TaxTMI 
TaxTMI 
2009 (4) TMI 445
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.... venture company promoted by four Public Sector Undertakings, (viz., GAIL (India) Limited, Oil & Natural Gas Corporation Limited, Indian Oil Corporation Limited and Bharat Petroleum Corporation Limited with an authorized share capital of Rs. 1200 crores, to import Liquefied Natural Gas (hereafter referred as "LNG") and set up LNG terminals in the country, Gaz De France, a French national gas company, through its investment subsidiary GDF International, holds a minority stake of 10 per cent equity in the plaintiff as a strategic partner, Asian Development Bank holds 5.2 per cent equity stake as an investor and 34.8 per cent of the equity in the plaintiff is held by the general public. 3. The plaintiff is not aware of the exact legal status of defendant No. 1. The particulars of defendant No. 1 is based on the information provided in the website of defendant No. 1, www.indianpetro.com. Defendant No. 1 claims to be India's largest news and informal market intelligence provider on Indian Oil and Gas, Power and Fertilizer Sectors. It also claims to have long standing relationships and networking arrangements to provide the most comprehensive, macro and micro reports of the respective....
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....as to look for LNG sources other than Ras Gas and Iran to regasify additional quantities". (iv)"Petronet LNG not to hand our EPC contract for Dahej expansion project until LNG is tied up and GSPAs signed", and (v)"Details of PLL's reconstitution of EPC and finance sub-committees", (b)On 6-6-2005, the defendants published information under following the headings : (i) "PLL Kochi LNG terminal - August 2009 is target completion date, BEP consultancy likely to be given to EIL", (ii) "PLL Dahej expansion - Single EPC contract for both regasification and tank construction". (iii) "PLL Dahej Expansion/Kochi Project I - Details of bidding consortia, eligibility criteria and tender committee recommendations" and (iv) "PLL Dahej Expansion/Kochi Project II - Details of evaluation of proposals by shortlisted EPC consortia; and (d)On 7-6-2005, the defendants published information under the following headings : (i) "PLL-Kochi Project - PLL starts marine studies on advice of Gaz de France" and (ii) "PLL Dahej expansion - EIL beings work on bid packages". 6. The defendants, says the plaintiff, did not publish confidential/misleading information pertaining to it (th....
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....completion or facilitating adequate financing to cover all EPC or other costs associated with construction and completion of receiving facilities, Construction of necessary pipelines connecting Kochi terminal customers. Till the receiving facilities are completed, obligation under Sales and Purchase Agreement (SPA) will remain in place. However, to mitigate take-or-pay obligations in the event of delayed completion, diversion of cargoes will take place to other terminals in India. However, in the case of force-majeure, this guarantee shall not be enforceable. Though it was agreed that the offtakers would resolve the pattern of offtake between themselves and communicate it to Exxon Mobil, the later requested for a speedy decision in the matter. Exxon Mobil also said PLL should revisit the pricing agreement proposed in view of the rise in prices of petro products. PLL and the offtakers promised to take up the issue in the next meeting." ( iii)"LNG transportation - PLL shortlists shipowners, moots Special Purpose Company. April 26: Petronet LNG Ltd., (PLL) is addressing the issue of long-term requirements of LNG through a two-fold strategy. They are : Selection of shipowne....
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....ding news item published on 3-5-2006 "May 2 : PLL plans $100 million FCCB: ADB bailout in case of redemption pressure.-The management of Petronet LNG Ltd., (PLL) is forced to conduct some tight maneuvering no picking up additional funds - to meet conditions precedent that financial closure be tied up by June 30, 2006 set by LNG supplier for its Kochi LNG Plant - without immediate placing any pressure on expanding the already high equity base - of Rs. 750 crore- of the company. The management had mooted a $100-million foreign currency convertible bond (FCCB) issue to plug the financing gap but there were differing views - within a four member committee set up to took into the proposal - in resorting to this instrument. Finally, the Asian Development offered to help out in case FCCB redemption (expected five years after the issue. In 2011-12) was not supported by adequate cash flows from within the company." D. The offending news item published on 5-5-2006: "May 4: PLL's $ 100 million FCCB: Salient points.-Petronet LNG Ltd., (PLL) proposed issue of $ 100 million foreign currency convertible bonds (FCCB) to finance Kochi LNG terminal saw five merchant bankers making their det....
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....y listed company could have a strong bearing on the market behaviour of the shares of the company and may affect the interests of lakhs of investors adversely. Under the SEBI Regulations all listed companies are required to frame and comply with a code of internal procedures and conduct which casts an obligation on the plaintiff to protect and prevent the misuse of price sensitive information. In addition, any violation of the SEBI Regulations is an offence punishable with ten years imprisonment or fine up to Rs. 25 crores or both. Further, under section 21 of the Securities Contract (Regulation) Act, 1956 ("Securities Act"), a company whose securities are listed on a recognized stock exchange has to comply with the listing Agreement of that stock exchange. Under the Listing Agreements that the plaintiff had entered into with the Bombay Stock Exchange and the National Stock Exchange, (where the plaintiff's securities are listed) there is an obligation on its part, to inform the respective stock exchanges of any significant business plans such as undertaking of new projects, new investments etc., before such information is disclosed to the general public and non-compliance is an off....
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....at the plaintiff and in turn other oil and gas industry stakeholders may lose their share of LNG which would result in adverse impact on gas and energy consumers. 9. The news item reproduced in paragraph 5-A(iii) above which states that the plaintiff has selected ship-owners, to be issued bid documents is incorrect, according to the plaintiff. The time charter contract to be awarded is of significant commercial value. Hence, the matter of selection of ship-owners is highly confidential and a closely guarded secret till the plaintiff's board of directors decides this finally, based on an evaluation of the recommendations of a committee appointed by it. The said news item was misleading at the time it was published by the defendants on the suit website. The true position was that the committee looking into the matter had only made its preliminary recommendations, which could be subject to variation from what had been reported and published on the website. There was always a possibility that till the formal approval was given by the plaintiff's Board some of the ship-owners (whose names were listed on the suit website) might have been excluded and other ship-owners included. Such u....
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....ed about it. In fact, some of these entities are in the very business that the plaintiff is involved in. Defendant No. 1 has been publishing news and views on contractual and commercial negotiations involving import of LNG by some of these entities without eliciting any legal action or litigation therefrom. For example, Defendant No. 1 has published a total of 1781 news articles relating to GAIL India's activities concerning LNG. Similarly, there are 837 news items on Indian Oil Corporation and issues relating to LNG. None of those companies ever sought legal recourse in respect of such news items. This shows that those companies understood the principle Freedom of Press to report on commercial matters involving billions of dollars of investments of public money in commercial ventures. 14. The defendants deny that they are in the habit of publishing confidential information or any information which could harm the plaintiff's interest, and that of the public. They say that the plaintiff contradicts itself as the 'highly confidential' information about itself could not have fallen in the hands of the defendants. It is averred that if, as the plaintiff claims, the information publi....
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....in principle and spirit. 16. The defendants state that 130 news items pertaining to the plaintiff were published by them during the period from 11-6-2005 to 26-4-2006. By the yardstick used by the plaintiff, quite a few of them could have been defined as "sensitive" or "confidential" yet the plaintiff decided not to take any legal action on their publication. It is stated that the plaintiff has arbitrarily chosen news items in the period 27-4-2006 to 5-5-2005 to claim that sensitive information is being disseminated. The defendants deny having published any sensitive or any confidential information in the news items under consideration. An analysis of the news items in question would itself reveal that there is nothing confidential or sensitive about the same. 17. The defendants say, on information in Para 5A(i) above, that the news item published on 27-4-2006 PLL to co-develop Kochi SEZ, CPT to be developer. A reading of this would reveal that there is actually promotional in nature and cannot in any way adversely affect the plaintiff's business. It is submitted that other entities and even the State Governments are developing Special Economic Zones and this knowledge falls ....
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....is the part of the (Express Group of newspapers). These clearly showed that the management of the plaintiff chose and singled out the defendants and not other bigger organizations. In fact, by its very nature the issuance of foreign currency convertible bonds falls within the realm of common commercial news. 22. During the pendency of the suit, this court had issued an ex parte injunction against the Defendants, restraining them from publishing anything pertaining to the plaintiff without its consent. After pleadings were complete, the parties agreed that the suit and the pending applications could be heard on the merits, without the need to record oral evidence, since publication of the articles were not controverted facts; the defendants contested the plaintiff's right to maintain the suit, and claim the injunctions it does. Accordingly, the plaintiff's counsel, and the defendants were heard, and judgment reserved. 23. The follow issues arise for consideration: Issue No. 1 - Whether the plaintiff can claim right to privacy, and seek injunction against the defendants from publishing articles or reports in their website; Issue No. 2 - Whether the plaintiff proves that i....
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....f, as a company, cannot claim right to privacy, which is available to individuals. 27. Privacy is defined variously as "an autonomy or control over the intimacies of personal identity" (Gerety, in "Redefining Privacy", [1977] 12 Harv. C.R.-C.L. L. Rev. 233, 284-91); Laurence H. Tribe, in American Constitutional Law, (1st Edn., 1978), 893 identifies the concept, in relation to individuals, to "those attributes of an individual which are irreducible in his self-hood". Tribe underlines the notion of personhood. Stephen J. Schnably, in "Beyond Griswold: Foucauldian and Republican Approaches to Privacy", [1991] 23 Conn. L. Rev. 861, 861-62 theorizes that personhood entails "a distinctive conception of private life as a haven from State power" and that "our personal lives, particularly our explorations of sexuality, are the most important sites of individual self-realisation". In one of the earliest formulations, on the issue, it was thus held that the right to privacy is the "right to be let alone" a phrase coined by Justice Brandeis in his memorable dissent, in Olmstead v. United States, 277 US 438 (1928). He called this right "the most comprehensive of rights and the right most val....
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....buted that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any pre-conceived notions or doctrinaire constitutional theories....." (p 1302) The minority judgment of Subba Rao, J, held that : "...It is true our Constitution does not expressly declare a, right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his 'castle' ; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in Wolf v. Colorado pointing out the importance of the security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man's physical happiness a....
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.... right would be of far less significance. The question whether enforcement of morality is a State interest sufficient to justify the infringement of a fundamental privacy right need not be considered for the purpose of this case and, therefore, we refuse to enter the controversial thicket whether enforcement of morality is a function of State. 23. Individual autonomy, perhaps the central concern of any system of limited Government, is protected in part under our Constitution by explicit constitutional guarantees. In the application of the Constitution our contemplation cannot only be of what has been but what may be. Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet. Yet, too broad a definition of privacy raises serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. Of course, privacy primarily concerns the individual. It, therefore, relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the e....
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....ht of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute." (p. 155) 30. In R. Rajagopal (supra ) the Supreme Court had to consider the tension and relationship between freedom of the press and the right to privacy of citizens. One "Auto" Shankar, sentenced to death for committing six murders, chronicled his life, through a biography and wanted it to be published in a Tamil weekly magazine. In some parts of the work, he alleged his proximity with several Indian Administrative Service and other high ranking officers, stating that they were his partners in crime. The Court revisited the law of privacy, and summarized the principles, in the following manner : "22. We may now consider whether the State or its officials have the authority in law to impose a prior restraint upon publication of material defamatory of the State or of the officials, as the case may be? We think not. No law empowering them to do so is brought to our notice. As observed in New York Times v. United States, popularly known as the Pentagon papers case, 'any system of prior restraints of (freedom of) expression comes to this Court b....
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....t another exception to the rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power....
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....izens of this country by article 21. It is a 'right to be let alone'. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical....' (p. 649) While on the subject, a slightly discordant note appears to have been struck, even at the time Rajgopal was being considered; thus, in People's Union for Civil Liberties v. Union of India [1997] 1 SCC 301, the legality of "telephone-tapping" was considered. Even after conceding that Telephone conversations could be confidential and intimate in character, and declaring that such telephone tapping was, unless sanctioned through legislation, unconstitutional, the Court reasoned that the right to privacy was "too broad and moralistic". 33. The second aspect which stares one at the face, in all the judgments, is that the right to privacy was asserted in the context of the state's intrusive behaviour; Kharak Singh, and Gobind were judgments in the context of surveillance regulations; Rajgopal was an individual'....
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....aze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. 43. It is unnecessary, for present purposes, to enter upon the question of whether, and in what circumstances, a corporation may invoke privacy. United Kingdom legislation recognises the possibility. Some forms of corporate activity are private. For example, neither members of the public, nor even shareholders, are ordinarily entitled to attend directors' meetings. And, as at present advised, I see no reason why some internal corporate communications are any less private than those of a partnership or an ....
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....n of the High Court of New Zealand, at the interlocutory level, which do not turn upon the statute and which favour the development of a tort of breach of privacy in respect of public disclosure of true private facts, where the disclosure would be highly offensive and objectionable to a reasonable person of ordinary sensibilities. But there appears to be no decision to that effect at trial and no discussion of the subject by the Court of Appeal. In the interlocutory decisions, the plaintiffs were natural persons." Kirby, J. fascinatingly, referred to judgments from various countries, including the judgment of the Indian Supreme Court in Gobind (footnote 258) and reasoned that : "Privacy and corporations: The fact that the respondent is a corporation is a further reason for delaying a response to this question. This is because doubt exists as to whether a corporation is apt to enjoy any common law right to privacy^258. Insofar as, in Australia, the elucidation of this aspect of the common law is influenced by the content of universal principles of fundamental rights, article 17 of the International Covenant on Civil and Political Rights^259 appears to relate only to the pri....
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....es v. White, supra. They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favours from Government often carry with them an enhanced measure of regulation. Cf. Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232; Steele v. Louisville & Nashville R. Co., 323 U.S. 192; Tunstall v. Brotherhood of Locomotive Firemen & Engineers, 323 U.S. 210; Wickard v. Filburn, 317 U.S. 111, at 317 U.S. 129...." 37. It would also be useful to recollect that the right to privacy was seen as a "penumbral" though un-enumerated right, in the United States (the existence of such "unenumerated" or "penumbral" or residual rights was rejected in Maneka Gandhi v. Union of India AIR 1978 SC 597). The growth of that branch of law has been in the context of individuals' claims for privacy, against unwarranted state action or intrusion, be it in Griswold v. Connecticut, 381 US 479, 486 [1965], or Katz v. United States, 389 US 347 (1967); Terry v. Ohio , 392 US 1 (1968); Stanley v. Georgia, 394 US 557 (1969), the celebrated....
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....s a duty of confidence cast on the defendants not to make disclosure of the plaintiff's sensitive information. It was submitted that Campbell (supra) has now positioned the right to confidentiality as one whereby the concerned party can insist upon imposition of a duty upon a person receiving information which he knows or ought to know, is fairly and reasonably regarded as confidential. 41. It is submitted that the defendant's claim for unfettered right to publish any information which he comes across under the garb of freedom of press is not absolute for all time, and in all circumstances. It is claimed that allowing such unimpeded liberty would lead to anarchy; if all manner of information, regardless of its veracity or sensitivity, would be accessible and public, dangerous consequences would result. Learned counsel relied upon the judgment in Rai Hari v. Jai Singh 1996 (6) SCC 466 and the judgment reported as S.M.D. Kiran Pasha v. Govt. of Andhra Pradesh 1990(1) SCC 328. 42. The defendants submitted that like in the case of privacy, the plaintiff cannot pitch its claim for an absolute right of withholding information that require critical examination by members of the publ....
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....ranted.-(1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely, - (a )where the defendant is trustee of the property for the plaintiff; (b )where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c )where the invasion is such that compensation in money would not afford Adequate relief; (d )where the injunction is necessary to prevent a multiplicity of judicial proceedings. 39. Mandatory Injunctions.-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach compl....
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....uld obtain restraint order against the husband from communicating such secrets. It was held that a contract or obligation could not be implied in such circumstances and breach of contract or trust or faith could arise independently of any right of privacy or contract and that the Court in exercise of equitable jurisdiction would restrain breach of confidence independently of any right, at law. In Fraser v. Evans 1969 (1) QB 349, the extension of the doctrine of confidence beyond commercial secrets was recognized. Later in Coco v. A.N. Clark (Engineers) Ltd. [1969] RPC 41; Megarry, J, after reviewing the previous judgments set-out the requirements necessary for an action based on breach of confidence to succeed; it was held : "In my judgment, three elements are normally required, if, apart from contract, a case of breach of confidence is to succeed. First, the information, in the words of Lord Green M.R., 'must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances meriting an application of confidence. Thirdly, there must be an unauthorized use of that information to the detriment of the party communicating it." ....
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.... a breach of trust. Today this nomenclature is misleading. The breach of confidence label harks back to the time when the cause of action was based on improper use of information disclosed by one person to another in confidence. To attract protection the information had to be of a confidential nature. But the gist of the cause of action was that information of this character had been disclosed by one person to another in circumstances 'importing an obligation of confidence' even though no contract of non-disclosure existed: see the classic exposition of Megarry. J. in Coco v. A.N. Clark (Engineers) Ltd. [1969] RPC 41, 47-48. The confidence referred to in the phrase 'breach of confidence' was the confidence arising out of a confidential relationship. 14. This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognized clearly in the judgment of Lord Goff of Chieveley in Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109, 281. Now the law imposes 'a duty of confidence' whenever a person receives information he knows or....
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....btle. Until the Human Rights Act, 1998 came into force, there was no equivalent in English domestic law of article 8 the European Convention or the equivalent articles in other international human rights instruments which guarantee rights of privacy. So the courts of the United Kingdom did not have to decide what such guarantees meant. Even now that the equivalent of article 8 has been enacted as part of English law, it is not directly concerned with the protection of privacy against private persons or corporations. It is, by virtue of section 6 of the 1998 Act, a guarantee of privacy only against public authorities. Although the Convention, as an international instrument, may impose upon the United Kingdom an obligation to take some steps (whether by statute or otherwise) to protect rights of privacy against invasion by private individuals, it does not follow that such an obligation would have any counterpart in domestic law. 50. What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity. And this recognition has raised inescapably the question of why it should be worth protecting against the state ....
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....Newspapers Ltd. (No. 2) [1990] 1 AC 109, 282 by Lord Goff of Chieveley, where he set out the three limiting principles to the broad general principle that a duty of confidence arises when confidential information comes to the knowledge of a person where he has notice that the information is confidential. The third limiting principle is particularly relevant in this case. This is the principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence about a countervailing public interest favouring disclosure. 86. The language has changed following the coming into operation of the Human Rights Act, 1998 and the incorporation into domestic law of article 8 and article 10 of the Convention. We now talk about the right to respect for private life and the countervailing right to freedom of expression. The jurisprudence of the European Court offers important guidance as to how these competing rights ought to be approached and analysed. I doubt whether the result is that the centre of gravity, as my noble and learned friend Lord Hoffman says, has shifted. It seems to me that the balancing exercise to which that guidance is dire....
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....ublic interest that the duty of confidence should be breached. The court will need to consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public. (69) In applying the test of proportionality, the nature of the relationship that gives rise to the duty of confidentiality may be important. Different views have been expressed as to whether the fact that there is an express contractual obligation of confidence affects the weight to be attached to the duty of confidentiality." 49. It may be seen from the above discussion, that originally, the law recognized relationships-either through status (marriage) or arising from contract (such as employment, contract for services etc.) as imposing duties of confidentiality. The decision in Coco (1969) marked a shift, though imperceptibly, to a possibly wider area or zone. Douglas noted the paradigm shift in the perception, with the enactment of the Human Rights Act; even before that, in Attorney General's case (supra) (also called the Spy....
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....ugh the reported cases, discussed above, all dealt with individual right, to confidentiality of private information (Duchess of Argyll (supra); Frazer (supra ); Douglas; Campbell and H.R.H. Prince of Wales (supra) yet, the formulations consciously approved in the Guardian, and Campbell, embrace a wider zone of confidentiality, that can possibly be asserted. For instance, professional records of doctors regarding treatment of patients, ailments of individuals, particulars, statements of witnesses deposing in investigations into certain types of crimes, particulars of even accused who are facing investigative processes, details victims of heinous assaults and crimes, etc., may, be construed as confidential information, which, if revealed, may have untoward consequences, casting a corresponding duty on the person who gets such information - either through effort, or unwittingly, not to reveal it. Similarly, in the cases of corporations and businesses, there could be legitimate concerns about its internal processes and trade secrets, marketing strategies which are in their nascent stages, pricing policies and so on, which, if prematurely made public, could result in irreversible, and u....
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....e, most of the information placed on the website was eventually picked-up in the mainstream media and publication. 54. The defendants argue that granting relief of the kind sought in this case would amount to permanently gagging them thus effectively stifling and extinguishing the Right to Freedom of Press guaranteed under Article 19(1)(a) of the Constitution of India. It was submitted that what even the Legislature of a State or Parliament cannot do, i.e. make a law prohibiting publication of information, in a blanket manner is achieved through the device of an injunction order. The defendants argue that the existence of even the interim injunction each day has resulted in serious prejudice to their right to freedom of Press and that the Court should vacate the order. It was argued that the Courts world over have recognized that free flow of information and ideas is vital for the existence of a democratic society and pre-publication injunctions should ordinarily, if ever, be resorted to only in the rarest of circumstances. It was submitted that it is only in matters of security of the State or where the plaintiff would demonstrably be shown to be prejudiced by pre-mature disclo....
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....d assist in the carrying-out of that exercise. Both Campbell and HRH Prince of Wales talked about proportionality - an obvious reference to the response while granting relief - in balancing the competing claims for right to confidentiality and the need for publication of the information, in the given circumstances of individual cases. In HRH Prince of Wales, the Court referred as a duty to weigh and see whether the order is "a fetter of the Right of Freedom of Expression is, in the broad circumstances 'necessary' in a democratic society." 57. The above approach, in the opinion of the Court, accords with the long line of previous decisions of the Supreme Court. Of course, in each of them, the Court was called upon to decide whether a particular state action violated the Freedom of Speech guaranteed by the Constitution of India. Thus, in Rajgopal's case (supra), for instance, the Court recognized the needs of the same kind of balancing exercise referring to New York Times v. Sullivan 385 US 374 (1967) (where the Court had indicated the test of 'clear and present danger' being the only circumstance justifying prior restraint of press freedom); the Court also noted an interesting de....
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....owers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public monies. How, when, why and where those functions and powers are or are not exercised are matters of real and legitimate concern to every member of the community...So is the performance of the public representatives and officials who are invested with them..." 58. In the United States, in one of the earliest cases, dealing with the issue, Near v. Minnesota, 283 U.S. 697 (1931), the US Supreme Court held that : "If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter-in particular that the matter consists of charges against public officers of official dereliction-and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as ....
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....ion of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. [393 US 503, 509 (1969)] ... What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us." 60. Several of the above decisions were considered in Rajagopal, as follows, before the law was summarized, in terms quoted in a previous part of this judgment : "19. The principle of Sullivan [376 US 254 : 11 L Ed 2d 686 (1964)] was carried forward - and this is relevant to the second question arising in this case - in Derbyshire County Council v. Times Newspapers Ltd. [(1993) 2 WLR 449 : (1993) 1 All ER 1011, HL], a decision rendered by the House of Lords. The plaintiff, a local authority brought an action for damages for libel against the defendants in respect of two article published in Sunday Times questioning the propriety o....
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....[(1990) 2 AC 312 : (1990) 2 All ER 103 : (1990) 2 WLR 606, PC] which arose under section 33B of the Public Order Act, 1972 (Antigua and Barbuda). It provided that any person who printed or distributed any false statement which was "likely to cause fear or alarm in or to the public or to disturb the public peace or to undermine public confidence in the conduct of public affairs" shall be guilty of an offence. The appellant, the editor of a newspaper, was prosecuted under the said provision. He took the plea that the said provision contravened section 12(1) of the Constitution of Antigua and Barbuda which provided that no person shall be hindered in the enjoyment of freedom of expression. At the same time, sub-section (4) of section 12 stated that nothing contained in or done under the authority of law was to be held inconsistent with or in contravention of sub-section 12(1) to the extent that the law in question made provisions reasonably required in the interest of public order. [These provisions roughly correspond to Articles 19(1)(a) and 19(2) respectively.] The Privy Council upheld the appellant's plea and declared section 12(1) ultra vires the Constitution. It held that section....
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....trictions imposed on the exercise of the rights under articles 19(1)(a) and 19(1)(g) reasonable in view of all the surrounding circumstances ? In other words are the restrictions reasonably necessary in the interest of public order under article 19(2) or in the interest of the general public under article 19(6)?" (p. 900) S. Rangarajan v. P. Jagjivan Ram 1989 (2) SCC 574, formulated the principle as follows : "Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. [In other words, the expression should be inseparably] like the equivalent of a 'spark in a power keg'." (p. 595) 62. Odyssey Communications (P.) Ltd. v. Lokvidayan Sanghatana AIR 1988 SC 1642, was a case where the Supreme Court in an earlier interim order injuncted screening of the film "Honi-Anhoni". The plaintiff had sought and obtained an injunction pleading that t....
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....holding is controlled by the Public Sector Undertakings which are directly answerable to the Central Government and Parliament. Therefore, the claim for confidentiality has to be necessarily from the view of the plaintiff's accountability to such extent as well as its duties which have a vital bearing on the availability and presence of gas in the country. 65. As far as the complaint that the plaintiff would be violating SEBI regulations is concerned, no specific norm was brought to the notice of the Court which would attract penal action or other sanctions by the SEBI, due to impugned discussion, in the news reports, about its functioning. The various courses mandated by the regulations shown to the Court concern internal processes of company as well as information relating to insider trading, share prices and other product information; the need to maintain "Chinese Wells" for ensuring integrity of information flow within the organization and so on. However, these nowhere inhibit publication of information which is otherwise available to third parties or becomes available to a third party. No sanctions have been indicated nor shown to the Court. Therefore, the plaintiff's compl....
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....tiff and three others, which needed LNG were in active negotiations with Exxon Mobil. The purpose of this negotiation process was for supply of LNG to the Kochi Terminal from Exxon's share of gas, from the $7.3 billion Gorgon LNG in Australia. The news item was on 26-4-2006 and recounted what had been discussed, i.e. completion of terminal before date of commencement of supply; obligations of sales and purchase agreement till receiving facilities were completed; and that to mitigate certain obligations in the event of delayed completion, devaluation of cargo could take place to other terminals which in the case of force majeure could not be enforced. The news report also stated that Exxon Mobil asked the plaintiff to "revisit the present agreement proposed in view of the rise in prices of petro-products". 68. Aside from indicating broad generality of what was allegedly negotiated by the plaintiff and Exxon Mobil in relation to completion of the terminal at Kochi before commencement of supply, the obligations under sale and purchase agreement; dealing with cargo till creation of capacity and applicability or otherwise of the guarantee, absolutely no specifics or particulars were ....
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....or even contemplating it, the publication of such discussion was not prejudicial. This Court is of the opinion that the news item relating to PMO directive's can hardly be deemed confidential and would facially fall within the prohibited category spoken of in Sullivan as endorsed in Rajgopal and also in the Guardian case. After all, dissemination of news - even unpleasant and unwelcome news or information, particularly, if it relates to public bodies, is of the essence in a democracy. Wherever the general public or public agencies have a stake, in companies or corporations like the plaintiff, their right to be informed about matters that concern the functioning of such corporations, is vitally important. This could include discussions of the kind which the plaintiff is confronted with - i.e. the question of implementing PMOs directives. The topicality and newsworthiness of such reports is undeniable; some may even argue that the press could sensationalize the facts in presentation of such information, yet the right to disseminate these view is at the core of freedom of speech and expression and any restraint would have a chilling effect on its exercise. 70. So far as the article....
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....ing the judgment of the Supreme Court in S. Rangarajan, Virendra, Rajgopal (supra) as well as that of the US Supreme Court in Sullivan, is of the opinion that the public interest in ensuring dissemination of news and free flow of ideas, is of paramount importance. The news or information disclosure of which may be uncomfortable to an individual or corporate entity but which otherwise fosters a debate and awareness about functioning of such individuals or bodies, particularly, if they are engaged in matters that affect people's lives, serve a vital public purpose. Very often, the subject of information or news - i.e. the individual or corporation may disagree with the manner of its presentation. If it contends that such presentation tends to defame or libel, it is open for the entity or individual to sue for damages. In the case of a corporate entity, unless the news presented is of such a sensitive nature that its business or very existence is threatened or would gravely jeopardize a commercial venture, the Courts would be slow in interdicting such publication. The Constitution's democratic framework, depends on a free commerce in ideas, which is its life blood. In the words of Wal....