exceptions to the rule of open courts
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1767 of 2021
(Arising out of SLP (C) No. 6731 of 2021)
The Chief Election Commissioner of India ....Appellant
Versus
M.R Vijayabhaskar & Ors. ....Respondents
3 This Special Leave Petition2
arises from an order dated 30 April 2021 of a
Division Bench of the High Court of Judicature at Madras. The High Court
entertained a writ petition3
under Article 226 of the Constitution to ensure that
COVID-related protocols are followed in the polling booths at the 135- Karur
Legislative Assembly Constituency in Tamil Nadu. During the hearings, the
Division Bench is alleged to have made certain remarks, attributing responsibility
to the EC for the present surge in the number of cases of COVID-19, due to their
1
EC
2
SLP
3 WP No. 10441 of 2021
PART A
4
failure to implement appropriate COVID-19 safety measures and protocol during
the elections. At issue are these oral remarks made by the High Court, which the
EC alleges are baseless, and tarnished the image of the EC, which is an
independent constitutional authority.
.........
5 A writ petition was filed before the Madras High Court by the respondent,
who is the District Secretary and was a candidate of the AIADMK for the 135-
Karur Legislative Assembly Constituency. Given the surge in the number of
COVID-19 cases, the respondent had sent a representation on 16 April 2021 to
the EC to take adequate precautions and measures to ensure the safety and
health of officers in the counting booths. Since no response was received, the
respondent approached the High Court and sought a direction to ensure fair
counting of votes on 2 May 2021 at the 135- Karur Legislative Assembly
Constituency by taking effective steps and arrangements in accordance with
COVID-19 protocols.
6 The petition was heard by a Division Bench of the High Court, comprising
of Justice Sanjib Banerjee, Chief Justice of the Madras High Court, and Justice
Senthilkumar Ramamoorthy, on 26 April 2021 and an order was passed in the
following terms:
4. [] Even though the polling was by and large peaceful in
this State on April 6, 2021, it must be observed that the
Election Commission could not ensure that political parties
adhered to the Covid protocol at the time of election
campaigns and rallies. Despite repeated orders of this Court,
going on like a broken record at the foot of almost every
order on an election petition, that Covid protocol ought to be
maintained during the campaign time, the significance of
adhering to such protocol may have been lost on the
Election Commission, going by the silence on the part of the
Election Commission as campaigning and rallies were
conducted without distancing norms being maintained and in
wanton disregard of the other requirements of the protocol.
5. In view of the rapid surge in the number of cases on a
daily basis, albeit this State not yet being as badly affected
as some other States, the measures to be adopted at the
time of the counting of votes on May 2, 2021, which is about
a week away, should already have been planned in the light
PART A
6
of the grim situation now prevailing. At no cost should the
counting result in being a catalyst for a further surge, politics
or no politics, and whether the counting takes place in a
staggered manner or is deferred. Public health is of
paramount importance and it is distressing that
Constitutional authorities have to be reminded in such
regard. It is only when the citizen survives that he enjoys the
other rights that this democratic republic guarantees unto
him. The situation is now one of survival and protection and,
everything else comes thereafter.
............
7 During the course of the hearing, it is alleged that the High Court orally
observed that the EC is the institution that is singularly responsible for the
PART A
7
second wave of COVID-19 and that the EC should be put up for murder
charges. These remarks, though not part of the order of the High Court, were
reported in the print, electronic and tele media.
8 On 27 April 2021, an individual filed a complaint, against Mr Sudip Jain,
Deputy Election Commissioner and other officials of the EC under Sections 269,
270 and 304 read with Section 120-B of the Indian Penal Code, 1860 in Khardah
Police Station, Kolkata. The complaint makes no reference to the order dated 26
April 2021 of the Madras High Court.
9 Before the Madras High Court, the EC filed a counter-affidavit detailing the
orders issued and the steps taken for management of poll processes in view of
the pandemic. The EC also filed a miscellaneous application9
for the following
reliefs:
[]
29. this Honble Court may be pleased to pass an order of
interim direction directing that only what forms part of the
record in the present proceedings W.P. No. 10441/2021
is to be reported by the press and electronic media and
further directions may be issued to the media houses to
issue necessary clarification in this regard and thus
render Justice.
30. In the circumstances, it is prayed that this Honble
Court may be pleased to pass on order of interim
direction directing that the police authorities shall not
register any FIR/complaint for offence of Murder on the
basis of the media reports of the oral observations
attributed to this Honble Court in relation to W.P. No.
10441/2021 and thus render Justice.
(emphasis supplied)
9 WMP No. 12062 & 12065 of 2020
PART B
8
10 The matter was heard again by the Madras High Court on 30 April 2021
when the High Court disposed of the petition, in view of the measures taken by
the EC for observance of COVID-19 protocols at the time of the counting of votes
on 2 May 2021, particularly in the 135- Karur Constituency. The miscellaneous
application was also closed in light of this order.
11 Aggrieved by the order of 30 April 2021, the EC has approached this Court.
The grievance is that its miscellaneous application has not been evaluated on
merits and its grievance in regard to the oral observations made during the
previous hearing have not been addressed.
23 However, there are certain exceptions to the rule of open courts in India. In
Mirajkar (supra), Chief Justice PB Gajendragadkar observed:
21. While emphasising the importance of public trial, we
cannot overlook the fact that the primary function of the
judiciary is to do justice between the parties who bring their
causes before it. If a Judge trying a cause is satisfied that
the very purpose of finding truth in the case would be
retarded, or even defeated if witnesses are required to give
evidence subject to public gaze, is it or is it not open to him
in exercise of his inherent power to hold the trial in camera
either partly or fully? If the primary function of the court is to
do justice in causes brought before it, then on principle, it is
difficult to accede to the proposition that there can be no
exception to the rule that all causes must be tried in open
court. If the principle that all trials before courts must be held
in public was treated as inflexible and universal and it is held
that it admits of no exceptions whatever, cases may arise
where by following the principle, justice itself may be
defeated. That is why we feel no hesitation in holding that
the High Court has inherent jurisdiction to hold a trial in
camera if the ends of justice clearly and necessarily require
the adoption of such a course. It is hardly necessary to
emphasise that this inherent power must be exercised with
great caution and it is only if the court is satisfied beyond a
PART C
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doubt that the ends of justice themselves would be defeated
if a case is tried in open court that it can pass an order to
hold the trial in camera.
Hence, while in camera proceedings may be necessary in certain exceptional
circumstances to preserve countervailing interests such as the rights to privacy
and fair trial, for instance, in a sexual assault case, public scrutiny of the court
process remains a vital principle for the functioning of democracy.