India: The Supreme Court Rules On The Quarrel Over Oral Remarks Of Judges

The Supreme Court has recently, in the case of The Chief Election Commissioner of India Vs. M.R Vijaybhaskar & Ors.¹ ("Judgment"), reiterated the inalienable right of the media to report oral remarks of judges during the course of any hearing. A bench, led by Justice DY Chandrachud, comprehensively tackled this precarious question which had found its way to the Apex Court.

The Special Leave Petition (SLP) in front of the Supreme Court, arose from an order of the Madras High Court dated April 30, 2021 ("Impugned Order") wherein the Hon'ble Madras High Court was deciding on a writ petition under Article 226 of the Constitution, in relation to observance of pandemic-related protocols at certain polling booths in Tamil Nadu. In the course of the hearings for the aforesaid matter, the Madras High Court is alleged to have made certain disparaging remarks, mentioned below, on April 26, 2021 ("Hearing"), towards the Election Commission ("EC"), including remarks apportioning responsibility on the EC for the present surge of Covid-19 cases due to its failure to implement appropriate Covid-19 protocols during the election period. The EC took issue with these comments and approached the Supreme Court for relief. It is pertinent to note here that, much like the judiciary, the EC is an independent constitutional authority.

The overwhelming point of dispute, therefore, reveals itself to be the problem of balance, or lack thereof. On the one hand, is the much-quoted right of freedom of speech and expression of the media, and also the responsibility of the judiciary towards the citizens, and on the other hand, if at all, are the boundaries of judicial conduct. The answer to the complex matrix has been dissected in the Judgment, and it commences with the remarks itself. During the Hearing, it is alleged that the Madras High Court orally observed that EC is "the institution that is singularly responsible for the second wave of Covid-19″, and that it "should be put up for murder charges"². As may be evident, these comments, apparently delivered by the Madras High Court, do not form part of the order dated April 26, 2021, but have been reported by various forms of the media. In response to the above remark allegedly uttered in the Hearing, the EC filed a miscellaneous petition in the Madras High Court, including a prayer with regard to the oral remarks, which led to the Impugned Order, wherein the Madras High Court closed the miscellaneous petition, thereby leading to the SLP.

The counsel for EC argued in the Supreme Court that the remarks made by the High Court were widely reported in the media and tarnished the image of the EC as an independent constitutional body, had caused undue prejudice to EC, and interestingly, that the courts should exercise restraint while making observations about the EC or the electoral process, as it falls within the domain of another expert constitutional authority³. EC further notably averred that oral comments of judges as quoted in the mainstream media, may give the impression of an institutional opinion, which exceeds the contours of judicial propriety⁴ and this grievance comprises the essence of the SLP.

At the very outset, the Judgment hones in on one of the key principles of the Judiciary, and restates that the concept of open court proceedings is a cornerstone of the Indian judiciary, save in exceptional circumstances, and is crucial to safeguarding our constitutional freedom. The Judgment held that foremost, citizens have an unqualified right to information relating to court proceedings, and such information must at all times, be available in the public domain, and at the mercy of public scrutiny. The Judgment cited Mohammed Shahabuddin Vs. State of Bihar⁵ as an example of the interpretation of "open court", wherein it has been noted that ".even if the press is present, if individual members of the public are refused admission, the proceedings cannot be considered to go on in open courts⁶". The Judgment also made reference to the case of Swapnil Tripathi Vs. Supreme Court of India⁷, in which the Apex Court accurately expressed that citizens depended on information on judicial decisions as contained in the media and "when the description of cases is accurate and comprehensive, it serves the cause of open justice⁸". The Judgment then turns its attention towards reinforcing the freedom of expression of the media. The role of the citizens in acting as a system of checks and balances for the courts lest the latter indulges in arbitrary exercises of power has also been emphasised. While holding forth on the specific gripe of the EC, the Supreme Court surmised that "observations made during the course of a hearing do not constitute a judgment or binding decision. They are at best, tentative points of view.if this expression were to be discouraged, the process of judging would be closed⁹". The Supreme Court was of the view that even if the High Court did make the remarks alluded to it in the Hearing, it did not intend to find EC culpable for the pandemic and increasing number of cases, but instead merely wished to demonstrate concern and urge EC to ensure stricter compliance¹⁰. However, the Supreme Court also noted the need for judges to exercise restraint in making comments in open court which may be susceptible to misinterpretation. While disposing of the SLP, the Supreme Court held that with regard to the remarks being expunged, the same do not form part of the official judicial records and hence, the question of expunging them did not arise.

The Judgment has, therefore, sought to explain that the rationale behind refusing to entertain the plea of EC is rooted not only in the reluctance of impinging on the freedom of speech and expression of the fourth estate, but also from ensuring that the public continues to play its part in augmenting the integrity of the judiciary. The Supreme Court, through the Judgment, has unanimously fortified the fact that the threshold begins and ends with "fair and accurate reporting of proceedings", while cautioning the judges to curtail an inordinate use of off-the-cuff remarks.

Footnotes

1. Civil Appeal No. 1767 of 2021 (Arising out of SLP (C) No. 6731 of 2021), can be found at https://main.sci.gov.in/supremecourt/2021/11474/11474_2021_35_1502_27915_Judgement_06-May-2021.pdf

2. Paragraph 7, Page 6, ibid

3. Paragraph 13, Page 9-10, ibid

4. Ibid

5. (2010) 4 SCC 653

6. Paragraph 19, Page 12-13, Civil Appeal No. 1767 of 2021

7. Paragraph 22, Page 15, ibid

8. Paragraph 22, Page 15, ibid

9. Paragraph 37, Page 24-25, ibid

10. Paragraph 41, Page 29, ibid

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