Freedom of speech and expression includes freedom of press to report court proceedings: SC

By Abhinav Verma

The Supreme Court on Thursday said it stands as a staunch proponent of the freedom of the media to report court proceedings. The Court said it believes it 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.

The two-judge bench comprising Justice D.Y. Chandrachud and Justice M.R. Shah pronounced its judgment in the Election Commission’s plea against the Madras High Court’s oral observations. The Apex Court today said oral remarks of judges 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, no substance was found in the prayer of the EC for restraining the media from reporting on court proceedings,” the order reads.

The top court also said that it stands as a staunch proponent of the freedom of the media to report court proceedings.

The judgment by Justice D.Y. Chandrachud highlights the following issues:-

Open courts and the Indian judiciary

“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 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.”

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.

Freedom of expression of the media

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 India, explained that Article 19(1)(a) would carry within it, implicitly, the right to freedom of the press.
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).

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 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.

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.

Freedom and constraints of judicial conduct

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).

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.

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.

The bench passed this judgment in case where a plea was filed by the Election Commission of India (ECI), challenging oral observations made by the Madras High Court that ECI should probably be put up for ‘murder charges,’ in view of how the election rallies were held, in violation of COVID-19 safety norms.

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Earlier, the Commission had filed an application in the Madras High Court against its oral observation and said that media reports of the Court’s oral comments had caused grave prejudice to it. But, the High Court refused to entertain that application.