Freedom of Expression of the Media

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.

C.2 Freedom of Expression of the Media
24 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 India15
,
explained that Article 19(1)(a) would carry within it, implicitly, the right to freedom
of the press. The Court held:
As with all freedoms, press freedom means freedom
from and freedom for. A free press is free from
compulsions from whatever source, governmental or
social, external or internal. From compulsions, not from
pressures; for no press can be free from pressures
except in a moribund society empty of contending
forces and beliefs. These pressures, however, if they are
persistent and distorting  as financial, clerical, popular,
institutional pressures may become  approach
compulsion; and something is then lost from effective
freedom which the press and its public must unite to restore.
A free press is free for the expression of opinion in all its
phases. It is free for the achievement of those goals of press
service on which its own ideals and the requirements of the
community combine and which existing techniques make
possible. For these ends, it must have full command of
technical resources, financial strength, reasonable access to
sources of information at home and abroad, and the
necessary facilities for bringing information to the national
 
15 1959 SCR 12
PART C
17
market. The press must grow to the measure of this
market.
(emphasis supplied)
25 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). The decision in LIC vs Manubhai D. Shah (Prof.)16 develops these ideas :
The print media, the radio and the tiny screen play the
role of public educators, so vital to the growth of a healthy
democracy. Freedom to air one's views is the lifeline of any
democratic institution and any attempt to stifle, suffocate or
gag this right would sound a death-knell to democracy and
would help usher in autocracy or dictatorship. It cannot be
gainsaid that modern communication mediums advance
public interest by informing the public of the events and
developments that have taken place and thereby educating
the voters, a role considered significant for the vibrant
functioning of a democracy. Therefore, in any set-up, more
so in a democratic set-up like ours, dissemination of
news and views for popular consumption is a must and
any attempt to deny the same must be frowned upon
unless it falls within the mischief of Article 19(2) of the
Constitution. It follows that a citizen for propagation of
his or her ideas has a right to publish for circulation his
views in periodicals, magazines and journals or through
the electronic media since it is well known that these
communication channels are great purveyors of news
and views and make considerable impact on the minds
of the readers and viewers and are known to mould
public opinion on vital issues of national importance
(emphasis supplied)