The Supreme Court has recently, in the case of The
Chief Election Commissioner of India Vs. M.R Vijaybhaskar &
Ors.¹
(“Judgment“), reiterated the inalienable
right of the media to report oral remarks of judges during the
course of any hearing. A bench, led by Justice DY Chandrachud,
comprehensively tackled this precarious question which had found
its way to the Apex Court.

The Special Leave Petition (SLP) in front of the Supreme Court,
arose from an order of the Madras High Court dated April 30, 2021
(“Impugned Order“) wherein the
Hon’ble Madras High Court was deciding on a writ petition under
Article 226 of the Constitution, in relation to observance of
pandemic-related protocols at certain polling booths in Tamil Nadu.
In the course of the hearings for the aforesaid matter, the Madras
High Court is alleged to have made certain disparaging remarks,
mentioned below, on April 26, 2021
(“Hearing“), towards the Election
Commission (“EC“), including remarks
apportioning responsibility on the EC for the present surge of
Covid-19 cases due to its failure to implement appropriate Covid-19
protocols during the election period. The EC took issue with these
comments and approached the Supreme Court for relief. It is
pertinent to note here that, much like the judiciary, the EC is an
independent constitutional authority.

The overwhelming point of dispute, therefore, reveals itself to
be the problem of balance, or lack thereof. On the one hand, is the
much-quoted right of freedom of speech and expression of the media,
and also the responsibility of the judiciary towards the citizens,
and on the other hand, if at all, are the boundaries of judicial
conduct. The answer to the complex matrix has been dissected in the
Judgment, and it commences with the remarks itself. During the
Hearing, it is alleged that the Madras High Court orally observed
that EC is “the institution that is singularly responsible
for the second wave of Covid-19″, and that it
“should be put up for murder
charges“². As may be evident, these comments,
apparently delivered by the Madras High Court, do not form part of
the order dated April 26, 2021, but have been reported by various
forms of the media. In response to the above remark allegedly
uttered in the Hearing, the EC filed a miscellaneous petition in
the Madras High Court, including a prayer with regard to the oral
remarks, which led to the Impugned Order, wherein the Madras High
Court closed the miscellaneous petition, thereby leading to the
SLP.

The counsel for EC argued in the Supreme Court that the remarks
made by the High Court were widely reported in the media and
tarnished the image of the EC as an independent constitutional
body, had caused undue prejudice to EC, and interestingly, that the
courts should exercise restraint while making observations about
the EC or the electoral process, as it falls within the domain of
another expert constitutional authority³. EC further
notably averred that oral comments of judges as quoted in the
mainstream media, may give the impression of an institutional
opinion, which exceeds the contours of judicial
propriety⁴ and this grievance comprises the essence of
the SLP.

At the very outset, the Judgment hones in on one of the key
principles of the Judiciary, and restates that the concept of open
court proceedings is a cornerstone of the Indian judiciary, save in
exceptional circumstances, and is crucial to safeguarding our
constitutional freedom. The Judgment held that foremost, citizens
have an unqualified right to information relating to court
proceedings, and such information must at all times, be available
in the public domain, and at the mercy of public scrutiny. The
Judgment cited Mohammed Shahabuddin Vs. State of
Bihar⁵ as an example of the interpretation
of “open court”, wherein it has been noted that
“.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 courts⁶“. The Judgment also made
reference to the case of Swapnil Tripathi Vs. Supreme
Court of India⁷, in which the Apex Court
accurately expressed that citizens depended on information on
judicial decisions as contained in the media and “when the
description of cases is accurate and comprehensive, it serves the
cause of open justice⁸“. The Judgment then turns
its attention towards reinforcing the freedom of expression of the
media. The role of the citizens in acting as a system of checks and
balances for the courts lest the latter indulges in arbitrary
exercises of power has also been emphasised. While holding forth on
the specific gripe of the EC, the Supreme Court surmised that
“observations made during the course of a hearing do not
constitute a judgment or binding decision. They are at best,
tentative points of view.if this expression were to be discouraged,
the process of judging would be closed⁹“. The
Supreme Court was of the view that even if the High Court did make
the remarks alluded to it in the Hearing, it did not intend to find
EC culpable for the pandemic and increasing number of cases, but
instead merely wished to demonstrate concern and urge EC to ensure
stricter compliance¹⁰. However, the Supreme Court also
noted the need for judges to exercise restraint in making comments
in open court which may be susceptible to misinterpretation. While
disposing of the SLP, the Supreme Court held that with regard to
the remarks being expunged, the same do not form part of the
official judicial records and hence, the question of expunging them
did not arise.

The Judgment has, therefore, sought to explain that the
rationale behind refusing to entertain the plea of EC is rooted not
only in the reluctance of impinging on the freedom of speech and
expression of the fourth estate, but also from ensuring that the
public continues to play its part in augmenting the integrity of
the judiciary. The Supreme Court, through the Judgment, has
unanimously fortified the fact that the threshold begins and ends
with “fair and accurate reporting of proceedings”, while
cautioning the judges to curtail an inordinate use of off-the-cuff
remarks.

Footnotes

1. Civil Appeal No. 1767 of 2021 (Arising out of SLP (C)
No. 6731 of 2021), can be found at https://main.sci.gov.in/supremecourt/2021/11474/11474_2021_35_1502_27915_Judgement_06-May-2021.pdf

2. Paragraph 7, Page 6, ibid

3. Paragraph 13, Page 9-10, ibid

4. Ibid

5. (2010) 4 SCC 653

6. Paragraph 19, Page 12-13, Civil Appeal No. 1767 of
2021

7. Paragraph 22, Page 15, ibid

8. Paragraph 22, Page 15, ibid

9. Paragraph 37, Page 24-25, ibid

10. Paragraph 41, Page 29, ibid

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