Freedom and constraints of judicial conduct

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
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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
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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.4 Freedom and constraints of judicial conduct
34 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 on 26 April 2021. The High Court has not been
impleaded before us and has not had an opportunity to respond. Thus, we have
been 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 (three years have elapsed since the decision in Swapnil
Tripathi (supra)) the absence of records of oral proceedings would continue to
bedevil the system. However, a constitutional authority such as the 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. We have, in deference to the independent
constitutional status of the High Court, not required a confirmatory report from the
Registrar General of the High Court.
35 The independence of the judiciary from the executive and the legislature is
the cornerstone of our republic. Independence translates to being impartial, free
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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).
36 The manner in which judicial proceedings are conducted, especially in our
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 devils 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.
37 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
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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 her to their points of view. If this expression were to
be discouraged the process of judging would be closed. As Lord Denning MR
observed in Sirros vs Moore22:
Every Judge of the courts of this land  from the highest to the
lowest  should be protected to the same degree, and liable to
the same degree. If the reason underlying this immunity is to
ensure that they may be free in thought and independent in
judgment, it applies to every Judge, whatever his rank. Each
should be protected from liability to damages when he is acting
judicially. Each should be able to do his work in complete
independence and free from fear. He should not have to turn the
pages of his books with trembling fingers, asking himself: If I do
this, shall I be liable in damages? So long as he does his work in
the honest belief that it is within his jurisdiction, then he is not
liable to an action. He may be mistaken in fact. He may be
ignorant in law. What he does may be outside his jurisdiction
in fact or in law  but so long as he honestly believes it to be
within his jurisdiction, he should not be liable. Once he honestly
entertains this belief nothing else will make him liable. He is not
to be plagued with allegations of malice or ill will or bias or
anything of the kind. Actions based on such allegations have
been struck out and will continue to be struck out. Nothing will
make him liable except it to be shown that he was not acting
judicially, knowing that he had no jurisdiction to do it.
 
22 [1975] QB 118
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This Court has also had the opportunity to deal with a matter concerning the
expunging of adverse remarks from judicial records in Kashi Nath Roy vs State
of Bihar23
. The judgment of the two Judge bench noted:
7. It cannot be forgotten that in our system, like elsewhere,
appellate and revisional courts have been set up on the
presupposition that lower courts would in some measure of
cases go wrong in decision-making, both on facts as also on law,
and they have been knit-up to correct those orders. The human
element in justicing being an important element, computerlike functioning cannot be expected of the courts; however
hard they may try and keep themselves precedent-trodden
in the scope of discretions and in the manner of judging.
Whenever any such intolerable error is detected by or
pointed out to a superior court, it is functionally required to
correct that error and may, here and there, in an appropriate
case, and in a manner befitting, maintaining the dignity of
the court and independence of judiciary, convey its
message in its judgment to the officer concerned through a
process of reasoning, essentially persuasive, reasonable,
mellow but clear, and result-orienting, but rarely as a
rebuke. Sharp reaction of the kind exhibited in the aforeextraction is not in keeping with institutional functioning.
The premise that a Judge committed a mistake or an error
beyond the limits of tolerance, is no ground to inflict
condemnation on the Judge-Subordinate, unless there existed
something else and for exceptional grounds.
(emphasis supplied)
In Dr Raghubir Saran vs State of Bihar and Another24
, this Court particularly
advised higher Courts to enable judges of the lower Courts to freely express their
opinion. Chief Justice K Subba Rao, speaking for a three Judge bench observed:
6. []
I entirely agree with the remarks. I reiterate that every judicial
officer must be free to express his mind in the matter of the
appreciation of evidence before him. The phraseology used by
a particular Judge depends upon his inherent reaction to
falsehood, his comparative command of the English
language and his felicity of expression. There is nothing
more deleterious to the discharge of judicial functions than
 
23 (1996) 4 SCC 539
24 (1964) 2 SCR 336
PART C
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to create in the mind of a Judge that he should conform to a
particular pattern which may, or may not be, to the liking of
the appellate court. Sometimes he may overstep the mark.
When public interests conflict, the lesser should yield to the
larger one. An unmerited and undeserved insult to a witness
may have to be tolerated in the general interests of
preserving the independence of the judiciary. Even so, a duty
is cast upon the judicial officer not to deflect himself from the
even course of justice by making disparaging and undeserving
remarks on persons that appear before him as witnesses or
otherwise. Moderation in expression lends dignity to his office
and imparts greater respect for judiciary. But occasions do arise
when a particular Judge, without any justification, may cast
aspersions on a witness or any other person not before him
affecting the character of such witness or person. Such remarks
may affect the reputation or even the career of such person. In
my experience I find such cases are very rare. But if it happens, I
agree with the Full Bench of the Bombay High Court that the
appellate court in a suitable case may judicially correct the
observations of the lower court by pointing out that the
observations made by that court were not justified or were
without any foundation or were wholly wrong or improper.
(emphasis supplied)
38 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 A.M Mathur vs
Pramod Kumar Gupta25
, a two Judge bench of this Court, speaking through
Justice K Jagannatha Shetty held:
13. Judicial restraint and discipline are as necessary to the
orderly administration of justice as they are to the
effectiveness of the army. The duty of restraint, this humility
of function should be a constant theme of our judges. This
quality in decision making is as much necessary for judges
to command respect as to protect the independence of the
judiciary. Judicial restraint in this regard might better be called
judicial respect, that is, respect by the judiciary. Respect to those
 
25 (1990) 2 SCC 533
PART C
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who come before the court as well to other co-ordinate branches
of the State, the executive and the legislature. There must be
mutual respect. When these qualities fail or when litigants and
public believe that the judge has failed in these qualities, it will be
neither good for the judge nor for the judicial process.
14. The Judge's Bench is a seat of power. Not only do judges
have power to make binding decisions, their decisions legitimate
the use of power by other officials. The judges have the absolute
and unchallengeable control of the court domain. But they
cannot misuse their authority by intemperate comments,
undignified banter or scathing criticism of counsel, parties
or witnesses. We concede that the court has the inherent power
to act freely upon its own conviction on any matter coming before
it for adjudication, but it is a general principle of the highest
importance to the proper administration of justice that derogatory
remarks ought not to be made against persons or authorities
whose conduct comes into consideration unless it is absolutely
necessary for the decision of the case to animadvert on their
conduct.
(emphasis supplied)
39 In balancing these 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.
40 We are 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
PART C
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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 functions26 which are essential for conducting the
periodic exercise of breathing life into our democratic political spaces.
41 Today, the Court has not been called upon to determine the
constitutionality or legality of the actions of the EC in its conduct of the Assembly
elections in the five states. In restricting ourselves to the specific grievances that
have been urged by the EC, regarding the remarks made by the judges of the
Madras High Court, we find that 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 Court - if indeed it did make the oral
observations which have been alluded to - did not seek to attribute culpability for
the COVID-19 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.
 
26 Mohinder Singh Gill vs Chief Election Commr., (1978) 1 SCC 405
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42 Having said that, we must emphasize the need for judges to exercise
caution in off-the-cuff remarks in open court, which may be susceptible to
misinterpretation. 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 present
case. All that needs to be clarified is 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. We hope the matter can rest with a sense of balance which we have
attempted to bring.
43 These oral remarks are not a part of the official judicial record, and
therefore, the question of expunging them 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, in view of the
above discussion, we find no substance in the prayer of the EC for restraining the
media from reporting on court proceedings. This Court stands as a staunch
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proponent of the freedom of the media to report court proceedings. This we
believe 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.