# SAHARA INDIA REAL ESTATE CORP. LTD. & ORS v. SECURITIES & EXCHANGE BOARD OF INDIA & ANR

- **Citation:** [2012] 12 S.C.R. 256
- **Court:** Supreme Court of India
- **Decided:** 2012-09-11
- **Bench:** S.H. Kapadia, D.K. Jain, Surinder Singh Nijjar, Ranjana Prakash Desai, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sahara-india-real-estate-corp-ltd-ors-v-securities-exchange-board-of-india-anr-28229
- **Pages:** 43

## Headnote

D
Constitution of India, 1950 - Articles 19(1)(a), 19(2), 21,
129 and 215 - Reporting of matters, which are sub-Judice -
Postponement of reporting - Rights of the citizens and the
media - Balancing of Article 19(1)(a) rights vis-a-vis Article
21, the scope of Article 19(2) in the context of the law
E regulating contempt of court and the scope of Article 1291
Article 215 - ·order of Postponement" of publication- its
nature and Object - Orders of postponement of publications!
publicity in appropriate cases, keeping in mind the timing (the
stage at which it should be ordered), its duration and the right
F of appeal to challenge such orders is just a neutralizing
device, when no other alternative such as change of venue
or postponement of trial is available, evolved by courts as a
preventive measure to protect the press from getting
prosecuted for contempt and also to prevent administration
G of justice from getting perverted or prejudiced - Width of the
postponement orders - Given that the postponement orders
curtail the freedom of expression of third parties, such orders
have to be passed only in cases in which there is real and
substantial risk of prejudice to fairness of the trial or to the
proper administration of justice which is "the end and purpose
H
256
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 257
EXCHANGE BOARD OF INDIA
of all laws" - However, such orders of postponement should
A
be ordered for a limited duration and without disturbing the
content of the publication - The test is that the publication
(actual and not planned publication) must create a real and
substantial risk of prejudice to the proper administration of
justice or to the fairness of trial - The principle underlying
B
postponement orders is that it prevents possible contempt -
The postponement order is not a punitive measure, but a
preventive measure -
Orders of postponement, in the
absence of any other alternative measures such as change
of venue or postponement of trial, satisfy the requirement of c
justification under Article 19(2) and they also help the Courts
to balance conflicting societal interests of right to know vis-a-
~·is another societal interest in fair administration of justice -
Excessive prejudicial publicity leading to usurpation of
functions of the Court not only interferes with administration
0
e>f justice which is sought to be protected under Article 19(2),
it also prejudices or interferes with a particular legal
proceedings - Right to approach the High CourV Supreme
Court - The court may grant preventive relief, on a balancing
of the right to a fair trial and Article 19(1)(a) rights, bearing in
E
mind the principles of necessity and proportionality.
Constitution of India, 1950 - Articles 19(1)(a), 19(2), 21
- Freedom of expression - Constitutionalization of free
speech - Comparative law: differences between the US and
other common-law experiences - Discussed.
F
Contempt of Courts Act, 1971 - s.4- Reporting of judicial
proceedings - Inaccuracy in reporting of court proceedings
- When contempt - Held: Only if it can be said on the facts
of a particular case, to amount to substantial interference with
G
the administration of justice.
Pending legal proceedings between the parties
before this Court, one of the news channels flashed on
TV the details of a proposal communicated only inter
parties for purpose of negotiation and which was not
H
258
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A meant for public circulation. The said incident was
brought to the notice of this Court which then requested
both the sides to make written application in the form of
I.A. so that appropriate orders could be passed by this
Court with regard to reporting of matters, which are subB judice.
IA Nos. 4 and 5 came to be filed by the appellant
praying that i) appropriate guidelines be framed with
regard to reporting (in the electronic and print media) of
C matters which are sub-judice in a court including public
disclosure of documents forming part of c

## Text

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[2012] 12 S.C.R. 256
A
SAHARA INDIA REAL ESTATE CORP. LTD. & ORS.
v.
SECURITIES & EXCHANGE BOARD OF INDIA & ANR.
I.A. Nos. 4-5, 10, 11, 12-13, 16-17, 18, 19, 20-21, 22-23,
B 24-25, 26-27, 30-31, 32-33, 34, 35-36, 37-38, 39-40, 41-42,
43-44, 45-46, 47-48, 49-50, 55-56, 57, 58, 59, 61 and 62
in
c
C.A. No. 9813 of 2011 and C.A. No. 9833 of 2011
SEPTEMBER 11, 2012
[S.H. KAPADIA, CJI., D.K. JAIN, SURINDER SINGH
NIJJAR, RANJANA PRAKASH DESAI AND
JAGDISH SINGH KHEHAR, JJ.]
D
Constitution of India, 1950 - Articles 19(1)(a), 19(2), 21,
129 and 215 - Reporting of matters, which are sub-Judice -
Postponement of reporting - Rights of the citizens and the
media - Balancing of Article 19(1)(a) rights vis-a-vis Article
21, the scope of Article 19(2) in the context of the law
E regulating contempt of court and the scope of Article 1291
Article 215 - ·order of Postponement" of publication- its
nature and Object - Orders of postponement of publications!
publicity in appropriate cases, keeping in mind the timing (the
stage at which it should be ordered), its duration and the right
F of appeal to challenge such orders is just a neutralizing
device, when no other alternative such as change of venue
or postponement of trial is available, evolved by courts as a
preventive measure to protect the press from getting
prosecuted for contempt and also to prevent administration
G of justice from getting perverted or prejudiced - Width of the
postponement orders - Given that the postponement orders
curtail the freedom of expression of third parties, such orders
have to be passed only in cases in which there is real and
substantial risk of prejudice to fairness of the trial or to the
proper administration of justice which is "the end and purpose
H
256
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 257
EXCHANGE BOARD OF INDIA
of all laws" - However, such orders of postponement should
A
be ordered for a limited duration and without disturbing the
content of the publication - The test is that the publication
(actual and not planned publication) must create a real and
substantial risk of prejudice to the proper administration of
justice or to the fairness of trial - The principle underlying
B
postponement orders is that it prevents possible contempt -
The postponement order is not a punitive measure, but a
preventive measure -
Orders of postponement, in the
absence of any other alternative measures such as change
of venue or postponement of trial, satisfy the requirement of c
justification under Article 19(2) and they also help the Courts
to balance conflicting societal interests of right to know vis-a-
~·is another societal interest in fair administration of justice -
Excessive prejudicial publicity leading to usurpation of
functions of the Court not only interferes with administration
0
e>f justice which is sought to be protected under Article 19(2),
it also prejudices or interferes with a particular legal
proceedings - Right to approach the High CourV Supreme
Court - The court may grant preventive relief, on a balancing
of the right to a fair trial and Article 19(1)(a) rights, bearing in
E
mind the principles of necessity and proportionality.
Constitution of India, 1950 - Articles 19(1)(a), 19(2), 21
- Freedom of expression - Constitutionalization of free
speech - Comparative law: differences between the US and
other common-law experiences - Discussed.
F
Contempt of Courts Act, 1971 - s.4- Reporting of judicial
proceedings - Inaccuracy in reporting of court proceedings
- When contempt - Held: Only if it can be said on the facts
of a particular case, to amount to substantial interference with
G
the administration of justice.
Pending legal proceedings between the parties
before this Court, one of the news channels flashed on
TV the details of a proposal communicated only inter
parties for purpose of negotiation and which was not
H
258
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A meant for public circulation. The said incident was
brought to the notice of this Court which then requested
both the sides to make written application in the form of
I.A. so that appropriate orders could be passed by this
Court with regard to reporting of matters, which are subB judice.
IA Nos. 4 and 5 came to be filed by the appellant
praying that i) appropriate guidelines be framed with
regard to reporting (in the electronic and print media) of
C matters which are sub-judice in a court including public
disclosure of documents forming part of court
proceedings and ii) that appropriate directions be issued
as to the manner and extent of publicity to be given by
the print/ electronic media of pleadings/ documents filed
in a proceeding in court which is pending and not yet
D adjudicated upon. Vide IA No. 10, the respondent also
averred that in view of the said incident, this Court
should give appropriate directions or frame guidelines.
Important questions of public importance thus arose
E for consideration with regard to the rights of the citizens
and the media- whether guidelines for the media be laid
down? If so, whether they should be self-regulatory? Or
whether this Court should restate the law or declare the
law under Article 141 on balancing of Article 19(1)(a)
F rights vis-ii-vis Article 21, the scope of Article 19(2) in the
context of the law regulating contempt of court and the
scope of Article 129/ Article 215.
Disposing of the IA Nos. 4-5 and 10, the Court
G
HELD:
H
Constitutionalization of free speech - Comparative law:
differences between the US and other common-law
experiences
1.1. Protecting speech is the US approach.
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 259
EXCHANGE BOARD OF INDIA
Protecting Justice is the English approach. The
A
Continental Approach seeks to protect personality.
[Paras 17, 19 and 21] [274-B, H; 277-A]
1.2. The Canadian approach: Since the Canadian
Charter of Rights introduced an express guarantee of B
"freedom of the
press· and other media of
communication", the Canadian Courts reformulated the
traditional sub judice rule, s~owing a more tolerant
attitude towards trial-related reporting. In the context of
post-Charter situation, the Canadian Supreme Court has
C
held that when two protected rights come in conflict,
Charter principles require a balance to be achieved that
fully respects both the rights. The Canadian Courts have,
thus, shortened the distance between the US legal
experience and the common-law experiences in other
countries. [Para 22] [278-A-B-E-F]
D
1.3. The Australian Approach: The Australian Courts
impose publication bans through the exercise of their
inherent jurisdiction to regulate their own proceedings.
Contempt laws in Australia embody the concept of "sub
E
judice .contempt" which relates to the publication of the
material that has a tendency to interfere with the pending
proceedings. [Para 23] [279-B-C]
1.4. The New Zealand Approach: It recognizes the
Open Justice principle. However, the courts have taken
F
the view that the said principle is not absolute. It must be
balanced against the object of doing justice. [Para 24]
[279-C-D]
1.5. Indian Approach to prior restraint: Under our G
Constitution no right in Part Ill is absolute. Freedom of
expression is not an absolute value under our
Constitution. Underlying our Constitutional system are a
number of important values, all of which help to
guarantee our liberties, but in ways which sometimes
H
260
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A conflict. Under our Constitution, probably, no values are
absolute. All important values, therefore, must be
qualified and balanced against, other important, and often
competing, values. This process of definition,
qualification and balancing is as much required with
B respect to the value of freedom of expression as it is for
other values. Consequently, free speech, in appropriate
cases, has got to correlate with fair trial. [Para 25) [280B-D]
1.6. In most common law jurisdictions, discretion is
C given to the courts to evolve neutralizing devices under
contempt jurisdiction such as postponement of the trial,
re-trials, change of venue and in appropriate cases even
to grant acquittals in cases of excessive media prejudicial
publicity. The very object behind empowering the courts
D to devise such methods is to see that the administration
of justice is not perverted, prejudiced, obstructed or
interfered with. At the same time, there is a presumption
of Open Justice under the common law. Therefore,
courts have evolved mechanisms such as postponement
E of publicity to balance presumption of innocence, which
is now recognized as a human right vis-a-vis
presumption of Open Justice. Such an order of
postponement has to be passed only when other
alternative measures such as change of venue or
F postponement of trial are not available. In passing such
orders of postponement, courts have to keep in mind the
principle of proportionality and the test of necessity. The
. applicant who seeks order of postponement of publicity
must displace the presumption of Open Justice and only
G in such cases the higher courts shall pass the orders of
postponement under Article 129/Article 215 of the
Constitution. Such orders of postponement of publicity
shall be passed for a limited period and subject to the
courts evaluating in each case the necessity to pass
H such orders not only in the context of administration of
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 261
EXCHANGE BOARD OF INDIA
justice but also in the context of the rights of the
A
individua!s to be protected from prejudicial publicity or
mis-information, in other words, where the court is
s;atisfied that Article 21 rights of a person are offended.
There is no general law for courts to postpone publicity,
either prior to adjudication or during adjudication as it
B
would depend on facts of each case. The necessity for
any such order would depend on extent of prejudice, the
effect on individuals involved in the case, the over-riding
necessity to curb the right to report judicial proceedings
conferred on the media under Article 19(1)(a) and the right
C
of the media to challenge the order of postponement.
[Para 34] [286-C-H; 287-A-C]
State of Maharashtra v. Rajendra J. Gandhi (1997) 8
SCC 386: 1997 (4) Suppl. SCR 68; Chintaman Rao v. The
State of Madhya Pradesh (1950) SCR 759; Maneka Gandhi
D
v. Union of India (1978) 1 SCC 248: 1978 (2) SCR 621; Brij
Bhushan v. State of Delhi AIR (1950) SC 129; Virendra v.
State of Punjab AIR (1957) SC 896: 1958 SCR 308; K.A.
Abbas v. Union of India AIR (1971) SC 481: 1971 (2) SCR
446; Binod Rao v. Minocher Rustom Masani 78 Born LR
E
125; C. Vaidya v. D' Penha decided by Gujarat High Court
in Sp. CA 141 of 1976; Reliance Petrochemicals Ltd. v.
Proprietors of Indian Express Newspapers Bombay (P) Ltd.
AIR 1989 SC 190: 1988 (3) Suppl. SCR 212; Naresh
Shridhar Mirajk11r v. State of Maharashtra AIR 1967 SC 1:
F
1966 SCR 744; Kehar Singh v. State (Delhi Administration)
AIR 1988 SC 1883: 1988 (2) Suppl. SCR 24; Globe
Newspaper Co. v. Superior Court 457 US 596; Mohd.
Shahabuddin v. State of Bihar (2010) 4 SCC 653: 2010 (3 )
SCR 911; Delhi Judicial Service Association v. State of G
Gujarat (1991) 4 SCC 406: 1991 (3) SCR 936; Supreme
Court Bar Association v. Union of India (1S98) 4 SCC 409:
1998 (2) SCR 795; A.K. Gopalan v. Noordeen (1969) 2 SCC
734; Ram Autar Shukla v. Arvind Shukla 1995 Supp (2) SCC
130: 1994 (5) Suppl. SCR 707; Ranjitsing Brahmajeetsing
H
262
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A Sharma v. State of Maharashtra (2005) 5 SCC 294: 2005 (3)
SCR 345 and R. Rajagopal v. State of T.N. (1994) 6 SCC
632: 1994 (4) Suppl. SCR 353; - referred to.
Near v. Minnesota 283 US 697; Sunday Times v. United
Kingdom (1979) 2 EHRR 245; Home Office v. Harman
B (1983) 1 A.C. 280; Globe and Mail v. Canada Procureur
general (2008) QCCA 2516; Dagenais v. Canadian
Broadcasting Corp. (1994) 3 SCR 835; R. v. Mentuck (2001)
3 SCR 442; Independent Publishing Co. Ltd. v. AG of
Trinidad and Tobago 2005 (1) AC 190 and Vincent v.
C Solicitor General (2012) NZCA 188 - referred to.
Contempt of Courts Act, 1971
2. Section 4 of the Contempt of Courts Act, 1971
deals with "report of a judicial proceeding". The
D inaccuracy of reporting of court proceedings will be
contempt only if it can be said on the facts of a particular
case, to amount to substantial interference with the
administration of justice. Postponement order not only
safeguards fairness of the later or connected trials, it
E prevents possible contempt by the Media. [Para 35] [287E-G-H; 288-C-D]
"Order of Postponement" of publication- its nature
and Object
F
3. The orders of postponement of publications/
publicity in appropriate cases, keeping in mind the timing
(the stage at which it should be ordered), its duration and
the right of appeal to challenge such orders is just a
neutralizing device, when no other alternative such as
G change of venue or postponement of trial is available,
evolved by courts as a preventive measure to protect the
press from getting prosecuted for contempt and also to
prevent administration of justice from getting perverted
or prejudiced. [Para 40] [290-D-E]
H
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 263
EXCHANGE BOARD OF INDIA
Secretary, Ministry of Information & Broadcasting, Govt.
of India v. Cricket Association of Bengal (1995) 2 SCC 161:
1995 (1) SCR 1036 and E.M.S. Namboodripad v. T.
Narayanan Nambiar AIR 1970 SC 2015: 1971 (1) SCR 697
- referred to.
Width of the postponement orders
4.1. Publicity postponement orders should be seen,
A
B
in the context of Article 19(1)(a) not being an absolute
right. Given that the postponement orders curtail the
freedom of expression of third parties, such orders have
C
to be passed only in cases in which there is real and
substantial risk of prejudice to fairness of the trial or to the
proper administration of justice which is "the end and
purpose of all laws". However, such orders of
postponement should be ordered for a limited duration
D
and without disturbing the content of the publication.
They should be passed only when necessary to prevent
real and substantial risk to the fairness of the trial (court
proceedings), if reasonable alternative methods or
measures such as change of venue or postponement of E
trial will not prevent the said risk and when the salutary
effects of such orders outweigh the deleterious effects to
the free expression of those affected by the prior restraint.
The order of postponement will only be appropriate in
cases where the balancing test otherwise favours nonpublication for a limited period. It is not possible for this
Court to enumerate categories of publications amounting
to contempt. It would require the courts in each case to
see the content and the context of the offending
publication. [Para 42] [290-G; 291-E-G; 292-A]
F
G
4.2. Contempt jurisdiction of courts of record forms
part of their inherent jurisdiction under Article 129/ Article
215. Superior Courts of Record have inter alia inherent
superintendent jurisdiction to punish contempt
committed in connection with proceedings before inferior
H
264
SUPREME COURT REPORTS
(2012] 12 S.C.R.
A courts. The test is that the publication (actual and not
planned publication) must create a real and substantial
risk of prejudice to the proper administration of justice or
to the fairness of trial. Postponement orders safeguard
fairness of the connected trials. The principle underlying
B postponement orders is that it prevents possible
contempt. Of course, before passing postponement
orders, Courts should look at the content of the offending
publication (as alleged) and its effect. Such
postponement orders operate on actual publication.
C Such orders direct postponement of the publication for
a limited period. Thus, if one reads Article 19(2), Article
1291 Article 215 and Article 142(2), it is clear that Courts
of Record "have all the powers including power to
punish" which means that Courts of Record have the
power to postpone publicity in appropriate cases as a
D preventive measure without disturbing its content. Such
measures protect the Media from getting prosecuted or
punished for committing contempt and at the same time
such neutralizing devices or techniques evolved by the
Courts effectuate a balance between conflicting public
E interests. [Para 42] [293-F-H; 294-8-E]
4.3. The postponement orders is a neutralizing device
evolved by the courts to balance interests of equal
weightage, viz., freedom of expression vis-a-vis freedom
F of trial, in the context of the law of contempt. Keeping in
mind the important role of the media, Courts have evolved
several neutralizing techniques including postponement
orders subject to the twin tests of necessity and
proportionality to be applied in cases where there is real
G and substantial risk of prejudice to the proper
administration of justice or to the fairness of trial. Such
orders would also put the Media to notice about possible
contempt. However, it would be open to Media to
challenge such orders in appropriate proceedings.
H Contempt is an offence sui generis. Purpose of Contempt
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 265
•
EXCHANGE BOARD OF INDIA
Law is not only to punish. Its object is to preserve the
A
sanctity of administration of justice and the integrity of
the pending proceeding. Thus, the postponement order
is not a punitive measure, but a preventive measure.
Therefore, such orders of postponement, in the absence
of any other alternative measures such as change of B
venue or postponement of trial, satisfy the requirement
of justification under Article 19(2) and they also help the
Courts to balance conflicting societal interests of right to
know vis-a-vis another societal interest in fair
administration of justice. Excessive prejudicial publicity c
leading to usurpation of functions of the Court not only
interferes with administration of justice which is sought
to be protected under Article 19(2), it also prejudices or
interferes with a particular legal proceedings.
Postponement orders must be integrally connected to the
0
outcome of the proceedings including guilt or innocence
of the accused, which would depend on the facts of each
case. [Para 42] [294-G; 295-A-E-F-G]
Society for Un-aided Private Schools of Rajasthan v.
U.0.1. 2012 (4) SCALE 272 and Dharam Dutt v. Union of India
E
(2004) 1 sec 712: 2003 (6) Suppl. SCR 151 - referred to.
Right to approach the High Court/ Supreme Court
5. Anyone, be he an accused or an aggrieved person,
who genuinely apprehends on the basis of the content
F
of the publication and its effect, an infringement of his/
her rights under Article 21 to a fair trial and all that it
comprehends, would be entitled to approach an
appropriate writ court and seek an order of
postponement of the offending publication/ broadcast or G
postponement of reporting of certain phases of the trial
(including identity of the victim or the witness or the
complainant), and that the court may grant such
preventive relief, on a balancing of the right to a fair trial
and Article 19(1 )(a) rights, bearing in mind the
H
266
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A abovementioned
principles
of
necessity
and
proportionality and keeping in mind that such orders of
postponement should be for short duration and should
be applied only in cases of real and substantial risk of
prejudice to the proper administration of justice or to the
B fairness of trial. Such neutralizing device (balancing test)
would not be an unreasonable restriction and on the
contrary would fall within the proper constitutional
framework. [Para 43] [296-A·E]
c
D
E
F
G
H
Case Law Reference
1997 (4) Suppl. SCR 68 referred to
283 us 697
(1979) 2 EHRR 245
(1983) 1 A.C. 280
(2008) QCCA 2516
(1950) SCR 759
(1994) 3 SCR 835
(2001) 3 SCR 442
1978 (2) SCR 621
AIR (1950) SC 129
1958 SCR 308
1971 (2) SCR 446
78 Born LR 125
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
1988 (3) Suppl. SCR 212 referred to
1966 SCR 744
referred to
1988 (2) Suppl. SCR 24 referred to
457 us 596
referred to
Para 12
Para 17
Para 19
Para 20
Para 20
Para 21
Para 22
Para 22
Para 25
Para 26
Para 27
Para 28
Para 29
Para 30.
Para 31
Para 31
Para 31
SAHARA INDIA REAL ESTATE CORP LTD. v. SECURITIES & 267
EXCHANGE BOARD OF INDIA
2010 (3) SCR 911
referred to
Para 31
2005 (1) AC 190
referred to
Para 33
(2012) NZCA 188
referred to
Para 33
1991 (3) SCR 936
referred to
Para 33
1998 (2) SCR 795
referred to
Para 33
(1969) 2 sec 734
referred to
Para 33
199( :s) Suppl. SCR 707 referred to
Para 33
2005 (3) SCR 345
referred to
Para 33
1994 (4) Suppl. SCR 353 referred to
Para 34
1995 (1) SCR 1036
referred to
Para 34
1971 (1) SCR 697
referred to
Para 37
2012 (4) SCALE 272
referred to
Para 37
2003 (6) Suppl. SCR 151 referred to
Para 42
CIVIL APPELLATE JURISDICTION: I.A. Nos. 4-5, 10, 11,
12-13, 16-17, 18, 19, 20-21, 22-23, 24-25, 26-27, 30-31, 3233, 34, 35-36, 37-38, 39-40, 41-42, 43-44, 45-46, 47-48, 4950, 55-56, 57, 58, 59, 61 and 62.
IN
Civil Appeal No(s). 9813 and 9833 of 2011.
From the Judgment and Order dated 18.10.2011 of the
Securities Appellate Tribunal in Appeal No. 131 of 2011.
WITH
I.A. Nos. 14 and 17 in Civil Appeal No. 733/2012.
Goolam E. Vahanvati, AG, Indra Jaising, ASG, Soli J.
Sorabjee, T.R. Andhyarujina, K.K. Venugopal, F.S. Nariman,
A
B
c
D
E
F
G
H
268
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A Sidharth Luthra, Dr. Rajiv Dhavan, Shanti Bhushan, Anil Divan,
Ram Jethmalani, Kailash Vasdev, K.T.S. Tulsi, Parag P.
Tripathi, Harish N. Salve, Dr. Manish Singhvi, AAG, Mehernaz,
Soumik Ghosal, Ankur Talwar, Rohit Bhat, Shyam Mohan,
Ashwati Balraj, Pooja Dhar, Gaurav Kejriwal, C.D. Singh,
B Pratap Venugopal, Surekha Raman, Namrata Sood, Gaurav
Nair, Debdatt Kamat! (For K.J. John & Co.) Gagan Gupta, Rohit
Sharma, Nishanth Patil, Anoopam Prasad, Anand Kannan,
Supriya Jain, B.V. Balaram Das, Anup Bhambhani, Nisha
Bhambhani, Bhavita Modi, Lakshita Sethi, Sumita Hazarika,
C Manohar Lal Sharma (In-person), Ajit Sharma, Harsh Vardhan
Surana, Nikhil Nayyar, Rajshekhar Rao, Shekhar G. Devasa,
K.V. Dhananjay, Rohit Pandey, Adarsh Upadhyay, Wills
Mathews, Rabin Majumdar, Prashant Bhushan, Pranav
Sachdeva, Shailendra Swarup, Gopal Sankaranarayanan,
Vikas Mehta, Madhavi Divan, D. Bharat Kumar, Sayooj
D Mohandas M., Aabad H.H. Panda, lrshad Ahmad, Manju
Sharma Jelley, Nitya Ramakrishnan, Trideep Pais, Suhasini
Sen, S. Naved, Rahul Kripalini, Snehasish Mukherjee, Jyotika
Kalra, Annwesha Deb, Anukul Chandra Pradhan (In-person).
Dr. M.P. Raju, P. George Giri, Ashish Azad, Sandhya Raghav,
E Sunil Kumar Rana, (in-person) Balraj S. Malik, Dr. Sushi!
Balwada, Senthil Jagadeesan, Amit Sharma, Dr. Surat Singh,
Dr. Manish Arora, Arvind K. Gupta, Setu Nike!, E. Mazumdar,
Vijay Panjwani, Anip Sachthey, Anuradha Dutt, Ekta Kapil,
Vijayalakshmi Menon, Ritin Rai, Nakul Dewan, Siddhartha Jha,
F Anil Katiyar, Ashok Arora, Ravi Shankar Kumar, Kushagra
Arora, B.K. Choudhary, Arun Kumar, Subhiksh Vasudav, Nitin
Kumar Thakur, Amit Anand Tiwari, Mohit Kumar Shah for the
Appearing Parties.
G
The Judgment of the Court was delivered by
S.H. KAPADIA, CJI.
Introduction
H
1. Finding an acceptable constitutional balance between
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 269
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
free press and administration of justice is a difficult task in every
A
legal system.
Factual background
2. Civil Appeal Nos. 9813 and 9833 of 2011 were filed
challenging the order dated 18.10.2011 of the Securities
8
Appellate Tribunal whereby the appellants (hereinafter for short
"Sahara") were directed to refund amounts invested with the
appellants in certain Optionally Fully Convertible Bonds (OFCD)
with interest by a stated date.
3. By order dated 28 .11.2011, this Court issued show
cause notice to the Securities and Exchange Board of India
(SEBI), respondent No. 1 herein, directing Sahara to put on
affidavit as to how they intend to secure the liabilities incurred
c
by them to the OFCD holders during the pendency of the Civil o
Appeals.
4. Pursuant to the aforesaid order dated 28.11.2011, on
4.01.2012, an affidavit was filed by Sahara explaining the
manner in which it proposed to secure its liability to OFCD
holders during the pendency of the Civil Appeals.
E
5. On 9.01.2012, both the appeals were admitted for
hearing. However, IA No. 3 for interim relief filed by Sahara was
kept for hearing on 20.01.2012.
6. On 20.01.2012, it was submitted by the learned counsel
for SEBI that what was stated in the affidavit of 4.01.2012 filed
F
by Sahara inter alia setting out as to how the liabilities of
Sahara India Real Estate Corporation Ltd. (SIRECL) and
Sahara Housing and Investment Corporation (SHICL) were to
G
be secured was insufficient to protect the OFCD holders.
7. This Court then indicated to the learned counsel for
Sahara and SEBI that they should attempt, if possible, to reach
a consensus with respect to an acceptable security in the form
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[2012] 12 S.C.R.
A of an unencumbered asset. Accordingly, IA No. 3 got stood
over for three weeks for that purpose.
8.
On 7.02.2012, the learned counsel for Sahara
addressed a personal letter to the learned counsel for SEBI
B at Chennai enclosing the proposal with details of security to
secure repayment of OFCD to investors as pre-condition for
stay of the impugned orders dated 23.06.2011 and 18.10.2011
pending hearing of the Civil Appeals together with the Valuation
Certificate indicating fair market value of the assets proposed
to be offered as security. This was communicated by e-mail
C from Delhi to Chennai. Later, on the same day, there was also
an official communication enclosing the said proposal by the
Advocate-on-Record for Sahara to the Advocate-on-Record for
SEBI.
D
9. A day prior to the hearing of IA No. 3 on 10.02.2012,
one of the news channels flashed on TV the details of the said
proposal which had been communicated only inter parties and
which was obviously not meant for public circulation. The
concerned television channel also- named the valuer who had
E done the valuation of the assets proposed to be offered as
security.
F
- G
H
10. On 10.02.2012, there was no information forthcoming
from SEBI of either acceptance or rejection of the proposal.
11. The above facts were inter alia brought to the notice
of this Court at the hearing of IA No. 3 on 10.02.2012 when Shri
F.S. Nariman, learned senior counsel for Sahara orally
submitted that disclosure to the Media was by SEBI in breach
of confidentiality which was denied by the learned counsel
for SEBI. After hearing the learned counsel for the parties, this
Court passed the following order:
"We are distressed to note that even ''without prejudice"
proposals sent by learned counsel for the appellants to the
learned counsel for SEBI has come on one of the TV
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 271
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
channels. Such incidents are increasing by the day. Such
A
reporting not only affects the business sentiments but also
interferes in the administration of justice. In the above
circumstances, we have requested learned counsel on
both sides to make written application to this Court in the
form of an I.A. so that appropriate orders could be passed
B
by this Court with regard to reporting of matters, which are
sub-judice."
12. Pursuant to t~e aforesaid order, IA Nos. 4 and 5 came
to be filed by Sahara. According to Sahara, IA Nos. 4 and 5
raise a question of general public importance. In the said IA
C
Nos. 4 and 5, Sahara stated that the time has come that this
Court should give appropriate directions with regard to
reporting of matters (in electronic and print media) which are
sub Judice. In this connection, it has been further stated: "it is
well settled that it is inappropriate for comments to be made
D
publicly (in the Media or otherwise) on cases (civil and criminal)
which are sub Judice; this principle has been stated in Section
3 of the Contempt of Courts Act, which defines criminal
contempt of court as the doing of an act whatsoever which
prejudices or interferes or tends to interfere with the due course
E
of any judicial proceeding or tends to interfere or interfere with
' or obstruct or tends to interfere or obstruct the administration
of justice". In the IAs, it has been further stated that whilst there
is no fetter on the fair reporting of any matter in court, matters
relating to proposal made inter-parties are privileged from
F
public disclosure. That, disclosure and publication of pleadings
and other documents on the record of the case by third parties
(who are not parties to the proceedings in this court) can (under
the rules of this Court) only take place on an application to the
court and pursuant to the directions given by the court (see
G
Order XII, Rules 1, 2 and 3 of Supreme Court Rules, 1966). It~
was further stated that in cases like the present one a thin line
has to be drawn between two types of matters; firstly, matters
between company, on the one hand, and an authority, on the
other hand, and, secondly, matters of public importance and
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[2012] 12 S.C.R.
A concern. According to Sahara, in the present case, no question
of public concern was involved in !he telecast of news regarding
the proposal made by Sahara on 7.02.2012 by one side to the
other in the matter of providing security in an ongoing matter.
In the IAs, it has been further stated that this Court has observed
8 in the case .of State of Maharashtra v. Rajendra J. Gandhi
[(1997) 8 SCC 386] that: "A trial by press, electronic media or
public agitation is the very antithesis of rule of law".
Consequently, it has been stated in the !As by Sahara that this
Court should consider giving guidelines as to the manner and
C extent of publicity which can be given to pleadings/ documents
filed in court by one or the other party in a pending proceedings
which have not yet been adjudicated upon.
D
E
13. Accordingly, vide IA Nos. 4 and 5, Sahara made the
following prayers:
"(b) appropriate guidelines be framed with regard to
reporting (in the electronic and print media) of matters
which are sub-judice in a court including public disclosure
of documents forming part of court proceedings.
(c) appropriate directions be issued as to the manner and
extent of publicity to be given by the print! electronic
media of pleadings! documents filed in a proceeding in
court which is pending and not yet adjudicated upon;"
F
14. Vide IA No. 10, SEBI, at the very outset, denied that
the alleged disclosure was at its instance or at the instance of
its counsel. It further denied that papers furnished by Sahara
were passed on by SEBI to the TV Channel. In its IA, SEBI
stated that it is a statutory regulatory body and that as a matter
G of policy SEBI never gives its comments to the media on
matters which are under investigation or sub judice. Further,
SEBI had no business stakes involved to make such
disclosures to the media. However, even according to SEBI,
in view of the incident having happened in court, this Court
H
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 273
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
should give appropriate directions or frame such guidelines as
A
may be deemed appropriate.
15. At the very outset, we need to state that since an
important question of public importance arose for decision
under the above circumstances dealing with the rights of the
8
citizens and the media, we gave notice and hearing to those
who had filed the IAs; the question of law being that every citizen
has a right to negotiate in confidence inasmuch as he/ she has
a right to defend himself or herself. The source of these two
rights comes from the common law. They are based on
C
presumptions of confidentiality and innocence. Both, the said
presumptions are of equal importance. At one stage, it was
submitted before us that this Court has been acting suo motu.
We made it clear that Sahara was at liberty to withdraw the IAs
at which stage Shri Sidharth Luthra, learned senior counsel
stated that Sahara would not like to withdraw its IAs. Even SEBI
D
stated that if Sahara withdraws its IAs, SEBI would insist on
its IA being decided. In short, both Sahara and SEBI sought
adjudication. Further, on 28.03.2012, learned counsel for
Sahara filed a note in the Court citing instances (mostly criminal
cases) in which according to him certain aberration qua
E
presumption of innocence has taken place. This Court made it
clear that this Court is concerned with the question as to
whether guidelines for the media be laid down? If so, whether
they should be self-regulatory? Or whether this Court should
restate the law or declare the law under Article 141 on
F
balancing of Article 19(1)(a) rights vis-a-Evis Article 21, the
scope of Article 19(2) in the context of the law regulating
contempt of court and the scope of Article 129/ Article 215.
16. Thus, our decision herein is confined to IA Nos. 4, 5
G
and 10. This clarification is important for the reason that some
accused have filed IAs in which they have sought relief on the
ground that their trial has been prejudiced on account of
excessive media publicity. We express no opinion on the merits
of those IAs.
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[2012) 12 S.C.R.
A Constitutionalization of free speech
Comparative law: differences between the US and other
common-law experiences
17. Protecting speech is the US approach. The First
B Amendment does not tolerate any form of restraint. In US, unlike
India and Canada which also have written Constitutions,
freedom of the press is expressly protected as an absolute right.
The US Constitution does not have provisions similar to Section
1 of the Charter Rights under the Canadian Constitution nor is
C such freedom subject to reasonable restrictions as we have
under Article 19(2) of the Indian Constitution. Therefore, in US,
any interference with the media freedom to access, report and
comment upon ongoing trials is prima facie unlawful. Prior
restraints are completely banned. If an irresponsible piece of
D journalism results in prejudice to the proceedings, the legal
system does not provide for sanctions against the parties
responsible for the wrongdoings. Thus, restrictive contempt of
court laws are generally considered incompatible with the
constitutional guarantee of free speech. However, in view of
E cases, like O.J. Simpson, Courts have evolved procedural
devices aimed at neutralizing the effect of prejudicial publicity
like change of venue, ordering re-trial, reversal of conviction on
appeal (which, for the sake of brevity, is hereinafter referred to
as "neutralizing devices"). It may be stated that even in US
F as of date, there is no absolute rule against "prior restrain( and
its necessity has been recognized, albeit in exceptional cases
[see Near v. Minnesota, 283 US 697) by the courts evolving
neutralizing techniques.
18. In 1993, Chief Justice William Rehnquist observed:
G "constitutional law is now so firmly grounded in so many
countries, it is time that the US Courts begin looking at
decisions of other constitutional courts to aid in their Qwn
deliberative process".
H
19. Protecting Justice is the English approach. Fair
SAHARA INDIA REAL ESTATE CORP. LTD. v. SECURITIES & 275
EXCHANGE BOARD OF INDIA [S.H. KAPADIA, CJI.]
trials and public confidence in the courts as the proper forum
A
for settlement of disputes as part of the administration of justice,
under the common law, were given greater weight than the
goals served by unrestrained freedom of the press. As a
consequence, the exercise of free speech respecting ongoing
court proceedings stood limited. England does not have a
8
written constitution. Freedoms in English law have been largely
determined by Parliament and Courts. However, after the
judgment of ECHR in the case of Sunday Times v. United
Kingdom [(1979) 2 EHRR 245], in the light of which the English
Contempt of Courts Act, 1981 (for short "the 1981 Act") stood
C
enacted, a balance is sought to be achieved between fair trial
rights and free media rights vide Section 4(2). Freedom of
speech (including free press) in US is not restricted as under
Article 19(2) of our Constitution or under Section 1 of the
Canadian Charter. In England, Parliament is supreme. Absent
written constitution, Parliament can by law limit the freedom of D
speech. The view in England, on interpretation, has been and
is even today, even after the Human Rights Act, 1998 that the
right of free speech or right to access the courts for the
determination of legal rights cannot be excluded, except by
clear words of the statute. An important aspect needs to be
E
highlighted. Under Section 4(2) of the 1981 Act, courts are
expressly empowered to postpone publication of any report of
the proceedings or any part of the proceedings for such period
as the court thinks fit for avoiding a substantial risk of prejudice
to the administration of justice in those proceedings. Why is
F
such a provision made in the Act of 1981? One of the reasons
is that in Section 2 of the 1981 Act, strict liability has been
incorporated (except in Section 6 whose scope has led to
conflicting decisions on the question of intention). The basis of
the strict liability contempt under the 1981 Act is the publication
G
of "prejudicial" material. The definition of publication is also very
wide. It is true that the 1981 Act has restricted the strict liability
contempt to a fewer circumstances as compared to cases
falling under common law. However, contempt is an offence
sui generis. At this stage, it is important to note that the strict
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[2012] 12 S.C.R.
A liability rule is the rule of law whereby a conduct or an act may
be treated as contempt of court if it tends to interfere with the
course of justice in particular legal proceedings, regardless of
intent to do so. Sometimes, fair and accurate reporting of the
trial (say a murder trial) would nonetheless give rise to
8 substantial risk of prejudice not in the pending trial but in the
later or connected trials. In such cases, there is no other
practical means short of postponement orders that is capable
of avoiding such risk of prejudice to the later or connected
trials. Thus, postponement order not only safeguards fairness
C of the later or connected trials, it prevents possible contempt.
That seems to be the underlying reason behind enactment of
Section 4(2) of the 1981 Act. According to Berrie & Lowe on
the "Law of Contempt", the extent to which prejudgment by
publication of the outcome of a proceedings (referred to by the
House of Lords in Sunday Times's case) may still apply in
D certain cases. In the circumstances to balance the two rights
of equal importance, viz., right to freedom of expression and
right to a fair trial, that Section 4(2) is put in the 1981 Act. Apart
from balancing it makes the media know where they stand in
the matters of reporting of court cases. To this extent, the
E discretion of courts under common law contempt has been
reduced to protect the media from getting punished for
contempt under strict liability contempt. Of course, if the court's
order is violated, contempt action would follow.
F
20. In the case of Home Office v. Harman [(1983) 1 A.C.
280] the House of Lords found that the counsel for a party was
furnished documents by the opposition party during inspection
on the specific undertaking that the contents will not be
disclosed to the public. However, in violation of the said
G undertaking, the counsel gave the papers to a third party, who
published them. The counsel was held to be in contempt on the
principle of equalization of the right of the accused to
defend himself/herself in a criminal trial with right to
negotiate settlement in confidence. [See also Globe and
H Mail v.