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

- **Citation:** [1988] Supp. 3 S.C.R. 212
- **Court:** Supreme Court of India
- **Decided:** 1988-09-23
- **Bench:** Sabyasachi Muk.Harji, S. Ranganathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/reliance-petrochemicals-ltd-v-proprietors-of-indian-express-newspapers-bombay-10039
- **Pages:** 29

## Headnote

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 interference 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 Controller of Capital Issues. Before the p11blic issue was due to open, certain writ petitions etc. were filed in ~me fligh Courts challenging the
grant of consent or sanction for the public issue. The petitioner thereupon 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
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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. questioning the legality or validity of any of the consents, approvals or permissions for the public issue.
The matter came up before the Court again to consider the quesB
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 contrary to freedom of press enshrined in the Constitution and the laws;
that public had a right to know about this issue of debentures which was
a matter of public concern, and the newspapers had an obligation to c
inform; and that there was no jury trial involved her11 and no likelihood
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
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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 freeF
dom of speech and expression, as enshrined by the First Amendment to
the American Constitut1on. l223F J
(2) A judiciary Is not Independent unless

## Text

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A
B
RELIANCE PETROCHEMICALS LTD.
v.
PROPRIETORS OF INDIAN EXPRESS NEWSPAPERS,
BOMBAY PVT. LTD. & ORS.
SEPTEMBER 23, 1988
[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 interference 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 Controller of Capital Issues. Before the p11blic issue was due to open, certain writ petitions etc. were filed in ~me fligh Courts challenging the
grant of consent or sanction for the public issue. The petitioner thereupon 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
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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. questioning the legality or validity of any of the consents, approvals or permissions for the public issue.
The matter came up before the Court again to consider the quesB
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 contrary to freedom of press enshrined in the Constitution and the laws;
that public had a right to know about this issue of debentures which was
a matter of public concern, and the newspapers had an obligation to c
inform; and that there was no jury trial involved her11 and no likelihood
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 freeF
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 InterH
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
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balance has to be struck between the requirements of free Press and fair
. trial. [23SB-C; A]
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(4) The Court must examine the gravity of the evil. I~ other
words, a bafance of convenience in the conventional phrase of l\ngloSaxon Common Law Jurisprudence would, perhaps, be the proper test
to follow. [228B I
-
( S) The Court must see whether there was a present and
imminent danger for the issuance/continuance of injunction. It is difficult to lay down a fixed standard to judge as to bow clear, remote or
.imminent the danger is. [234D]
(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]
(7) The continuance of this injunction would amount to interference with the freedom of Press in the form of preventive injunction
and it must therefore be based on reasonable grounds for the sole
purpose of keeping the administration of justice unimpaired. _[l34E I
(8) There must be reasonable ground to believe that the danger
apprehended is real and.imminent. The subscription to debentures hav~
ing been oversubscribed, there is no such imminent danger of the subscription being withdrawn before the allotment so as to make the issue
vulnerable by any publication of article. [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 fundamental 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 decision of the Court on the question of the contempt of court, namely,
pr;ejudging the i~s_ue_a11d_thereby interfering with the due administration 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
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
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
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 violative 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
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 continuance of the injunction ordern. [239C]
Attorney-General v. British Broadcasting Corporation., [1981]
A.C. 303; 354; Harry Bridges v. State of.California, 86 L.Ed. 252 at
page 260;Express Newspapers (Pvt.) Ltd. & 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;
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216
SUPREME COURT REPORTS
[1988] Supp. 3 S.C.R.
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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. ParmeshF
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 Karanjawala for the Respondents.
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The following Judgments ot the Court were delivered:
SABYASACHI MUKHARJI, J, At this stage, we are concerned
with the question whether there is need for the continuance of the
Order of injunction passed by this Court on 25th August, 1988. In
order to appreciate the question.it is necessary to state a few facts. A
petition was. moved before this Court on 19th August, 1988 under the
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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
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 commitB
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 relation to the subject matter of the proceedings in the Transfer Petitions
Nos. 192 and 193 of 1988 which was sub-judice issue in Writ Petition
No. 1276 of 1988 in Karnataka High Court, Writ Petition No. 1791 of
1988 in Delhi High Court, Writ Petition No. of 1988 Radhey Shyam
Goel v. Union of India, Suit No. 1172 of 1988 K.S. Brahmabhatt v.
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.
D
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
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be the largest petrochemical complex in the private sector for the
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manufacture of critically scarce raw-material known as Mono Ethylene
G!ycole (MEG) and plastic raw-materials like High Density Polyethlene (HOPE) and Poly Vinyl Chloride (PVC) which are used for making 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
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SUPREME COURT REPORTS
[1988] Supp. 3 S.C.R.
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 challenging the grant of consent or sanction for the issue of debentures.
Such applications in the different High Courts and the Courts were
filed at the last moment when enormous amount of money had already
been spent, it was claimed. It was stated that enormous monies on
publicity had been spent. In some of these proceedings orders of
injunction had been obtained. It was contended that issue was prima
facie legal and valid and the consent and permission of the necessary
authorities specially the Controller of Capital Issues had been
obtained properly. In such circumstances an application for transfer of
these proceedings under Article 139A of the Constitution of India read
with Part IV-A of the Supreme Court Rules 1966 was moved by
Reliance Petrochemicals Ltd. against the Union of India, Controller of
Capital Issues and the petitioner in the suit in Bangalore and writ
petition in Delhi. It was stated that the Certificate of Incorporation
was granted to the petitioner on or about 11th January., 1988 and the
Certificate of Commencement of Business was granted on 21st
January, 1988. On 4th May, 1988 an application was made to the
Controller of Capital Issues for raising Equity Share Capital/Cumulative Convertible Preference Shares/Convertible Debentures for
financing the proposed projects for manufacture of PVC, 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
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 obtaining the Reserve Bank of India's permission for •llotment of debentures of Non-Residents as required under FERA 1973 and for allotment of debentures to employees on certain terms was imposed on
19th July, 1988. On 27th July, 1988 a prospectus was filed with the
Registrar of Companies, Gujarat, Ahmedabad, for the public issue of
12.5% Secured Fully Convertible Debentures of Rs.200 each for cash
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
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
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.
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On that application being moved on 19th August, 1988, this
Court issued notices to all concerned making the same returnable on
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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 proceedings 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."
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
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this Court must have heen prima facie satisfied that there was no legal
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SUPREME COURT REPORTS
[1988] Supp. 3 S.C.R.
infirmity which should stand in the way of the public issue of the said
debentures going through and further, in any event, must have been
satisfied that there should not be any let or hindrance to the said public
issue. The petitioner had drawn our attention to an article published
on 25th August, 1988, under the heading "Infractions of Law has
Unique Features RPL Debentures". It is not necessary for the present
purpose to set out the said article. It was claimed in the said article that
the Controller of Capital 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 newspapers on issues which are sub-judice is one of the grossest modes of
interference with the due administration of justice and any threat of
that interference should be prevented by both punitive action of
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 cognizance 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, comF
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 retum0
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 pror
posed to be published and forming part of Annexure 'B' did not violate
the order of injunction passed by this Court on 25th August, 1988. In
other words, this Court was of the view that the article in question
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 circumstances no question of variation or vacation of the said interim
order arose. The said article proposed at that time has since been
published before 31st August, 1988. It was stated in the affidavit as c
well as in the submissions made from the Bar that the shares have been
over-subscribed but the day of allotment, of course, has not yet
expired and before the allotment the subscribers, it was submitted,
could withdraw their subscriptions. In those circumstances, this Court
was invited to consider the question whether there was any necessity
for the continuance of the order of injunction granted by this Court on
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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
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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
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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
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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 cirH
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SUPREME COURT REPORTS
[1988] Supp. 3 S.C.R.
cumstances 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 rhose debentures, should be prevented. On the other hand, Sh. Ram Jethmalani and Sh. Anil B.
Diwan, senior counsel assisted as they were by Sh. R.F. Nariman and
Sh. C.R. Karanjawalla, urged before us that the injunction should no
longer continue. In view of the delicacy of the problem in the question
posed before us, it is well to remember the legal background. We may
refer to our constitutional provisions in Article 19( 1) & (2) which
provides as follows:
19. Protection of certain rights regarding freedom of
speech, etc.-( 1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations. or unions;
(d) to move freely throughout the territory of!ndia;
( 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 occupation, 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 relations with foreign States, public order, decency or morality
or in relation to contempt of court, defamation or incitement 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.
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, referred 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.
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 decisions of the Supreme Court of America bearing on this concept of the
freedom of speech and expression, Justice Bhagwati observed that it
was trite knowledge that the fundamental right to the freedom of
speech and expression enshrined in our Constitution was based on the
provisions in the First Amendment to the Constitution of the U.S.A.
and, hence, it would be legitimate and proper to refer to those decisions of the Supreme Court· of the U.S.A., in order to appreciate the
true nature, scope and extent of this right in spite of the warning
administered by this Court against the use of American and other
cases, in State of Travancore-Cochin & 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, 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
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
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
A
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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 contempt 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 conA
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 prescribed by law and are necessary in a democratic society, in
..
the interests of national security, territorial integrity or D
'.
public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining
the authority and impartiality of the judiciary."
E
The First Amendment to the Constitution of the U.S.A. provided as follows:
'
-T
"Amendment-I Congress shall made no law respecting an
establishment of religion, or prohibiting the free exercise
:f "
thereof; or abridging the freedom of speech or of the press;
or the right of the people peaceably to assemble, and to
F
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
~l
California (supra). There, Justice Black observed that free speech and
fair trial are the two most cherished values of our civilisation and it
.. \(
would be a trying task, and if we may say so, a difficult one to choose
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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
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226
SUPREME COURT REPORTS
I 1988] Supp. 3 S.C.R.
the constitutional protection of freedom of speech and Press merely
because it concerns a judicial proceeding still pending in the Courts,
upon the theory that in such a case it must necessarily tend to obstruct
the orderly and fair administration of justice. In America, in view of
the absolute terms of the First Amendment, unlike the conditional
right of freedom of speech under Article 19(1)(a) of our Constitution,
it would be 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
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 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
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
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
A
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 freedom 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
passions are not even unconsciously aroused and whose minds are not
distorted by extrajudicial considerations."
c
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 distoiteif 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.