2012 Supreme(SC) 605

Supreme Court of India
S.H. KAPADIA, CJI., D.K. JAIN, SURINDER SINGH NIJJAR, RANJANA PRAKASH DESAI & JAGDISH SINGH KHEHAR, JJ.
Sahara India Real Estate Corp. Ltd. & Others
Versus
Securities & Exchange Board of India & Another
I.A. Nos. 4-5, 10 to 13, 16 to 27, 30-31, 32-33, 34, 35-36, 37-38, 39-40, 41-42, 43-44, 45-46, 47-48, 49-50, 55-56, 57, 58, 59, 61 & 62 in C.A. Nos. 9813 & 9833 of 2011 with I.A. Nos. 14 & 17 in C.A. No. 733 of 2012
Decided On : 11-09-2012

IMPORTANT POINT
Reasonable restriction can be out on right of free speech including reporting of judicial proceedings.

Headnote:(a) Constitution of India – Article 19(2) – Freedom of Expression – Must be defined, qualified, and balanced with other rights – In appropriate cases got to correlate with fair trial and reasonableness – Prior restraint – Not constitutionally impermissible per se – However, principle of proportionality has to be kept in mind to prevent imposition of overreaching restrictions on the media – An order passed to protect the interest of justice and the administration of justice cannot be treated as violative of Article 19(1)(a). (Para 12, 25, 29, 32)

       (1997) 8 SCC 386; (1978) 1 SCC 248; AIR 1950 SC 129; AIR 1957 SC 896; AIR 1971 SC 481; AIR 1989 SC 190; AIR 1967 SC 1; AIR 1988 SC 1883; (2010) 4 SCC 653 – Relied upon

       283 US 697; (1979) 2 EHRR 245; (1983) 1 A.C. 280; 2008 QCCA 2516; (1950) SCR 759; [1994] 3 SCR 835; [2001] 3 SCR 442; 457 US 596 – Referred

       78 Bom LR 125; Sp. CA 141 of 1976 – Cited with approval

       (b) Constitution of India – Article 129/215 – Courts of Record have inherent powers to prohibit publication of court proceedings or the evidence of the witness – All Courts having inherent powers, i.e., the Supreme Court, the High Courts and Civil Courts can issue prior restraint orders or proceedings, prohibitory orders in exceptional circumstances temporarily prohibiting publications of Court proceedings to be made in the media – Such powers do not violate Article 19(1)(a) – Further, Article 19(1)(a) rights can be restricted in relation to “contempt of court” under Article 19(2) – Similarly, civil courts have power under Section 151 of Code of Civil Procedure to pass orders prohibiting publication of court proceedings – Meaning of ‘Contempt of court’ in Article 192/215 is much wider than in section 2 (c) or 13 of Contempt of Courts Act, 1971 – Statements including statements in the media which would prejudice the right to a fair trial of a suspect or accused under Article 21 may be prohibited (Para 33)

       AIR 1989 SC 190; AIR 1967 SC 1; (1991) 4 SCC 406; (1998) 4 SCC 409; (1969) 2 SCC 734; 1995 Supp (2) SCC 130; (2005) 5 SCC 294; (1994) 6 SCC 632 – Relied upon

       2005 (1) AC 190; (2012) NZCA 188 – Referred

       (c) Contempt of Courts Act, 1971 – Section 4, 7 and 13 – Reporting of judicial proceedings – May sometimes be prejudicial to connected or later trials – To safeguard fairness of later or connected trial and prevent possible contempt by media, Court may have to order postponement of publication or restrain the media temporarily. (Para 35)

       (d) Constitution of India – Article 19(1)(g) and 19(2) – Freedom of Expression not absolute right – When freedom of expression under Article 19(1)(g) clash with right to fair trial under Article 21 – Court has to do balancing act – Postponement order is the answer – Be passed only if there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice – Such restrictions will be reasonable restrictions (Para 39, 42)

       (1995) 2 SCC 161; (1995) 2 SCC 161; AIR 1970 SC 2015 – Relied upon

       (e) Administration of Justice – Fair and reasonable reporting – Test of reasonableness equally applies to Article 19(1) rights – While judging reasonableness even Directive Principles can be taken into consideration – Courts of Record have inherent powers under Article 19(2), Article 129/ Article 215 and Article 142(2) to order postponement of publication and for a limited period – Postponement orders fall under Article 19(2) and they satisfy the test of reasonableness. (Para 42)

       2012 (4) SCALE 272; (2004) 1 SCC 712 – Relied upon

       (f) Constitution of India – Article 32/226 – Anybody apprehending infringement of his rights under Article 21 on basis of a publication – Entitled to approach an appropriate writ Court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial including identity of the victim or the witness or the complainant. (Para 43)

       (g) Constitution of India – Article 141 r/w Article 129/Article 215 – Judicial law making – Law declared by Supreme Court – Part of judicial process – Law-making through interpretation and expansion of the meanings of open-textured expressions – Court only declaring constitutional limitations on free speech under Article 19 (1)(a) in the context of Article 21 – Guidelines on reporting cannot be framed across the Board – True nature of offence consisted in interfering with administration of justice; in impending and perverting the course of justice clarified. (Para 45)

       Facts of the case:

       SEBI directed Sahara to refund to the investors the amounts invested with them in certain Optionally Fully Convertible Bonds (OFCD) with interest by a stated date.

       Sahara filed Civil Appeal Nos. 9813 and 9833 of 2011 challenging the above order. Both these appeals were admitted for hearing.

       On 7.02.2012, the learned counsel for Sahara addressed a personal letter to the learned counsel for SEBI at Chennai enclosing the proposal with details of security to secure repayment of OFCD to investors as pre- condition for stay of the impugned orders dated 23.06.2011 and 18.10.2011 pending hearing of the Civil Appeals together with the Valuation Certificate indicating fair market value of the assets proposed to be offered as security. This was communicated by e-mail from Delhi to Chennai. Later, on the same day, there was also an official communication enclosing the said proposal by the Advocate-on-Record for Sahara to the Advocate-on-Record for SEBI.

        9. A day prior to the hearing of IA No. 3 on 10.02.2012, one of the news channels flashed on TV the details of the said proposal which had been communicated only inter parties and which was obviously not meant for public circulation. The concerned television channel also named the valuer who had done the valuation of the assets proposed to be offered as security.

       Both parties denied involvement.

       On 10.2.2012 the Court passed the following order: “We are distressed to note that even “without prejudice” proposals sent by learned counsel for the appellants to the learned counsel for SEBI has come on one of the TV channels. Such incidents are increasing by the day. Such reporting not only affects the business sentiments but also interferes in the administration of justice. In the above circumstances, we have requested learned counsel on both sides to make written application to this Court in the form of an I.A. so that appropriate orders could be passed by this Court with regard to reporting of matters, which are sub-judice.”

       In this case the Court was concerned with the question “as to whether guidelines for the media be laid down? If so, whether they should be self-regulatory? Or whether this Court should restate the law or declare the law under Article 141 on balancing of Article 19(1)(a) rights vis-à-vis Article 21, the scope of Article 19(2) in the context of the law regulating contempt of court and the scope of Article 129/ Article 215."

       Finding of the Court:

       Reasonable restriction can be out on right of free speech including reporting of judicial proceedings.

       Result: IA Nos. 4-5 and 10 are disposed of. Other IAs dismissed.