The Chief Election Commissioner … vs M.R. Vijayabhaskar on 6 May, 2021


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Supreme Court of India

The Chief Election Commissioner … vs M.R. Vijayabhaskar on 6 May, 2021

Author: Hon’Ble Dr. Chandrachud

                                                                            Reportable

                             IN THE SUPREME COURT OF INDIA
                              CIVIL APPELLATE JURISDICTION


                                 Civil Appeal No. 1767 of 2021
                           (Arising out of SLP (C) No. 6731 of 2021)



          The Chief Election Commissioner of India                       ....Appellant




                                           Versus




          M.R Vijayabhaskar & Ors.                                     ....Respondents




Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2021.05.06
15:54:16 IST
Reason:




                                              1
                                JUDGMENT


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

2
PART A

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? 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
1
―EC‖
2
―SLP‖
3
WP No. 10441 of 2021

3
PART A

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 2021 5 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 2021 6 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 and street plays during

the days of the campaign between 7 pm and 10 am. Another letter 8 was issued on

the same day re-emphasizing strict adherence to COVID-19 related safety

protocols.

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
8
Letter No. 464/WB-LA/2021

4
PART A

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

5
PART A

of the grim situation now prevailing. At no cost should the
counting result in being a catalyst 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

6
PART A

second wave of COVID-19” and that the EC “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)

9
WMP No. 12062 & 12065 of 2020

7
PART B

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.

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:

8

PART B

(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;

(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

9
PART B

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;

(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;

10
PART C

(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

11
PART C

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 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

12
PART C

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 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

10
(2010) 4 SCC 653
11
[1974] 3 WLR 801

13
PART C

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 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

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.

14

(2018) 10 SCC 639, hereinafter referred to as ―Swapnil Tripathi‖

14
PART C

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 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

15
PART C

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 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

15
1959 SCR 12

16
PART C

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 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

16
(1992) 3 SCC 637

17
PART C

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 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

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>

18
PART C

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)

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-guidance-dec-2011.pdf >

19
PART C

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:

―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.pd
f>.] 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.

20
PART C

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,

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 sedition was 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.‖

20
[1979] A.C. 440
21
Emperor vs Balgangadhar Tilak, (1908) 10 BOMLR 848 (Bombay High Court)

21
PART C

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 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.

22
PART C

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

23
PART C

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).

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
24
PART C

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
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.‖

22
[1975] QB 118

25
PART C

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 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

23
(1996) 4 SCC 539
24
(1964) 2 SCR 336

26
PART C

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 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 Shetty held:

―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

25
(1990) 2 SCC 533

27
PART C

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
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

28
PART C

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.

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.

26

Mohinder Singh Gill vs Chief Election Commr., (1978) 1 SCC 405

29
PART C

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 prayer of the EC for restraining the

media from reporting on court proceedings. This Court stands as a staunch

30
PART D

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.




………….………………………………………………..J.
[Dr Dhananjaya Y Chandrachud]

……..….………………………………………………..J.
[M R Shah]

New Delhi;

May 6, 2021.

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