Holding

A preventive injunction restraining the Indian Express from publishing articles on the debenture issue was not justified as there was no real or imminent danger to the administration of justice, and therefore the injunction was vacated.

Summary

Reliance Petrochemicals Ltd. obtained consent from the Controller of Capital Issues to issue a large public debenture offering and sought a transfer of multiple pending writs to the Supreme Court under Article 139A. The Court ordered the issue to proceed without hindrance and vacated earlier injunctions. The Indian Express published an article questioning the legality of the controller's sanction, prompting Reliance to seek contempt proceedings and a fresh injunction to prevent further publication. The Court examined the tension between freedom of the press under Article 19(1)(a) and the need to protect the administration of justice, applying the "present and imminent danger" test and balancing convenience. Finding that the debenture issue was oversubscribed and that no real danger of withdrawal existed, the Court held that the preventive injunction was no longer necessary and ordered it vacated.

Issues considered

The propriety of granting a preventive injunction restraining newspaper publication on a matter that is sub judice.
Whether the publication of an article criticizing the Controller of Capital Issues constitutes contempt of court.
How to balance the freedom of press under Article 19(1)(a) with the need to protect the administration of justice.
The applicability of the "present and imminent danger" test in deciding the continuance of an injunction.
The relevance of Article 139A and the Contempt of Courts Act, 1971 in the present proceedings.

Legislation cited

Companies Act, 1956
Constitution of Indias. Article 139A, s. Article 19(1)(a), s. Article 21
Contempt of Courts Act, 1971s. Section 2(c)(iii)
Foreign Exchange Regulation Act, 1973

Subjects

Freedom of pressContempt of courtArticle 19(1)(a)Article 21Article 139APreventive injunctionPublic issue of debenturesBalance of convenienceSub judice publicationContempt of Courts Act

Judgment

RELIANCE PETROCHEMICALS LTD.
A
v.
PROPRIETORS OF INDIAN EXPRESS NEWSPAPERS,
BOMBAY PVT. LTD. & ORS.

SEPTEMBER 23, 1988
B
[SABYASACHI MUK.HARJI AND S. RANGANATHAN JJ.)

Co_nstitution of India, 1950: Article 19(1)(a)-Public Limited
Compan}i-Issue of debentures--Ril(ht of newspaper to publish and
prim article on the debenture issue-Court litigatililf· m regard to
C 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
D respect of debenture issue-Whether prejudging of issue and inter-
ference with administration of justice-Whether Court entitled to injunct
press from publication of article-Newspapers right of freedom of
speech. -

The petitioner company had offered for public subscription
E secured convertible debentures after obtaining the consent of the Con-
troller of Capital Issues. Before the p11blic issue was due to open, cer-
tain writ petitions etc. were filed in ~me fligh 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
F 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
G tlie 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
fl also sought injunction against the th;eate~eo or expected: publication
212
"" h::}-

RELIANCE PETROCHEMICALS v. EXPRESS NEWSPAPER 213

of similar comments. The Court, while declining to take cognizance of
A
contempt in the absence of the consent of the Attorney General, issued
an order of injunction restraining publication of articles, etc. question-
ing the legality or validity of any of the consents, approvals or permis-
sions for the public issue.

The matter came up before the Court again to consider the ques- B
tion 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 maiters of public importance was uncalled for and con-
trary 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 her11 and no likelihood
c
of the trial being prejudiced because triatwas by professionally traiDed
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 D
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.
E
.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 !Jhsolute with respect to free- F
dom of speech and expression, as enshrined by the First Amendment to
the American Constitut1on. l223F J

(2) A judiciary Is not Independent unless courts of justice are
enabled to administer law by absence of pressure frQm without,
whether exerted through the blandishments of reward 01· the menace of G
disfavour. A free Press Is vital to a democratic society for Its freedom
_gives It power. [227F)

(3) The law of contempt must be judged In a particular 'Situation.
The process of due course of administration of justice must remain
unlmpah'ed. Public Interest demands that there should be no Inter- H
214 SUPREME COURT REPORTS l1988] Supp. 3 S.C.R.

A ference with judicial process and the 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
B balance has to be struck between the requirements of free Press and fair
.trial. [23SB-C; A]

(4) The Court must examine the gravity of the evil. I~ other
words, a bafance of convenience in the conventional phrase of l\nglo-
Saxon Common Law Jurisprudence would, perhaps, be the proper test
to follow. [228B I -
c
(S) The Court must see whether there was a present and
imminent danger for the issuance/continuance of injunction. It is dif-
ficult to lay down a fixed standard to judge as to bow clear, remote or
.imminent the danger is. [234D]
D
(6) The orders passed on 19th A~gust, 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 of convenience and having due regard to th•
sums of money involved and the progress already made. [234D]
E (7) The continuance of this injunction would amount to inter-
ference 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. _[l34E I

(8) There must be reasonable ground to believe that the danger
F apprehended is real and.imminent. The subscription to debentures hav~
ing been oversubscribed, there is no such imminent danger of the sub-
scription being withdrawn before the allotment so as to make the issue
vulnerable by any publication of article. [i35D]

(9) As the issue is not going to affect the general public or public
G life, nor any injury is involved, it would be proper and legal, on an
appraisal of the batance of convenience between toe risk wblch will be
cansed by the publication of the article and the damage to the funda-
mental right of freedom of knowledge of the people concerned and the
obligation of Press to keep people informed, that the injunction should
H not continue any further. [23SG-HT
RELIANCE PETROCHEMICALS v. EXPRESS NEWSPAPER 215

(10) Publication, if any, however, would be subject to the deci-
sion of the Court on the question of the contempt of court, namely, A
pr;ejudging the i~s_ue_a11d_thereby interfering with the due administra-
tion of justice.1[236A]

( ll) Preventive remedy in the form of an injunction is no longer
necessary. Whether punitive remedy will be available or not, will B
depend upon the facts and the decision of the matter after Rscertaining
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 19.9.1988, it had formed any prima facie opinion on the c
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, primafacie, 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 D
tribunal on the issue of ·debentures at a late stage might p_rove
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. [238C-E]
•
(2) The article published by the respondents, though not viola- E
tive of the terms of the injnnction 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 F
contention that no such injunction ought to have been granted at all
is not acceptable ..[239A-Bl ·

(3) The position has radically changed. The danger apprehended
by the petitioner is not so real or substantial as to warrant the con-
tinuance of the injunction ordern. [239C] G

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. & A~r. v. Union of India'&·
Ors., [1959] SCR 12; Ramesh Thapar v. State of Madras, [1950] SCR
594 at 597; Brij Bhushan & Anr. v. State of Delhi, [1950] SCR 605; H
216 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A State of Travancore-Cochin & Ors. v. Bombay Co. Ltd. [1952] SCR
1112; State of Bombay v. R.M.D. Chamarbaugwala, l1957] 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, [1963] L.Ed. 1173 at 1180; P.N. Duda v. P. Shiv
B Shanker & Ors., AIR 1988 SC 1208; John D. Pennekamp v. State of
Florida, [1945] 90 L.Ed. 331; Nebraska 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 Parle
Bread Manufacturers Ltd., [1937] 37 SR (NSW) 242 and Charlotte
C . Anita Whitney v. People of the State of California, 71 L.Edn. 1095 at
1106.

CIVIL/CRIMINAL ORIGINAL JURISDICTION: C.M.P.
Nos. 21903-06of1988.

D IN

Transfer Petitions Nos. 192 & 193 of 1988.

(Under Article 139(A)(i) of the Constitution of India).
I
E 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 Peti-
. tioner.

G. Ramaswamy, Additional Solicitor General, Ram Jethmalani,
C. V. Subba Rao, Ms. A. Subhashini, Mrs. Sushma Suri; P. Parmesh-
F waran, Mukul Rohtagi, 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 Karanja-
wala for the Respondents.

The following Judgments ot the Court were delivered:
G
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 19th August, 1988 under the
H Contempt of Courts Act, 1971 for initiation of.i;ontempt proceedings
RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER (MUKHARJI, J.]217

against the proprietors of Indian Express Newspapers Bombay l'vt. A
Ltd., Shri Arun Shourie, Indian Bxpress 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 B
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 commit-
ted 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 c
related publications from publishing any materials or articles in rela-
tion 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. 1172 of 1988 K.S. Brahmabhatt v. D
Reliance Petrqchemica/s 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 trafisfer petitions pending
herein.
E
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 F
manufacture of critically scarce raw-material known as Mono Ethylene
G!ycole (MEG) and plastic raw-materials like High Density Polyeth-
lene (HOPE) and Poly Vinyl Chloride (PVC) which are used for mak-
ing various articles from films IQ 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 G
was the largest public issue in India till date and the second largest
issue in the world. The public issue was due to open ori 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 H
218 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A issued after obtaining the consent of the Controller of Capi•al 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 chal-
lenging the grant of consent or sanction for the issue of debentures.
B
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
c 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
D
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/Cumula-
tive Convertible Preference Shares/Convertible Debentures for
E financing the proposed projects for manufacture of PVC, HOPE and
MEG. On 4.th 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. JO each inclusive ofretainable
excess subscription of Rs. 7 .5 · crores and for 2,96,70,000 12.5%
Secured Fully Convertible Debentures of Rs.200 each for cash at par
F 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 are
again the relevant to be set out for the present purpose. The consent
order of the Controller was modified and further condition of obtain-
ing the Reserve Bank of India's permission for •llotment of deben-
G
tures of Non-Residents as required under FERA 1973 and for allot-
ment 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
H at par, as indicated before.
RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER {MUKHARJI, J .J219

A petition was filed in the Karnataka High Court on 17th
A
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
in junction 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 B
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 cir-
c
cumstances 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 D
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% secured convertible
debentures of Rs.200 each by the petitioner company E
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 pro-
ceedings instituted or that may be instituted in or before
any Court or tribunal or other authority. F

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."
G
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 injunction in
respect of the said issue. It was asserted on behalf of the petitioner that
this Court must have heen prima facie satisfied that there was no legal H
220 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

infirmity which should stand in the way of the public issue of the said
A
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
B purpose to set out the said article. It was claimed in the said article that
the Controller of Capital Issues had not acted properly and legally in
granting the sanction to the issue for various reasons stated therein. It
was further sta_ted 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 news-
papers 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
D contempt and preventive order of injunction of wrong anticipated to
be committed by the delinquent. The publication threatened or
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
E 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 cogni-
zance on that application without the views of the Attorney General.
This Court, however, issued an order of in junction restraining all the
six respondents mentioned therein from publishing any article, com-
F men!, report or editorial in any of the issues of the Indian Express or
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 cif 1988 have made reference in the
Prospectus dated 27th July, 1988 forthe issue of 12.5% Secured Full
Convertible Debentures. Notice of that application was made retum-
0 able on 9th September, 1988 and the same was to come up with other
related matters. The respondents were farther 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,
Ii 19.88. Attention ofthe Court was drawn to an article proposed to be
RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER [MUKHARJI, J.]221

published in the Indian Express which was Annexure 'B' to the said
A
affidavit. Submissions were made on the validity or the propriety of
the interim order. U pan hearing learned counsel for both the parties,
this Court observed that it was sufficient to say that the article pro-
posed to be published and forming part of Annexure 'B' did not violate
r 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 B
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 cir-
cumstances 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
c
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 granted by this Court on D
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 E
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 F
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 iree Press and G
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 cir- H
-i

,--·1
-;•
222 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

cumstances of this case. The point at issue has been canvassed very
A
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 rhose debentures, should be pre-
vented. On the other hand, Sh. Ram Jethmalani and Sh. Anil B.
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 19( 1) & (2) which
provides as follows:
c 19. Protection of certain rights regarding freedom of
speech, etc.-( 1) All citizens shall have the right

(a) to freedom of speech and expression;

D (b) to assemble peaceably and without arms;

(c) to form associations. or unions;

(d) to move freely throughout the territory of!ndia;

E (e) to reside and settle in any part of the territory of India;

(f) (Omitted by ibid. Sub-cl. (f) read to "to acquire, hold
and dispose of property; and")

(g) to practise any profession, or to carry on any occupa-
F tion, trade or business.

(2) Nothing in sub-clause (a) of clause (1) 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
G said sub-clause in the interests of (the sovereignty and
integrity of India,) the security of the State, friendly rela-
tions with foreign States, public order, decency or morality
or in relation to contempt of court, defamation or incite-
ment to an offence."

H The effect of Article 19 on th~ freedom of Press, was analysed in
RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER IMUKHARJI, J.1223

the decision of this Court in Express Newspapers (Pvt) Ltd. & Anr. v. A
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, [1950] SCR 594 at 597, refer-
red to the observations of Justice Patanjali Sastri, and further referred
to the decision of this Court in Brij Bhushan & Anr. v. The State of
Delhi, [1950] SCR 605. Referring to these two decisions, Bhagwati J. B
expressed his view that these were the only two decisions which
evolved the interpretation of Article 19(l){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 be found in the deci-
c
sions 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. D
and, hence, it would be legitimate and proper to refer to those deci-
sions 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 & Ors. v: Bombay Co. Ltd.,
[1952] SCR 1112 and State of Bombay v. R.M.D. Chamarbaugwala, E
[ 1957] SCR 874 at 918.

Our Constitution is not absolute with respect to freedom of
speech and expression, as 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 F
ordeF 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 G
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
issued a Rule requiring the Chief Minister to show cause why he
should not be committed for contempt of Court. The High Court
found him guilty_ of contempt and fined him. The matter came up H
224 SUPREME COURT REPORTS l1988] Supp. 3 S.C.R.

A before this Court 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
B 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 Minister of intimidating the liti·
C gants 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 con-
tempt of Court by interfering with the due administration of justice.
D 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
E 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 invo\ved, is not of much aid to us. The case
of gross contempt was discussed by this Court in C. K. Daphtary &
F 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 ha~ ~en adverted to in the decision of this
Court in Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v.
G 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 bf the guarantees in Article
19(1)(a). The freedom of Press, as noted by Venkataramiah J., is one
H of the items around which the greatest and the bitterest of constitu·
RELIANCE PETROCHEMICALS v:.EXP. NEWSPAPER [MUKHARJI, J.]225
,--, ..
tional struggles have been waged in all countries where liberal con-
A
stitutions 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 PQlitical Rights,, 1966. Article
10 of the European Convention on Human Rights, provides as follows:

I'~\ "Article 10-(1) Everyone has the right to freedom of B
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 requir-
( ing the licensing of broadcasting, television or cinema
enterprise.
c
(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 pre-
scribed 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
D

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."
E
The First Amendment to the Constitution of the U.S.A. pro-
vided as follows:
-T'
"Amendment-I Congress shall made no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech or of the press; F
:f "
or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances."

~_,,, Keeping the constitutional requirements of the Indian law in the
background, it would be appropriate to refer to certain American
I decisions to which our attention was drawn. We have mentioned the G
~- observations of Justice Black in the case of Harry Bridges v. State of
California (supra). There, Justice Black observed that free speech and
~l fair trial are the two most cherished values of our civilisation and it
..\(
c:.v 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
,,
emphasised that a public utterance or publication is not to be denied H
226 SUPREME COURT REPORTS I1988] Supp. 3 S.C.R.
the constitutional protection of freedom of speech and Press merely
A
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,
B it would be worth\"hile to bear in mind the "present and imminent
danger" theory.

Justice Black quoted from the observations of Justice Holmes in
Abrams v: United Staies, (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
c 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
D 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
in junction which was to help or boost up tne chances of the debentures
being subscribed.
E.
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 effec-
tive protection of all the freedoms secured by the Bill of Rights. The
administration of justice by an impartial judiciary has been basic to the
F conception '.of freedom ever since Magna Carta. Justice Frankfurter
further reiterated that the dependence of society upon an unswerved
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
G 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
H Justice Stone, Justice Roberts and Justice Byrnes agreed, reiterated at
RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER [MUKHARJI, J.]227

page 284 of the report that the Constitution is an instrument of
A
Government and is not conceived as a doctrinaire document, nor was
the Bill of Rights intended as a collection of popu·l~r slogans. It is well
to remember that Justice Frankturte-r recognlSed that we- cannofread .
into the 14th Amendment the freedom of ~eech and of the Press
protected-by the 1st Amendment ana-at the same time leaveoJlt the
age old means employed by States. for securing the calm course of · B·
justice. He emphasised that the 14th Amendment does not forbid ~
State to continue the histo.ric process of prohibiting expression~
calculated to subvert a specific exercise of judicial power. So to assure
the impartial accomplishment of justice is not an abridgement of free-
dom of speech or Press, as these phases of lib~_ha"._e he_ret9J1efore
been conceived even by the-stoutestlibertarians. Actually, these
liberties themselves .depend "upon an untrammeled judiciary whose
c
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 iri P.N. Duda v. p
P. Shiv Shanker & Ors., AIR 1988 SC 1208.

· Thi!_9uestion again cropped up in John D. Pennekamp v. State of
Florida, I[1945] 90-L.Ed." 331 and-Justice Frankfurte1: 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 . E
formula for adjudicating cases. It was a literary phrase not to be disto-
iteif oy beif!8 taken from its context. He reiteratea that ihe, judiciary
couid not . function properiy 'it what the Press does is r~asonably
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 F
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 entireiy different to the present G
ones, Chief Justice Burger delivered the opinion of the Court saying
· that to the extent that the order prohibited the reporting of eviden'ce
adduced at the open preliminary hearing in a murder trial was bad.
Chief Justice Burger reiterated that a responsible Press has always
been regarded as the handmaiden of effective judicial administration,
especially in the c~iminal field. The observations of Learned Hand H
228 SUPREME COURT REPORTS [ 1988] Supp. 3 S.C.R.

A 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 examine the gravity
of the evil. In other words, a balance of convenience in the conven-
tional phrase ·of Anglo-Saxon Common Law Jurisprudence would,
perhaps be the proper test to follow.
B
In this background it would be appropriate to refer to some of
the English decisions to which our attention was drawn. Mr. Jethma-
lani 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, how-
ever,' 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 obser-
vations of Lord Denning. We may refer to the observations of the
House of Lords in Attorney General v. B.B.C., [1981] AC 303,
D 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· before a local va111a-
tion court on the ~round 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
E 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 dis-
charged administrative functions and was not a court of law and the
p 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 princi-
ples relating to contempt of court should not apply to it or to the. host
d 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
Denning in the Court of Appeal referred to Borrie & Lowe, The Law
H of Contempt (1973) and mentioned that professionally trained Judges
RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER [MUKHARJI, J.]229

are not easily influenced by publications. This is a point which was
A
emphasised before us also. Lord Denning referred· to the question
whether there was contempt of court by the B.B.C. He eniphasised
tl'flt 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 broad-
casting or publication might affect a Judge. Viscount Dilhorne at page B
'.135 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 con-
sequently that the need to prevent the publication of mat-
ter· prejudicial to the hearing oi a case only exists where the
decision rests with laymen. This claim to judicial superio- c
rity 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 D
view will any layman experienced in the discharge of judi-
cial duties. Nevertheless it should, t 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 mav oe
subconsciously affected by it. As Lord Denning M.R. said
the stream of justice must be kept clean and pure. It is the E
law, and it remains the law until it is changed by Parliament
that the publication of matter likely to prejudice the hear-
ing of a case before a court of law will constitute a con-
tempt of court punishable by fine or imprisonment or both.

In this appeal we do not have to pronounce on whether the F
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
Brethi;:m, it by no means follows that it would have pre-
judiced their claim to relief from rates. The mere assertion
in the course ot:. the broadcast that they were not entitled to G
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 withiJ;i section 39."

Lord Edmund-Davies at page 354 of the report emphasised that
only a very short question arose, namely, whether the local. valuation H
230 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

court comes within the jurisdiction of the High Court or not. Before
,,. that, Lord Scarman had occasion to refer to the observations of the
Eurbpean Court of Human Rights which criticised the judgment ,of the
House of Lords in Attorney General v. Times Newspapers Ltd.; 119741
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 contain-
ing thalidomide about 450 children were born with gross deformities
(: to mothers who had taken that drug during pregnancy. In l968; 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 parte in 261
cases, but apart from a statement of claim in one case and a defence
Ji> 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
Ji' 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
d; 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
H campaign in the press and amon~ ~~e ge11eral public directed to bring-
,._,~-~ •-' r
'"'"'"

RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER IMUKHARJI, J.]231

ing pressure on the company to make a· better offer for the children
A
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 matenal which prejudged the issue of B
pending litigation or was likely to cause public prejudgment 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 House of
Lords granted injunction prohibiting the Times Newspaper from pub-
lishing the proposed publication. Reference was made to Oswald's
Contempt of Court, 3rd Edn. (1910), where it was emphasised that the c
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 D
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 Parle Bread Manufacturers Ltd., [1937] 37 SR (NSW) 242 E
to the following effect:

"It is of extreme public interest that no conduct should be
I
I
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 F
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 com- G
peting 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 H
SUPREME COURT REPORTS (1988] Supp. 3 S.C.R.

by-product, cause some likelihood of prejudice to a person
A
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
B 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."

C 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 a
case or of specific issues in it is objectionable, not only
because of its possible effect on that particular case but also
D because of its side effects which niay 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
E 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
F pending cases." (Emphasis supplied)

Lord Diplock stated at page 309 of the report that the due
administration of justice requires first that all citizens should have
unhindered access to the constitutionally established courts of criminal
or civil jurisdiction for the determipation of disputes as to their legal
q 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
If should be able to rely upon their being no usurpation by any other_
RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER (MUKHARJI, J.)233

person of the function of that court to decide it according to law. A

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
B
influence the decisions which affect their lives unless they
can be adequately informed on facts and arguments rele-
vant 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 C
law provides some safeguatds against abuse; though
important ohes (such as professional propriety and responsi-
bility) lie outside the law." (Emphasis supplied)

Lord Cross of Chelsea at page 322 of the report observed as D
follows:

" "Contempt of Court" means an interference wit!t the
administration of justice and it is unfortunate that the
offence should continue to be known by a name which
suggests to the modem mind that its essence is a supposed
affront to the dignity of the court. Nowadays'' wlien E
sympathy is readily acc0rded to anyone who defies con-
stituted 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 centre, should be
anxious to safeguard. When the alleged contempt consists F
in giving utterance either publicly or privately to opinions
with regard to or connected with legal proceeding~,
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 0
law, in pending proceedings-whether civil or ,i:rlininal-is in
principle an interference with the administration of justice
although in any partieular case the offence 1lnay be. so' trifl-
ing that to bring it to the notice of the court would be
unjustifiable." !
234 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

Mr. Baig emphasised that there is an inherent jurisdiction to
A 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 deben-
tures could be withdrawn as the final allotment has not yet been made.
I
I On the other hand, Mr. Diwan submitted th.at there is no jury
trial involved here and no likelihood of the trial being prejudiced
because trial is by professionally trained Judges. Public have a right to
know about this issue of debentures which is a matter of public con-
cern. 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
Il> 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 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
·ihe overall balance and convenience and having due regard to the sums
JI: 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 PTess 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
J' concurring in Charlotte Anita Whitney v. People of the State of I'
...
California, 71 L. Edn. 1095 at 1106, there must be reasonable ground
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
G 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
f1' have a right to know in' order to be able to take part in a participatof)'

..
RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER [MUKHARJJ, J.]235

development in the industrial life and democracy. Right to Know is a
basic right which citizens of a free country aspire in the broader A
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.
[l
The question of contempt must be judged in a particular situa-
tion. TI1t process of due course of administration of justice must
remain unimpaired. Public interest demanas that there should be 110
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 Jie remembered that even at turbulent times
through which the developing countries _are passmg., contempt of c
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 D
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 contii:tuance of
injunction is no longer necessary.

In this peculiar situation our task has been difficult and complex. E
The task of a modem Judge, as has been said, is increasingly becoming
complex. Furthermo~e;-the lot of a democratic Jucige· is. heavier and

I thus nobler. We cannot escape the burden of indMdual responsibili-
ties in a particular situation in view of the peculiar facts and cir-
cumstances of the case. There is no escape in absolute. Having regard
however, to different aspects of law and the ratio of the several ded' F
sions, 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 !;~heral 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 G
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 injunc-
tion should not continue any fj,irther.

In .the aforesaid, view-0f the matter, we direct that there is no ..H
236 SUPREME COURT REPORTS [1988) Supp. 3 S.C.R.

further need for tn~ continuance of the injunct10n. Publications, if
A 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
~emedy in the form of an injunction is no longer necessary. Whether
punitive remedy will be available or not. will depend upon '""' tacts
B .and .the .dP.cision 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, how'ever, 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 ·con-
0 tinuance 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
IE relying on the speeches of the various Law Lords in the Thalidomide
.case Attorney Generalv. Times Newspapers Limited, [1974] 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
F 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 con-
tempt were of such a nature that they were seen to affect the course of
actions actually pending in courts, that even other\vise the decision of
<Ji the House of Lords has been widely criticised and should not be
followed and that the views expre"SWa by Lord Denning, M.R. in
Attorney Generalv. 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. State of Florida, 90 L. Ed. 1295 should be preferred
Ill as more .appropriate to present day conditions, particularly in the
RELIANCE PETROCHEMICALS v. EXP. NEWSPAPER [RANGANATIIAN, J] 237"

context of the freedom of press guaranteed under Act 19(1)(a).of the
A
Constitution of India, and also incorporated in Article 19 of the Uni-
versal Declaration of Human Rights, 1948, Art. 10 of the European
Convention of Human Rights and Art. 19 of the International Conven-
tion on Civil and Political Rights, 1966. I do not think we are called
upon to decide this wider question at this stage. A.s already pointed
out, the contempt petition filed by the petitioners in respect of the B
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,
C'
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 imrninent 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 D
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 E
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 F
contrary to or inconsistent with the prima facie view of this Court.
·P,ersons 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 G
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 H
238 SUPREME COURT REPORTS [1988) Supp. 3 S.C ..R.

been heard by the various High Courts or other subordinate courts,
A
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,
B if ariy such interim order was passed, all the time, labour and money
expended in tloating the debenture issue might be nullified at tl}e 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 Jet or hindrance and with-
out being hampered by any interim stay order from any court. I do not
think it would be correct to say that, when we pass,ed 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 pro-
perly complied wilh, what predominantly influenced us to pass the
D order dated 19 .8.88 was that, even assuming, prima facie, as con-
tended in the various writ petitions and suits, that there could-be some
doubt regarding the validity or otherwise of the cons~nt orders etc.,
the restraint by any court or tribunal on the issue of debentures at a
late stage might prove catastrophic, and cause irreparable Joss or dam-
age, to the petitioner. We were also of the opinion that, pending
E adjudication on the issue of validity raised in the various suits, th'e
balance of convenience required that there should be no order of any
court or tribunal staying the debenture issue.

Now, I 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 Con-
troller of Capital Issues to the issue of the debentiires. 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
G 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 allega-
tions 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
H ahead without any obstacles placed in the way of the collection· of
'
RELIANCE PETROCHEMICALS v, EXP. NEWSPAPER [RANGANATHAN, JI 239

subscriptions therefor on the grounds on which stay orders had been
A
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
Qf 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 B
why we passed the second order dated 25.8.88 and also declined to
modify or vary it at the 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
c
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 D
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 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 E
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 F
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 allega-
tions in such articles as the one already published, is ,real and
imminent. He submitted that it is therefore as much necessary today to G
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 H
240 SUPREME COURT REPORTS (1988] Supp. 3 S.C.R.

A the publication of 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 in junction order passed by us on the 25th oJ
August, 88. Even if, for the purpose of argument, one were to assume
B
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
C 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 3.1.8.88. I, therefore, agree that
there is no justification for the continuance of the interim order dated
Ii> 25.8.88 any longer.

R.S.S.

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