Abuse of the Right to Freedom of Speech by the Judiciary – in the light of Reliance Petrochemicals v. Indian Express

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The Right to Freedom of Speech is given under Article 19(1)(a) of the Indian Constitution as, “all citizens shall have the right to freedom of speech and expression.”[1] The freedom of speech is a very wide right, which includes expression communicated both orally and in a written form. So if we consider the freedom of expression to be the genus then the freedom of press will be the species of the genus. When this right is misused, by either scandalizing a judge, interfering with the administration of justice, prejudicing fair trial, etc., a situation of contempt of court may arise.

Contempt of Court can be civil or criminal as defined under the Contempt of Courts Act, 1971. Civil Contempt is the willful disobedience to any judgment, decree, direction, order, writ, or other process of a court or willful breach of an undertaking given to a court[2] and Criminal Contempt as the publication of any matter or the doing of any other act, which- scandalizes/lowers or tends to scandalize/lower the authority of any court, prejudices or interferes or tends to interfere with the due course of any judicial proceeding, or interferes/obstructs or tends to interfere/obstruct the administration of justice in any other matter.[3] The object of contempt jurisdiction is to uphold the majesty and the dignity of law courts in the minds of the public and to ensure that such an image does not get affected. “Contempt of court has mainly three objects- to enable the parties to come to the courts without interference, to enable the courts to try cases without interference, to ensure that the authority and administration of the law is maintained. It was contempt of court to publish material which pre-judged the issue of pending litigation or was likely to cause public pre-judgment of that issue.”[4]

But the Right to Freedom of Speech is subjected to certain restrictions.[5] It is the duty of the media to provide truthful and correct information. Also, the right is subject to the restrictions given under Article 19(2) of the Indian Constitution, the Contempt of Courts Act, 1971 and defamation (Exceptions 4 and 5 to S.499 of the Indian Penal Code). It is the responsibility of the press to provide information that is factually correct which is backed by verified information. If and when the media does not follow such duties then anyone related to the article will face the consequences. As far as Court proceedings are concerned, the Contempt of Courts Act exempts all fair and accurate report of judicial proceedings from action in contempt.[6] Adding to that, any fair criticism made by the press of any judicial act does not amount to contempt.

In the case of Reliance Petrochemicals v. Indian Express, Petrochemicals issued 12.5% secured fully convertible debentures and it was oversubscribed. However, the consent of the Controller of Capital Issues and the Central Government need to be obtained. Indian Express had then published articles based on the validity of obtaining the necessary permissions in order to issue such debentures by the company. Mukharji J. passed an injunction, on 25.08.1988 prohibiting Indian Express to publish such articles in the future. Later the court held that the injunction need not continue because there must be reasonable ground to believe that the danger that is apprehended in continuance of the injunction is real and imminent. The danger apprehended by Petrochemicals was termed to be not so real or substantial as to warrant the continuance of the injunction order passed on 25thAugust, 1988. In order to justify the suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced and that the danger apprehended is imminent.[7]

The petitioner company stated that the danger was present because in a sensitive case like the issue of debenture, even the request of one issuer can trigger the others to request for their money back. It is enough if the printed material tended to prejudice the public or the Judge.[8] Newspaper readers 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 would be undermined. Opinions aired in publications anticipating court decisions and in a way trying to influence the public, the witnesses who are to depose in court and finally the judge himself, are in utter disregard of the majesty and dignity of courts[9] and the same was to be followed in Indian cases as well.[10]

Public have a right to know about this issue of debentures, which is a matter of public concern. It affects the public interest and the newspapers have an obligation to inform. When the consent was given by the Central Government for the issue, they stated “they do not take responsibility for the financial soundness of any scheme or for the correctness of any of the statements made or opinions expressed with regard to them”. This statement encouraged public discussion on the financial soundness of the scheme proposed by Petrochemicals. Such discussion was carried out by the Press rightfully as, the general public will not be able to decide whether a scheme is financially sound or unsound or whether the statements and opinions that were made were correct or incorrect.[11] In the Romesh Thapper case, the SC recognized that the freedom of speech and expression in Article 19(1) includes the freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. [12]

Is there a need for preventing publication of an article on a matter of public interest but on an issue, which is sub judice? It is an invariable rule that all statements in the press relating to a matter of sub judice is contempt. In the connection it is desirable to balance both the effect it might have on the litigation and the interest of the nation in free expression. The court should not convict the offender unless it considers that the substantial and unjustifiable interference with the course of justice has occurred in the impugned act.[13]

Mainly, the issue was whether the Court had the jurisdiction to transfer the case under Article 139A of the Constitution. For a petitioner to apply for the transfer of an order it must satisfy two conditions- the petition and the suit must raise common questions of law and such questions were substantial questions of law of general importance. In the case, the reason behind Petrochemicals using Article 139A is that it had obtained consent from the Controller of Capital Issues and the Central Government which prima facie was legal and the contention of the petitioners that it had been obtained contrary to the law should be rejected. Here, Petrochemicals issued debentures to the public, which is one transaction of borrowing money, and the consent being improperly obtained raised no general question of law at all. The suit related to a single company and single act by it. Assuming that a common question of law arose, it cannot be directly stated that the substantial question of law is of general importance. [14]

Petrochemicals submitted an ex parte application and Indian Express did not question the SC’s exercise of transfer jurisdiction.[15] But can a party who had acquiesced in the inferior court exercising its jurisdiction still contest the fact that it lacked jurisdiction in the first place? As Lord Halsbury said, “it is immaterial by what means and by whom the Court is informed of such objection. The Court must protect the prerogative of the Crown and the due course of administration of justice by prohibiting the inferior court from proceeding in matters as to which it is apparent that it has not jurisdiction.”[16]As given in R v. Gramphan,[17], the Marital Appeal Court was “created by Statute and has no jurisdiction beyond that which Parliament has conferred upon it”. While drawing a parallel analogy it is observed that, the Supreme Court was created by the Constitution of India and similarly it will not have jurisdiction beyond what was created in the Constitution for it.

Another aspect to look at is that an injunction is granted in a pending matter between two parties who are joined or who are before the Court. But in this case, the injunction was granted to any future matter that may arise or any future order that may pass. Also, the suit as a whole is itself non-existent as the Court earlier stated that the application of Contempt to Court would only be entertained if the sanction was given by the Attorney General and “declined to take cognizance on that application without the views of the Attorney General”, but the Court ended up taking the case suo motu. In the matter of William Taylor[18], Sir Barnes Peacock said that courts of record can act suo motu in contempt, either by a show cause notice or by attachment, but the Court in this case did not do so and hence the order itself was illegal.

In Indirect Tax Practitioners Association v. R.K Jain, it was said that the criticism of a judicial body amounts to contempt but the fair criticism of administration of justice or functioning of authorities or institutions entrusted with the task of deciding rights of the parties gives an opportunity to remedy the wrong and make improvements. Such criticism must not be castigated under Contempt of Court unless it is ill motivated.[19] Hence, considering the changed times and the present situation, the order shows the need for a liberal regime where a fair-minded criticism is permitted.

In a case of contempt, the Court must balance both the freedom of speech and expression, which includes freedom of press and the requirement of a fair trial. Publication must be given the constitutional protection of freedom of speech and press. The freedom must not be restrained merely because the publication is regarding the judicial proceeding still pending in the courts assuming that it must necessarily obstruct or tend to obstruct the fair administration of justice. The Right to Freedom of Speech and Expression is essential and should be valued more in democratic country like India. Giving power to the judiciary to declare Contempt of Court even when the criticism is justified could be extremely harmful as the functioning of corruptive authorities and institutions will not be stopped and corrected. Since media is the fourth pillar of democracy, it must be given the freedom to say things even though it is criticizing for the purpose of ensuring that the general public is always informed provided that, they publish the truth.

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[1] Article 19, The Constitution of India.

[2] Section 2(b) of the Contempt of Courts Act, 1971.

[3] Section 2(c) of the Contempt of Courts Act, 1971

[4] Attorney General v. Times Newspapers Ltd. [2001] EMLR 530

[5] VK Mehrotra, Contempt of Court (6 ed. 2002).

[6] Vide Ch. IV Comment under S.4 and 7

[7] Abrams v. United States 250 U.S. 616 (1919)

[8] Somesh Chandra Makerjee v. B Chakrabarthy, ILR (1938) 2 Cal 447

[9] AG v. Times Newspapers Ltd. (1974) AC 273: (1973) 3 ER 54 (HL)

[10] Ratnakar Jha v. Krishna Sewak Agarwal, AIR 1954 Nag 99; Emperor v. J. Choudhry AIR 1947 Cal 414

[11] H M Seervai, 1 Constitutional Law of India (4 ed. 2015). (Pg.767)

[12] AIR 1950 SC 124: 1950 SCR 594

[13] Sankaranarayane Panicker v. Unni Omana, AIR 1962 Ker 52: ILR (1961) 2 Ker 198

[14] Supra, n 11 Pg.770 &771

[15] Id.

[16] Farquharson v. Morgan (1894) 1 Q.B. 552 (C.A.)

[17] (1969) 2 Q.B. 574.

[18] AIR 1918 Cal 713: 44 IC 930

[19] Contempt Petition (CRL.) No.9 of 2009

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Sravani Yaralagadda

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