2021 Supreme(SC) 235

SUPREME COURT OF INDIA
Dhananjaya Y. Chandrachud, M.R. Shah, JJ.
The Chief Election Commissioner of India – Appellant
Versus
M.R Vijayabhaskar & Ors. – Respondents
Civil Appeal No. 1767 of 2021 (Arising out of SLP (C) No. 6731 of 2021)
Decided on : 06-05-2021

IMPORTANT POINTS
(1) Courts must be open both in physical and metaphorical sense. Concept of an open court requires that information relating to a court proceeding must be available in public domain. Citizens have a right to know about what transpires in course of judicial proceedings
(2) Freedom of speech and expression extends to reporting proceedings of judicial institutions as well.
(3) Independence of judiciary from executive and legislature is cornerstone of our republic.
(4) Language is an important instrument of a judicial process which is sensitive to constitutional values. Oral remarks are not a part of official judicial record and question of expunging them does not arise.

Headnote:

(A) Administration of Justice – Open Courts and Indian Judiciary – Courts must be open both in 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 principle that open access to courts is essential to safeguard valuable constitutional freedoms – Concept of an open court requires that information relating to a court proceeding must be available in public domain – Citizens have a right to know about what transpires in course of judicial proceedings – Dialogue in a court indicates 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 court, response of opposing counsel and issues raised by court are matters on which citizens have a legitimate right to be informed – An open court proceeding ensures that judicial process is subject to public scrutiny – Public scrutiny is crucial to maintaining transparency and accountability – Transparency in functioning of democratic institutions is crucial to establish public‘s faith in them – 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 conduct of a Judge – Cases before courts are vital sources of public information about activities of legislature and executive – An open court serves an educational purpose as well – Court becomes a platform for citizens to know how practical application of law impacts upon their rights – While in camera proceedings may be necessary in certain exceptional circumstances to preserve countervailing interests such as rights to privacy and fair trial, for instance, in a sexual assault case, public scrutiny of court process remains a vital principle for functioning of democracy (Paras 19, 20, 21, 22 and 23)

(B) Constitution of India – Articles 19(1)(a) and 226 – Scope of judicial review over Election Commission in matters pertaining to conduct of elections – Constitution guarantees media 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 regulatory provisions of Article 19(2) – Freedom of speech and expression extends to reporting proceedings of judicial institutions as well – Courts are entrusted to perform crucial functions under law – Their work has a direct impact, not only on rights of citizens, but also extent to which citizens can exact accountability from executive whose duty it is to enforce law – Citizens are entitled to ensure that courts remain true to their remit to be a check on arbitrary exercises of power – Ability of citizens to do so bears a direct correlation to seamless availability of information about what happens in a court during course of proceedings – Therein lies importance of freedom of media to comment on and write about proceedings – Technology has shaped social, economic and political structures beyond description – 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 news – This would also include information reported about functioning of courts – 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 25, 26, 27 and 28)

(C) Administration of Justice – Open Courts – Media reporting of Court proceedings – With advent of technology, we are seeing reporting proliferate through social media forums which provide real-time updates to a much wider audience – This is an extension of freedom of speech and expression that media possesses – This constitutes a virtual‘ extension of open court – This phenomenon is a not a cause of apprehension, but a celebration of our constitutional ethos which bolsters integrity of judiciary by focusing attention on its functions – Several courts across the world, including US Supreme Court, UK Supreme Court, Court of Appeal of UK and International Criminal Court enable public viewership of proceedings through live streaming or other suitable open access methodology. (Para 33)

(D) Administration of Justice – Freedom and constraints of judicial conduct – Expunging of remarks by Bench – Independence of judiciary from executive and legislature is cornerstone of our republic – Independence translates to being impartial, free from bias and uninfluenced by actions of those in power, but also recognizes freedom to Judges to conduct court proceedings within contours of well-established principles of natural justice – Judges in performance of their duty must remain faithful to oath of office they hold, which requires them to bear allegiance to Constitution – An independent judiciary must also be one which is accountable to public in its actions (and omissions) – Manner in which judicial proceedings are conducted, especially in our superior courts, is unique to each Judge and holds great weight in dispensation of justice – 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 Bench is intrinsic to a process of open and transparent judging – Revealing of a Judges‘ mind enables opposing parties to persuade her to their points of view – If this expression were to be discouraged process of judging would be closed – Duty to preserve independence of judiciary and to allow freedom of expression of Judges in court is one end of spectrum – Other end of spectrum, which is equally important, is that 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 these two ends, role of superior courts is especially relevant – This Court must strike a balance between reproaching High Courts or lower courts unnecessarily, so as to not hamper their independent functioning – This court must also intervene where Judges have overstepped mark and breached norms of judicial propriety – 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) – During COVID-19 pandemic, High Courts across country have shown commendable foresight in managing 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 other hand is EC, a constitutional authority tasked with critical task of undertaking superintendence and control of elections under Article 324 of Constitution – EC has facilitated 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 periodic exercise of breathing life into our democratic political spaces – Language, both on Bench and in judgments, must comport with judicial propriety – Language is an important instrument of a judicial process which is sensitive to constitutional values – Oral remarks are not a part of official judicial record and question of expunging them does not arise – This Court stands as a staunch proponent of freedom of media to report court proceedings. (Paras 35, 36, 37, 38, 39, 40, 42 and 43)

Facts of the case:

A delicate question of balancing the powers of two constitutional authorities in this appeal has raised larger issues of the freedom of speech and expression of the media, right to information of citizens and the accountability of the judiciary to the nation. The authority of a judge to conduct judicial proceedings and to engage in a dialogue during the course of a hearing and the freedom of the media to report not just judgments but judicial proceedings have come up for discussion. Present 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 petition 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 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.

Findings of Court:

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. 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.

Result : Appeal disposed of with observations.