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Freedom of Speech and Expression Extends to Reporting Court Proceedings As Well: SC

Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well. Courts are entrusted to perform crucial functions under the law. Their work has a direct impact, not only on the rights of citizens, but also the extent to which the citizens can exact accountability from the executive whose duty it is to enforce the law. Citizens are entitled to ensure that courts remain true to their remit to be a check on arbitrary exercises of power. The ability of citizens to do so bears a direct correlation to the seamless availability of information about what happens in a court during the course of proceedings. Therein lies the importance of freedom of the media to comment on and write about proceedings (Para 26).


THE CHIEF ELECTION COMMISSIONER OF INDIA V. MR VIJAYBHASKAR & ORS.

[Civil Appeal No.1767 of 2021]

Decided on May 6, 2021


The present case was decided by a Division Bench of the Supreme Court comprising Justice DY Chandrachud and Justice MR Shah.


The present case seeks to create a balance between the freedom of speech and expression of the media, the right to information of the 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 the judgments but judicial proceedings have come up for discussion. The question is whether a constitutional body can set up a plea that constitutional status is an immunity from judicial oversight.


The case arises from an order of the Madras High Court attributing responsibility for the present surge in the number of cases of COVID-19, due to their failure to implement appropriate measures and protocol during the elections. The oral remarks made by the High Court are issued to be baseless and tarnishing of the image of the EC.

Mr. Rakesh Dwivedi, learned Senior Counsel for the EC, argued that the disparaging oral observations made by the HC should not have been made, since they bore no relevance to the nature of the controversy. These remarks were reported by the media and tarnished the image of the EC as an independent constitutional authority. They have reduced the faith of the people in the authority. Further, he argued, that the scope of judicial review over the EC in matters pertaining to the conduct of elections is limited.

As for the media, he argued that the media must report accurate proceedings, and pleaded for the Court to issue guidelines on the manner of reporting court proceedings. A balance must be maintained between the conduct of the court proceedings and the freedom of media.


The EC also filed a miscellaneous application that sought, inter alia, a direction that no coercive action be taken against the EC officials on the complaint filed before the Khardah Police Station, Kolkata. In this regard, the Court held that the EC has the remedy available under Section 482 of the Criminal Procedure Code, to quash to complaint.


The Court addressed the question of open court proceedings, which is a fundamental principle guaranteed under the Constitution. Arguments addressed before the court, the response of opposing counsel and issues raised by the court are matters on which citizens have a legitimate right to be informed. An open court proceeding ensures that the judicial process is subject to public scrutiny. Public scrutiny is crucial to maintaining transparency and accountability. The Court referred to R V. Socialist Workers Printers, wherein it was held that the public imposes discipline upon the Court.


Further, public scrutiny also fosters confidence in the process. Public discussion and criticism may also work as a restraint on the conduct of a judge. Open courts serve an educational and informational purpose. However, in the case of Naresh Shridhar Mirajkar V. State of Maharashtra, certain exceptions to this rule were also laid down. If the primary function of the court is to do justice to the cases before it, then it is difficult to accede to the proposition that there can be no exception to the rule that all cases must be tried in open court. This may lead to cases where justice may be defeated.


Hence, while in camera proceedings may be necessary in certain exceptional circumstances to preserve countervailing interests such as the rights to privacy and fair trial, for instance, in a sexual assault case, public scrutiny of the court process remains a vital principle for the functioning of democracy (Para 23).


On the question of freedom of speech and expression of the media, under Article 19(1)(a), the Court referred to the case of LIC V. Manubhai D Shah, wherein it was held that 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.


Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well. Courts are entrusted to perform crucial functions under the law. Their work has a direct impact, not only on the rights of citizens, but also the extent to which the citizens can exact accountability from the executive whose duty it is to enforce the law. Citizens are entitled to ensure that courts remain true to their remit to be a check on arbitrary exercises of power. The ability of citizens to do so bears a direct correlation to the seamless availability of information about what happens in a court during the course of proceedings. Therein lies the importance of freedom of the media to comment on and write about proceedings (Para 26).


Media reports allow the citizens to hold the executive accountable, and ensure that Courts exercise a check on arbitrary use of power. The ability of citizens to do so bears a direct correlation to the seamless availability of information about what happens in a court during the course of proceedings. The Court observed that technological advances now require that information on the functioning of courts is available to the digital citizens on social media websites and other applications. In this regard, the Court held that it would do it no good to prevent the new forms of media from reporting their work.


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 (Para 29).


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 (Para 30).


Hence, in this regard, the Court held that it would be retrograde for the Court to promote the rule of law and access to justice on one hand, and shield the daily operations of the High Courts and Supreme Court from the media in all its forms, by gagging the reporting of proceedings, on the other.


The last matter at hand was regarding the oral comments alleged to be made by the High Court. In this regard, the Supreme Court observed that 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. They are tentative points of view, on which rival perspectives of parties in conflict enable the judge to decide on an ultimate outcome. These observations help the Court to come at an informed and deliberated conclusion.


In Dr Raghubir Saran vs State of Bihar, the Supreme Court particularly advised higher Courts to enable judges of the lower Courts to freely express their opinion. However, a balance has to be maintained between preservation of the independence of the judiciary and freedom of expression of the Judges, and judicial restraint.


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 (Para 39).


Therefore, in this context, the Court understood the anguish of the HC when faced with rising COVID cases, with the duty to protect the life of the citizens. While the remarks were harsh, they were intended to urge the EC to ensure stricter compliance of COVID-19 protocols during elections. At the same time, the Court urged the Judges to follow a degree of caution and circumspection while making observations.


The oral remarks were held to not be part of the official judicial record, hence, not subject to expunging. The Court found no substance in the prayer of the EC to restrain the media from reporting court proceedings, since a formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing.


Hence, the appeal was dismissed.



Navyaa Shukla

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