TMI Blog1988 (9) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. - C.M.P. Nos. 2190306 of 1988.TP Nos. 192 & 193 of 1988 - - - Dated:- 23-9-1988 - MUKHARJI, SABYASACHI AND RANGNATHAN, S., JJ. For the Petitioner :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 Respondent : 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 JUDGMENT 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lborn 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 Gujar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 TravancoreCochIn 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciary 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 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Law of Contempt (1973) and mentioned that professionally trained Judges are not easily influenced by publications. 'This is a point which was emphasised before us also. Lord Denning referred to the question whether there was contempt of court by the B.B.C. He 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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