# THE CHIEF ELECTION COMMISSIONER OF INDIA v. M.R VIJAYABHASKAR & ORS

- **Citation:** [2021] 5 S.C.R. 196
- **Court:** Supreme Court of India
- **Decided:** 2021-05-06
- **Case number:** Civil Appeal No. 1767 of 2021
- **Bench:** Dr Dhananjaya Y Chandrachud, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-chief-election-commissioner-of-india-v-m-r-vijayabhaskar-ors-35311
- **Pages:** 36

## Headnote

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

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SUPREME COURT REPORTS
[2021] 5 S.C.R.
 [2021] 5 S.C.R. 196
196
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
THE CHIEF ELECTION COMMISSIONER OF INDIA v. M.R
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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-onmedia-and-judicial- independence-publication-1994eng.pdf>; 'Practice Guidance: The Use of Live TextBased 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-dec2011.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. Postindependence, 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 Courtif indeed it did make the oral observations which have been
alluded to- did not seek to attribute culpability for the COVID19 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
8 Letter No. 464/WB-LA/2021
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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 135Karur 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 COVID19" 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.