Introduction
Today we will discuss another judicial pronouncement
by the Hon’ble Supreme Court of India, namely, Chief Election
Commissioner v. MR Vijayabhaskar & Others, 2021 SCC OnLine SC 364,
wherein vide Judgment dated 06.05.2021, the Court discussed the freedom of
media to report oral hearings of the Courts and the authority of a judge to
conduct judicial proceedings.
What the Court predominantly did in this Judgment was to
reiterate the principles of Open Court, Judicial Restraint and Free Press.
Usually, a case like this could have been dismissed in limine since the
EC was seeking the relief that the media should be allowed to report only what
forms the record of court proceedings and nothing else such as oral remarks. I
feel that there is a need to understand that Media cannot be seen in abstract
terms. It is comprised of the citizens of India. These citizens may talk with
each other as they wish to. It could be done on social media or in person or
any other platform. Today’s media is not the one that used to exist 30 years
ago. Every citizen who is on social media may be considered to be a part of the
Media today.
Facts in Brief
It was alleged that the Madras High Court while
hearing a matter in relation to maintenance of Covid Protocols in Polling Booths
in April 2021, had orally observed that “the EC 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.’
These remarks were widely circulated in the media
and the Election Commission (in short, “EC”) sought a direction
that the media may be allowed to report only the proceedings that are on record
and not oral remarks. It was further prayed that the Police may be restrained
from registering any Murder Case in relation to the oral observations made by
the Madras High Court.
The Madras High Court did not consider grant of
such relief and the EC approached the Supreme Court seeking relief that 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, may be done and no
coercive action may be taken against it in respect of a Criminal Complaint
lodged against it at Kolkata.
Observations of the Court
1. If an FIR has been lodged in Kolkata, then
there are other remedies that could be resorted to under the Code of Criminal
Procedure, 1973 such as seeking quashing under Section 482 and directly coming
to the Supreme Court is misconceived.
2. The Open Court Proceedings ensure that information
regarding judicial process is available in public domain and subject to public
scrutiny, as the “citizens have a right to know about what transpires in
the course of judicial proceedings.”
3. The exceptions to Open Court Proceedings are
matters that involve right to privacy of an individual and fair in trial such
as sexual assault case etc. but apart from it, “public scrutiny of the
court process remains a vital principle for the functioning of democracy.”
4. The case of Express Newspaper (P) Limited
v. Union of India, 1959 SCR 12, was cited to explain the mandate of
Article 19 (1) (a) of the Constitution of India that provides for right to
freedom of speech and expression. This case explained that Press Freedom is of
two types: -
a. Freedom From – “A free press is
free from compulsions from whatever source, governmental or social, external or
internal.”
b. Freedom For – “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.”
5. In the present case, the Court acknowledged
that internet has refashioned and revolutionized the means through which
information is relayed and the world is adopting to technology at a pace “which
is often difficult to catalogue.” Hence, preventing new forms of media
from reporting on the Courts would not be prudent. The Court cited the example
of England wherein the British Court had observed that media may report on
court proceedings using text-based communications (including Twitter) without
making an Application to the Court. Various case-laws were also cited explaining
that the Courts too must become tech-savvy and accept the new reality.
Interestingly, it was also observed that “our public constitutional
institutions must find better responses than to complain.”
6. Though the oral remarks made by the Madras High
Court have been impugned by the EC, but the Madras High Court had not been
impleaded as a party to the proceedings giving it no opportunity of hearing.
Hence, the Court noted that it would be unable to comment on the same. It also
observed that unless proceedings and its archival becomes a reality, “the
absence of records of oral proceedings would continue to bedevil the system.”
7. The Court also made some interesting remarks
explaining the working of the Courts in the following manner: -
“40. 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.”
8. In this regard, the Court cautioned that the
judges must exercise judicial restraint, “before using strong and
scathing language to criticize any individual or institution.” The case
of AM Mathur v. Pramod Kumar Gupta, (1990) 2 SCC 533, was cited,
wherein it was observed that “respect to those who come before the court
as well to other co-ordinate branches of the State, the executive and the
legislature” and “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.”
9. According to the Supreme Court, if at all such remarks
were made, “the remarks of the High Court were harsh. The metaphor inappropriate.”
Despite these observations, the Court stated that since those purported remarks
were anyways not part of the record; therefore, there is no question of
expunging them.
10. The Petition filed by the EC was disposed of on these
terms that we just discussed.
In the present case, one constitutional body (EC) approached
another constitutional body (Supreme Court) to seek relief against the
purported oral remarks made by another constitutional body (Madras High Court).
None of the reliefs sought by the EC seems to have been granted by the Court.
I think that the EC has a very onerous task at hand
i.e., to conduct elections. What the citizens of India want to talk about should
be left to them. Though it was a delight to read this Judgment by the Supreme Court,
yet as the Court said, I sincerely hope that “our public constitutional
institutions must find better responses than to complain.” This applies
to all the other constitutional bodies as well.
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