not be pre-empted  or circumvented  by  public agitation or publications.  At  the same time, right to know is a basic right which citizens  of a free country aspire in the broader horizon of the right to live  in  this  age  in our land under  Article  21  of  our Constitution.  A  balance  has  to  be  struck  between  the requirements of free Press and fair trial. [235B-C; A]     (4)  The Court must examine the gravity of the evil.  In other  words, a balance of convenience in  the  conventional phrase  of  Anglo-Saxon  Common  Law  Jurisprudence   would, perhaps, be the proper test to follow. [228Bl     (5)  The Court must see whether there was a present  and imminent danger for the issuance/continuance of  injunction. It is difficult to lay down a fixed standard to judge as  to how clear, remote or imminent the danger is. [234D]     (6) The orders passed on 19th August, 1988 as reiterated on  25th  August, 1988 stated that there must  be  no  legal impediment in the issue of the debentures or in the progress of  the debentures, taking into account the overall  balance

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of  convenience and having due regard to the sums  of  money involved and the progress already made.1234D]     (7)  The continuance of this injunction would amount  to interference  with  the  freedom of Press  in  the  form  of preventive  injunction  and it must therefore  be  based  on reasonable  grounds  for  the sole purpose  of  keeping  the administration of justice unimpaired. [234El     (8) There must be reasonable ground to believe that  the danger apprehended is real and imminent. The subscription to debentures  having  been oversubscribed, there  is  no  such imminent  danger of the subscription being withdrawn  before the  allotment  so as to make the issue  vulnerable  by  any publication of article. [235DI     (9)  As  the issue is not going to  affect  the  general public or public life, nor any injury is involved, it  would be  proper  and  legal, on an appraisal of  the  balance  of convenience  between  the risk which will be caused  by  the publication of the article and the damage to the fundamental right  of freedom of knowledge of the people  concerned  and the  obligation of Press to keep people informed,  that  the injunction should net true any further. [235H]                                                   PG NO 215     (10)  Publication, if any, however, would be subject  to the decision of the Court on the question of the contempt of court, namely, prejudging the issue and thereby  interfering with the due administration of justice. [236A]     (11)  Preventive remedy in the form of an injunction  is no  longer  necessary.  Whether  punitive  remedy  will   be available  or  not,  will  depend upon  the  facts  and  the decision  of  the matter after ascertaining the  consent  or refusal of the Attorney-General. [236B] Per Ranganathan, J.     (1)  It would not be correct to say that when the  Court passed  the order dated l9.9.1988, it had formed  any  prima facie  opinion on the question whether the  debenture  issue had  been  validly approved or consented to by  the  various authorities.  What  predominantly influenced the  Court  was that,  even assuming, prima facie, as was contended  in  the writ petitions, that there could be some doubt regarding the validity  or  otherwise  of the  consent  orders  etc.,  the restraint  by  any  court  or  tribunal  on  the  issue   of debentures  at  a late stage might prove  catastrophic,  and cause  irreparable  loss or damage to  the  petitioner.  The balance  of  convenience required that there  should  be  no order  of  any  court  or  tribunal  staying  the  debenture issue.[238-E]     (2) The article published by the respondents, though not violative  of  the terms of the injunction granted  by  this Court,  could have the effect of circumventing the order  of this  Court  and  rendering it ineffective.  It  had,  prima facie, a tendency to affect the efficacy of, and defeat  the object  with which this Court had passed, the interim  order dated  19.8.1988.  That is the reason why the  second  order dated  25.8.1988  was  passed. The said  order  was  rightly passed  and the contention that no such injunction ought  to have been granted at all is not acceptable. [239A-B]     (3)  The  position  has radically  changed.  The  danger apprehended by the petitioner is not so real or  substantial as  to  warrant the continuance of  the  injunction  orders. [239C]     Attorney-General  v. British Broadcasting  Corporation., [1981] A.C. 303; 354; Harry Bridges v. State of  California, 86  L.Ed. 252 at page 260; Express Newspapers (Pvt.] Ltd.  & Anr. v. Union of India & Ors., [1959] SCR 12; Ramesh  Thapar v.  State of Madras, [1950] SCR 594 at 597: Brij  Bhushan  &

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Anr. v. State of Delhi, [1950] SCR 605; State of Travancore-                                                   PG NO 216 Cochin  & Ors. v. Bombay Co. Ltd. [1952] SCR 1112; State  of Bombay  v. R.M.D. Chamatbaugwala, [19S7] SCR 874 at 918;  P. C. Sen’s case, [1969] 2 SCR 649; C. K. Daphtary & Ors. v. O. P.  Gupta,  [1971] Suppl SCR 76; Indian  Express  Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors., [1985] 1 SCC 641; Abrams v. United States, 11963] L.Ed. 1173 at 1180; P.N. Duda v. P. Shiv Shanker & Ors., AIR 1988 SC 1208;  John D.  Pennekamp  v.  State of Florida, 11945]  90  L.Ed.  331; Neoraska  Press Association v. Hugh Stuart, 49  L.Edn.  683; Attorney  General v. British Broadcasting Corpn.,  [1979]  3 AER 45; Attorney General v. B.B.C., [1981] AC 303;  Attorney General  v. Times Newspapers Ltd., [1974] AC 273;  Ex  Parte Bread  Manufacturers  Ltd.,  [1937]  37  SR  (NSW)  242  and Charlotte   Anita  Whitney  v.  People  of  the   State   of California, 71 L.Edn. 1095 at 1106.

JUDGMENT:     CIVIL/CRIMINAL ORIGINAL JURISDICTION: C.M.P. Nos. 21903- 06 of 1988.                              IN     Transfer Petitions Nos. 192 & 193 of 1988.     (Under Article 139(A)(i) of the Constitution of India).     F.S.  Nariman, V.C. Kotwal, M.H. Baig, Harish N.  Salve, Mrs.  P.S. Shroff, S.A. Shroff, A.K. Desai and  S.S.  Shroff for the Petitioner.     G.   Ramaswamy,   Additional  Solicitor   General,   Ram Jethmalani,  C.V. Subba Rao, Ms. A. Subhashini, Mrs.  Sushma Suri,  P. Parmeshwaran, Mukul Kohtagi, Ms. Bina  Gupta,  Ms. Madhu  Khatri, Parveen Anand, Anip Sachthey,  B.L.  Bagaria, P.K.  Jain,  P.S. Goyal, Arun Jatley,  R.F.  Nariman,  Rajan Karanjawala and Mrs. Manik Karanjawala for the Respondents.     The following Judgments of the Court were delivered:     SABYASACHI MUKHARJI, J. At this stage, we are  concerned with the question whether there is need for the  continuance of  the  Order of injunction passed by this  Court  on  25th August,  1988.  In order to appreciate the  question  it  is necessary to state a few facts. A petition was moved  before this Court on l9th August, 1988 under the Contempt of Courts Act,  1971  for initiation of contempt  proceedings  against                                                   PG NO 217 the  proprietors  of Indian Express Newspapers  Bombay  Pvt. Ltd.,  Shri Arun Shourie, Indian Express  Newspapers  Bombay Pvt.  Ltd.,  Shri  Hari Jaisingh,  Resident  Editor,  Indian Express Newspapers Bombay Pvt. Ltd., Shri A.C. Saxena,  News Editor, Indian Express Newspaper Pvt. Ltd., Delhi, Shri H.K. Dua, Chief, New Delhi Bureau, Indian Express Newspaper  Pvt. Ltd.,  New  Delhi, and Shri V. Ranganathan,  Indian  Express Bombay  Pvt.  Ltd.  The  petition was  moved  on  behalf  of Reliance  Petrochemicals Ltd. (hereinafter called  "Reliance Petrochemicals").  It  was stated therein  that  this  Court should take cognisance of the contempt alleged to have  been committed by the respondents and it was further prayed  that pending  the  consideration  of  the  question  of  criminal contempt,  this Court should pass an order  restraining  the Express  Group of Newspapers and their related  publications from publishing any materials or articles in relation to the subject matter of the proceedings in the Transfer  Petitions Nos. 192 and 193 of 1988 which was sub-judice issue in  Writ Petition  No.  1276 of 1988 in Karnataka  High  Court,  Writ Petition No. 1791 of 1988 in Delhi High Court, Writ Petition No.  of 1988 Radhey Shyam Goel v. Union of India,  Suit  No.

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1172 of 1988 K.S. Brahmabhatt v. Reliance Petrochemicals Ltd and  MRTP proceedings instituted in J.P. Sharma v.  Reliance Petrochemicals Ltd. as the same was alleged to be calculated to affect the Reliance debenture issue which was to open  on 22nd  August,  1988  till  the  decision  of  the   transfer petitions pending herein.     The   subject-matter  of dispute related to  the  Public Issue by the petitioner company of 12.5% Secured Convertible Debentures  of  Rs.200 each for cash at par  aggregating  to Rs.593.40  crores  (inclusive  of retention  of  15%  excess subscription  of  Rs.77.40  crores).  It  was  stated   that Reliance Petrochemicals was to set up what was claimed to be the largest petrochemical complex in the private sector  for the  manufacture of critically scarce raw-material known  as Mono  Ethylene Glycole (MEG) and plastic raw-materials  like High  Density  Polyethlene (HDPE) and  Poly  Vinyl  Chloride (PVC] which are used for making various articles from  films to  pipes,  auto  parts  to  cable  coating,  containers  to furnishings.  It was asserted that the issue was  of  global and  national  importance. It was  claimed  that  Reliance’s public issue was the largest public issue in India till date and the second largest issue in the world. The public  issue was  due  to open on Monday, the 22nd August, 1988  and  was scheduled to be closed on 31st August, 1988.     It  was the claim of the petitioner that the  debentures were  being  issued  after  obtaining  the  consent  of  the                                                   PG NO 218 Controller  of Capital Issues and on the basis  of  schedule indicated   therein,  and  after  complying  with  all   the requirements  of  the Companies Act and  otherwise.  Certain writ  petitions  and  a suit had been  filed  in  some  High Courts,  namely,  Karnataka, Bombay,  Rajasthan,  Delhi  and later  on in Allahabad challenging the grant of  consent  or sanction  for the issue of debentures. Such applications  in the  different High Courts and the Courts were filed at  the last  moment when enormous amount of money had already  been spent, it was claimed. It was stated that enormous monies on publicity  had  been  spent. In some  of  these  proceedings orders  of  injunction had been obtained. It  was  contended that  issue was prima facie legal and valid and the  consent and  permission of the necessary  authorities specially  the Controller of Capital Issues had been obtained properly.  In such  circumstances  an application for  transfer  of  these proceedings under Article 139A of the Constitution of  India read  with  Part IV-A of the Supreme Court  Rules  1966  was moved  by Reliance Petrochemicals Ltd. against the Union  of India,  Controller of Capital Issues and the  petitioner  in the  suit  in Bangalore and writ petition in Delhi.  It  was stated that the Certificate of Incorporation was granted  to the  petitioner  on  or about 11th  January,  1988  and  the Certificate of Commencement of Business was granted on  21st January,  1988. On 4th May, 1988 an application was made  to the  Controller of Capital Issues for raising  Equity  Share Capital/Cumulative Convertible Preference Shares/Convertible Debentures   for   financing  the  proposed   projects   for manufacture  of  PVC  HDPE and MEG. On 4th  July,  1988,  as mentioned  before, the consent of the Controller of  Capital Issues  was granted to the petitioner for capital  issue  of 5,75,00,000  Equity  Shares  of Rs.  10  cash  inclusive  of retainable  excess  subscription  of Rs.7.5 crores  and  for 2,96,70,000 12.5 per Secured Fully Convertible Debentures of Rs.200  each for cash at par to public. It is not  necessary for the present purpose to set out the details of the  same. It  is stated that the consent of the Controller of  Capital Issues  was given on 4th July, 1988 on certain  terms  which

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are  again  the  relevant  to be set  out  for  the  present purpose.  The consent order of the Controller  was  modified and  further  condition  of obtaining the  Reserve  Bank  of India’s  permission  for  allotment of  debentures  of  Non- Residents  as required under FERA 1973 and for allotment  of debentures to employees on certain terms was imposed on 19th July,  1988. On 27th July, 1988 a prospectus was filed  with the  Registrar  of Companies, Gujarat,  Ahmedabad,  for  the public  issue of 12.5% Secured Fully Convertible  Debentures of Rs.200 each for cash at par, as indicated before.                                                   PG NO 219     A petition was filed in the Karnataka High Court on 17th August,  1988  by one Shri Balkrishna Pillai. In  the  Delhi High  Court another writ petition was filed on 18th  August, 1988. On 18th August, 1988 a transfer petition was filed  in this  Court. It was claimed that any injunction order  after the  satisfaction  of the Central  Government,  through  the Controller  of  Capital Issues would make the  public  issue stillborn  and sums in excess of Rs.4.5 crores  had  already been incurred for the public issue as pre-Issue expenses and a  sum of Rs.20 crores was allocated as Issue  Expenses  for what  was  popularly  known as  ’Mega  Issue"  as  mentioned hereinbefore.  It was claimed that grave prejudice would  be caused  to the petitioner company as well as the  public  at large  who were investing in the issue. if the issue is  not allowed  to  go through. It was claimed that  there  was  no ground for the High Court to grant injunction or stay  order in the facts and circumstances of this Issue and this  Court should  vacate  those orders and transfer  the  applications pending in different Courts to this Court.     On  that application being moved on 19th  August,  1988, this  Court issued notices to all concerned making the  same returnable on 9th September, 1988 in terms of prayer (a) and paragraphs  2  and  4 of the  affidavit  of  Mr.  Balkrishna Bhandari  affirmed  on 18th/19th August,  1988.  This  Court further directed as follows:     "The issue of 2 .96,70,000, 12.5 per secured convertible debentures  of Rs.200 each by the petitioner  company  under the prospectus dated July 27. 1988 filed with the  Registrar of  Companies  Gujarat  and  with  the  stock  exchanges  at Ahmedabad  and Bombay to be proceeded with, without  let  or hindrance,  notwithstanding  any proceedings  instituted  or that may be instituted in or before any Court or tribunal or other authority.     Any order direction or injunction of any Court, tribunal or  authority in any proceeding already passed or which  may be  passed  will by operation of this order  be  and  remain suspended till further orders of this Court.     In substance the order was that the issue  be  proceeded with  "without  let  or  hindrance".   notwithstanding   any proceedings  instituted  or  that may be  instituted  in  or before any Court or tribunal or other authority. This  Court vacated  all  orders  of injuction in respect  of  the  said issue. It was asserted on behalf of the petitioner that this Court must have been prima facie satisfied that there was no legal infirmity which should stand in the way of the  public                                                   PG NO 220 issue  of the said debentures going through and further,  in any event, must have been satisfied that there should not be any  let  or  hindrance  to  the  said  public  issue.   The petitioner  had drawn our attention to an article  published on 25th August, 1988, under the heading "Infractions of  Law has   Unique Features RPL Debentures". It is  not  necessary for the present  purpose to set out the said article. It was claimed  in the said article that the Controller of  Capital

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Issues  had not acted properly and legally in  granting  the sanction to the issue for various reasons stated therein. It was  further  stated that the issue was not a prudent  or  a reliable venture. It was contended that by this article  the respondents  have commented on a matter which is  sub-judice and  was  intended to undermine the effect  of  the  interim order passed by this Court and the ultimate decision of  the Court  and they threatened to publish such  articles  unless restrained  by  this Court. It was contended that  trial  by newspapers  on  issues which are sub-judice is  one  of  the grossest  modes of interference with the due  administration of  justice  and any threat of that interference  should  be prevented by both punitive action of contempt and preventive order of injunction of wrong anticipated to be committed  by the  delinquent.  The  publication  threatened  or  expected expected to be published would cause very grave interference with   the  due  administration  of  justice,  and   should, therefore, be prohibited.     On  that application being moved on 25th  August,  1988, this  Court directed that cognizance of contempt would  only be considered after the necessary sanction from the Attorney General is obtained. This Court on the facts of the  alleged contempt  declined  to take cognizance on  that  application without  the  views  of the Attorney  General.  This  Court, however,  issued an order of injunction restraining all  the six  respondents  mentioned  therein  from  publishing   any article,  comment, report or editorial in any of the  issues of  the  Indian  Express   of  their  related   publications questioning  the  legality  or  validity  of  any  of    the consents, approvals or permissions to which the  petitioners in  the  Transfer Petitions Nos. 192-193 of 1988  have  made reference  in the Prospectus dated 27th July, 1988  for  the issue  of 12.5% Secured Full Convertible Debentures.  Notice of  that application was made returnable on  9th  September, 1988 and the same was to come up with other related matters. The  respondents  were further given liberty  to  move  this Court for variation or vacation of the order upon notice  to the  petitioner. Upon that the six respondents had filed  an affidavit  in opposition on 26th August, 1988 the very  next day  asking for variation or vacation of the  interim  order passed by this Court on 25th August, 1988.  Attention of the Court  was drawn to an article proposed to be  published  in                                                   PG NO 221 the  Indian  Express  which was Annexure  ’B’  to  the  said affidavit.  Submissions  were made on the  validity  or  the propriety of the interim order. Upon hearing learned counsel for  both  the  parties, this Court  observed  that  it  was sufficient to say that the article proposed to be  published and  forming part of Annexure ’B’ did not violate the  order of injunction passed by this Court on 25th August, 1988.  In other words, this Court was of the view that the article  in question  which  was intended to be published and  shown  to this  Court  on  26th  August, 1988  did  not  question  the legality or the validity of the order which was in issue  in the  proceedings  in this Court. In those  circumstances  no question of variation or vacation of the said interim  order arose. The said article proposed at that time has since been published  before  31st August, 1988. It was stated  in  the affidavit  as well as in the submissions made from  the  Bar that  the shares have been  over-subscribed but the  day  of allotment,  of  course, has not yet expired and  before  the allotment the subscribers, it was submitted, could  withdraw their subscriptions. In those circumstances, this Court  was invited  to  consider  the question whether  there  was  any necessity  for  the continuance of the order  of  injunction

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granted by this Court on 25th August, 1988. On behalf of the petitioner  it was submitted that the danger still  persists and  the  injunction should continue. On the other  hand  on behalf  of  the  respondents  it  was  submitted  that   the injunction should be vacated.     Elaborate arguments  were advanced by counsel  for  both sides.  It  was  contended that there was  no  contempt  of Courts  involved  herein and furthermore, it  was  contended that  pre-stoppage  of newspaper article or  publication  on matters  of public importance was uncalled for and  contrary to freedom of Press enshrined in our Constitution and in our laws.  The  publication  was on a public  matter  so  public debate cannot and should not be stopped. On the other  hand, it was submitted that due administration of justice must  be unimpaired. We have to balance in the words of Lord  Scarman in  the  House  of  Lords  in  Attorney-General  v.  British Broadcasting  Corporation,  [  1981] A.C. 303  at  page  354 between  the  two  interests  of  great  public  importance, freedom of speech and administration of justice. A  balance, in our opinion, has to be struck between the requirements of free Press and fair trail in the words of the Justice  Black in  Harry Bridges v. State of California, 86 L. Ed.  252  at page 260.     Therefore,  in considering the question posed before  us whether  there  should  be  continuance  of  the  order   of injunction  we  have  to bear in mind and  apply  the  basic principles  of  law to the facts and circumstances  of  this                                                   PG NO 222 case.  The point at issue has been canvassed very  ably  and vehemently  on  behalf of the petitioner by Sh.  M.H.  Baig, assisted as he was by Sh. S.S. Shroff and Smt. P.S.  Shroff. They   submit  that  the  danger  still  persists  and   the publication  of  any  article  which  would  jeopardise  the allotment  of those debentures, should be prevented. On  the other  hand,  Sh.  Ram Jethmalani and Sh.  Anil  B.   Diwan, senior counsel assisted as they were by Sh. R.F. Nariman and Sh.  C.R. Karanjawalla, urged before us that the  injunction should  no longer continue. In view of the delicacy  of  the problem  in  the  question posed before us, it  is  well  to remember   the  legal  background.  We  may  refer  to   our constitutional  provisions  in  Article l9(1)  &  (2)  which provides as follows:     19.  Protection of certain rights regarding  freedom  of speech, etc.--(l) All citizens shall have the right     (a) to freedom of speech and expression;     (b) to assemble peaceably and without arms;     (c) to form association  or unions:     [d] to move freely throughout the territory of India;     (e) to reside and settle in any part of the territory of India;     (f) [Omitted by ibid. Sub-cl. [f] read to acquire,  hold and dispose of property; and )     [g]  to  practise  any profession, or to  carry  on  any occupation, trade or business.     (2) Nothing in sub-clause (a) of clause (I) shall affect the operation of any existing law, or prevent the State from making  any  law, in so far as such law  imposes  reasonable restrictions  on the exercise of the right conferred by  the said  sub-clause  in the interests of (the  sovereignty  and integrity  of  India,) the security of the  State,  friendly relations  with  foreign States, public  order,  decency  or morality or in relation to contempt of court, defamation  or incitement to an offence."     The  effect of Article 19 on the freedom of  Press,  was analysed in the decision of this Court in Express Newspapers

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                                                 PG NO 223 (Pvt)  Ltd. & Anr. v. The Union of India & Ors., [1959]  SCR 12,  where  at page 120 onwards of the  report  Bhagwati  J. referring to the decision of this Court in Ramesh Thapar  v. The State of Madras, [ 19501 SCR 594 at 597, referred to the observations  of  Justice  Patanjali   Sastri,  and  further referred  to  the decision of this Court in Brij  Bhushan  & Anr.  v.  7he State of Delhi, [1950] SCR 605.  Referring  to these  two  decisions, Bhagwati J. expressed his  view  that these  were  the  only  two  decisions  which  evolved   the interpretation  of Article 19(1)(a) of the Constitution  and they  only  laid  down  that  the  freedom  of  speech   and expression  included freedom of propagation of  ideas  which freedom  was ensured by the freedom of circulation and  that the  liberty of the press consisted in allowing no  previous restraint upon publication. Referring to the fact that there is  a  considerable  body of authority to he  found  in  the decisions  of the Supreme Court of America bearing  on  this concept  of  the freedom of speech and  expression,  Justice Bhagwati  observed  that  it was trite  knowledge  that  the fundamental  right to the freedom of speech  and  expression enshrined in our Constitution was based on the provisions in the  First Amendment to the Constitution of the U.S.A.  and, hence,  it would be legitimate and proper to refer to  those decisions  of the Supreme Court of the U.S.A., in  order  to appreciate  the true nature, scope and extent of this  right in  spite of the warning administered by this Court  against the use of American and other cases, in State of Travancore- CochIn  and  Ors. v. Bombay Co. Ltd., [1952]  SCR  1112  and State  of Bombay v. R. M. D. Chamarbaugwala, [1957] SCR  874 at 918.     Our Constitution is not absolute with respect to freedom of  speech  and  expression   and  enshrined  by  the  first Amendment  to the American Constitution. Our attention  was drawn to the decision of this Court in Re: P.C. Sen.  [1969] 2  SCR 649 where this Court upheld the order  of  conviction against the Chief Minister of West Bengal for broadcasting a speech  justifying  an  order, the  validity  of  which  was challenged in proceedings pending before the Court. The West Bengal  Govt.  had  issued an order under Rule  125  of  the Defence  of India Rules, placing certain  restrictions  upon the right of persons carrying on business in milk  products. The  validity  of  this  order  was  challenged  by  a  writ petition.  After  the  Rule  nisi had  been  issued  on  the petition  and  served  on the State Govt.  the  State  Chief Minister broadcast a speech seeking to justify the propriety of  the  order. The High Court  a Rule requiring  the  Chief Minister  to show cause why he should may be  committed  for contempt  of  Court.  The High Court  found  him  guilty  of contempt and fined him. The matter came up before this Court                                                   PG NO 224 and  the conviction was upheld. It was held that the  speech was ex facie calculated to interfere with the administration of  justice.  This  Court reiterated that in  all  cases  of comment on pending proceedings, the question is not  whether the  publication  did interfere, but whether  it  tended  to interfere,  with the due course of justice. The question  is not so much of the intention of the contemnor as whether  it is  calculated  to  interfere  with  the  administration  of justice. But for the instant case this decision cannot be of much assistance. Firstly, the contents of the speech of  the Chief Minister were entirely different. The  Chief  Minister  in his speech  had  characterised  the preparation of any food with milk product as amounting to  a crime.  There  was  a tendency in the speech  of  the  Chief

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Minister  of  intimidating the litigants  or  the  potential litigants in respect of the issue pending in the Court.     In  the  instant  case we are,  however,  not  concerned directly  with the question of whether the respondents  have in fact committed contempt of Court by interfering with  the due administration of justice. The question whether comments on an issue, directly or indirectly, in Court amount to pre- judging of an issue and transferring a trial by the Court to the trial by the newspapers, is another matter which will be decided  when the contempt application will be taken up.  At the  moment, we are concerned with the short  but  difficult question   i.e.  whether  there  is  need   for   preventing publication of an article on a matter of public interest but on  an issue which is sub judice. In this case, as  at  this stage  we  are  not dealing with the  question  of  punitive action  of committal for contempt of Court  for  publication pending  trial  of an issue in Court, the decision  of  this Court  in  P.C.  Sen’s case (supra) in  view  of  the  facts involved,  is  not  of much aid to us.  The  case  of  gross contempt  was  discussed by this Court in  C.K.  Daphtary  & Ors. v. O.P. Gupta & Ors., [1971] Suppl SCR 76. However,  in view  of  the facts involved therein, that  decision  cannot give us much guidance at present.     The  law  on  this aspect has been adverted  to  in  the decision of this Court in Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors., [1985] 1 SCC 641, where  at  page  659 of the  report,  Justice  Venkataramiah referred  to  the  importance  of  freedom  of  Press  in  a democratic society and the role of Courts. Though the Indian Constitution does not use the expression ’freedom of  press’ in  Article  19 but it is included as one of the  guarantees in  Article  19 [1] [a]. The freedom of Press,  as noted  by Venkataramiah  J., is one of the  around which the  greatest and  the  bitterest of constitutional  struggles  have  been                                                   PG NO 225 waged in all countries where liberal constitutions  prevail. Article  19  of the Universal Declaration of  Human  Rights, 1948 declares the freedom of Press and so does Article 19 of the  International Covenant on Civil and  Political  Rights, 1966. Article 10 of the European Convention on Human Rights, provides as follows:     "Article  10-(1)  Everyone has the right to  freedom  of expression.  This  right  shall  include  freedom  to   hold opinions  and  to receive and impart information  and  ideas without  interference by public authority and regardless  of frontiers.  This  Article  shall  not  prevent  States  from requiring  the  licensing  of  broadcasting,  television  or cinema enterprise.     (2)  The  exercise of these freedoms, since  it  carries with it duties and responsibilities, may be subject to  such formalities,  conditions, restrictions or penalties  as  are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or  public safety, for the prevention of disorder or  crime, for  the protection of health or morals, for the  protection of  the reputation or rights of others, for  preventing  the disclosure  of  information received in confidence,  or  for maintaining the authority and impartiality of the judiciary."     The  First  Amendment to the Constitution of  the  U.S.A provided as follows:     "Amendment--1  Congress shall made nO law respecting  an establishment of religion, or prohibiting the tree exercise thereof; or abridging the freedom of speech or of the press; or  the  right of the people peaceably to assemble.  and  to petition the Government for a redress of grievances."

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   Keeping  the constitutional requirements of  the  Indian law  in the background, it would be appropriate to refer  to certain American decisions to which our attention was drawn. We  have mentioned the observations of Justice Black in  the case of Harry Bridges v. State of California (supra). There, Justice  Black observed that free speech and fair trial  are the  two  most cherished values of our civilisation  and  it would  be a trying task, and if we may say so,  a  difficult one to choose between them. But in case of need a choice has to be made. He that a public utterance or publication is not to  be  denied the constitutional protection of  freedom  of                                                   PG NO 226 speech  and  Press  merely because it  concerns  a  judicial proceeding still pending in the Courts, upon the theory that in  such  a case it must necessarily tend  to  obstruct  the orderly  and fair administration of justice. In America,  in view  of the absolute terms of the First  Amendment,  unlike the  conditional  right of freedom of speech  under  Article 19(1)(a]  of  our Constitution,  it would be  worthwhile  to bear in mind the "present and imminent danger" theory.     Justice  Black quoted from the observations  of  Justice Holmes  in  Abrams v. United States, [1963] L. Ed.  1173  at 1180,  where  the  latter  had  observed  that  to   justify suppression  of free speech there must be reasonable  ground to  fear  that serious evil will result if  free  speech  is practiced.  There must be reasonable ground to believe  that the danger apprehended is imminent. Justice Black  concluded that there must be clear and present danager and that  would provide  a  workable  principle  in  preventing  publication consistent  with  the First Amendment. But in our  case  Mr. Baig  submitted  that our article 19(1)(a) as it  is  termed anything  that  interferes with the  due  administration  of justice,  should be prevented if it is a threat to  the  due administration  of  justice.  His submission  was  that  the Article  published  or  proposed  to  be  published  herein, undermines  the effect or pre-empts the effect of the  order of  injunction which was to help or boost up the chances  of the debentures being subscribed.     Mr.  Baig  drew our attention to page 282  of  the  said report  where  Justice Frankfurter had  observed  that  free speech was not so absolute or irrational a conception as to imply paralysis of the means for effective protection of all the   freedoms   secured  by  the  Bill   of   Rights.   The administration of justice by an impartial judiciary has been basic  to the conception of freedom ever since Magna  Carta. Justice  Frankfurter further reiterated that the  dependence of society upon an unswered judiciary is such a common place in  the  history of freedom that the means by which  it  is maintained are too frequently taken for granted without heed to  the conditions which alone make it possible. (  Emphasis supplied). The role of Courts of justice in our society  has been the theme of statesmen and historians and  constitution makers,   and   best  illustrated   in   the   Massachusetts Declaration  of Rights as the right of every citizen  to  be tried by Judge as free, impartial and independent as the lot of humanity will admit.     Justice Frankfurter dissenting in his Judgment with whom Justice  Stone, Justice Roberts and Justice Byrnes  agreed, reiterated  at page 284 of the report that the  Constitution                                                   PG NO 227 is  an  instrument of Government and is not conceived  as  a doctrinaire document, nor was the Bill of Rights intended as a collection of popular slogans. It is well to remember that Justice Frankturter recognised that we cannot read into  the 14th  Amendment  the  freedom of speech  and  of  the  Press

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protected  by the 1st Amendment and at the same  time  leave out  the age old means employed by States for  securing  the calm  course  of  justice.  He  emphasised  that  the   14th Amendment  does not forbid a State to continue the  historic process  of prohibiting expressions calculated to subvert  a specific  exercise  of  judicial power.  So  to  assure  the impartial accomplishment of justice is not an abridgement of freedom of speech or Press, as these phases of liberty  have heretobefore   been   conceived   even   by   the   stoutest libertarians.  Actually, these liberties themselves   depend "upon  an untrammeled judiciary whose passions are not  even unconsciously  aroused and whose minds are not distorted  by extrajudicial considerations."     The test of imminent and present danger as the basis  of Justice Holmes’s ideas has been referred to by this Court in P.N. Duda v. P. Shiv Shanker & Ors., AIR 1988 SC 1208.     This  question again cropped up in John D  Pennekamp  v. Slate   of  Florida,  [1945]  90  L.Ed.  331   and   Justice Frankfurter  reiterated that the ’clear and present  danger’ conception was never used by Mr. Justice Holmes to express a technical  legal  doctrine  or  to  convey  a  formula   for adjudicating  cases.  It  was a literary phrase  not  to  be distorted  by  being taken from its context.  He  reiterated that  the judiciary could not function properly if what  the Press does is reasonably calculated to disturb the  judicial judgment in its duty and capacity to act solely on the basis of what is before the Court. A judiciary is not  independent unless  courts of justice are enabled to administer  law  by absence  of pressure from without, whether  exerted  through the  blandishments  of reward or the mance of  disfavour.  A free Press is vital to a democratic society for its  freedom gives it power .     In  1976, in Nebraska Press Association v. Hugh  Stuart, 49  L.Edn.  683, where the facts of the case  were  entirely different   to  the  present  ones,  Chief  Justice   Burger delivered the opinion of the Court saying that to the extent that the order prohibited the reporting of evidence  adduced at  the open preliminary hearing in a murder trial was  bad. Chief Justice Burger reiterated that a responsible Press has always    as   the   handmaiden   of   effective    judicial administration,  the  criminal field.  The  observations  of Learned Hand  referred to at page 683 indicate "the  gravity                                                   PG NO 228 of the evil, discounted by its improbability, justifies such invasion  of  free  speech  as is  necessary  to  avoid  the danger", as the test. Hence, we must examine the gravity  of the  evil. In other words, a balance of convenience  in  the conventional phrase of Anglo-Saxon Common Law  Jurisprudence would, perhaps be the proper test to follow.     In  this background it would be appropriate to refer  to some  of  the English decisions to which our  attention  was drawn.  Mr.  Jethmalani relied on the observations  of  Lord Denning  in  the  Court of Appeal  in  Attorney  General  v. British  Broadcasting  Corpn., [1979] 3 AER  45,  where  the Master  of  Rolls Lord Denning characterised some  of  these similar  type of injunctions as "gagging  injunctions".  Mr. Baig, however, protested that in view of the terms in  which the injunction was issued in the instant case, the order did not "gag" anything that was legitimate. The House of  Lords, however,  did not approve the observations of Lord  Denning. We  may refer to the observations of the House of  Lords  in Attorney  General  v. B.B.C., [1981] AC  303,   wherein  the Attorney  General brought proceedings for an  injunction  to restrain  the  defendants  from  broadcasting  a   programme dealing  with  matters which related to  an  appeal  pending

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before  a  local  valuation court on  the  ground  that  the broadcast would be a contempt of court. The Divisional Court of  the Queen’s Bench Division, on the single  issue  before it,  held that a local valuation court was a court for   the purposes  of  the  powers  of the  High  Court  relating  to contempt.  On  appeal, the Court of Appeal, by  a  majority, affirmed that decision. The House of Lords, however, allowed the appeal and held that the jurisdiction of the  Divisional Court  in  relation to contempt did not extend  to  a  local valuation  court  because it was a  court  which  discharged administrative functions and was not a court of law and  the Divisional  Court’s jurisdiction only extended to courts  of law and when it referred to ’Inferior courts’ must be  taken as  inferior  courts of law and though the  local  valuation court  has  some of the attributes of  the  long-established ’Inferior Courts’ public policy required in the interests of freedom  of  speech  and  freedom  of  the  press  that  the principles relating to contempt of court should not apply to it  or to the host of other modern tribunals which might  be regarded as ’inferior courts’.     There,  however,  Lord Scarman emphasised that  the  due administration  of justice should not, at all, be  hampered. Lord  in the Court of Appeal referred to Borrie & Lowe,  The Law  of  Contempt (1973) and mentioned  that  professionally trained  Judges are not easily influenced  by  publications.                                                   PG NO 229 ’This  is a point which was emphasised before us also.  Lord Denning referred to the question whether there was  contempt of  court by the B.B.C. He emphasised whether there  was  no accused.  The House of Lords, however, in appeal  held  that valuation court is not a court where the concept of contempt of court would apply. But it did make observations that such broadcasting  or publication might affect a Judge.  Viscount Dilhorne at page 335 of the report observed as follows:     "It  is  sometimes  asserted  that  no  judge  will   be influenced in his judgment by anything said by the media and consequently  that  the need to prevent the  publication  of matter  prejudicial  to the hearing of a  case  only  exists where the decision rests with laymen. This claim to judicial superiority  over  human  frailty is one that  I  find  some difficulty  in accepting. Every holder of a judicial  office does  his utmost not to let his mind be affected by what  he has seen or heard of read outside the court and he will  not knowingly let himself be influenced in any way by the media, nor in my view will any layman experienced in the  discharge of  judicial  duties. Nevertheless it should,  I  think,  be recognised  that a man may not be able to put that which  he has seen, heard or read entirely out of his mind and that he may  be subconsciously affected by it. As Lord Denning  M.R. said  the stream of justice must be kept clean and pure.  It is  the law, and it remains the law until it is  changed  by Parliament   that  the  publication  of  matter  likely   to prejudice  the hearing of a case before a court of law  will constitute  a  contempt  of  court  punishable  by  fine  or imprisonment or both.     In  this appeal we do not have to pronounce  on  whether the proposed broadcast would have prejudicially affected the hearing  before  the  local  valuation  court.  Although  it clearly  was  likely  to  have  aroused  hostility  to   the Exclusive  Brethern,  it by no means follows that  it  would have  prejudiced their claim to relief from rates. The  mere assertion in the course of-the broadcast that they were  not entitled  to  that relief was in my view  unlikely  to  have affected in any way a decision on whether their meeting room was  a  place  of Public  religious  worship  coming  within

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section 39."     Lord Edmund-Davies at page 354 of the report  emphasised that  only a very short question arose, namely, whether  the local  valuation court comes within the jurisdiction of  the                                                   PG NO 230 High Court or not. Before that Lord Scarman had occasion  to refer  to  the observations of the European Court  of  Human Rights  which criticised the judgment of the House of  Lords in Attorney General v. Times Newspapers Ltd., l 1971l AC 273 and emphasised that neither the Convention nor the  European Court’s decision, as part of the English law, which  related to  Article B 10(2) of the Convention for the Protection  of Human Rights and Fundamental Freedoms.     In  Attorney General v. Times Newspapers Ltd.,  (supra), between 1959-61 a company made and marketed under licence  a drug  containing  thalidomide about 450 children  were  born with  gross deformities to mothers who had taken  that  drug during  pregnancy. In 1968, 62 actions against  the  company begun  within  3 years of the births of  the  children  were compromised   by  lump  sum  payments  conditional  on   the allegations   of  negligence  against  the   company   being withdrawn.  Thereafter leave to issue writs out of time  was granted ex parle in 261 cases, but apart from a statement of claim in one case and a defence delivered in 1969 no further steps had been taken in those actions. A further 123  claims had  been notified in correspondence. In  1971  negotiations began  on the company’s proposal to set up a  3 1/4  million charitable  trust fund for those children outside  the  1968 settlement  conditional  on all the  parents  accepting  the proposal.  Five parents refused. An application  to  replace those parents by the Official?  Solicitor as next friend was refused  by the Court of Appeal in April 1972.  Negotiations for  the proposed settlement were resumed. On September  24, 1972,  a national Sunday newspaper published the first of  a series  of articles to draw attention to the plight  of  the thalidomide children. The company complained to the Attorney General  that  the article was a contempt of  court  because litigation  against  them  by the parents  of  some  of  the children  was  still pending. The editor  of  the  newspaper justified  the  article  and at the same time  sent  to  the Attorney  General and to the company for comment an  article in draft, for which he claimed complete factual accuracy, on the  testing, manufacture and marketing of the drug. On  the Attorney-General’s  motion,  the  Divisional  Court  of  the Queen’s  Bench  Division granted an  injunction  restraining publication  on  the ground that it would be a  contempt  of court.  After  the grant of the injunction on  November  17, 1972,  and  while the newspaper’s appeal  was  pending,  the thalidomide tragedy was on November 29 debated in Parliament and speeches were made and reported which expressed opinions and  stated  facts similar to those in the  banned  article. Thereafter, there was a national  campaign in the press  and among  the general public directed to bringing  pressure  on                                                    PG NO 231 the  company  to make a better offer for  the  children  and their parents; and the company in fact made a  substantially increased offer.      The  Court of Appeal having discharged the  injunction. the Attorney-General appealed to the House of Lords. It  was held  that the contempt of court to publish  material  which prejudged  the issue of pending litigation or was likely  to cause public prejudgement of that issue, and accordingly the publication  of  this article, which in effect  charged  the company with negligence, would constitute a contempt,  since negligence  was  one of the issues in  the  litigation.  The

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House  of  Lords granted injunction  prohibiting  the  Times Newspaper   from   publishing  the   proposed   publication. Reference was made to Oswald’s Contempt of Court, 3rd Edn. ( 1910),  where it was emphasised that the contempt  of  court involves  3  objects, namely, (i) to enable the  parties  to come to the courts without interference; (ii) to enable  the courts  to  try  cases without interference;  and  (iii)  to ensure  that the authority and administration of the law  is maintained. There was no room for the balancing suggested by the   respondents  between  the  public  interest  in   free discussion  of  matters  of public concern  and  the  public interest that judicial proceedings should not be  interfered with . (Emphasised by Mr. Baig).      Lord  Reid  referred to the observations of  the  Chief Justice Jordan in Ex Parte Bread Manufacturers Ltd.,  [1937] 37 SR (NSW) 242 to the following effect:      "It  is  of  extreme public interest  that  no  conduct should he permitted which is likely to prevent a litigant in a court  of justice from having his case tried free from all matter  of  prejudice. But the  administration  of  justice, important  though it undoubtedly is, is not the only  matter in  which  the public is vitally interested; and if  in  the course  of the ventilation of a question of  public  concern matter  is  published  which may prejudice a  party  in  the conduct  of a law suit, it does not follow that  a  contempt has been committed. The case may be one in which as  between competing  matters  of public interest  the  possibility  of prejudice  to a litigant may be required to yield  to  other and  superior  considerations.  The  discussion  of   public affairs  and  the denunciation of public abuses,  actual  or supposed, cannot be required to be suspended merely  because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of  prejudice                                                    PG NO 232 to a person who happens at the time to be a litigant. It  is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter  which may fairly be regarded as one of public interest, by  reason merely  of the fact that the matter in question  has  become the subject of litigation, or that a person whose conduct is being  publicly criticised has become a party to  litigation either as plaintiff or as defendant, and whether in relation to  the matter which is under discussion or with respect  to some other matter."      Lord Reid made certain observation upon which Mr.  Baig relied, i.e. at page 300 which is as follows:      "I think that anything in the nature of prejudgment  of particular   case   or   of  specific  issues   in   it   is objectionable, not only because of its side effects on  that particular  case but also because of its side effects  which may be far reaching. Responsible "mass media" will do  their best  to  be  fair, but there  will  also  be  ill-informed, slapdash or prejudiced attempts to influence the public.  If people  are led to think that it is easy to find the  truth, disrespect  for the processes of the law could follow,  and, if  mass  media are allowed to judge, unpopular  people  and unpopular  causes  will  fare  very  badly.  Most  cases  of prejudging of issues fall within the existing authorities on contempt. I do not think that the freedom of the press would suffer; and I think that the law would be clearer and easier to apply in practice if it is made a general rule that it is not  permissible  to  prejudge  issues  in  pending  cases." (Emphasis supplied)      Lord Diplock stated at page 309 of the report that  the due  administration  of  justice  requires  first  that  all

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citizens    should   have   unhindered   access    to    the constitutionally  established  courts of criminal  or  civil jurisdiction for  the determination of disputes as  to their legal rights and liabilities; secondly, that they should  be able to rely upon obtaining in the courts the arbitrament of a  tribunal  which is free from bias against any  party  and whose decision will be based upon those facts only that have been  proved  in evidence adduced before  it  in  accordance with  the  procedure adopted in courts of law;  and  thirdly that,  once  the dispute has been submitted to a  court  of, law,  they  should  be  able to rely  upon  their  being  no usurpation by any other person of the function of that court                                                    PG NO 233 to decide it according to law. Lord Simon of Glaisdale at page 315 emphasised as follows:     "The  first public interest involved is that of  freedom of   discussion   in  democratic  society.   People   cannot adequately influence the decisions which affect their  lives unless  they  can  be  adequately  informed  on  facts   and arguments  relevant  to the decisions. Much  of  such  fact- finding  and argumentation necessarily has to  be  conducted vicariously, the public press being a principal  instrument. This  is  the justification for investigative  and  campaign journalism. Of course it can be abused--but so may  anything of  value. The law provides some safeguards  against  abuse; though  important ones (such as professional  propriety  and responsibility) lie outside the law. " (EmPhasis supplied) Lord Cross of Chelsea at page 322 of the report observed as follows:     "Contempt  of  Court"  means an  interference  with  the administration  of  justice and it is unfortunate  that  the offence should continue to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court. Nowadays when sympathy is  readily accorded to anyone who defies constituted authority the very name of the offence predisposes many people in favour of the alleged  offender. Yet the due administration of justice  is something  which  all citizens, whether on the left  or  the right or in the center, should be anxious to safeguard. When the  alleged  contempt consists in giving  utterance  either publicly  or  privately  to  opinions  with  regard  to   or connected with legal proceedings, whether civil or criminal, the law of contempt constitutes an interference with freedom of speech, and I agree with my noble and learned friend that we should maintain the rule that any "prejudging" of issues, whether  of fact or of law, in pending  proceedings--whether civil or criminal--is in principle an interference with  the administration  of justice although in any  particular  case the  offence  may  be so trifling that to bring  it  to  the notice of the court would be unjustifiable."                                                    PG NO 234      Mr.   Baig  emphasised  that  there  is   an   inherent jurisdiction to restrain by injunction any publication  that interferes  with a fair trial or a pending case or with  the administration of justice in  general. He further urged that trial   of  newspaper  in  sub  judice  matter   is   wrong. Publication  is permissible provided it does not  amount  to prejudgment  or prejudice of a matter in Court.  Liberty  or freedom  of  Press must subserve the due  administration  of justice.  He  submitted that there is need to  continue  the injunction  because contribution to the debentures could  be withdrawn as the final allotment has not yet been made.      On the other hand, Mr. Diwan submitted that there is no jury  trial  involved here and no likelihood  of  the  trial being prejudiced because trial is by professionally  trained

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Judges.  Public  have a right to know about  this  issue  of debentures  which is a matter of public concern. It  affects the public interest, so public have a right to know and  the newspapers have an obligation to inform.     We  must  see whether there is a  present  and  imminent danger  for  the  continuance  of  the  injunction.  It   is difficult  to lay down a fixed standard to judge as  to  how clear, remote or imminent the danger is. The order passed on l9th August, 1988 as reiterated on 25th August, 1988  stated that  there must be no legal impediment in the issue of  the debentures or in the progress of the debentures, taking into account  the overall balance and convenience and having  due regard  to  the  sums Of money  involved  and  the  progress already  made.  It  is  necessary  to  reiterate  that   the continuance of this injunction would amount to  interference with  the  freedom  of  Press  in  the  form  of  preventive injunction  and it must, therefore, be based  on  reasonable grounds  for the sole purpose of keeping the  administration of justice unimpaired. In the words of Mr. Justice  Brandeis of the American Supreme Court concurring in Charlotte  Anita Whitney . People of the State of California, 71 L. Edn. 109S at 1106, there must be reasonable round to believe that  the danger apprehended is real and imminent. This test we accept on  the basis of balance of convenience. This Court has  not yet found or laid down any formula or test to determine  how the  balance of convenience in a situation of this type,  or how the real and imminent danger should be judged in case of prevention  by injunction of Publication of an article in  a pending matter. In the context of the facts of this case  we must  judge whether there is such an imminent  danger  which calls  for continuance of the injunction.  Incidentally,  it may  be  mentioned  that the so-called  informed  Press  may misrepresent  the Court proceedings. We must  remember  that the  people  at large  have a right to know in order  to  be able  to  take part in a participatory  development  in  the                                                    PG NO 235 industrial  life  and democracy. Right to Know  is  a  basic right which citizens of a free country aspire in the broader horizon  of the right to live in this age in our land  under Article  21 of our Constitution. That right has reached  new dimensions   and   urgency.   That   right   puts    greater responsibility  upon those who take upon the  responsibility to inform.      The question of contempt must be judged in a particular situation.  The process of due course of  administration  of justice must remain unimpaired. Public interest demands that there  should be no interference with judicial  process  and the effect of the judicial decision should not be pre-empted or circumvented by public agitation or publications. It  has to be remembered that even at turbulent times through  which the  developing  countries are passing,  contempt  of  court means interference with the due administration of justice.      In  the  peculiar  facts  of this  case  now  that  the subscription  to  debentures  has closed  and,  indeed,  the debentures  have  been over-subscribed, we are  inclined  to think  that  there  is  no  such  imminent  danger  of   the subscription being withdrawn before the allotment and as  to make the issue vulnerable by any publication of article.  On a  balance  of  convenience,  we are  of  the  opinion  that continuance of injunction is no longer necessary.      In this peculiar situation our task has been  difficult and  complex. The task of a modern Judge, as has been  said, is increasingly becoming complex. Furthermore, the lot of  a democratic  Judge  is  heavier and thus  nobler.  We  cannot escape  the  burden  of  individual  responsibilities  in  a

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particular  situation  in  view of the  peculiar  facts  and circumstances  of the case. There is no escape in  absolute. Having  regard however, to different aspects of law and  the ratio  of the several decisions, by which though we are  not bound,  except  the  decisions of  this  Court  referred  to hereinbefore,  about  which we have mentioned, there  is  no decision dealing with this particular problem, we are of the opinion  that  as  the  Issue is not  going  to  affect  the ,general  public or public life nor any injury is  involved, it would be proper and legal, on an appraisal of the balance of convenience between the risk which will be caused by  the publication of the article and the damage to the fundamental right  of freedom of knowledge of the people  concerned  and the  obligation of Press to keep people informed,  that  the injunction should not continue any further. In the aforesaid view of the matter, we direct that there is no  further  need  for the continuance  of  the  injunction.                                                    PG NO 236 Publications,  if  any,  however, would be  subject  to  the decision  of  the Court on the question of the  contempt  of court, namely, prejudging the  issue and thereby interfering with  the due administration of justice.  Preventive  remedy in  the  form  of  an injunction  is  no  longer  necessary. Whether   punitive  remedy will be available  or  not.  will depend  upon   tacts and the decision of  the  matter  after ascertaining the consent or refusal of the Attorney-General.      The application for the present purpose is,  therefore. disposed  of with the direction that the injunction  against publication  in the order dated 25th August, 1988, need  not further continue.      RANGANATHAN, J. I agree. I would, however, like to  add a  few  words, having regard to the range of  the  arguments addressed before us.      The principal ground urged in support of the prayer for the continuance of the injunction already granted is that it was  very  restricted  in  terms  and  injuncted  only   the publication  of  articles,  comments  and  reports  on   the validity or legality of the various consents, approvals  and permissions   obtained  by  Reliance  in  relation  to   the debenture issue. This is precisely the subject matter of the writ  petitions  and  suit withdrawn to this  Court  in  the Transfer  Petitions.  It is urged, strongly relying  on  the speeches  of the various Law Lords in the  Thalidomide  case Attorney  General v. Times Newspapers Limited,  11974]  A.C. 273 the observations of this Court in Re: P. C. Sen, [ 1969] 2 SCR 649 and the provision contained in S. 2(c)(iii) of the Contempt  of  Courts Act, 1971, that  any  such  publication would  tend  to interfere with the  fair  administration  of justice  and  so constitute criminal contempt and  would  be liable  not merely to punitive action after publication  but also  to stoppage by a preventive order before  publication. On  the   other hand, for the respondents, it  is  contended that, in the decisions relied upon for the petitioners,  the publications  alleged to constitute contempt were of such  a nature  that they were seen to affect the course of  actions actually pending in courts, that even otherwise the decision of  ;  the  House of Lords has been  widely  criticised  and should not be followed and that the views expressed by  Lord Denning,  M.R. in Attorney General v. BBC, [1979 3 AER  45-- though reversed by the House of Lords in 1981 A.C.  303--and by the American Courts in Bridges v. State of California, 86 L. Ed. 252 and in John D. Pennekamp v. Stale of Florida,  90 L.  Ed.  1295 should be preferred   as more  appropriate  to present  day conditions, particularly in the context of  the                                                    PG NO 237

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freedom  of  press  guaranteed under  Act  19(1)(a)  of  the Constitution  of India, and also incorporated in Article  19 of the Universal Declaration of Human Rights, 1948, Art.  10 of  the European Convention of Human Rights and Art.  19  of the International Convention on Civil and Political  Rights, 1966. I do not think we are called upon to decide this wider question at this stage. As already pointed out, the contempt petition filed by the petitioners in respect of the  article published  by the respondents on 25.8.88 has not been  taken cognisance  of  by us in the absence of the consent  of  the Learned  Attorney General. At the moment we have  to  assess whether   any   article  that  may  be  published   by   the respondents, even assuming that it touches on the issues  of validity   or  legality  of  the  approvals,  consents   and permissions  referred  to in our order of 19.8.88,  will  so clearly  and  obviously prejudice or tend to  prejudice  the course  of the proceedings, now pending in this Court,  that such   publication   should  be  injuncted  by,   what   the respondents describe as, a "gagging order". I agree with  my learned  brother  that there is no such imminent  danger  or apprehension in the circumstances present here, as calls for such an extreme step curtailing the freedom of a  newspaper. It  is sufficient, I think, to clarify, if at all  any  such clarification  were   needed,  that  should  any   newspaper publish any such matter, it will be doing so at its own risk and subject to its liability for being proceeded against  by the  petitioner or others for defamation, contempt of  court or otherwise.      A  somewhat  narrower ground, as I understand  it,  put forward  for the petitioner was that the grant of  ex  parte injunction  by us on 19.8.88 and 25.8.88 was the  result  of our  prima  facie  conclusion that  consents,  approvals  or permissions from the concerned authorities for the debenture issue  had been duly and validly obtained by the  petitioner and  that any article, liberty for the publication of  which is  sought for by the vacation of the interim  order,  would contain  views  contrary to or inconsistent with  the  prima facie  view  of this Court. Persons  reading  the  newspaper might  be taken in by and believe in the statements made  by the  respondents in such articles and, if they start  acting upon  such  beliefs, then the effect of the  order  of  this Court, upholding, prima facie, the validity of the debenture issue  on  the above aspects would stand undermined.  In  my view  this contention is untenable. I do not think that  the contention  proceeds on a correct analysis of the  ratio  of our order dated 25.8.88 or the earlier order dated  19.8.88. It  should  be remembered that the proceedings,  which  gave rise to the transfer applications, were writ petitions and a suit  filed  in various courts challenging inter  alia,  the validity  or  regularity  Of  the  debenture  issue  of  the petitioner  company. If these matters had been heard by  the                                                    PG NO 238 various High Courts or other subordinate courts, there was a possibility  that one or more of the courts, satisfied  with the  prima  facie  tenability  of  the  contentions  of  the petitioners  therein  might  issue  an  order  staying   the debenture  issue  pending   disposal of  the  suit  or  writ petition.  In  fact, also, it seems that interim  orders  of this   nature   had  been  obtained.  The   petitioner   was apprehensive that, if any such interim order was passed, all the  time,  labour  and  money  expended  in  floating   the debenture  issue might be nullified at the last moment.  The petitioner,  therefore,  moved for the transfer of  all  the various  proceedings to this Court and for an interim  order permitting it to issue the debentures as planned without let

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or hindrance and without being hampered by any interim  stay order from any court. I do not think it would be correct  to say  that,  when  we passed the order dated  C  19.8.88,  we formed  any prima facie opinion on the question whether  the debenture  issue had been validly approved or consented   to by  the  various authorities. Though it is true  that  there were  averments in the transfer petitions stating  that  all the legal formalities had been properly complied with,  what predominantly influenced us to pass the order dated  19.8.88 was  that, even assuming, prima facie, as contended  in  the various  writ petitions and suits, that there could be  some doubt  regarding  the validity or otherwise of  the  consent orders  etc., the restraint by any court or tribunal on  the issue   of   debentures  at  a  late   stage   might   prove catastrophic,  and cause irreparable loss or damage, to  the petitioner.  We  were  also of  the  opinion  that.  pending adjudication on the issue of validity raised in the  various suits, the balance of convenience required that there should be  no order of any court or tribunal staying the  debenture issue.      Now,  1  shall turn to the circumstances in  which  the order  dated  25.8.88  were  passed.  Subscriptions  to  the debenture  issue were open between 22nd August, 88 and  31st August, 88. It was during this interim period that the first article was published by the respondent newspaper  attacking the  validity  of the consent granted by the  Controller  of Capital  Issues to the issue of the debentures. I do not  go into the merits of the article. But, when it was pointed out to us that this article had been published at a very crucial time when the subscription to the issue had started  flowing in,  we  saw  that  it would have  the  indirect  effect  of achieving  exactly what this Court wanted to prevent by  its order  dated  19.8.88.  Though this Court. in  view  of  the allegations  raised in the transfer petitions,  referred  in its  order only to stay orders from courts  restraining  the progress  of  the debenture issue, it was the  intention  of this Court that the debenture issue should go ahead  without any  obstacles  placed  in  the way  of  the  collection  of                                                    PG NO 239 subscriptions  therefor on the grounds on which stay  orders had  been  sought to be obtained from  courts.  The  article published  by the respondents, though not violative  of  the terms  of the injunction granted by this Court,  could  have the  effect  of circumventing the order of  this  Court  and rendering it ineffective. It had, prima facie, a tendency to affect  the  efficacy of, and defeat the object  with  which this Court had passed the interim order dated 19.8.88.  This is  the reason why we passed the second order dated  25.8.88 and also declined to modify or vary it at 1he request of the counsel for the newspapers on the next day. I am of  opinion that  the  said  order  was  rightly  passed  and  that  the contention  of  learned counsel for the respondent  that  no such  injunction  ought to have been granted at all  is  not acceptable.      The position today, however, has radically changed.  We are  told  that the issue has been  over-subscribed.  In  my opinion,  this  stage  having been completed,  there  is  no necessity to continue the interim order passed by us on  the 25th of August, 1988.      Counsel   for  the  petitioner,   however,   vehemently contended  that  there has been no material  change  in  the situation.  He  submitted  that many lakhs  of  people  have subscribed  to  the  debentures and, within  a  strict  time schedule laid down by the statute, the  petitioner is  bound to  scrutinise all the applications, decide on the issue  of

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allotment  and  send  out allotment letters  or  refund  the application  moneys received. It is submitted that  even  at this  stage  there  is a  potential  danger  that  continued publication  of  articles by the respondents  attacking  the validity  of  the debenture issue will have  the  effect  of causing  a large number of applicants for the debentures  to panic  and to seek refund of the application moneys  already paid  by them. In fact, it is said, a writ petition of  that nature  has already been filed in the Allahabad High  Court. Counsel submitted that, in a sensitive matter like issue  of debentures, even the request for return of money by any  one person   could trigger off several applications of the  same type and that the danger, that the petitioner company  might be  asked to refund moneys sent in respect of  subscriptions already  made  on  the  basis of  the  allegations  in  such articles as the one already published, is real and imminent. He submitted that it is therefore as much necessary today to continue the injunction as it was when it was granted on the 25th of August, 1988.      I  have given careful thought to this contention  urged on  behalf  of  the  petitioner company.  It  is  of  course difficult in the absence of any reliable data for any person to come to a conclusion as to how exactly the publication of                                                    PG NO 240 articles  of  the type published by  the  respondents  would cause   prejudice  in  the  manner  contended  for  by   the petitioner.  It  seems  to  me,  however,  that  the  danger apprehended  by  the petitioner company is not  so  real  or substantial as to warrant the continuance of the  injunction order  passed by us on the 25th of August, 88. Even if,  for the purpose of argument, one were to assume that such claims for  refund will be made, they cannot straightaway harm  the interests of the petitioner company. There is no possibility that, pending determination of the issues raised, any  court will order interim relief to such applicants by way of grant of  such refunds. The petitioner will be liable to make  any such  refund only if it is ultimately decided by this  court or  any other court that the issue of debentures is  invalid and that the application moneys have to be refunded. That of course  the company will have to do in any event. There  is, however, no immediate cause for apprehension on the part  of the  petitioner  that the publication of  any  such  article could abort the debenture issue in the manner it could  have done  before 31.8.88. I, therefore, agree that there  is  no justification for the continuance of the interim order dated 25.8.88 any longer. R.S.S.