Public Discourse, Media Reporting and Judicial Accountability

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.3 Public Discourse, Media Reporting and Judicial Accountability
29 As we understand 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.
PART C
21
30 With the exception of in camera proceedings, a courtroom is a public
space. In Attorney General vs Leveller Magazine20, Lord Diplock, held that The
principle of open justice requires that the court should do nothing to discourage
fair and accurate reports of proceedings. An open court and transparent
dispensation of justice in all its modalities, is an end in itself. As we have
discussed above, technology is an accelerant in this endeavor, but not the
harbinger of this thought. Media reporting has operated alongside formalized
court processes for close to a century. Court proceedings in colonial India,
especially sedition trials, were also sites of political contestation where colonial
brutality and indignity were laid bare. The widespread reportage on Lokmanya
Balgangadhar Tilaks first trial for sedition was seminal in highlighting the variance
in procedural laws and rights denied to Indian undertrials, as he struggled to
access legal aid and was convicted in spite of a non-unanimous verdict of the
jury. The Lokmanyas poignant words, while recorded by the order as a
formalized process of sentencing, were circulated far and wide by anti-colonial
publications which fueled Indias struggle for freedom. These words incidentally
also adorn the plaque outside that very courtroom in the Bombay High Court to
this day21:
In spite of the verdict of the Jury I maintain that I am
innocent. There are higher Powers that rule the destiny of
men and nations and it may be the will of Providence that
the cause which I represent may prosper more by my
suffering than by my remaining free.
 
20 [1979] A.C. 440
21 Emperor vs Balgangadhar Tilak, (1908) 10 BOMLR 848 (Bombay High Court)
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22
31 Post-independence, 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. These tales have now passed down as the legacy of our profession
and also provide useful context for our study of the law.
32 Albeit in the context of the value of open courts, Justice Bachawat,
speaking for this Court in Mirajkar (supra), had placed emphasis on the publicity
of court proceedings in the following terms:
A court of justice is a public forum. It is through publicity that
the citizens are convinced that the court renders even
handed justice, and it is, therefore, necessary that the trial
should be open to the public and there should be no restraint
on the publication of the report of the court proceedings. The
publicity generates public confidence in the administration of
justice.Hegel in his Philosophy of Right maintained that
judicial proceedings must be public, since the aim of the
Court is justice, which is universal belonging to all.
33 With the advent of technology, we are seeing reporting proliferate through
social media forums which provide real-time updates to a much wider audience.
As we have discussed in the previous section, 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.
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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.