SC dismisses Election Commission plea against Madras HC oral remarks, but feels need for judicial restraint (Updated, with order)

ILNS: The Supreme Court on Thursday dismissed the Election Commission’s plea against the oral observations made by Madras High Court that the ECI was “singularly responsible” for the Covid second wave in India and should be tried for “murder charges”. The bench said: “We find no substance in prayer of ECI to restrain the media from reporting court proceedings.”

At the same time, though, the bench comprising Justices D.Y. Chandrachud and M.R. Shah said, “There is a need for judicial restraint for off-the-cuff remarks open for misinterpretation. Judicial language is importance for constitutional ethos. Power of judicial review is so high that it forms a basic structure.”

In its last proceeding, the court had observed that to “stop the media from reporting the proceedings is a little inappropriate.”

Justice Chandrachud: “A delicate question of balancing power of two constitutional authorities has led to a question to power and the role of the media. We look at freedom of the media to not only report the orders, but also judicial proceedings. In a constitutional framework based on checks and balances, can the ECI set up a plea when there is constitutional immunity to a body? We say courts must be open, save and except for in-camera proceedings like marital privacy etc.”

Justice Chandrachud continued: “Open access to court is the cornerstone of constitutional freedom. Article 19 1a covers the freedom of the press. Freedom of speech and expression covers freedom to cover court proceedings too. Courts have to remain true to their remit and provide checks on arbitrary exercise of power. Freedom of the media lies in comments and reporting of proceedings. News has travelled from newspaper, radio and internet.”

“The internet has revolutionized court room reporting. There should not be a good enough reason for courts to engage with evolving technology. Now, people are more digital oriented and hence look to internet for information. Hence, it would do no good to prevent a new medium from reporting proceedings. Constitutional bodies will do better than complain about this.”

“This is also a part of augmenting the integrity of the judiciary. With the advent of technology, we are seeing reporting with real time updates. It is a part of freedom of speech and expression of the press. It’s an extension of the open court.”

“International courts allow live streaming. The Gujarat High Court has also allowed to so. In this backdrop, it would be retrograde for the court to gag reporting of proceedings and uphold constitutional ethos.”

“The manner in which proceedings are conducted in superior courts is unique to each judge. Such interaction is based on spontaneity of thought. Many times, judges play the role of the Devil’s Advocate. Orders must reflect an application of mind. Observations during hearings are not a part of the judgment, but are a part of the solution which elicits thought from the opposing counsels. If this expression is discouraged the process of judging will be closed.
“This court must balance so as to not encroach the lower courts and hamper their independence. We have on the one hand the Madras High Court, which performs the intrinsic role of exercising power under Article 226 and in touch with ground reality. High courts have played a commendable role in handling the Covid-19 pandemic. On other hand, is the Election Commission, which has conducted free and fair elections for over 70 years and its independence is essential for democracy to thrive.”

Justice Chandrachud continued: “Regarding remarks made by the High Court, we understand that high court was facing rising cases of Covid-19. Remarks were harsh and metaphor improper. The high court did not attribute culpability to the ECI for the spread of Covid-19. There is a need for judicial restraint for off-the-cuff remarks which is open for misinterpretation. Judicial language is important for constitutional ethos. The power of judicial review is so high that it forms a basic structure. But there must be ethics for the conduct of an argument in court, irrespective of who he or she is. An argument can’t be spontaneous, without application of mind, presentation of ethics and much more important, the responsibility of position to enhance the faith of public into them.

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“A degree of caution and restraint on the part of the high court would have allayed these proceedings. Oral remarks are not part of the order and hence, no question of expungement.”

The bench’s order was clear: “We find no substance in prayer of ECI to restrain media from reporting court proceedings.”