CHIEF ELECTION COMMISSIONER OF INDIA versus M.R VIJAYABHASKAR & ORS.
[2021] 5 S.C.R. 196, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Ratio
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   [2021] 5 S.C.R. 196
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THE CHIEF ELECTION COMMISSIONER OF INDIA
v.
M.R VIJAYABHASKAR & ORS.
(Civil Appeal No. 1767 of 2021)
MAY 06, 2021
[DR DHANANJAYA Y CHANDRACHUD
AND M. R. SHAH, JJ.]
Constitution of India:
Arts. 32, 226, 19(1)(a), 19(2) – Freedom of the media to report
court proceedings – High Court made certain oral remarks
attributing responsibility to the Election Commission-EC for the
present surge in the number of cases of COVID-19, due to their
failure to implement COVID-19 related protocol during the elections
– Oral remarks were ‘EC is singularly responsible for the second
wave of Covid-19 and that the EC should be put up for murder
charges” – Said remarks though not part of order of the High Court,
were reported in print, electronic and tele media – EC seeking a
direction to restrain the media from reporting on court proceedings;
and that the oral remarks are baseless and tarnishing the image of
EC as an independent constitutional authority – On appeal, held:
Language is an important instrument of a judicial process which is
sensitive to constitutional values – High Court was faced with a
situation of rising cases of COVID-19 and, as a constitutional Court,
was entrusted with protecting the life and liberty of citizens – Remarks
of the High Court were harsh, it did not seek to attribute culpability
for the COVID-19 pandemic in the country to the EC – Instead it
intended to urge the EC to ensure
stricter compliance of COVID-19
related protocols during elections – Moreso, oral observations do
not constitute a part of the official judicial record – Thus, there is
no substance in the prayer of the EC for restraining the media from
reporting on court proceedings.
Arts. 19(1)(a), 19(2) – Freedom of expression of the Media –
Reporting the proceedings of judicial institutions – Importance of
– Held: Constitution guarantees the media the freedom to inform,
to distill and convey information on all matters of interest – Freedom
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of speech and expression extends to reporting the proceedings of
judicial institutions as well – Courts are entrusted to perform crucial
functions under law which has direct impact not only on the rights
of citizens, but also the extent to which the citizens can exact
accountability from the executive – Therein lies the importance of
freedom of the media to comment on and write about proceedings –
Furthermore, media has over the years, transitioned from the
predominance of newspapers to internet for disseminating news,
views and ideas to audiences beyond national boundaries – This,
would also include information reported about the functioning of
courts – Hence, it would do no good to prevent the new forms of
media from reporting judicial proceedings.
Judiciary:
Open Courts – Concept of – Held: Concept of open court
requires that information relating to a court proceeding must be
available in the public domain – Open access to courts is essential
to safeguard valuable constitutional freedoms – Courts must be open
both in the physical and metaphorical sense, save and except for
in-camera proceedings in an exceptional category of cases – Open
court proceeding ensures that the judicial process is subject to public
scrutiny – Public scrutiny is crucial to maintaining transparency
and accountability – There are multiple ways in which an open court
system contributes to the working of democracy.
Judicial accountability – Public Discourse and Media
Reporting –
Held: Rights of the media to report and disseminate
issues and events, including court proceedings are a part of the
public domain – This is not merely an aspect of protecting the rights
of individuals and entities on reporting, but also a part of the process
of augmenting the integrity of the judiciary and the cause of justice
as a whole.
Judicial conduct – Freedom and constraints of – Held:
Independence of the judiciary translates to being impartial, free
from bias and uninfluenced by the actions of those in power, but
also recognizes the freedom to judges to conduct court proceedings
within the contours of the principles of natural justice – Judges in
the performance of their duty must remain faithful to the oath of the
office they hold, which requires them to bear allegiance to the
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Constitution – An independent judiciary must also be one which is
accountable to the public in its actions and omissions.
Judicial restraint and discipline – Exercise of – Held: Power
of judges must not be unbridled and judicial restraint must be
exercised, before using strong and scathing language to criticize
any individual or institution – This Court must strike a balance
between reproaching the High Courts or lower courts unnecessarily,
so as to not hamper their independent functioning – This Court
must also intervene where judges have overstepped the mark and
breached the norms of judicial propriety.
Disposing of the appeal, the Court
HELD: 1. The oral remarks “EC-Election Commission is
the institution that is singularly responsible for the second wave of
Covid-19 and that the EC should be put up for murder charges”
are not a part of the official judicial record, and therefore, the
question of expunging does not arise. It is trite to say that a formal
opinion of a judicial institution is reflected through its judgments
and orders, and not its oral observations during the hearing.
Hence, there is no substance in the prayer of the EC for
restraining the media from reporting on court proceedings. This
Court stands as a staunch proponent of the freedom of the media
to report court proceedings. This is integral to the freedom of
speech and expression of those who speak, of those who wish to
hear and to be heard and
above all, in holding the judiciary
accountable to the values which justify its existence as a
constitutional institution. [Para 43][230-G-H; 231-A-B]
2.1 Courts must be open both in the physical and
metaphorical sense. Save and except for in-camera proceedings
in an exceptional category of cases, such as cases involving child
sexual abuse or matrimonial proceedings bearing on matters of
marital privacy, our legal system is founded on the principle that
open access to courts is essential to safeguard valuable
constitutional freedoms. The concept of an open court requires
that information relating to a court proceeding must be available
in the public domain. Citizens have a right to know about what
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transpires in the course of judicial proceedings. The dialogue in
a court indicates the manner in which a judicial proceeding is
structured. Oral arguments are postulated on an open exchange
of ideas. It is through such an exchange that legal arguments are
tested and analyzed. Arguments addressed before the court, the
response of opposing counsel and issues raised by the court are
matters on which citizens have a legitimate right to be informed.
An open court proceeding ensures that the judicial process is
subject to public scrutiny. Public scrutiny is crucial to maintaining
transparency and accountability. Transparency in the functioning
of democratic institutions is crucial to establish the public‘s faith
in them. [Para 19][215-D-G]
2.2 There are multiple ways in which an open court system
contributes to the working of democracy. An open court system
ensures that judges act in accordance with law and with probity.
Public scrutiny fosters confidence in the process. Public
discussion and criticism may work as a restraint on the conduct
of a judge. Cases before the courts are vital sources of public
information about the activities of the legislature and the
executive. An open court serves an educational purpose as well.
The court becomes a platform for citizens to know how the
practical application of the law impacts upon their rights. However,
there are certain exceptions to the rule of open courts in India.
[Paras 20-23][216-B, E-G; 217-A]
Mohammed
Shahabuddin v. State of Bihar (2010) 4 SCC
653 : [2010] 3 SCR 911; Naresh Shridhar Mirajkar v.
State of Maharashtra [1966] 3 SCR 744; Swapnil
Tripathi v. Supreme Court of India (2018) 10 SCC 639
: [2018] 11 SCR 57 – referred to
R v. Socialist Workers Printers, ex p Attorney General
[1974] 3 WLR 801 – referred to.
3.1 The Constitution guarantees the media the freedom to
inform, to distill and convey information and to express ideas
and opinions on all matters of interest. Freedom of speech and
expression extends to reporting the proceedings of judicial
institutions as well. Courts are entrusted to perform crucial
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functions under the law. Their work has a direct impact, not only
on the rights of citizens, but also the extent to which the citizens
can exact accountability from the executive whose duty it is to
enforce the law. Citizens are entitled to ensure that courts remain
true to their remit to be a check on arbitrary exercises of power.
The ability of citizens to do so bears a direct correlation to the
seamless availability of information about what happens in a court
during the course of proceedings. Therein lies the importance of
freedom of the media to comment on and write about
proceedings.This principle was recognized in the Madrid
Principles on the Relationship between the Media and Judicial
Independence. This principle is recognized within Indian
jurisprudence, where the media has full freedom to report on
ongoing litigation before the Courts, within certain limitations,
bearing on the need to ensure that justice between parties is not
derailed. [Paras 24-26][219-D; 220-B-F]
3.2 The media has over the years, transitioned from the
predominance of newspapers in the printed form, to radio
broadcasts, television channels and now, to the internet for
disseminating news, views and ideas to wide audiences extending
beyond national boundaries. The internet, including social media,
have refashioned and, in significant ways, revolutionized the
means through which information is relayed. At every stage of
this transition, new
questions have been raised about how court
processes will adapt to the change, so that the rights of the parties
before the courts and processes of justice are not affected.
However, while these are valid concerns, they should never be a
good enough reason for Courts to not engage with evolving
technology. Technology has shaped social, economic and political
structures beyond description. The world is adapting to
technology at a pace which is often difficult to catalogue, and many
of our citizens are becoming digital natives from a young age. It
is understandable that they will look towards modern forms of
media, such as social media websites and applications, while
consuming the news. This, understandably, would also include
information reported about the functioning of courts. Hence, it
would do us no good to prevent the new forms of media from
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reporting on our work. Our Court has performed its modest part
to acknowledge the rapid pace of the development of technology,
and our need to keep up. Acceptance of a new reality is the surest
way of adapting to it. Our public constitutional institutions must
find better responses than to complain. [Paras 27, 28][220-G;
221-A-D, F-G; 222-D]
Express Newspaper (P) Limited v. Union of India [1959]
SCR 12; LIC v. Manubhai D. Shah (Prof.) (1992) 3
SCC 637 : [1992] 3 SCR 595; Swapnil Tripathi v.
Supreme Court of India (2018) 10 SCC 639 : [2018]
11 SCR 57 – referred to
Daniel Stepniak, Technology and Public Access to
Audio-Visual Coverage and Recordings of Court
Proceedings: Implications for Common Law
Jurisdictions‘ 12 William & Mary Bill of Rights Journal
791 (2004) – referred to.
Madrid Principles on the Relationship between the
Media and Judicial Independence <https://www.icj.org/
wp-content/uploads/1994/01/madrid-principles-on-
media-and-judicial- independence-publication-1994-
eng.pdf>; ‘Practice Guidance: The Use of Live Text-
Based Forms of Communication (Including Twitter) from
Court for the Purposes of Fair and Accurate Reporting‘
available at <https://www.judiciary.uk/wp- content/
uploads/JCO/Documents/Guidance/ltbc-guidance-dec-
2011.pdf > - referred to.
4.1 As it is understood the rights of the media to report
and disseminate issues and events, including court proceedings
that are a part of the public domain, it is important to contextualize
that
this is not merely an aspect of protecting the rights of
individuals and entities on reporting, but also a part of the process
of augmenting the integrity of the judiciary and the cause of justice
as a whole. [Para 29][222-E-F]
4.2 With the exception of in camera proceedings, a
courtroom is a public space. An open court and transparent
dispensation of justice in all its modalities, is an end in itself.
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Technology is an accelerant in this endeavor, but not the harbinger
of this thought. Media reporting has operated alongside
formalized court processes for close to a century. Post-
independence, matters of seminal constitutional importance have
witnessed widespread reportage in newspapers and magazines -
which did not merely report on the pronouncement of verdicts,
but also the quirks of the counsel and judges. [Para 30, 31]
[222-F-H; 223-D-E]
4.3 With the advent of technology, reporting is seen to
proliferate through social media forums which provide real-time
updates to a much wider audience. This is an extension of the
freedom of speech and expression that the media possesses. This
constitutes a virtual‘ extension of the open court. This
phenomenon is a not a cause of apprehension, but a celebration
of our constitutional ethos which bolsters the integrity of the
judiciary by focusing attention on its functions. Several courts
across the world, including the US Supreme Court, the UK
Supreme Court, the Court of Appeal of the UK and the
International Criminal Court enable public viewership of
proceedings through livestreaming or other suitable open access
methodology. The Gujarat High Court also recently introduced
livestreaming of its proceedings, in a bid to enhance public
participation in the dispensation of justice. In this backdrop, it
would be retrograde for this Court to promote the rule of law and
access to
justice on one hand, and shield the daily operations of
the High Courts and this Court from the media in all its forms, by
gagging the reporting of proceedings, on the other. [Para 33]
[223-H; 224-A-D]
Emperor v. Balgangadhar Tilak, (1908) 10 BOMLR
848 – referred to.
Attorney General v. Leveller Magazine [1979] A.C. 440
– referred to.
5.1 The grievance of the EC does not arise as much from
the impugned order of the Madras High Court, as it does from
the oral remarks made by the judges of the High Court during
the hearing. The High Court has not been impleaded before this
Court and has not had an opportunity to respond. Thus, this Court
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is unable to discover what truly transpired in the proceedings
and the exact remarks that were made. Unless live-streaming
and archival of court proceedings sees the light of the day, the
absence of records of oral proceedings would continue to bedevil
the system. However, a constitutional authority-EC, has adverted
to the oral remarks on oath in its affidavit. These have not been
disputed by the respondent. The oral remarks have received
widespread publicity in electronic and print media. This Court
has, in deference to the independent constitutional status of the
High Court, not required a confirmatory report from the Registrar
General of the High Court. [Para 34][224-D-G]
5.2 The independence of the judiciary from the executive
and the legislature is the cornerstone of our republic.
Independence translates to being impartial, free from bias and
uninfluenced by the actions of those in power, but also recognizes
the freedom to judges to conduct court proceedings within the
contours of the well-established principles of natural justice.
Judges in the performance of their duty must remain faithful to
the oath of the office they hold, which requires them to bear
allegiance to the Constitution. An independent judiciary must also
be one which is accountable to the public in its actions (and
omissions). [Para 34][224-G-H; 225-A]
5.3 The manner in which judicial proceedings are conducted,
especially in ther superior courts, is unique to each judge and
holds
great weight in the dispensation of justice. The issues raised
or comments made by the Bench during an oral hearing provide
clarity not just to the judges who adjudicate upon the matter, but
also allow the lawyers to develop their arguments with a sense of
creativity founded on a spontaneity of thought. Many a times,
judges play the role of a devil‘s advocate with the counsel to
solicit responses which aid in a holistic understanding of the case
and test the strength of the arguments advanced before them.
That is where the real art of advocacy comes to play. The order
or judgment of the court must indicate a process of reflection
and of the application of mind of the judge to the submissions of
opposing parties. [Para 36][225-B-D]
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5.4 The diversity of judicial backgrounds brings polyvocality
in judgments and has enriched our jurisprudence for over seven
decades since Independence. The humanity intrinsic to each judge
allows them to transcend the language of the law to do complete
justice. In the pursuit of doing justice and in the course of an
open deliberation in court, propositions may be put forth and
observations are made in order to facilitate the process of arriving
at an acceptable outcome based on the law but which is in accord
with justice. Observations during the course of a hearing do not
constitute a judgment or binding decision. They are at best
tentative points of view, on which rival perspectives of parties in
conflict enable the judge to decide on an ultimate outcome. This
exchange of views, perspectives and formulations is but a part of
evolving towards a solution which accords with justice according
to law. An exchange of views from the Bench is intrinsic to a
process of open and transparent judging. The revealing of a
judges‘ mind enables opposing parties to persuade them to their
points of view. If this expression were to be discouraged the
process of judging would be closed. [Para 37][225-D-G]
5.5 The duty to preserve the independence of the judiciary
and to allow freedom of expression of the judges in court is one
end of the spectrum. The other end of the spectrum, which is
equally important, is that the power of judges
must not be
unbridled and judicial restraint must be exercised, before using
strong and scathing language to criticize any individual or
institution. In balancing the two ends, the role of superior courts
is especially relevant. This Court must strike a balance between
reproaching the High Courts or lower courts unnecessarily, so
as to not hamper their independent functioning. This court must
also intervene where judges have overstepped the mark
and breached the norms of judicial propriety. [Paras 38, 39]
[228-C-D; 229-C]
6.1 This Court is tasked with balancing the rights of two
independent constitutional authorities. On one hand is the Madras
High Court, which is a constitutional court and enjoys a high
degree of deference in the judicial structure of this country. The
High Courts perform an intrinsic role as appellate courts and as
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courts of first instance in entertaining writ petitions under Article
226 (and as courts of original civil and criminal jurisdiction in
certain cases. They are often the first point of contact for citizens
whose fundamental rights have been violated. High Courts are
constantly in touch with ground realities in their jurisdictions.
During the COVID-19 pandemic, the High Courts across the
country have shown commendable foresight in managing the
public health crisis which threatens to submerge humanity. Their
anguish when they come face to face with reality must be
understood in that sense. On the other hand is the EC, a
constitutional authority tasked with the critical task of undertaking
superintendence and control of elections under Article 324 of
the Constitution. The EC has facilitated the operation of our
constitutional democracy by conducting free and fair elections
and regulating conduct around them for over seven decades. Its
independence and integrity are essential for democracy to thrive.
This responsibility covers powers, duties and myriad functions
which are essential for conducting the periodic exercise
of breathing life into our democratic political spaces.
[Para 40][229-D-H]
6.2 The High Court was faced with a situation of rising cases
of COVID-19 and, as a constitutional Court, was entrusted with
protecting the life and liberty of citizens. The remarks of the High
Court were harsh. The metaphor inappropriate. The High Court-
if indeed it did
make the oral observations which have been
alluded to- did not seek to attribute culpability for the COVID-
19 pandemic in the country to the EC. What instead it would
have intended to do was to urge the EC to ensure stricter
compliance of COVID-19 related protocols during elections.
[Para 41][230-A-C]
6.3 The need for judges to exercise caution in off-the-cuff
remarks in open court, which may be susceptible to
misinterpretation is emphasised. Language, both on the Bench
and in judgments, must comport with judicial propriety. Language
is an important instrument of a judicial process which is sensitive
to constitutional values. Judicial language is a window to a
conscience sensitive to constitutional ethos. Bereft of its
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understated balance, language risks losing its symbolism as a
protector of human dignity. The power of judicial review is
entrusted to the High Courts under the Constitution. So high is
its pedestal that it constitutes a part of the basic features of the
Constitution. Yet responsibility bears a direct co-relationship with
the nature and dimensions of the entrustment of power. A degree
of caution and circumspection by the High Court would have
allayed a grievance of the nature that has been urged in the instant
case. It is clarified that the oral observations during the course
of the hearing have passed with the moment and do not constitute
a part of the record. The EC has a track record of being
an independent constitutional body which shoulders a significant
burden in ensuring the sanctity of electoral democracy.
[Para 42][230-D-G]
Swapnil Tripathi v. Supreme Court of India (2018) 10
SCC 639 : [2018] 11 SCR 57; Kashi Nath Roy v. State
of Bihar (1996) 4 SCC 539 : [1996] 1 Suppl. SCR 558;
Dr Raghubir Saran v. State of Bihar and Another [1964]
2 SCR 336; A.M Mathur v. Pramod Kumar Gupta (1990)
2 SCC 533 : [1990] 2 SCR 110; Mohinder Singh Gill
v. Chief Election Commr., (1978) 1 SCC 405 : [1978] 2
SCR 272 – Referred to.
Sirros v. Moore [1975] QB 118 – referred to.
Case Law Reference
[2010] 3 SCR 911
referred to
Para 19
[1966] 3 SCR 744
referred to
Para 21
[2018] 11 SCR 57
referred to
Para 22, 28, 35
[1959] SCR 12
referred
to
Para 24
[1992] 3 SCR 595
referred to
Para 25
(1908) 10 BOMLR 848
referred to
Para 30
[1996] 1 Suppl. SCR 558
referred to
Para 37
[1964] 2 SCR 336
referred to
Para 37
[1990] 2 SCR 110
referred to
Para 38
[1978] 2 SCR 272
referred to
Para 40
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1767
of 2021.
From the Judgment and Order dated 30.04.2021 of the High Court
of Judicature at Madras in W.P. No. 10441 of 2021.
Rakesh Dwivedi, Sr. Adv., Amit Sharma, Dipesh Sinha, Pallavi
Barua, Prateek Kumar, Eklavya Dwivedi, Advs. for the Appellant.
Pradeep Kumar Yadav, Ms. ShikhaYadav, Abhay Singh Yadav,
Sanjeev Malhotra, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into the following sections to
facilitate analysis:
A. Factual Background
B. Proceedings before the Supreme Court
C. Legal Position & Analysis
C.1
Open Courts and the Indian Judiciary
C.2
Freedom of Expression of the Media
C.3
Public Discourse, Media Reporting and Judicial
Accountability
C.4
Freedom and constraints of judicial conduct
D. Conclusion
1. Leave granted.
A. Factual Background
2. A delicate question of balancing the powers of two constitutional
authorities in this appeal has raised larger issues of the freedom of speech
and expression of the media, the right to information of citizens and the
accountability of the judiciary to the nation. The authority of a judge to
conduct judicial proceedings and to engage in a dialogue during the course
of a hearing and the freedom of the media to report not just judgments
but judicial proceedings have come up for discussion. What are the
contours which outline judicial conduct? What are the concerns courts
must be alive to in an age defined by the seamless flow of information?
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What purpose does the media serve in a courtroom? Above all, in a
constitutional framework founded on a classical scheme of checks and
balances, can a constitutional body – in this case the Election Commission
of India1 – set up a plea that constitutional status is an immunity from
judicial oversight? Each of these components will be addressed in this
judgment.
3. This Special Leave Petition2 arises from an order dated 30
April 2021 of a Division Bench of the High Court of Judicature at Madras.
The High Court entertained a writ petition3 under Article 226 of the
Constitution to ensure that COVID-related protocols are followed in the
polling booths at the 135- Karur Legislative Assembly Constituency in
Tamil Nadu. During the hearings, the Division Bench is alleged to have
made certain remarks, attributing responsibility to the EC for the present
surge in the number of cases of COVID-19, due to their failure to
implement appropriate COVID-19 safety measures and protocol during
the elections. At issue are these oral remarks made by the High Court,
which the EC alleges are baseless, and tarnished the image of the EC,
which is an independent constitutional authority.
4. On 26 February 2021, the EC announced general elections to
the Legislative Assemblies of Tamil Nadu, Kerala, West Bengal, Assam
and Puducherry4. The schedule of elections in the State of Tamil Nadu
involved polling on 6 April 2021 and counting of votes on 2
May 2021.
While preparing for the elections, the EC issued a letter dated 12 March
20215 to the presidents and general secretaries of all national and State
political parties emphasizing on the observance of instructions related to
COVID-19 protocol during the elections. During the polling phase, the
EC issued another letter dated 9 April 20216 to political parties stating
that norms of social distancing, wearing of masks and other COVID-19
related restrictions, were not being followed by candidates set up by
political parties. It also noted that in case the breach of norms continued,
the EC would consider banning public meetings and rallies. Eventually,
the EC by an order dated 16 April 20217 banned rallies, public meetings
1 “EC”
2 “SLP”
3 WP No. 10441 of 2021
4 Press Note No. ECI/PN/16/2021
5 Letter No. 4/21/2021/SDR/VOL-I
6 Letter No. 4/2021/SDR/Vol.I
7 Order No. 464/WB-LA/2021
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and street plays during the days of the campaign between 7 pm and 10
am. Another letter8 was issued on the same day re-emphasizing strict
adherence to COVID-19 related safety protocols.
5. A writ petition was filed before the Madras High Court by the
respondent, who is the District Secretary and was a candidate of the
AIADMK for the 135-Karur Legislative Assembly Constituency. Given
the surge in the number of COVID-19 cases, the respondent had sent a
representation on 16 April 2021 to the EC to take adequate precautions
and measures to ensure the safety and health of officers in the counting
booths. Since no response was received, the respondent approached the
High Court and sought a direction to ensure fair counting of votes on 2
May 2021 at the 135- Karur Legislative Assembly Constituency by taking
effective steps and arrangements in accordance with COVID-19
protocols.
6. The petition was heard by a Division Bench of the High Court,
comprising of Justice Sanjib Banerjee, Chief Justice of the Madras High
Court, and Justice Senthilkumar Ramamoorthy, on 26 April 2021 and an
order was passed in the following terms:
“4. […] Even though the polling was by and large peaceful in this
State on April 6, 2021, it must be observed that the Election
Commission could not ensure that political parties adhered to the
Covid protocol at the time of election campaigns and rallies. Despite
repeated orders of this Court, going on like a broken record at the
foot of almost
every order on an election petition, that Covid
protocol ought to be maintained during the campaign time, the
significance of adhering to such protocol may have been lost on
the Election Commission, going by the silence on the part of the
Election Commission as campaigning and rallies were conducted
without distancing norms being maintained and in wanton disregard
of the other requirements of the protocol.
5. In view of the rapid surge in the number of cases on a daily
basis, albeit this State not yet being as badly affected as some
other States, the measures to be adopted at the time of the counting
of votes on May 2, 2021, which is about a week away, should
already have been planned in the light of the grim situation now
prevailing. At no cost should the counting result in being a catalyst
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for a further surge, politics or no politics, and whether the counting
takes place in a staggered manner or is deferred. Public health is
of paramount importance and it is distressing that Constitutional
authorities have to be reminded in such regard. It is only when the
citizen survives that he enjoys the other rights that this democratic
republic guarantees unto him. The situation is now one of survival
and protection and, everything else comes thereafter.
6. As far as the Karur constituency is concerned, it is submitted
on behalf of the Election Commission that two halls, one measuring
about 3500 sq.ft and the other measuring in excess of 4000 sq.ft,
have been arranged. Upon the Court’s query whether such spaces
would be adequate if most of the 77 candidates were to engage
agents at the time of counting, the Election Commission claims
that all but two of the independent candidates have indicated that
they would not engage any agents at the time of counting and
only seven out of nine major political parties have confirmed in
writing that they would be appointing agents.
7. In such a scenario, the Election Commission does not expect
that Covid protocol and appropriate measures cannot be taken if
counting is conducted at the two designated halls. The Election
Commission says that six additional counting tables have been
organized so that distancing norms can be maintained.
8. Similar appropriate measures have to be
adopted at every
counting centre and it is only upon maintaining regular sanitization,
proper hygienic conditions, mandatory wearing of mask and
adherence to the distance norms, should any counting begin or be
continued. The State Health Secretary and the Director of Public
Health should be consulted by the Election Commission and the
Chief Electoral Officer responsible in the State, to put appropriate
measures in place immediately.
9. The matter will appear on April 30, 2021 to review the situation
when a complete picture as to adequate steps having been taken
at all counting centres should be indicated by the Election
Commission. […]”
7. During the course of the hearing, it is alleged that the High
Court orally observed that the EC is “the institution that is singularly
responsible for the second wave of COVID-19” and that the EC
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“should be put up for murder charges”. These remarks, though not
part of the order of the High Court, were reported in the print, electronic
and tele media.
8. On 27 April 2021, an individual filed a complaint, against Mr
Sudip Jain, Deputy Election Commissioner and other officials of the EC
under Sections 269, 270 and 304 read with Section 120-B of the Indian
Penal Code, 1860 in Khardah Police Station, Kolkata. The complaint
makes no reference to the order dated 26 April 2021 of the Madras
High Court.
9. Before the Madras High Court, the EC filed a counter-affidavit
detailing the orders issued and the steps taken for management of poll
processes in view of the pandemic. The EC also filed a miscellaneous
application9 for the following reliefs:
“[…]
29. …this Hon’ble Court may be pleased to pass an order of
interim direction directing that only what forms part of the
record in the present proceedings W.P. No. 10441/2021 is
to be reported by the press and electronic media and
further directions may be issued to the media houses to
issue necessary clarification in this regard and thus render
Justice.
30. In the circumstances, it is prayed that this Hon’ble Court
may be pleased to pass on order of interim direction
directing that the police authorities shall not register any
FIR/complaint for offence of Murder on the basis of the
media reports of the oral observations attributed to this
Hon’ble Court in relation to W.P. No. 10441/2021 and thus
render
Justice.”
(emphasis supplied)
10. The matter was heard again by the Madras High Court on 30
April 2021 when the High Court disposed of the petition, in view of the
measures taken by the EC for observance of COVID-19 protocols at
the time of the counting of votes on 2 May 2021, particularly in the 135-
Karur Constituency. The miscellaneous application was also closed in
light of this order.
9 WMP No. 12062 & 12065 of 2020
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11. Aggrieved by the order of 30 April 2021, the EC has approached
this Court. The grievance is that its miscellaneous application has not
been evaluated on merits and its grievance in regard to the oral
observations made during the previous hearing have not been addressed.
B. Proceedings before the Supreme Court
12. Before this Court, the EC has challenged the order dated 30
April 2021. An IA for amendment has been filed to challenge the earlier
order, which has now merged in the final order. By way of interim relief,
a stay has been sought on the order dated 30 April 2021, besides which
the following relief has been sought in terms of an interlocutory direction:
“b) direct that no coercive action be taken against the
officials of the Election Commission of India in connection
with the Complaint dated 27.04.2021 filed by Smt. Nandita
Sinha before the Officer- in-Charge, Khardah Police Station,
Kolkata (Annexure-P/19 herein)”
(emphasis supplied)
13. Mr Rakesh Dwivedi, learned Senior Counsel who appeared
with Mr Amit Sharma, on behalf of the EC urged the following
submissions:
(i)
The High Court ought not to have made disparaging oral
observations that the EC is the “the institution that is
singularly responsible for the second wave of COVID-
19” and that the EC “should be put up for murder
charges”:
(a) These observations bear no relevance to the nature of
the controversy before the High Court, which related to
the
need to make arrangements for safe counting of votes
consistent with COVID-19 protocols at the 135- Karur
Legislative Assembly Constituency;
(b) The polling had already been completed and only the
counting of votes remained on 2 May 2021;
(c) These observations were made without giving the EC
an opportunity to explain the steps it had taken for
maintenance of COVID-19 protocols and it had no notice
that its conduct of the elections during the campaign would
engage attention during the hearing;
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(d) The High Court has made disparaging oral observations
without proof or material; and
(e) The High Court disposed of the writ petition without
addressing the miscellaneous application filed by the EC;
(ii)
The remarks made by the High Court were widely reported
in the media and have tarnished the image of the EC as an
independent constitutional authority. These remarks have
reduced the faith of the people in the EC and undermined
the sanctity of its constitutional authority;
(iii)
The scope of judicial review over the EC in matters
pertaining to the conduct of elections is limited and courts
should exercise restraint while making observations about
the EC or the electoral process, as it falls within the domain
of another expert constitutional authority;
(iv)
The EC had conducted various State elections during the
pandemic and had taken adequate measures to enforce
protocols relating to COVID-19. The actual enforcement
of protocols and safety measures on the ground is in the
hands of the State machinery. The EC does not take over
governance by the States even during elections and has a
limited number of personnel at its disposal;
(v)
When the decision to conduct elections in Tamil Nadu was
taken in February 2021 and during campaigning (which
ended on 4 April 2021), the number of cases of COVID-19
was under control and an analysis of the data would indicate
that the elections were not a significant factor in the surge
of cases. States where no elections
were held such as
Maharashtra, Delhi and Karnataka have witnessed a severe
surge in cases;
(vi)
The EC had formulated adequate guidelines for campaigning
during the pandemic and had restricted the scope of
electioneering;
(vii) The observations of the High Court during the oral hearings,
which are not part of the written judicial record, have caused
undue prejudice to the EC;
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(viii) The media must ensure there is accurate reporting of court
proceedings and proceedings must not be sensationalized,
leading to a loss of public confidence. Directions and
guidelines must be framed on the manner of reporting court
proceedings;
(ix)
A balance must be maintained between the conduct of court
proceedings and the freedom of the media. Media reporting
which suggests that a court has cast aspersions on any
person or functionary is incorrect; and
(x)
Though the views of a court are reflected through its
judgments, oral comments of judges are quoted in the
mainstream media which may give an impression of an
institutional opinion. This exceeds the boundaries of judicial
propriety.
14. Opposing the submissions, Mr Pradeep Kumar Yadav,
appearing on behalf of respondent on caveat, stressed on the fact that
the EC enjoys wide ranging powers in a State during the time of an
election, including powers to deploy para military forces, suspend or
replace officers such as District magistrates, police officers and even
the Director General of Police, to ensure that their directives are followed.
Thus, the EC was responsible for the implementation of safety measures
and protocols related to COVID-19 during the elections.
15. We shall now consider the submissions of the counsel from
the perspective of the issues this case has raised.
C. Legal Position & Analysis
16. Before this Court, the EC is aggrieved by the oral
observations
of the High Court during the course of the hearing and by it not having
addressed the merits of its miscellaneous application. In its miscellaneous
application, the EC sought (i) media reporting of only what forms a part
of the judicial record before the Madras High Court and not the oral
observations of the judges; and (ii) a direction that no coercive action be
taken against the officials of the EC on the complaint filed before the
Khardah Police Station, Kolkata.
17. At the outset, it must be noted that the second prayer noted
above was thoroughly misconceived. If an FIR has been registered in
Kolkata, the person aggrieved has recourse to remedies under the Code
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of Criminal Procedure, 1973. There are remedies under the law, including
but not limited to quashing under Section 482 of the Code of Criminal
Procedure, 1973. The EC cannot have a grievance if it opted for a
misconceived course of action, which the High Court could not possibly
have entertained.
18. We must now deal with the heart of the matter, which is the
first prayer that the EC has raised - that of seeking a restraint on the
media on reporting court proceedings. The basis of its application was
that nothing apart from what forms a part of the official judicial record
should be reported. This prayer of the EC strikes at two fundamental
principles guaranteed under the Constitution – open court proceedings;
and the fundamental right to the freedom of speech and expression.
C.1 Open Courts and the Indian Judiciary
19. Courts must be open both in the physical and metaphorical
sense. Save and except for in-camera proceedings in an exceptional
category of cases, such as cases involving child sexual abuse or
matrimonial proceedings bearing on matters of marital privacy, our legal
system is founded on the principle that open access to courts is essential
to safeguard valuable constitutional freedoms. The concept of an open
court requires that information relating to a court proceeding must be
available in the public domain. Citizens have a right to know about what
transpires in the course of judicial proceedings. The dialogue in a court
indicates the manner
in which a judicial proceeding is structured. Oral
arguments are postulated on an open exchange of ideas. It is through
such an exchange that legal arguments are tested and analyzed.
Arguments addressed before the court, the response of opposing counsel
and issues raised by the court are matters on which citizens have a
legitimate right to be informed. An open court proceeding ensures that
the judicial process is subject to public scrutiny. Public scrutiny is crucial
to maintaining transparency and accountability. Transparency in the
functioning of democratic institutions is crucial to establish the public’s
faith in them. In Mohammed Shahabuddin vs State of Bihar10, the
concurring opinion noted:
“… even if the press is present, if individual members of the public
are refused admission, the proceedings cannot be considered to
go on in open courts…an “open court” is a court to which general
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public has a right to be admitted and access to the court is granted
to all the persons desirous of entering the court to observe the
conduct of the judicial proceedings.”
20. There are multiple ways in which an open court system
contributes to the working of democracy. An open court system ensures
that judges act in accordance with law and with probity. Lord Widgery’s
remarks in R vs Socialist Workers Printers, ex p Attorney General11
sum up the role public hearings play on the conduct of the judge in the
following terms:
“The great virtue of having the public in court courts is that
discipline which the presence of the public imposes upon the court
itself. When the court is full of interested members of the public…it
is bound to have the effect that everybody is more careful about
what they do, everyone tries just that little bit harder and there is
disciplinary effect on the court which would be totally lacking if
there were no critical members of the public or press present.
When one has an order for trial in camera, all the public and press
are evicted at one fell swoop and the entire supervision by the
public is gone.”
21. Public scrutiny fosters confidence in the process. Public
discussion and criticism may work as a restraint on the conduct of a
judge. In his dissenting opinion in Naresh Shridhar Mirajkar vs State
of Maharashtra12, Justice M Hidayatullah(as the learned Chief Justice
was then), observed how an
open court paves the way for public
evaluation of judicial conduct:
“129. […] Hearing in open court of causes is of the utmost
importance for maintaining confidence of the public in the impartial
administration of justice: it operates as a wholesome check upon
judicial behaviour as well as upon the conduct of the contending
parties and their witnesses.”
22. Cases before the courts are vital sources of public information
about the activities of the legislature and the executive13. An open court
serves an educational purpose as well. The court becomes a platform
11 [1974] 3 WLR 801
12 (1966) 3 SCR 744, hereinafter referred to as “Mirajkar”
13 Cunliffe Emma, “Open Justice: Concepts and Judicial Approaches” (2012) 40 Fed L
Rev 385.
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for citizens to know how the practical application of the law impacts
upon their rights. In Swapnil Tripathi vs Supreme Court of India14, a
three Judge Bench stressed upon the importance of live streaming judicial
proceedings. One of us (DY Chandrachud J) analyzed the precedent
from a comparative perspective :
“82. […] Through these judicial decisions, this Court has
recognised the importance of open courtrooms as a means of
allowing the public to view the process of rendering of justice.
First-hand access to court hearings enables the public and litigants
to witness the dialogue between the Judges and the advocates
and to form an informed opinion about the judicial process.
83. The impact of open courts in our country is diminished by the
fact that a large segment of the society rarely has an opportunity
to attend court proceedings. This is due to constraints like poverty,
illiteracy, distance, cost and lack of awareness about court
proceedings. Litigants depend on information provided by lawyers
about what has transpired during the course of hearings. Others,
who may not be personally involved in a litigation, depend
on the information provided about judicial decisions in
newspapers and in the electronic media. When the
description of cases is accurate and comprehensive, it
serves the cause of open justice. However, if a report on a
judicial hearing is inaccurate, it impedes the public’s right
to know. Courts, though open in law and in fact, become far
removed from the lives of individual citizens. This is
anomalous because courts exist primarily to provide justice to
them.”
(emphasis supplied)
23. However, there are certain exceptions to the rule of open
courts in India. In Mirajkar (supra), Chief Justice PB Gajendragadkar
observed:
“21. … While emphasising the importance of public trial, we cannot
overlook the fact that the primary function of the judiciary is to do
justice between the parties who bring their causes before it. If a
Judge trying a cause is satisfied that the very purpose of finding
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truth in the case would be retarded, or even defeated if witnesses
are required to give evidence subject to public gaze, is it or is it not
open to him in exercise of his inherent power to hold the trial in
camera either partly or fully? If the primary function of the court
is to do justice in causes brought before it, then on principle, it is
difficult to accede to the proposition that there can be no exception
to the rule that all causes must be tried in open court. If the principle
that all trials before courts must be held in public was treated as
inflexible and universal and it is held that it admits of no exceptions
whatever, cases may arise where by following the principle, justice
itself may be defeated. That is why we feel no hesitation in holding
that the High Court has inherent jurisdiction to hold a trial in camera
if the ends of justice clearly and necessarily require the adoption
of such a course. It is hardly necessary to emphasise that this
inherent power must be exercised with great caution and it is only
if the court is satisfied beyond a doubt that the ends of justice
themselves would be defeated if a case is tried in open court that
it can pass an order to hold the trial in camera.”
Hence, while in camera proceedings may be necessary in certain
exceptional circumstances to preserve countervailing interests such as
the rights to privacy and fair trial, for instance, in a sexual assault case,
public
scrutiny of the court process remains a vital principle for the
functioning of democracy.
C.2 Freedom of Expression of the Media
24. Article 19(1)(a) of the Constitution guarantees every citizen
the right to freedom of speech and expression. Over six decades ago, in
1958, a Constitution Bench of this Court, in Express Newspaper (P)
Limited vs Union of India15, explained that Article 19(1)(a) would
carry within it, implicitly, the right to freedom of the press. The Court
held:
“As with all freedoms, press freedom means freedom from
and freedom for. A free press is free from compulsions from
whatever source, governmental or social, external or
internal. From compulsions, not from pressures; for no
press can be free from pressures except in a moribund
society empty of contending forces and beliefs. These
15 1959 SCR 12
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pressures, however, if they are persistent and distorting — as
financial, clerical, popular, institutional pressures may become —
approach compulsion; and something is then lost from effective
freedom which the press and its public must unite to restore.
A free press is free for the expression of opinion in all its phases.
It is free for the achievement of those goals of press service on
which its own ideals and the requirements of the community
combine and which existing techniques make possible. For these
ends, it must have full command of technical resources, financial
strength, reasonable access to sources of information at home
and abroad, and the necessary facilities for bringing information
to the national market. The press must grow to the measure of
this market.””
(emphasis supplied)
25. The Constitution guarantees the media the freedom to inform,
to distill and convey information and to express ideas and opinions on all
matters of interest. Free speech and expression is subject to the regulatory
provisions of Article 19(2). The decision in LIC vs Manubhai D. Shah
(Prof.)16 develops these ideas :
“…The print media, the radio and the tiny screen play the role of
public educators, so vital to the growth of a healthy democracy.
Freedom to air one’s views is the lifeline of any democratic
institution and any attempt to stifle, suffocate or gag this right
would sound a death-knell to democracy and would help usher in
autocracy or dictatorship. It
cannot be gainsaid that modern
communication mediums advance public interest by informing the
public of the events and developments that have taken place and
thereby educating the voters, a role considered significant for the
vibrant functioning of a democracy. Therefore, in any set-up,
more so in a democratic set-up like ours, dissemination of
news and views for popular consumption is a must and any
attempt to deny the same must be frowned upon unless it
falls within the mischief of Article 19(2) of the Constitution.
It follows that a citizen for propagation of his or her ideas
has a right to publish for circulation his views in periodicals,
magazines and journals or through the electronic media
16 (1992) 3 SCC 637
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since it is well known that these communication channels
are great purveyors of news and views and make
considerable impact on the minds of the readers and
viewers and are known to mould public opinion on vital
issues of national importance…”
(emphasis supplied)
26. Freedom of speech and expression extends to reporting the
proceedings of judicial institutions as well. Courts are entrusted to perform
crucial functions under the law. Their work has a direct impact, not only
on the rights of citizens, but also the extent to which the citizens can
exact accountability from the executive whose duty it is to enforce the
law. Citizens are entitled to ensure that courts remain true to their remit
to be a check on arbitrary exercises of power. The ability of citizens to
do so bears a direct correlation to the seamless availability of information
about what happens in a court during the course of proceedings. Therein
lies the importance of freedom of the media to comment on and write
about proceedings. This principle was recognized in the Madrid
Principles on the Relationship between the Media and Judicial
Independence17. The first principle is formulated thus:
“1. Freedom of expression (including freedom of the media)
constitutes one of the essential foundations of every society which
claims to be democratic. It is the function and right of the media
to gather and convey information to the public and to comment on
the
administration of justice, including cases before, during and
after trial, without violating the presumption of innocence.”
This principle is recognized within Indian jurisprudence, where
the media has full freedom to report on ongoing litigation before the
Courts, within certain limitations, bearing on the need to ensure that
justice between parties is not derailed.
27. The media has over the years, transitioned from the
predominance of newspapers in the printed form, to radio broadcasts,
television channels and now, to the internet for disseminating news, views
17 These principles were issued by a group of 40 distinguished legal experts and media
representatives, who met in a meeting convened by the International Commission of
Jurist’s Centre for the Independence of Judges and Lawyers, and the Spanish Committee
of UNICEF,  available at <https://www.icj.org/wp-content/uploads/1994/01/madrid-
principles-on-media-and-judicial-independence-publication-1994-eng.pdf>
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and ideas to wide audiences extending beyond national boundaries. The
internet, including social media, have refashioned and, in significant ways,
revolutionized the means through which information is relayed. At every
stage of this transition, new questions have been raised about how court
processes will adapt to the change, so that the rights of the parties before
the courts and processes of justice are not affected18. However, while
these are valid concerns, they should never be a good enough reason for
Courts to not engage with evolving technology. Technology has shaped
social, economic and political structures beyond description. The world
is adapting to technology at a pace which is often difficult to catalogue,
and many of our citizens are becoming digital natives from a young age.
It is understandable that they will look towards modern forms of media,
such as social media websites and applications, while consuming the
news. This, understandably, would also include information reported about
the functioning of courts. Hence, it would do us no good to prevent the
new forms of media from reporting on our work. It was keeping this
principle in mind that the Lord Chief Justice of England and Wales, in
the context of the use of live text-based forms of communication (including
Twitter) to report on court proceedings, noted thus19:
“It is presumed that a representative of the media or a legal
commentator using live, text-based communications from court
does not pose a danger of interference to the proper administration
of justice in the individual case. This is because the most
obvious purpose of permitting the use of live, text-based
communications would be to enable the media to produce
fair and accurate reports of the proceedings. As such, a
representative of the media or a legal commentator who wishes
to use live, text-based communications from court may do so
without making an application to the court.”
(emphasis supplied)
28. Our Court has performed its modest part to acknowledge the
rapid pace of the development of technology, and our need to keep up.
In Swapnil Tripathi (supra), it noted:
18 Daniel Stepniak, ‘Technology and Public Access to Audio-Visual Coverage and
Recordings of Court Proceedings: Implications for Common Law Jurisdictions’ 12
William & Mary Bill of Rights Journal 791 (2004)
19 ‘Practice Guidance: The Use of Live Text-Based Forms of Communication (Including
Twitter) from Court for the Purposes of Fair and Accurate Reporting’  available at
<https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Guidance/ltbc-
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“C. Technology and Open Court
84. In the present age of technology, it is no longer sufficient to
rely solely on the media to deliver information about the hearings
of cases and their outcomes. Technology has become an inevitable
facet of all aspects of life. Internet penetration and increase in
the use of smart phones has revolutionized how we communicate.
As on 31-3-2018, India had a total of 1,206.22 million telecom
subscribers and 493.96 million internet users. [Telecom Regulatory
Authority of India, the Indian Telecom Services Performance
Indicators January-March, 2018. Available at: <https://trai.gov.in/
sites/default/files/PIReport27062018_0.pdf>.] Technology can
enhance public access, ensure transparency and pave the way
for active citizen involvement in the functioning of State institutions.
Courts must also take the aid of technology to enhance the principle
of open courts by moving beyond physical accessibility to virtual
accessibility.”
Acceptance of a new reality is the surest way of adapting to it.
Our public constitutional institutions must find better responses than to
complain.
C.3 Public Discourse, Media Reporting and Judicial
Accountability
29. As we understand the rights of the media to report and
disseminate issues and events, including court proceedings that are a
part of the public domain, it is important to contextualize that this is not
merely an aspect of protecting the rights of individuals
and entities on
reporting, but also a part of the process of augmenting the integrity of
the judiciary and the cause of justice as a whole.
30. With the exception of in camera proceedings, a courtroom is
a public space. In Attorney General vs Leveller Magazine20, Lord
Diplock, held that “The principle of open justice requires that the
court should do nothing to discourage fair and accurate reports of
proceedings.” An open court and transparent dispensation of justice in
all its modalities, is an end in itself. As we have discussed above,
technology is an accelerant in this endeavor, but not the harbinger of this
thought. Media reporting has operated alongside formalized court
processes for close to a century. Court proceedings in colonial India,
20 [1979] A.C. 440
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especially sedition trials, were also sites of political contestation where
colonial brutality and indignity were laid bare. The widespread reportage
on Lokmanya Balgangadhar Tilak’s first trial for seditionwas seminal in
highlighting the variance in procedural laws and rights denied to Indian
undertrials, as he struggled to access legal aid and was convicted in
spite of a non-unanimous verdict of the jury. The Lokmanya’s poignant
words, while recorded by the order as a formalized process of sentencing,
were circulated far and wide by anti-colonial publications which fueled
India’s struggle for freedom. These words incidentally also adorn the
plaque outside that very courtroom in the Bombay High Court to this
day21:
“In spite of the verdict of the Jury I maintain that I am innocent.
There are higher Powers that rule the destiny of men and nations
and it may be the will of Providence that the cause which I
represent may prosper more by my suffering than by my remaining
free.”
31. Post-independence, matters of seminal constitutional
importance have witnessed widespread reportage in newspapers and
magazines - which did not merely report on the pronouncement of
verdicts, but also the quirks of the counsel and judges. These tales have
now passed down as the legacy of our profession and also provide useful
context for our study of the law.
32. Albeit in the context of the value of open courts, Justice
Bachawat, speaking for this Court in Mirajkar (supra), had
placed
emphasis on the publicity of court proceedings in the following terms:
“A court of justice is a public forum. It is through publicity that the
citizens are convinced that the court renders even handed justice,
and it is, therefore, necessary that the trial should be open to the
public and there should be no restraint on the publication of the
report of the court proceedings. The publicity generates public
confidence in the administration of justice…….Hegel in his
Philosophy of Right maintained that judicial proceedings must be
public, since the aim of the Court is justice, which is universal
belonging to all.”
33. With the advent of technology, we are seeing reporting
proliferate through social media forums which provide real-time updates
21 Emperor vs.Balgangadhar Tilak, (1908) 10 BOMLR 848 (Bombay High Court)
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to a much wider audience. As we have discussed in the previous section,
this is an extension of the freedom of speech and expression that the
media possesses. This constitutes a ‘virtual’ extension of the open court.
This phenomenon is a not a cause of apprehension, but a celebration of
our constitutional ethos which bolsters the integrity of the judiciary by
focusing attention on its functions. Several courts across the world,
including the US Supreme Court, the UK Supreme Court, the Court of
Appeal of the UK and the International Criminal Court enable public
viewership of proceedings through livestreaming or other suitable open
access methodology. The Gujarat High Court also recently introduced
livestreaming of its proceedings, in a bid to enhance public participation
in the dispensation of justice. In this backdrop, it would be retrograde for
this Court to promote the rule of law and access to justice on one hand,
and shield the daily operations of the High Courts and this Court from
the media in all its forms, by gagging the reporting of proceedings, on the
other.
C.4 Freedom and constraints of judicial conduct
34. The grievance of the EC does not arise as much from the
impugned order of the Madras High Court, as it does from the oral
remarks made by the judges of the High Court during the hearing on 26
April 2021. The High Court has not been impleaded before us and has
not had an opportunity to respond. Thus, we
have been unable to discover
what truly transpired in the proceedings and the exact remarks that were
made. Unless live-streaming and archival of court proceedings sees the
light of the day (three years have elapsed since the decision in Swapnil
Tripathi (supra)) the absence of records of oral proceedings would
continue to bedevil the system. However, a constitutional authority such
as the EC, has adverted to the oral remarks on oath in its affidavit.
These have not been disputed by the respondent. The oral remarks have
received widespread publicity in electronic and print media. We have, in
deference to the independent constitutional status of the High Court, not
required a confirmatory report from the Registrar General of the High
Court.
35. The independence of the judiciary from the executive and the
legislature is the cornerstone of our republic. Independence translates to
being impartial, free from bias and uninfluenced by the actions of those
in power, but also recognizes the freedom to judges to conduct court
proceedings within the contours of the well-established principles of
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natural justice. Judges in the performance of their duty must remain
faithful to the oath of the office they hold, which requires them to bear
allegiance to the Constitution. An independent judiciary must also be one
which is accountable to the public in its actions (and omissions).
36. The manner in which judicial proceedings are conducted,
especially in our superior courts, is unique to each judge and holds great
weight in the dispensation of justice. The issues raised or comments
made by the Bench during an oral hearing provide clarity not just to the
judges who adjudicate upon the matter, but also allow the lawyers to
develop their arguments with a sense of creativity founded on a spontaneity
of thought. Many a times, judges play the role of a devil’s advocate with
the counsel to solicit responses which aid in a holistic understanding of
the case and test the strength of the arguments advanced before them.
That is where the real art of advocacy comes to play. The order or
judgment of the court must indicate a process of reflection and of the
application of mind of the judge to the submissions of opposing parties.
37. The diversity of judicial backgrounds brings polyvocality in
judgments and has enriched our jurisprudence for over seven decades
since Independence. The humanity intrinsic to each judge allows them
to transcend the language of the law to do complete justice. In the pursuit
of doing justice and in the course of an open deliberation in
court,
propositions may be put forth and observations are made in order to
facilitate the process of arriving at an acceptable outcome based on the
law but which is in accord with justice. Observations during the course
of a hearing do not constitute a judgment or binding decision. They are
at best tentative points of view, on which rival perspectives of parties in
conflict enable the judge to decide on an ultimate outcome. This exchange
of views, perspectives and formulations is but a part of evolving towards
a solution which accords with justice according to law. An exchange of
views from the Bench is intrinsic to a process of open and transparent
judging. The revealing of a judges’ mind enables opposing parties to
persuade her to their points of view. If this expression were to be
discouraged the process of judging would be closed. As Lord Denning
MR observed in Sirros vs Moore22:
“Every Judge of the courts of this land — from the highest to the
lowest — should be protected to the same degree, and liable to
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the same degree. If the reason underlying this immunity is to ensure
‘that they may be free in thought and independent in judgment’, it
applies to every Judge, whatever his rank. Each should be
protected from liability to damages when he is acting judicially.
Each should be able to do his work in complete independence and
free from fear. He should not have to turn the pages of his books
with trembling fingers, asking himself: ‘If I do this, shall I be liable
in damages?’ So long as he does his work in the honest belief that
it is within his jurisdiction, then he is not liable to an action. He
may be mistaken in fact. He may be ignorant in law. What he
does may be outside his jurisdiction — in fact or in law — but so
long as he honestly believes it to be within his jurisdiction, he should
not be liable. Once he honestly entertains this belief nothing else
will make him liable. He is not to be plagued with allegations of
malice or ill will or bias or anything of the kind. Actions based on
such allegations have been struck out and will continue to be struck
out. Nothing will make him liable except it to be shown that he
was not acting judicially, knowing that he had no jurisdiction to do
it.”
This Court has also had the opportunity to deal with a matter
concerning the expunging of adverse remarks from judicial records in
Kashi Nath Roy vs State of Bihar23. The judgment of the two Judge
bench noted:
“7. It cannot be
forgotten that in our system, like elsewhere,
appellate and revisional courts have been set up on the
presupposition that lower courts would in some measure of cases
go wrong in decision-making, both on facts as also on law, and
they have been knit-up to correct those orders. The human
element in justicing being an important element, computer-
like functioning cannot be expected of the courts; however
hard they may try and keep themselves precedent-trodden
in the scope of discretions and in the manner of judging.
Whenever any such intolerable error is detected by or
pointed out to a superior court, it is functionally required
to correct that error and may, here and there, in an
appropriate case, and in a manner befitting, maintaining the
dignity of the court and independence of judiciary, convey
23 (1996) 4 SCC 539
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its message in its judgment to the officer concerned through
a process of reasoning, essentially persuasive, reasonable,
mellow but clear, and result-orienting, but rarely as a
rebuke. Sharp reaction of the kind exhibited in the afore-
extraction is not in keeping with institutional functioning.
The premise that a Judge committed a mistake or an error beyond
the limits of tolerance, is no ground to inflict condemnation on the
Judge-Subordinate, unless there existed something else and for
exceptional grounds.”
(emphasis supplied)
In Dr Raghubir Saran vs State of Bihar and Another24, this
Court particularly advised higher Courts to enable judges of the lower
Courts to freely express their opinion. Chief Justice K Subba Rao,
speaking for a three Judge bench observed:
“6. […]
I entirely agree with the remarks. I reiterate that every judicial
officer must be free to express his mind in the matter of the
appreciation of evidence before him. The phraseology used by
a particular Judge depends upon his inherent reaction to
falsehood, his comparative command of the English
language and his felicity of expression. There is nothing
more deleterious to the discharge of judicial functions than
to create in the mind of a Judge that he should conform to
a particular pattern which may, or may not be, to the liking
of the appellate court. Sometimes he may overstep the mark.
When public interests conflict, the lesser should yield to
the larger one. An unmerited and
undeserved insult to a
witness may have to be tolerated in the general interests
of preserving the independence of the judiciary. Even so, a
duty is cast upon the judicial officer not to deflect himself from
the even course of justice by making disparaging and undeserving
remarks on persons that appear before him as witnesses or
otherwise. Moderation in expression lends dignity to his office
and imparts greater respect for judiciary. But occasions do arise
when a particular Judge, without any justification, may cast
aspersions on a witness or any other person not before him affecting
24 (1964) 2 SCR 336
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the character of such witness or person. Such remarks may affect
the reputation or even the career of such person. In my experience
I find such cases are very rare. But if it happens, I agree with the
Full Bench of the Bombay High Court that the appellate court in
a suitable case may judicially correct the observations of the lower
court by pointing out that the observations made by that court
were not justified or were without any foundation or were wholly
wrong or improper.”
(emphasis supplied)
38. The duty to preserve the independence of the judiciary and to
allow freedom of expression of the judges in court is one end of the
spectrum. The other end of the spectrum, which is equally important, is
that the power of judges must not be unbridled and judicial restraint must
be exercised, before using strong and scathing language to criticize any
individual or institution. In A.M Mathur vs Pramod Kumar Gupta25, a
two Judge bench of this Court, speaking through Justice K Jagannatha
Shettyheld:
“13. Judicial restraint and discipline are as necessary to the
orderly administration of justice as they are to the
effectiveness of the army. The duty of restraint, this humility
of function should be a constant theme of our judges. This
quality in decision making is as much necessary for judges
to command respect as to protect the independence of the
judiciary. Judicial restraint in this regard might better be called
judicial
respect, that is, respect by the judiciary. Respect to those
who come before the court as well to other co-ordinate branches
of the State, the executive and the legislature. There must be
mutual respect. When these qualities fail or when litigants and
public believe that the judge has failed in these qualities, it will be
neither good for the judge nor for the judicial process.
14. The Judge’s Bench is a seat of power. Not only do judges
have power to make binding decisions, their decisions legitimate
the use of power by other officials. The judges have the absolute
and unchallengeable control of the court domain. But they cannot
misuse their authority by intemperate comments,
undignified banter or scathing criticism of counsel, parties
25 (1990) 2 SCC 533
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or witnesses. We concede that the court has the inherent power
to act freely upon its own conviction on any matter coming before
it for adjudication, but it is a general principle of the highest
importance to the proper administration of justice that derogatory
remarks ought not to be made against persons or authorities whose
conduct comes into consideration unless it is absolutely necessary
for the decision of the case to animadvert on their conduct.”
(emphasis supplied)
39. In balancing these two ends, the role of superior courts is
especially relevant. This Court must strike a balance between reproaching
the High Courts or lower courts unnecessarily, so as to not hamper their
independent functioning. This court must also intervene where judges
have overstepped the mark and breached the norms of judicial propriety.
40. We are tasked with balancing the rights of two independent
constitutional authorities. On one hand is the Madras High Court, which
is a constitutional court and enjoys a high degree of deference in the
judicial structure of this country. The High Courts perform an intrinsic
role as appellate courts and as courts of first instance in entertaining
writ petitions under Article 226 (and as courts of original civil and criminal
jurisdiction in certain cases). They are often the first point of contact for
citizens whose fundamental rights have been violated. High Courts are
constantly in touch with ground realities in their jurisdictions.
During the
COVID-19 pandemic, the High Courts across the country have shown
commendable foresight in managing the public health crisis which
threatens to submerge humanity. Their anguish when they come face to
face with reality must be understood in that sense. On the other hand is
the EC, a constitutional authority tasked with the critical task of
undertaking superintendence and control of elections under Article 324
of the Constitution. The EC has facilitated the operation of our
constitutional democracy by conducting free and fair elections and
regulating conduct around them for over seven decades. Its independence
and integrity are essential for democracy to thrive. This responsibility
covers powers, duties and myriad functions26 which are essential for
conducting the periodic exercise of breathing life into our democratic
political spaces.
26 Mohinder Singh Gill  vs. Chief Election Commr., (1978) 1 SCC 405
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41. Today, the Court has not been called upon to determine the
constitutionality or legality of the actions of the EC in its conduct of the
Assembly elections in the five states. In restricting ourselves to the specific
grievances that have been urged by the EC, regarding the remarks made
by the judges of the Madras High Court, we find that the High Court
was faced with a situation of rising cases of COVID-19 and, as a
constitutional Court, was entrusted with protecting the life and liberty of
citizens. The remarks of the High Court were harsh. The metaphor
inappropriate. The High Court - if indeed it did make the oral observations
which have been alluded to - did not seek to attribute culpability for the
COVID-19 pandemic in the country to the EC. What instead it would
have intended to do was to urge the EC to ensure stricter compliance of
COVID-19 related protocols during elections.
42. Having said that, we must emphasize the need for judges to
exercise caution in off-the-cuff remarks in open court, which may be
susceptible to misinterpretation. Language, both on the Bench and in
judgments, must comport with judicial propriety. Language is an important
instrument of a judicial process which is sensitive to constitutional values.
Judicial language is a window to a conscience sensitive to constitutional
ethos. Bereft of its understated balance, language risks losing its
symbolism as a protector of human dignity. The
power of judicial review
is entrusted to the High Courts under the Constitution. So high is its
pedestal that it constitutes a part of the basic features of the Constitution.
Yet responsibility bears a direct co-relationship with the nature and
dimensions of the entrustment of power. A degree of caution and
circumspection by the High Court would have allayed a grievance of the
nature that has been urged in the present case. All that needs to be
clarified is that the oral observations during the course of the hearing
have passed with the moment and do not constitute a part of the record.
The EC has a track record of being an independent constitutional body
which shoulders a significant burden in ensuring the sanctity of electoral
democracy. We hope the matter can rest with a sense of balance which
we have attempted to bring.
43. These oral remarks are not a part of the official judicial record,
and therefore, the question of expunging them does not arise. It is trite to
say that a formal opinion of a judicial institution is reflected through its
judgments and orders, and not its oral observations during the hearing.
Hence, in view of the above discussion, we find no substance in the
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prayer of the EC for restraining the media from reporting on court
proceedings. This Court stands as a staunch proponent of the freedom
of the media to report court proceedings. This we believe is integral to
the freedom of speech and expression of those who speak, of those who
wish to hear and to be heard and above all, in holding the judiciary
accountable to the values which justify its existence as a constitutional
institution.
D. Conclusion
44. For the reasons which we have indicated, we dispose of the
appeal in the above terms.
45. Pending applications, if any, shall stand disposed.
Nidhi Jain
Appeal disposed of.
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