06 May 2121

Reporting of court proceeding is an integral part of freedom of speech and also of accountability of judiciary - Supreme Court of India

Case : The Chief Election Commissioner of India v. M. R. Vijayabhaskar & Ors. Civil Appeal No. 1767 of 2021 (Arising out of SLP (C) No. 6731 of 2021)

Court : Supreme Court of India

Bench : Justice Dr. Dhananajay Y. Chandrachud and Justcie M. R. Shah

Decided on : 06 May 2121

Relevant Statutes

Article 226 of the Indian Constitution

Sections 269, 270, and 304 read with Section 120-B of Indian Penal Code, 1860

Brief Facts and Procedural History

1On 26th February 2021, Election Commission announced the general election to legislative assemblies of Tamil Nadu, Kerala, West Bengal, Assam and Puducherry. The Schedule of the election says that polling will be done on 6th April and Counting will be done on 2nd May 2021. During the preparations, EC issued a letter to the President, dated 12 March 2021 and General Secretaries of all the states emphasizing strict adherence to COVID-19 norms during the elections. Another letter was issued during the polling phase dated 9th April 2021, which emphasize that candidates of political parties are not adhering to the strict COVID-19 norms and if such breach continued, EC would be banning all the public meetings and rallies. Later, two letters were issued on 16th April 2021, one banned all the rallies and public meetings and the other re-emphasize strict adherence to COVID-19 norms.

2. A writ petition was filed before Madras High Court, by the responder, who is the District Secretary and also a candidate of AIADMK for 134- Karur Legislative Assembly Constituency against a representation sent on 16 April 2021 to EC regarding proper precautions and measures to ensure the safety and health of the officers in the counting booth, of which no response was given by EC, and also asked to ensure fair counting of votes on 2nd May 2021 by taking effective steps and arrangements in accordance with COVID-19 norms.

3. This petition was heard by the Division Bench of High Court and an order was passed dated 26 April 2021, in the following terms -

“Even though polling was going peacefully but it must be observed that EC could not ensure adherence to COVID-19 norms by the political parties. Even after the repeated orders of this court, that COVID-19 protocol must be maintained during Campaigning, it was somewhat the responsibility of EC as they stood silent even if rallies and campaigns were conducted without following social distancing and violating other protocols.

Even though the number of cases is not that high in this state, measures must be adopted at the time of counting of votes and it should be planned in a better, whether the counting takes place in a staggered manner or deferred. Public health is of utmost importance and it is quite distressing that constitutional authorities have to be reminded in such regard.

An appropriate measure similar to Karur Legislative Assembly Constituency should be taken, and it is only upon proper sanitization, proper hygienic conditions, the mandatory wearing of masks should any counting begins.”

4. During the hearing, it is alleged that High Court orally observed that EC is “the institution solely responsible for the second wave of COVID-19” and EC “should be put up for the murder charges”. These remarks, though not part of the High Court’s order, were reported in print, electronic and tele-media.

5. In furtherance of which, On 27 April, an individual filed a complaint against Mr. Sudip Jain, Deputy Election Commissioner and other officials of EC under Sections 269, 270 and 304 read with 120-B of Indian Penal Code, 1860, in Khardah Police Station, Kolkata and no reference was made to the order of Madras High Court dated 26 April 2021.

6. Before the Madras High Court, EC filed a counter-affidavit and also filed a miscellaneous application which was heard by Madras High Court on 30th April 2021 when High Court disposed of the petition in the light of measures taken by EC for emphasizing COVID-19 norms and also closed the miscellaneous application.

7. Against which EC approached Honorable Supreme Court, on the ground that miscellaneous application has not been evaluated on merits.

The Issues of the Case

Whether Election Commission’s plea to stop reporting of a court proceeding is justified?

Whether the High court is justified in rejecting the miscellaneous application of the Election Commission?

The Observations of the Court

1. The Honourable Supreme Court came to the observation that Election Commission is aggrieved by the overall observations of the High Court and not addressing the miscellaneous application on merits. It is to be noted that the second prayer made by Election Commission is very much misconceived because if FIR is being registered in Kolkata, the person aggrieved has regards to remedies under the Code of Criminal Procedure, 1973. These are the remedies under the law and not limited to quashing under Section 482 of the Code of Criminal Procedure, 1973.

2. The Honourable Supreme Court moved on to the main issue that of seeking to restrain the media from reporting court proceedings. Supreme Court has divided this issue into two parts, one, pertaining to open court proceedings and the other one, related to fundamental rights to the freedom of speech and expression.

3. Starting with the open court and the Indian judiciary, the Honourable Supreme Court observed that “both are very much required for this democracy physically as well as metaphorically”. It basically signifies that the information relating to court proceedings must be made available to the general public and citizen must have knowledge about what transpires in the court proceedings it basically ensures that judicial process is very much subject to public scrutiny and it is very much crucial for maintaining transparency and accountability as was mentioned by Supreme Court in the case of Mohammad Shahbuddin v. State of Bihar, 2010 (4) SCC 653 that, “If the presses allowed in the court and individual members are not that cannot be considered as open code because open courts a jest that it must be opened to the general public and access to court is granted to all persons who are desirous of entering the code.”

4. The Honourable Supreme Court referred to the dissenting opinion of Justice M Hidayatullah, in Naresh Shridhar Mirajkar v. State of Maharashtra, 1966 SCR (3) 744 wherein the court has observed that how an open court is very much required for public evaluation of judicial conduct and it is very much required for maintaining the confidence of the public in the impartial administration of justice and operates as a wholesome check on the judicial behaviour and conduct of the contending parties

5. Further in the case of Swapnil Tripathi versus Supreme Court of India, (2018) 10 SCC 628 wherein Justice D.Y. Chandrachud himself noted down that, “Court through a catena of judgments has noticed the importance of open code and the impact of open court is very much diminished by the fact that large segment of society is rarely using an opportunity to attend court proceedings and those who may not be personally involved in litigation they only get information about judicial decisions through newspaper and electronic media and therefore when the description of a case is accurate it serves the cause of open justice and every port is inaccurate about the hearing it impedes upon the public’s right to know.”

6. The Honourable Supreme Court also observed the exception to the rule of open court in the case of Naresh Shridhar Mirajkar v. Supreme Court of India, 1966 SCR (3) 744 wherein Chief Justice PV Gajendragadkar observed, “Courts have inherent right and power to hold a trial in camera if the ends of justice clearly require the adoption of this course and this will be possible only if the court is satisfied beyond doubt that the end of justice would be defeated at the cases tried in open court then only it can pass an order to hold the trial in camera.”

7. While looking into the freedom of expression of media the Honourable Supreme Court referred to Article 19(1)(a) of the Indian constitution and to the judgment of the Supreme Court in Express Newspaper Private Limited v. Union of India, 1986 AIR 872 wherein court has held that “As we look into the freedom of the press it means that freedom from and freedom for. In other words, it can also be said that a Free Press is one that is free from any type of compulsion from whatever source it may be that can be government, social, external or internal; for no press can be free from pressures except in a moribund society empty of contending forces and beliefs.”

8. Freedom of speech and expression is subject to article 19(2) and for this Court referred to the judgment of LIC v. Manubhai D. Shah, 1992 SCC (3) 637, where n court has developed the idea that: “Media plays the role of educating our public and it is very much vital part of the healthy democracy especially in a country like ours, where providing news and views for popular consumption is very much required and any attempt to deny this must be frowned upon until and unless it is covered within the mischief of Article 19(2).”

9. The Honourable Supreme Court pointed out that this freedom of speech and expression also extends to the recording of judicial proceedings and referred to the principle recognized in Madrid Principles on the Relationship between Media and Judicial Independence, wherein the first principle emphasizes the point that “freedom of expression is one of the most essential features of every society move is claims and side to with democratic and it is the function and duty of media to gather and give information to the public and also to give information before during and after the trial but without violating the presumption of innocence.”

10. The Honourable Supreme Court has also looked into the pace with which technology is changing, with the passage of time and also showed the concern that the Supreme Court is trying to cope up with this technology add also pointed out that this court has tried its level best to acknowledge a rapid pace of the development of technology as noted down in the case of Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 628 wherein it has noted down that,  “In this present age of technology wherein people are trying to cope up with technology and technology becoming a necessary part of all the aspects of life. Thus, the court must also take the help of technology enhancing the principle of open court by moving beyond physical accessibility to virtual accessibility.”

11. The Honourable Supreme Court while looking into another aspect of Public Discourse, Media Reporting and Judicial Accountability has noted down that this right of media to record proceeding is not only related to protecting the right of individuals but it also relates to the process of augmenting the integrity of the judiciary. The Honourable Supreme Court also observed that with the advent of technology there are so many social media forums that provide real-time updates to a much wider audience which is an extension of freedom of speech of media and it constitute a virtual extension of open code and Court also noted down that Gujarat High Court has recently introduced the live stream of proceeding which is also a positive step towards dispensation of justice and public participation.

12. Further looking into the aspect of freedom and constraints of judicial conduct, the Honourable Supreme Court has noted down that the grievance of election Commission is not related to any impugned order of madrasah High Court but it relates to the overall observations made by the High Court during the hearing of 26th April 2021. Here High Court didn't have an opportunity to respond to us and therefore we are also unable to discover what truly inspired in the preceding. However, the election Commission has adverted to the oral remark which is accepted by the respondent and these oral remarks are why desperately covered in the social media in print media.

13. The Honourable Supreme Court refer to the manner in which judicial proceedings is conducted and noted that every judge has their unique way for dispensation of justice and the comments made by the bench orally, not only provide clarity to the judges but also to the lawyer who developed their argument with the help of these. In the way of doing justice and the open court deliberations, various observations are made by the judges to facilitate the process of arriving at an outcome which is acceptable to everyone and which is also in accordance with the justice even though observations during the course of hearing do not constitute a judgment, as the observations in the open court from the bench is also an interesting part of open and transparent judges as it only reveals the clear idea about what is there in the mind of judges to the opposite party so that they can persuade their point of view.

14. The Honourable Supreme Court has looked into the judgment of Kashinath Roy v. State of Bihar, 1996 SCC (4) 539, which deals with the matter of adverse remarks from the judicial record wherein a bench of two judges noted down that, “while delivering justice the one element that is important is the human element in the judgment. One cannot expect judges to work as a computer and also they cannot, however hard they may try and if any such error is detected then the proper mechanism is been provided to correct it along with maintaining the dignity of the court and independence of judiciary. The process that a judge committed a mistake beyond the limit of tolerance is no ground to inflict condemnation unless there exists something else and for exceptional grounds.

15. Thus, pin balancing these two ends the role of the Supreme Court becomes very important as it has to strike a balance between re-approaching the courts lower courts and not hampering the independent functioning of these courts. The Honourable Supreme Court looked into the issue and noted that the task before it is to draw a balance between the rights of two independent constitutional authorities, one being Madras High Court and the other Election Commission of India which has the task of undertaking superintendence and control of election under article 324 of the constitution of India.

16. The Honourable Supreme Court noted that the issue before it is not regarding the constitutionality or legality of any action of the election Commission rather it is related to the special grievance that has been asked by the Election Commission regarding the oral remarks made by the judges of Madras High Court.

17. The Honourable Supreme Court is of the view that the High Court is facing a situation of uncontrollable rise in COVID-19 and being a constitutional authority it is the duty of the court to protect the life and liberty of the citizens. Those remarks made by the High Court are very much harsh, the High Court if had to make an observation it would have urged the election Commission to strictly ask compliance of COVID-19 related protocols during the election and did not a tribute to the culpability of COVID-19 pandemic to the election Commission. Though the High Court is interested with the power of judicial review which is also part of basic feature of the constitution but still a very high degree of caution is required from the High Court and that would have neglected the grievance which is emerging in the present case.

18. The Honourable Supreme Court finally added a clarification that overall observation during the course of hearing have passed with the moment and do not constitute a part of the record and therefore the question of expanding the Election Commission does not arise therefore there is no substance in the prayer of Election Commission to restrain media from reporting in court proceedings and freedom of media to report court proceeding is an integral part of freedom of speech and expression especially for those who wish to speak and who wants to hear and to be heard and hold judiciary accountable as a constitutional institution.


The Decision Held by the Court

The Honourable Supreme Court disposed of the appeals.

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