TION CMP Nos
21903 06 of 1988
IN Transfer Petitions Nos
192  193 of 1988
Under Article 139Ai of the Constitution of India
FS Nariman VC Kotwal MH Baig Harish N Salve Mrs PS Shroff SA Shroff AK Desai and SS Shroff for the Petitioner
G Ramaswamy Additional Solicitor General Ram Jethmalani CV Subba Rao Ms A Subhashini Mrs Sushma Suri P Parmeshwaran Mukul Kohtagi Ms Bina Gupta Ms Madhu Khatri Parveen Anand Anip Sachthey BL Bagaria PK Jain PS Goyal Arun Jatley RF Nariman Rajan Karanjawala and Mrs Manik Karanjawala for the Respondents
The following Judgments of 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 l9th August 1988 under the for initiation of contempt proceedings against PG NO 217 the proprietors of Indian Express Newspapers Bombay Pvt Ltd Shri Arun Shourie Indian Express Newspapers Bombay Pvt Ltd Shri Hari Jaisingh Resident Editor Indian Express Newspapers Bombay Pvt Ltd Shri AC Saxena News Editor Indian Express Newspaper Pvt Ltd Delhi Shri HK 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 committed 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 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 vs Union of India Suit No 1172 of 1988 KS Brahmabhatt vs Reliance Petrochemicals Ltd and MRTP proceedings instituted in JP Sharma vs 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 transfer petitions pending herein
The subject matter of dispute related to the Public Issue by the petitioner company of 125 Secured Convertible Debentures of Rs200 each for cash at par aggregating to Rs59340 crores inclusive of retention of 15 excess subscription of Rs7740 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 manufacture of critically scarce raw material known as Mono Ethylene Glycole MEG and plastic raw materials like High Density Polyethlene HDPE and Poly Vinyl Chloride PVC which are used for making various articles from films to 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 was the largest public issue in India till date and the second largest issue in the world
The public issue was due to open on Monday the 22nd August 1988 and was scheduled to be closed on 31st August 1988
It was the claim of the petitioner that the debentures were being issued after obtaining the consent of the PG NO 218 Controller of Capital Issues and on the basis of schedule indicated therein and after complying with all the requirements of the Companies Act and otherwise
Certain writ petitions and a suit had been filed in some High Courts namely Karnataka Bombay Rajasthan Delhi and later on in Allahabad challenging the grant of consent or sanction for the issue of debentures
Such applications in the different High Courts and the Courts were filed at the last moment when enormous amount of money had already been spent it was claimed
It was stated that enormous monies on publicity had been spent
In some of these proceedings orders of injunction had been obtained
It was contended that issue was prima facie legal and valid and the consent and permission of the 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 CapitalCumulative Convertible Preference SharesConvertible Debentures for financing the proposed projects for manufacture of PVC HDPE and MEG
On 4th July 1988 as mentioned before the consent of the Controller of Capital Issues was granted to the petitioner for capital issue of 57500000 Equity Shares of Rs 10 cash inclusive of retainable excess subscription of Rs75 crores and for 29670000 125 per Secured Fully Convertible Debentures of Rs200 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 allotment 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 125 Secured Fully Convertible Debentures of Rs200 each for cash at par as indicated before
PG NO 219 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 injunction 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 Rs45 crores had already been incurred for the public issue as pre Issue expenses and a sum of Rs20 crores was allocated as Issue Expenses for what was popularly known as Mega Issue as mentioned hereinbefore
It was claimed that grave prejudice would be caused to the petitioner company as well as the public at large who were investing in the issue
if the issue is not allowed to go through
It was claimed that there was no ground for the High Court to grant injunction or stay order in the facts and circumstances of this Issue and this Court should vacate those orders and transfer the applications pending in different Courts to this Court
On that application being moved on 19th August 1988 this Court issued notices to all concerned making the same returnable on 9th September 1988 in terms of prayer a and paragraphs 2 and 4 of the affidavit of Mr Balkrishna Bhandari affirmed on 18th19th August 1988
This Court further directed as follows The issue of 2 9670000 125 per secured convertible debentures of Rs200 each by the petitioner company 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
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 injuction in respect of the said issue
It was asserted on behalf of the petitioner that this Court must have been prima facie satisfied that there was no legal infirmity which should stand in the way of the public PG NO 220 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 stated 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 contempt and preventive order of injunction of wrong anticipated to be committed by the delinquent
The publication threatened or expected 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 Court directed that cognizance of contempt would only be considered after the necessary sanction from the Attorney General is obtained
This Court on the facts of the alleged contempt declined to take cognizance on that application without the views of the Attorney General
This Court however issued an order of injunction restraining all the six respondents mentioned therein from publishing any article comment report or editorial in any of the issues of the Indian Express of their related publications questioning the legality or validity of any of the consents approvals or permissions to which the petitioners in the Transfer Petitions Nos
192 193 of 1988 have made reference in the Prospectus dated 27th July 1988 for the issue of 125 Secured Full Convertible Debentures
Notice of that application was made returnable on 9th September 1988 and the same was to come up with other related matters
The respondents were further given liberty to move this Court for variation or vacation of the order upon notice to the petitioner
Upon that the six respondents had filed an affidavit in opposition on 26th August 1988 the very next day asking for variation or vacation of the interim order passed by this Court on 25th August 1988
Attention of the Court was drawn to an article proposed to be published in PG NO 221 the Indian Express which was Annexure B  to the said affidavit
Submissions were made on the validity or the propriety of the interim order
Upon hearing learned counsel for both the parties this Court observed that it was sufficient to say that the article proposed 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 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 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 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 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 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 vs British Broadcasting Corporation  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 free Press and fair trail in the words of the Justice Black in Harry Bridges vs State of California at page 260
Therefore in considering the question posed before us whether there should be continuance of the order of injunction we have to bear in mind and apply the basic principles of law to the facts and circumstances of this PG NO 222 case
The point at issue has been canvassed very ably and vehemently on behalf of the petitioner by Sh
MH Baig assisted as he was by Sh
SS Shroff and Smt
PS Shroff
They submit that the danger still persists and the publication of any article which would jeopardise the allotment of those debentures should be prevented
On the other hand Sh
Ram Jethmalani and Sh
Anil B Diwan senior counsel assisted as they were by Sh
RF Nariman and Sh
CR 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 l91  2 which provides as follows 19
Protection of certain rights regarding freedom of speech etc l All citizens shall have the right a to freedom of speech and expression b to assemble peaceably and without arms c to form association or unions d to move freely throughout the territory of India e to reside and settle in any part of the territory of India f Omitted by ibid
Sub cl
f read 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 I 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 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
 The effect of Article 19 on the freedom of Press was analysed in the decision of this Court in Express Newspapers PG NO 223 Pvt Ltd  Anr
vs The Union of India  Ors  where at page 120 onwards of the report Bhagwati J referring to the decision of this Court in Ramesh Thapar vs The State of Madras  19501 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
vs 7he State of Delhi  Referring to these two decisions Bhagwati J expressed his view that these were the only two decisions which evolved the interpretation of Article 191a 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 he 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 USA and hence it would be legitimate and proper to refer to those decisions of the Supreme Court of the USA 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 and Ors
vs Bombay Co Ltd  and State of Bombay vs R M D Chamarbaugwala  at 918
Our Constitution is not absolute with respect to freedom of speech and expression and enshrined by the first Amendment to the American Constitution
Our attention was drawn to the decision of this Court in Re PC Sen  where this Court upheld the order of conviction against the Chief Minister of West Bengal for broadcasting a speech justifying an order the validity of which was challenged in proceedings pending before the Court
The West Bengal Govt had issued an order under Rule 125 of the Defence of India Rules placing certain restrictions upon the right of persons carrying on business in milk products
The validity of this order was challenged by a writ petition
After the Rule nisi 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 a Rule requiring the Chief Minister to show cause why he should may be committed for contempt of Court
The High Court found him guilty of contempt and fined him
The matter came up before this Court PG NO 224 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 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 litigants 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
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 ie whether there is need for preventing publication of an article on a 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 PC Sen s case supra in view of the facts involved is not of much aid to us
The case of gross contempt was discussed by this Court in CK Daphtary  Ors
vs OP Gupta  Ors However in view of the facts involved therein that decision cannot give us much guidance at present
The law on this aspect has been adverted to in the decision of this Court in Indian Express Newspapers Bombay Pvt Ltd  Ors
vs Union of India  Ors
   where at page 659 of the report Justice Venkataramiah referred to the importance of freedom of Press in a democratic society and the role of Courts
Though the Indian Constitution does not use the expression freedom of press  in Article 19 but it is included as one of the guarantees in Article 19 1 a
The freedom of Press as noted by Venkataramiah J is one of the around which the greatest and the bitterest of constitutional struggles have been PG NO 225 waged in all countries where liberal constitutions prevail
Article 19 of the Universal Declaration of Human Rights 1948 declares the freedom of Press and so does Article 19 of the International Covenant on Civil and Political Rights 1966
Article 10 of the European Convention on Human Rights provides as follows Article 10 1 Everyone has the right to freedom of expression
This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers
This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprise
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 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
 The First Amendment to the Constitution of the USA provided as follows Amendment 1 Congress shall made nO law respecting an establishment of religion or prohibiting the tree exercise thereof or abridging the freedom of speech or of the press 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 decisions to which our attention was drawn
We have mentioned the observations of Justice Black in the case of Harry Bridges vs State of 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 between them
But in case of need a choice has to be made
He that a public utterance or publication is not to be denied the constitutional protection of freedom of PG NO 226 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 191a of our Constitution it would be worthwhile to bear in mind the present and imminent danger theory
Justice Black quoted from the observations of Justice Holmes in Abrams vs United States 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 191a as it is termed anything that interferes with the due administration of justice should be prevented if it is a threat to the due administration of justice
His submission was that the Article published or proposed to be published herein undermines the effect or pre empts the effect of the order of injunction which was to help or boost up the chances of the debentures being subscribed
Mr Baig drew our attention to page 282 of the said report where Justice Frankfurter had observed that free speech was not so absolute or irrational a conception as to imply paralysis of the means for effective protection of all the freedoms secured by the Bill of Rights
The administration of justice by an impartial judiciary has been basic to the conception of freedom ever since Magna Carta
Justice Frankfurter further reiterated that the dependence of society upon an unswered 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 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 Justice Stone Justice Roberts and Justice Byrnes agreed reiterated at page 284 of the report that the Constitution PG NO 227 is an instrument of Government and is not conceived as a doctrinaire document nor was the Bill of Rights intended as a collection of popular slogans
It is well to remember that Justice Frankturter recognised that we cannot read into the 14th Amendment the freedom of speech and of the Press protected by the 1st Amendment and at the same time leave out the age old means employed by States for securing the calm course of justice
He emphasised that the 14th Amendment does not forbid a State to continue the historic process of prohibiting expressions 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 liberty have heretobefore been conceived even by the stoutest libertarians
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
 The test of imminent and present danger as the basis of Justice Holmes s ideas has been referred to by this Court in PN Duda vs P Shiv Shanker  Ors  This question again cropped up in John D Pennekamp vs Slate of Florida and Justice Frankfurter 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 formula for adjudicating cases
It was a literary phrase not to be distorted by being taken from its context
He reiterated that the judiciary could not function properly if what the Press does is reasonably calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of what is before the Court
A judiciary is not independent unless courts of justice are enabled to administer law by absence of pressure from without whether exerted through the blandishments of reward or the mance of disfavour
A free Press is vital to a democratic society for its freedom gives it power 
In 1976 in Nebraska Press Association vs Hugh Stuart 49 LEdn
683 where the facts of the case were entirely different to the present ones Chief Justice Burger delivered the opinion of the Court saying that to the extent that the order prohibited the reporting of evidence adduced at the open preliminary hearing in a murder trial was bad
Chief Justice Burger reiterated that a responsible Press has always as the handmaiden of effective judicial administration the criminal field
The observations of Learned Hand referred to at page 683 indicate the gravity PG NO 228 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 conventional phrase of Anglo Saxon Common Law Jurisprudence would perhaps be the proper test to follow
In this background it would be appropriate to refer to some of the English decisions to which our attention was drawn
Mr Jethmalani relied on the observations of Lord Denning in the Court of Appeal in Attorney General vs British Broadcasting Corpn
  where the Master of Rolls Lord Denning characterised some of these similar type of injunctions as gagging injunctions
Mr Baig however 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 observations of Lord Denning
We may refer to the observations of the House of Lords in Attorney General vs BBC  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 valuation court on the ground 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 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 discharged administrative functions and was not a court of law and the 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 principles relating to contempt of court should not apply to it or to the host 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 in the Court of Appeal referred to Borrie  Lowe The Law of Contempt 1973 and mentioned that professionally trained Judges are not easily influenced by publications
PG NO 229 This is a point which was emphasised before us also
Lord Denning referred to the question whether there was contempt of court by the BBC
He emphasised whether there was no accused
The House of Lords however in appeal held that valuation court is not a court where the concept of contempt of court would apply
But it did make observations that such broadcasting or publication might affect a Judge
Viscount Dilhorne at page 335 of the report observed as follows It is sometimes asserted that no judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen
This claim to judicial superiority over human frailty is one that I find some difficulty in accepting
Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard of read outside the court and he will not knowingly let himself be influenced in any way by the media nor in my view will any layman experienced in the discharge of judicial duties
Nevertheless it should I 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 may be subconsciously affected by it
As Lord Denning MR said the stream of justice must be kept clean and pure
It is the law and it remains the law until it is changed by Parliament that the publication of matter likely to prejudice the hearing of a case before a court of law will constitute a contempt of court punishable by fine or imprisonment or both
In this appeal we do not have to pronounce on whether the 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 Brethern it by no means follows that it would have prejudiced their claim to relief from rates
The mere assertion in the course of the broadcast that they were not entitled to 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 within section 39 Lord Edmund Davies at page 354 of the report emphasised that only a very short question arose namely whether the local valuation court comes within the jurisdiction of the PG NO 230 High Court or not
Before that Lord Scarman had occasion to refer to the observations of the European Court of Human Rights which criticised the judgment of the House of Lords in Attorney General vs Times Newspapers Ltd l and emphasised that neither the Convention nor the European Court s decision as part of the English law which related to Article B 102 of the Convention for the Protection of Human Rights and Fundamental Freedoms
In Attorney General vs Times Newspapers Ltd supra between 1959 61 a company made and marketed under licence a drug containing thalidomide about 450 children were born with gross deformities to mothers who had taken that drug during pregnancy
In 1968 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 parle in 261 cases but apart from a statement of claim in one case and a defence 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 14 million charitable trust fund for those children outside the 1968 settlement conditional on all the parents accepting the proposal
Five parents refused
An application to replace those parents by the Official Solicitor as next friend was refused by the Court of Appeal in April 1972
Negotiations for the proposed settlement were resumed
On September 24 1972 a national Sunday newspaper published the first of a series of articles to draw attention to the plight of the thalidomide children
The company complained to the Attorney General that the article was a contempt of court because litigation against them by the parents of some of the children was still pending
The editor of the newspaper justified the article and at the same time sent to the Attorney General and to the company for comment an article in draft for which he claimed complete factual accuracy on the testing manufacture and marketing of the drug
On the Attorney General s motion the Divisional Court of the Queen s Bench Division granted 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 campaign in the press and among the general public directed to bringing pressure on PG NO 231 the company to make a better offer for the children 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 material which prejudged the issue of pending litigation or was likely to cause public prejudgement 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 publishing the proposed publication
Reference was made to Oswald s Contempt of Court 3rd Edn
 1910 where it was emphasised that the 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 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 Parte Bread Manufacturers Ltd  to the following effect It is of extreme public interest that no conduct should he 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 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 competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations
The discussion of public affairs and the denunciation of public abuses actual or supposed cannot be required to be suspended merely because the discussion or the denunciation may as an incidental but not intended by product cause some likelihood of prejudice PG NO 232 to a person who happens at the time to be a litigant
It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest by reason merely of the fact that the matter in question has become the subject of litigation or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant and whether in relation to the matter which is under discussion or with respect to some other matter Lord Reid made certain observation upon which Mr Baig relied ie at page 300 which is as follows I think that anything in the nature of prejudgment of particular case or of specific issues in it is objectionable not only because of its side effects on that particular case but also because of its side effects which may 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 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 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 determination of disputes as to their legal 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 should be able to rely upon their being no usurpation by any other person of the function of that court PG NO 233 to decide it according to law
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 influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant 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 law provides some safeguards against abuse though important ones such as professional propriety and responsibility lie outside the law  EmPhasis supplied Lord Cross of Chelsea at page 322 of the report observed as follows Contempt of Court means an interference with the administration of justice and it is unfortunate that the offence should continue to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court
Nowadays when sympathy is readily accorded to anyone who defies constituted authority the very name of the offence predisposes many people in favour of the alleged offender
Yet the due administration of justice is something which all citizens whether on the left or the right or in the center should be anxious to safeguard
When the alleged contempt consists in giving utterance either publicly or privately to opinions with regard to or connected with legal proceedings whether civil or criminal the law of contempt constitutes an interference with freedom of speech and I agree with my noble and learned friend that we should maintain the rule that any prejudging of issues whether of fact or of law in pending proceedings whether civil or criminal is in principle an interference with the administration of justice although in any particular case the offence may be so trifling that to bring it to the notice of the court would be unjustifiable
 PG NO 234 Mr Baig emphasised that there is an inherent jurisdiction to 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 debentures could be withdrawn as the final allotment has not yet been made
On the other hand Mr Diwan submitted that 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 concern
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 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 l9th 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 the overall balance and convenience and having due regard to the sums 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 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
In the words of Mr Justice Brandeis of the American Supreme Court concurring in Charlotte Anita Whitney 
People of the State of California 71 L Edn 109S at 1106 there must be reasonable round 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 imminent danger should be judged in case of prevention by injunction of Publication of an article in a pending matter
In the context of the facts of this case we must judge whether there is such an imminent danger which calls for continuance of the injunction
Incidentally it may be mentioned that the so called informed Press may misrepresent the Court proceedings
We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the PG NO 235 industrial life and democracy
Right to Know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution
That right has reached new dimensions and urgency
That right puts greater responsibility upon those who take upon the responsibility to inform
The question of contempt must be judged in a particular situation
The process of due course of administration of justice must remain unimpaired
Public interest demands that there should be no 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 be remembered that even at turbulent times through which the developing countries are passing contempt of 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 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 continuance of injunction is no longer necessary
In this peculiar situation our task has been difficult and complex
The task of a modern Judge as has been said is increasingly becoming complex
Furthermore the lot of a democratic Judge is heavier and thus nobler
We cannot escape the burden of individual responsibilities in a particular situation in view of the peculiar facts and circumstances of the case
There is no escape in absolute
Having regard however to different aspects of law and the ratio of the several decisions 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 general 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 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 injunction should not continue any further
In the aforesaid view of the matter we direct that there is no further need for the continuance of the injunction
PG NO 236 Publications if 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 remedy in the form of an injunction is no longer necessary
Whether punitive remedy will be available or not
will depend upon tacts and the decision of the matter after ascertaining the consent or refusal of the Attorney General
The application for the present purpose is therefore
disposed of with the direction that the injunction against publication in the order dated 25th August 1988 need not further continue
RANGANATHAN J I agree
I would however like to add a few words having regard to the range of the arguments addressed before us
The principal ground urged in support of the prayer for the continuance of the injunction already granted is that it was very restricted in terms and injuncted only the publication of articles comments and reports on the validity or legality of the various consents approvals and permissions obtained by Reliance in relation to the debenture issue
This is precisely the subject matter of the writ petitions and suit withdrawn to this Court in the Transfer Petitions
It is urged strongly relying on the speeches of the various Law Lords in the Thalidomide case Attorney General vs Times Newspapers Limited 11974 AC 273 the observations of this Court in Re P C Sen   and the provision contained in section 2ciii of the  that any such publication would tend to interfere with the fair administration of justice and so constitute criminal contempt and 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 contempt were of such a nature that they were seen to affect the course of actions actually pending in courts that even otherwise the decision of  the House of Lords has been widely criticised and should not be followed and that the views expressed by Lord Denning MR in Attorney General vs BBC though reversed by the House of Lords in by the American Courts in Bridges vs State of California and in John D Pennekamp vs Stale of Florida  should be preferred as more appropriate to present day conditions particularly in the context of the PG NO 237 freedom of press guaranteed under Act 191a of the Constitution of India and also incorporated in Article 19 of the Universal Declaration of Human Rights 1948 article 10 of the European Convention of Human Rights and article 19 of the International Convention on Civil and Political Rights 1966
I do not think we are called upon to decide this wider question at this stage
As already pointed out the contempt petition filed by the petitioners in respect of the article published by the respondents on 25888 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 19888 will so clearly and obviously prejudice or tend to prejudice the course of the proceedings 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 imminent 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 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 for the petitioner was that the grant of ex parte injunction by us on 19888 and 25888 was the result of our prima facie conclusion that consents approvals or permissions from the concerned authorities for the debenture issue had been duly and validly obtained by the petitioner and that any article liberty for the publication of which is sought for by the vacation of the interim order would contain views contrary to or inconsistent with the prima facie view of this Court
Persons reading the newspaper might be taken in by and believe in the statements made by the respondents in such articles and if they start acting upon such beliefs then the effect of the order of this Court upholding prima facie the validity of the debenture issue on the above aspects would stand undermined
In my view this contention is untenable
I do not think that the contention proceeds on a correct analysis of the ratio of our order dated 25888 or the earlier order dated 19888
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 been heard by the PG NO 238 various High Courts or other subordinate courts 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 if any such interim order was passed all the time labour and money expended in floating the debenture issue might be nullified at the 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 let or hindrance and without being hampered by any interim stay order from any court
I do not think it would be correct to say that when we passed the order dated C 19888 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 properly complied with what predominantly influenced us to pass the order dated 19888 was that even assuming prima facie as contended in the various writ petitions and suits 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 prove catastrophic and cause irreparable loss or damage to the petitioner
We were also of the opinion that
pending adjudication on the issue of validity raised in the various suits the balance of convenience required that there should be no order of any court or tribunal staying the debenture issue
Now 1 shall turn to the circumstances in which the order dated 25888 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 Controller of Capital Issues to the issue of the debentures
I do not go into the merits of the article
But when it was pointed out to us that this article had been published at a very crucial time when the subscription to the issue had started flowing in we saw that it would have the indirect effect of achieving exactly what this Court wanted to prevent by its order dated 19888
Though this Court
in view of the allegations raised in the transfer petitions referred in its order only to stay orders from courts restraining the progress of the debenture issue it was the intention of this Court that the debenture issue should go ahead without any obstacles placed in the way of the collection of PG NO 239 subscriptions therefor on the grounds on which stay orders had been sought to be obtained from courts
The article published by the respondents though not violative of the terms of the injunction granted by this Court could have the effect of circumventing the order of this Court and rendering it ineffective
It had prima facie a tendency to affect the efficacy of and defeat the object with which this Court had passed the interim order dated 19888
This is the reason why we passed the second order dated 25888 and also declined to modify or vary it at 1he 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 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 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 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 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 allegations in such articles as the one already published is real and imminent
He submitted that it is therefore as much necessary today to 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 the publication of PG NO 240 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 injunction order passed by us on the 25th of August 88
Even if for the purpose of argument one were to assume 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 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 31888
I therefore agree that there is no justification for the continuance of the interim order dated 25888 any longer


Summary:
The appellant who was a Sub Inspector of Police was dismissed by the Superintendent of Police by an order dated 29th January 1973 exercising powes under clause b of the second proviso to Article 3112 of the Constitution of India
The appellant preferred an appeal to the Inspector General of Police and the said appeal Having been dismissed he challenged the order of dismissal as well as the appellate order in an application under Article 226 of the Constitution in the High Court
A Division Bench however dismissed the application
In the appeal by special leave to this Court it was contended on behalf of the appellant that 1 the appellant having been appointed as Sub Inspector of Police by the Inspector General of Police the order of his dismissal by the Superintendent of Police was illegal being in contravention of Article 3111 of the Constitution and 2 the provisions of clause b of the second proviso to Article 3112 of the Constitution were not attracted to the facts of the case and consequently the order of dismissal was illegal having been passed without compliance with the requirements of Article 3112
Dismissing the Appeal the Court HELD 1
The Superintendent of Police and Principal Police Training College Assam are authorities having coordinate jurisdiction to appoint Sub Inspectors under Rule PG NO 324 11X and Schedule Column II of the Assam Police Manual Part III
329E 328H In the instant case the appellant having been appointed by the Principal Police Training College Darrang Assam and having been dismissed by the Superintendent of Police Darrang District Tejpur who was a coordinate authority the submission that the order of dismissal was illegal as having been passed by an authority subordinate to that by which he was appointed has no substance
329E F 2
While construing the words it is not reasonably practicable to hold such enquiry used in clause b of the second proviso to Article 3112 it was held in Union of India vs Tulsi Ram Patel and Others 1985 Supplement 2 SCR 131 that whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so
It is not a total or absolute impracticability which is required
What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation
One of the illustrations justifying clause b of the second proviso to Article 3112 being invoked is the non availability of the witnesses on account of fear of the officer concerned
330G H 331A B 332A In the instant case it is apparent from the order of dismissal that this was the main ground for invoking the said clause b
The Superintendent of Police who passed the order of dismissal was the best authority on the spot to assess the situation in the circumstances prevailing at the relevant time and this Court does not find any good ground to interfere with the view taken by the Superintendent of Police in this behalf
In such matters the Court will not sit in judgment over the relevancy of the reasons given by the disciplinary authority for invoking clause b like a Court of appeal
Even in those cases where two views are possible the Court will decline to interfere
332A B C