In an era where the internet has become increasingly accessible and millions use social media, the world has been hit by one of the worst pandemics in history. Healthcare systems around the world, and more particularly in India, have been seriously tested. The actions of the government and various authorities are being widely reported in the mainstream and social media and the people consume this information and form their opinions.
This era of communication has ensured the transmission of information at a lightning speed. Consequently, as soon as something transpires in open court proceedings, it swiftly finds its way to all forms of media. The reporting of adverse observations in these forums, therefore, has the potential to cause a grievance to the parties to the proceedings.
This article seeks to provide an analysis of the special leave petition of the Election Commission of India filed before the Supreme Court on May 1 challenging the oral observations of the division bench of the Madras high court headed by the chief justice during proceedings concerning the counting of votes in the Karur Assembly and maintaining of COVID-19 appropriate behaviour. The article will also endeavour to examine the extent of media freedom, the autonomy of our high courts, and duties of constitutional Bodies like the Election Commission of India.
The principal grievance of the Election Commission of India (EC) in its pleadings is against two alleged oral observations made by the high court during the course of proceedings:
- “The Election Commission of India is the institution that is singularly responsible for the situation that is prevalent today.”
- “The officers of the Election Commission of India should be put up for murder charges.”
The EC was also aggrieved by the refusal of the high court to deal with the issue once it was brought to its notice and simply brushing it aside by observing orally that “post-mortem can be done later”.
A perusal of the grounds in the plaint makes it apparent that the more than the actual oral remarks of the learned judges, it is the wide media reportage of the remarks which is causing deep anguish to the EC.
The main grounds taken in the SLP are summarised for ease of reference:
- The court was dealing with the issue of arrangement for counting at the Karur Assembly constituency due to there being 77 candidates, and the logistical difficulties that might be there in view of COVID-19. This was no occasion to make the impugned observations.
- Courts must restrain themselves from making strong adverse remarks against persons or authorities as laid down in various judgments of the Supreme Court.
- The media must only report the final order/judgment of the court since oral observations or communication between counsel do not constitute the view of the court; the reporting must be purely factual.
- The oral observations have led to a police complaint being filed against a deputy election commissioner as a result of the oral statements made by the judges of the High Court during the course of proceedings.
Supreme Court on Election Commission
At the outset, it is pertinent to mention that the Supreme Court has in an order passed in the case of Election Commission of India v Union of India (1995) reiterated “the judicial perception as to the constitutional position and the plenitude of the powers of the Election Commission as a high and exclusive body charged with the duty, at once sensitive and difficult, of overseeing free and fair elections in the country and that its perceptions of the imperatives for free and fair elections are not to be interfered with by the courts”.
The court also held that it is the duty of the court to see that constitutional authorities function within their spheres, but the courts cannot direct the Election Commission to hold elections on a specific date independently of the perceptions that they can be free and fair.
It is therefore pertinent to mention that the Election Commission has in its special leave petition asserted that its job is to conduct elections, and the job to ensure COVID-19 appropriate behaviour lies with the respective state government, in this case, it rests with the Tamil Nadu government.
The role of the media
In this background, it is important to recapitulate the role of the media in disseminating information to the public.
In 1950, there were two judgments of the Supreme Court regarding press freedom that we should take note of. The first is the case of Romesh Thappar v State of Madras (1950) in which the court held that there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation.
The second is the case of Brij Bhushan and another v the State NCT of Delhi (1950) in which the court held that “there can be little doubt that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by Article 19(1)(a).”
The Supreme Court has in the case of Express newspapers of 1958 held the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India to include within it the freedom of the press. This right is, of course, subject to the restrictions specified under Article 19(2) of the Constitution of India.
The court has also recently accepted implementing live streaming of certain court proceedings and recognised the importance of technology while also specifying the necessary safeguards in the case of Swapnil Tripathi.
There are circumstances that warrant courts cautioning the media about the manner of its reportage of judicial proceedings. An example of such a circumstance is when the media conducts a media trial in criminal proceedings. However, the general view is that the public has a right to know about what is happening in open court, and it is the duty of the media to disseminate information. It is in this context that we must view the order of the Supreme Court.
With the contents of the special leave petition and the role of the media and the EC in mind, we will now examine the judgement delivered by Justice Chandrachud in the recent case of The Chief Election Commissioner of India v M.R. Vijayabhaskar & Ors (2021)
In its judgment, the court recognises that both the EC and the high court are constitutional bodies and proceeds to embark on striking a balancing act. The court reiterates the freedom of the press being encapsulated in Article 19(1) (a) and being subject to the restrictions specified in Article 19(2) of the Constitution.
The heart of the matter according to the court (as stated also in the analysis of the SLP) is the plea of the EC to restrain the media from reporting court proceedings. According to the EC, nothing apart from what forms part of the judicial record should be reported, as it does not form part of the judicial record.
The court refuses the plea of the EC to direct that no coercive action be taken against its officers and leaves it to take appropriate remedies under the Code of Criminal Procedure (the code) such as quashing under Section 482 of the code.
The Supreme Court stresses the importance of reporting proceedings that are conducted in an open court; these cases are vital sources of public information about the activities of the legislature and the executive. Not all cases are heard in open court; cases involving privacy of parties, such as matrimonial cases, or matters involving child sexual abuse are held in-camera.
The court recognises the importance of the advancement of technology and revisits its decision in the case of Swapnil Tripathi where it laid down the manner in which livestreaming of proceedings could be conducted in certain cases and specified the safeguards. The court also notes that whereas the decision was delivered in 2018, it has still not been implemented despite three years have elapsed.
Most crucially, the Supreme Court has observed that real-time updates of court proceedings through social media forums to a much wider audience are a virtual extension of open court and that this phenomenon is not a cause for apprehension but a celebration of India’s constitutional ethos, which bolsters the integrity of the judiciary by focusing attention on its functions.
The court must allow new forms of media to report on its work. This observation follows the order of the Supreme Court concerning the distribution of essential supplies and services during the pandemic in which it has warned authorities to not target citizens turning to social media for help in procuring oxygen and supplies on the pretext of the information being false and only being shared to create panic and defame the administration. The court held that such threats of prosecution must stop immediately and if they don’t, it may have to invoke its powers available to it under contempt jurisdiction. Consequently, all director generals have been directed to ensure compliance in their ranks.
Thus, the court suggests embracing social media rather than clamping down on it. The court has also tried to proactively shield citizens from being hounded by state governments and police authorities, simply because they can’t digest the cries for help on social media.
These observations are vital contributions to the constantly evolving jurisprudence of our country in the age of the internet and social media in the context of the right guaranteed under Article 19(1)(a) of the Constitution of India.
While recognising the importance of preserving the independence of the judiciary and the freedom of expression of the judges in court, the court notes that the power of judges must not be unbridled, and judicial restraint must be exercised before using strong and scathing language. The court adverts to the judgement in A.M Mathur (Supra) to support this observation. The court recognises the importance of striking a balance between reproaching the high courts or lower courts unnecessarily, to not hamper their independent functioning, but says it must intervene where judges have overstepped the mark and breached the norms of judicial propriety.
The oral remarks were not officially before the court, nor was the high court impleaded. Consequently, the court was constrained to note that unless live-streaming and archiving of court proceedings see the light of the day, the absence of oral proceedings would continue to bedevil the system. However, since a constitutional body such as the EC had adverted to these remarks on affidavit and they were not disputed by the respondent, the court did not call for a confirmatory report from the registrar general of the High Court.
While the court refuses to restrain the media from reporting court proceedings and the dialogue between the bar and the bench, which takes place during the proceedings, it sounds a word of caution for the judges of the high court to refrain from making off-the cuff-oral remarks which may be misinterpreted by the media.
The court also holds that there is no question of expunging remarks which are not there on the official judicial record. It is also pertinent to note that the judgements cited in the special leave petition on judicial restraint concern adverse remarks made by courts/ tribunals in written orders forming part of the judicial record. The court in its judgment takes note of these judgements and has now added that judges must show restraint and be circumspect while making oral off-the-cuff remarks also to avoid any misinterpretation to allay the concerns of the Election Commission.
It has also in the process stated its appreciation for the Election Commission by holding that it has a track record of being an independent constitutional body that shoulders a significant burden in ensuring the sanctity of electoral democracy.
Thus, in conclusion, the decision of the court re-emphasises the important role the media plays in our democracy. It has refrained from passing any strictures against the media and has, in fact, recognised the importance of technology and social media to inform the public about what is transpiring in open court proceedings.
The judgment then should be viewed as a housekeeping order, as a guideline to be followed while conducting a judicial proceeding in the age of social media and the communications revolution.
Raghav Tankha is a lawyer practising in Delhi.