Date of judgment: 

6 May 2021

Coram

Justice D.Y Chandrachud, Justice M.R Shah

Facts of the case:

• An AIADMK candidate from the Karur Legislative Assembly Constituency in Tamil Nadu filed a writ petition with the Madras High Court to ensure that Covid-19 protocols were followed during polling. The petition was accepted under Article 226 of the Constitution of India.
• The same individual submitted a representation to the Election Commission on April 16, 2021, requesting that the Commission take necessary actions to ensure the safety and health of officials during the counting of votes.
• As no response was received from the Election Commission, a writ petition was filed with the High Court on May 2, 2021. The petition sought directions for the necessary arrangements and steps to be taken as per Covid-19 protocols to ensure fair counting of votes in the 135th Karur Legislative Assembly Constituency.
• On April 26, 2021, a two-judge division bench of the Madras High Court heard the writ petition, which was led by Chief Justice of the Madras High Court Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy.
• During the hearing, the judges made remarks suggesting that the Election Commission was solely responsible for the second wave of Covid-19 and that the Commission should be charged with murder. Although these remarks were not recorded in the final order, they received widespread attention in the media.
• Following this, the Election Commission filed a special leave petition with the Supreme Court of India, alleging that the Madras High Court’s oral observations and remarks were unfair and that their miscellaneous application was not considered on its merits.

The issue before the court:

Should there be restrictions on media regarding reporting of oral remarks made during the proceeding?

Arguments before the court:

Mr. Rakesh Dwivedi learned Senior Counsel who appeared with Mr. Amit Sharma, on behalf of the EC urged the following submissions:

• The High Court’s remarks about the EC were inappropriate and irrelevant to the issue before the court. The EC was being asked to make arrangements for safe vote counting, not to answer for the entire second wave of COVID-19. Bringing up this unrelated issue was unfair and prejudicial to the EC.
• The High Court made these remarks without allowing the EC to explain the steps they had taken to maintain COVID-19 protocols. This was a violation of the principle of natural justice, which requires that parties be given a fair hearing before any adverse remarks are made about them.
• The High Court made these disparaging comments without any proof or material to back them up. This was not only unfair to the EC, but also a violation of the principles of evidence and fair adjudication.
• The High Court’s remarks have tarnished the image of the EC as an independent constitutional authority, and have reduced the faith of the people in the EC. This is a serious issue, as the EC plays a crucial role in ensuring free and fair elections. The court should take steps to rectify this situation and restore the EC’s reputation.
• The scope of judicial review over the EC in matters about the conduct of elections is limited, and courts should exercise restraint while making observations about the EC or the electoral process. This is because these matters fall within the domain of another expert constitutional authority. The court should respect the EC’s expertise and independence, and not interfere in its functioning unnecessarily.
• 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, and 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 can be harmful to their reputation.
• 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 and can be harmful to the parties involved. The court should be mindful of this and avoid making any comments that may be misinterpreted or taken out of context.

In opposition to this, Mr. Pradeep Kumar Yadav contended that the EC has extensive powers in a State during an election, which includes the ability to deploy para-military forces and replace officers such as District Magistrates, police officers, and the Director General of Police, to ensure compliance with their directives. As a result, he argued that the EC was responsible for implementing safety measures and protocols related to COVID-19 during the elections.

Reasoning and Observations by the Court:

Before that court, the EC was aggrieved by the oral observations of the High Court during the hearing and by it not having addressed the merits of its miscellaneous application. In its miscellaneous application, the EC had sought:

(i) media reporting of only what formed 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 in Kolkata.

At the outset, it was noted that the second prayer noted above was thoroughly misconceived. If an FIR had been registered in Kolkata, the person aggrieved had recourse to remedies under the Code of Criminal Procedure, 1973. There were remedies under the law, including but not limited to quashing under Section 482 of the Code of Criminal Procedure, 1973. The EC could not have had a grievance if it opted for a misconceived course of action, which the High Court could not possibly have entertained.

The heart of the matter was the first prayer that the EC had raised – that of seeking a restraint on the media on reporting court proceedings. The basis of its application was that nothing apart from what formed a part of the official judicial record should be reported. This prayer of the EC struck at two fundamental principles guaranteed under the Constitution – open court proceedings; and the fundamental right to the freedom of speech and expression.

Open court hearings:

In the context of the Indian judicial courts needed to remain open in both the physical and metaphorical sense, except in exceptional cases such as those involving child sexual abuse or matrimonial proceedings where the privacy of individuals must be safeguarded. The principle of open access to courts is foundational to our legal system and ensures that information relating to a court proceeding is available in the public domain. Citizens have a legitimate right to know what happens in court proceedings. The exchange of ideas and legal arguments in an open court ensures that legal arguments are tested and analyzed, and the judicial process is subject to public scrutiny, which is crucial to maintaining transparency and accountability. Public scrutiny is also essential to establish faith in the functioning of democratic institutions. Public hearings play a critical role in ensuring the discipline of the court itself, and when the public is present, there is a disciplinary effect on the court. Public scrutiny fosters confidence in the process, 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, and open court serves an educational purpose as well. However, there are certain exceptions to the rule of open courts in India, such as cases where the privacy of individuals must be protected.

What is the significance of freedom of expression of the media according to the Constitution of India and Indian jurisprudence?

Freedom of expression of the media is guaranteed by Article 19(1)(a) of the Constitution of India, which states that every citizen has the right to freedom of speech and expression. This right includes the right to freedom of the press, as explained by the Supreme Court of India in the Express Newspaper (P) Limited vs Union of India case in 1958. The media is granted the freedom to inform, convey information, and express ideas and opinions on all matters of interest. However, this freedom is subject to regulatory provisions of Article 19(2) of the Constitution.

Indian jurisprudence recognizes that the print media, radio, and television play a vital role in public education, which is essential to the growth of a healthy democracy. The dissemination of news and views for popular consumption is necessary for the vibrant functioning of a democracy. Citizens have the right to propagate their ideas by publishing their views in periodicals, magazines, journals, or through electronic media.

The media also has the freedom to report on ongoing litigation before the Courts, subject to certain limitations to ensure that justice between parties is not derailed. The seamless availability of information about what happens in a court during the proceedings is essential for citizens to ensure that courts remain true to their remit to be a check on arbitrary exercises of power.

Over the years, the media has transitioned from newspapers to radio broadcasts, television channels, and the internet for disseminating news, views, and ideas to a wider audience extending beyond national boundaries. The internet, including social media, has revolutionized the means through which information is relayed, and courts must engage with evolving technology to ensure that the rights of the parties before the courts and processes of justice are not affected by Judgment. 

The Supreme Court was tasked with balancing the rights of two independent constitutional authorities. On the one hand, was the Madras High Court, which is a constitutional court and enjoyed a high degree of deference in the judicial structure of the 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 threatened to submerge humanity. Their anguish when they came face to face with reality must be understood in that sense. On the other hand, was 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 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 covered powers, duties, and myriad functions which were essential for conducting the periodic exercise of breathing life into the democratic political spaces.

The issue of removal was deemed moot by the Supreme Court, as it pointed out that any oral remarks made during judicial processes were never recorded as part of the order or judgment. The severity of the Madras High Court judges’ comments was acknowledged, and the court advised judges to exercise restraint in open courts when making such “off-the-cuff” remarks. It was emphasized that judges’ language should be judicially appropriate when providing oral observations or writing judgments.

The media’s broadcast of any oral remarks made by judges was requested to be prohibited by the election commission, but the Supreme Court denied this request, citing its violation of the Indian Constitution’s core values. The judges explained that the notion of open court mandates that information about judicial procedures in a court be made available to the public and therefore placed in the public domain.

During the British Raj, print media covered trials and court procedures, such as Lokmanya Tilak’s sedition trial, and the Supreme Court judges used this as an example. They urged that rather than complaining, Constitutional Authorities should embrace the new reality. 

The Supreme Court also emphasized the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation. Language on the Bench and in judgments must comport with judicial propriety. Language is an important instrument of a judicial process that is sensitive to constitutional values. 

The court stated that Judicial language is a window to a conscience sensitive to the 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 had been urged in the present case. All that needs to be clarified is that the oral observations during 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 that shoulders a significant burden in ensuring the sanctity of electoral democracy. The court hoped that the matter can rest with a sense of balance that it has attempted to bring.

Conclusion:

In conclusion, the Supreme Court’s decision to reject the election commission’s request to prohibit media reporting of oral remarks made by judges is a significant step in upholding press freedom and transparency in judicial proceedings. The court correctly recognized that an open court ensures that judges act as per the law and that media reporting of judicial proceedings is fundamental to the right to freedom of speech and expression. The court also emphasized the importance of judges exercising prudence and restraint while making oral remarks in open court. Overall, this decision reaffirms the critical role of the media in ensuring accountability and transparency in our democracy.