The Chief Election Commissioner of India vs M.R Vijayabhaskar & Ors.

Arts. 19(1)(a), 19(2) – Freedom of expression of the Media – Reporting the proceedings of judicial institutions – Importance of – Held: Constitution guarantees the media the freedom to inform, to distill and convey information on all matters of interest – Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well – Courts are entrusted to perform crucial functions under law which has direct impact not only on the rights of citizens, but also the extent to which the citizens can exact accountability from the executive – Therein lies the importance of freedom of the media to comment on and write about proceedings – Furthermore, media has over the years, transitioned from the predominance of newspapers to internet for disseminating news, views and ideas to audiences beyond national boundaries – This, would also include information reported about the functioning of courts – Hence, it would do no good to prevent the new forms of media from reporting judicial proceedings.

Judiciary:

Open Courts – Concept of – Held: Concept of open court requires that information relating to a court proceeding must be available in the public domain – Open access to courts is essential to safeguard valuable constitutional freedoms – Courts must be open both in the physical and metaphorical sense, save and except for in-camera proceedings in an exceptional category of cases – 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. Judicial accountability – Public Discourse and Media Reporting – Held: Rights of the media to report and disseminate issues and events, including court proceedings are a part of the public domain – This is not merely an aspect of protecting the rights of individuals and entities on reporting, but also a part of the process of augmenting the integrity of the judiciary and the cause of justice as a whole.

Judicial conduct – Freedom and constraints of – Held: Independence of the judiciary 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 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. Judicial restraint and discipline – Exercise of – Held: 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 – This Court must strike a balance between reproaching the High Courts or lower courts unnecessarily, so as to not hamper their independent functioning – This Court must also intervene where judges have overstepped the mark and breached the norms of judicial propriety.

Disposing of the appeal, the Court

HELD: 1. The oral remarks “EC-Election Commission 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” are not a part of the official judicial record, and therefore, the question of expunging 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, there is no substance in the prayer of the EC for restraining the media from reporting on court proceedings. This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This 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. [Para 43][230-G-H; 231-A-B]

2.1 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. Transparency in the functioning of democratic institutions is crucial to establish the public‘s faith in them. [Para 19][215-D-G]

2.2 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. However, there are certain exceptions to the rule of open courts in India. [Paras 20-23][216-B, E-G; 217-A]

Mohammed Shahabuddin v. State of Bihar (2010) 4 SCC

653 : [2010] 3 SCR 911; Naresh Shridhar Mirajkar v. State of Maharashtra [1966] 3 SCR 744; Swapnil Tripathi v. Supreme Court of India (2018) 10 SCC 639 : [2018] 11 SCR 57 – referred to

R v. Socialist Workers Printers, ex p Attorney General [1974] 3 WLR 801 – referred to.

3.1 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. 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. Therein lies the importance of freedom of the media to comment on and write about proceedings.This principle was recognized in the Madrid Principles on the Relationship between the Media and Judicial Independence. This principle is recognized within Indian jurisprudence, where the media has full freedom to report on ongoing litigation before the Courts, within certain limitations, bearing on the need to ensure that justice between parties is not derailed. [Paras 24-26][219-D; 220-B-F]

3.2 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. This, understandably, would also include information reported about the functioning of courts. Hence, it would do us no good to prevent the new forms of media from reporting on our work. Our Court has performed its modest part to acknowledge the rapid pace of the development of technology, and our need to keep up. Acceptance of a new reality is the surest way of adapting to it. Our public constitutional institutions must find better responses than to complain. [Paras 27, 28][220-G; 221-A-D, F-G; 222-D]

Express Newspaper (P) Limited v. Union of India [1959] SCR 12; LIC v. Manubhai D. Shah (Prof.) (1992) 3 SCC 637 : [1992] 3 SCR 595; Swapnil Tripathi v. Supreme Court of India (2018) 10 SCC 639 : [2018]

11 SCR 57 – referred to

Daniel Stepniak, Technology and Public Access to Audio-Visual Coverage and Recordings of Court Proceedings: Implications for Common Law

Jurisdictions‘ 12 William & Mary Bill of Rights Journal

791 (2004) – referred to.

Madrid Principles on the Relationship between the Media and Judicial Independence <https://www.icj.org/wp-content/uploads/1994/01/madrid-principles-onmedia-and-judicial- independence-publication-1994eng.pdf>; ‘Practice Guidance: The Use of Live TextBased Forms of Communication (Including Twitter) from Court for the Purposes of Fair and Accurate Reporting‘ available at <https://www.judiciary.uk/wp- content/uploads/JCO/Documents/Guidance/ltbc-guidance-dec2011.pdf > - referred to.

4.1 As it is understood the rights of the media to report and disseminate issues and events, including court proceedings that are a part of the public domain, it is important to contextualize that this is not merely an aspect of protecting the rights of individuals and entities on reporting, but also a part of the process of augmenting the integrity of the judiciary and the cause of justice as a whole. [Para 29][222-E-F]

4.2 With the exception of in camera proceedings, a courtroom is a public space. An open court and transparent dispensation of justice in all its modalities, is an end in itself. Technology is an accelerant in this endeavor, but not the harbinger of this thought. Media reporting has operated alongside formalized court processes f or close to a century. Postindependence, matters of seminal constitutional importance have witnessed widespread reportage in newspapers and magazines which did not merely report on the pronouncement of verdicts, but also the quirks of the counsel and judges. [Para 30, 31] [222-F-H; 223-D-E]

4.3 With the advent of technology, reporting is seen to proliferate through social media forums which provide real-time updates to a much wider audience. This is an extension of the freedom of speech and expression that the media possesses. This constitutes a virtual‘ extension of the open court. This phenomenon is a not a cause of apprehension, but a celebration of our constitutional ethos which bolsters the integrity of the judiciary by focusing attention on its functions. Several courts across the world, including the US Supreme Court, the UK Supreme Court, the Court of Appeal of the UK and the International Criminal Court enable public viewership of proceedings through livestreaming or other suitable open access methodology. The Gujarat High Court also recently introduced livestreaming of its proceedings, in a bid to enhance public participation in the dispensation of justice. In this backdrop, it would be retrograde for this Court to promote the rule of law and access to justice on one hand, and shield the daily operations of the High Courts and this Court from the media in all its forms, by gagging the reporting of proceedings, on the other. [Para 33] [223-H; 224-A-D]

Emperor v. Balgangadhar Tilak, (1908) 10 BOMLR

848 – referred to.

Attorney General v. Leveller Magazine [1979] A.C. 440 – referred to.

5.1 The grievance of the EC does not arise as much from the impugned order of the Madras High Court, as it does from the oral remarks made by the judges of the High Court during the hearing. The High Court has not been impleaded before this Court and has not had an opportunity to respond. Thus, this Court is unable to discover what truly transpired in the proceedings and the exact remarks that were made. Unless live-streaming and archival of court proceedings sees the light of the day, the absence of records of oral proceedings would continue to bedevil the system. However, a constitutional authority-EC, has adverted to the oral remarks on oath in its affidavit. These have not been disputed by the respondent. The oral remarks have received widespread publicity in electronic and print media. This Court has, in deference to the independent constitutional status of the High Court, not required a confirmatory report from the Registrar General of the High Court. [Para 34][224-D-G]

5.2 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). [Para 34][224-G-H; 225-A]

5.3 The manner in which judicial proceedings are conducted, especially in ther 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. [Para 36][225-B-D]

5.4 The diversity of judicial backgrounds brings polyvocality in judgments and has enriched our jurisprudence for over seven decades since Independence. The humanity intrinsic to each judge allows them to transcend the language of the law to do complete justice. In the pursuit of doing justice and in the course of an open deliberation in court, propositions may be put forth and observations are made in order to facilitate the process of arriving at an acceptable outcome based on the law but which is in accord with justice. Observations during the course of a hearing do not constitute a judgment or binding decision. They are at best tentative points of view, on which rival perspectives of parties in conflict enable the judge to decide on an ultimate outcome. This exchange of views, perspectives and formulations is but a part of evolving towards a solution which accords with justice according to law. An exchange of views from the Bench is intrinsic to a process of open and transparent judging. The revealing of a judges‘ mind enables opposing parties to persuade them to their points of view. If this expression were to be discouraged the process of judging would be closed. [Para 37][225-D-G]

5.5 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. In balancing the two ends, the role of superior courts is especially relevant. This Court must strike a balance between reproaching the High Courts or lower courts unnecessarily, so as to not hamper their independent functioning. This court must also intervene where judges have overstepped the mark and breached the norms of judicial propriety. [Paras 38, 39] [228-C-D; 229-C]

6.1 This Court is tasked with balancing the rights of two independent constitutional authorities. On one hand is the Madras High Court, which is a constitutional court and enjoys a high degree of deference in the judicial structure of this country. The High Courts perform an intrinsic role as appellate courts and as courts of first instance in entertaining writ petitions under Article

226 (and as courts of original civil and criminal jurisdiction in certain cases. They are often the first point of contact for citizens whose fundamental rights have been violated. High Courts are constantly in touch with ground realities in their jurisdictions. During the COVID-19 pandemic, the High Courts across the country have shown commendable foresight in managing the public health crisis which threatens to submerge humanity. Their anguish when they come face to face with reality must be understood in that sense. On the other hand is the EC, a constitutional authority tasked with the critical task of undertaking superintendence and control of elections under Article 324 of the Constitution. The EC has facilitated the operation of our constitutional democracy by conducting free and fair elections and regulating conduct around them for over seven decades. Its independence and integrity are essential for democracy to thrive. This responsibility covers powers, duties and myriad functions which are essential for conducting the periodic exercise of breathing life into our democratic political spaces. [Para 40][229-D-H]

6.2 The High Court was faced with a situation of rising cases of COVID-19 and, as a constitutional Court, was entrusted with protecting the life and liberty of citizens. The remarks of the High Court were harsh. The metaphor inappropriate. The High Courtif indeed it did make the oral observations which have been alluded to- did not seek to attribute culpability for the COVID19 pandemic in the country to the EC. What instead it would have intended to do was to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections. [Para 41][230-A-C]

6.3 The need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation is emphasised. Language, both on the Bench and in judgments, must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the instant case. It is clarified that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record. The EC has a track record of being an independent constitutional body which shoulders a significant burden in ensuring the sanctity of electoral democracy. [Para 42][230-D-G]

Swapnil Tripathi v. Supreme Court of India (2018) 10 SCC 639 : [2018] 11 SCR 57; Kashi Nath Roy v. State of Bihar (1996) 4 SCC 539 : [1996] 1 Suppl. SCR 558; Dr Raghubir Saran v. State of Bihar and Another [1964]

2 SCR 336; A.M Mathur v. Pramod Kumar Gupta (1990)

2 SCC 533 : [1990] 2 SCR 110; Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405 : [1978] 2 SCR 272 – Referred to.

Sirros v. Moore [1975] QB 118 – referred to.