This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This is an exhaustive article that throws light on the judgment in the case of the Chief Election Commissioner of India v. M.R Vijayabhaskar & Ors.
Amidst the rising cases of COVID-19, the Madras High Court observed that the Election Commission (EC) was not strict enough in ensuring the compliance of the safety protocols and condemned their actions for allowing political parties to carry on with rallies. Concerned regarding the subject of public health, the Division Bench made certain remarks which were then widely circulated in the electronic media. Grieved by the stinging remarks, the EC went on to plead before the Supreme Court which has been discussed in detail below.
On February 26th, 2021, the Election Commission (EC) announced general elections to the Legislative Assemblies of Tamil Nadu, Kerala, West Bengal, Assam, and Puducherry. As for the State of Tamil Nadu, the polling was scheduled for 6th April 2021, and the counting of votes on 2nd May 2021. During the preparation of the polls, the EC had issued a letter dated 12 March 2021 addressed to the presidents and general secretaries of all National and State political parties emphasizing the observance of instructions related to COVID-19 protocol during the elections.
Another letter was issued on 9th April 2021 during the polling phase regarding the disobedience to the norms of social distancing, wearing of masks, and other similar restrictions by the candidates set up by political parties. Eventually, when there was no improvement in following the guidelines, EC issued an order on 16th April 2021 to ban the rallies, public meetings, and street plays between 7 pm and 10 am during the campaign days. Another such letter was issued on the same day focusing on the strict adherence to safety protocols. Following the continuous contravention of these rules, a writ petition was filed under Article 226 of the Indian Constitution before the Division Bench of Madras High Court by the District Secretary who was also a candidate of the All India Anna Dravida Munnetra Kazhagam AIADMK for the 135- Karur Legislative Assembly Constituency. In consideration of the increasing number of cases of COVID-19, M.R. Vijayabhaskar, the respondent, had also sent a representation to the EC on 16th April 2021 for taking reasonably sufficient precautions and measures to ensure the safety and health of officers in the counting booths. When no response was received, the respondent approached the High Court in order to seek a direction ensuring fair counting of votes on 2nd May 2021 by taking effective steps and arrangements in accordance with protocols.
The Court heard the petition and passed an order that:
- Though the polling was mostly peaceful, the EC failed to ensure the adherence of the protocols by the political parties during the campaigns and rallies.
- Despite repeated orders from the court for maintaining the norms, the EC remained silent upon the violation of the orders.
- Though the situation in the state was under control, the polling and the counting of votes in no way should have acted like the catalyst for a further surge in the cases. Public health is of paramount importance and it is distressing for the court that the constitutional authorities have to be reminded regarding such a state of affairs.
- That the prevailing situation is of survival and to enjoy the rights of the democratic republic, the citizens need to survive first.
- Further, the EC needs to maintain regular sanitization, hygienic conditions, the mandatory wearing of masks, and adherence to the distancing norms with consultations from the State Health Secretary and the Director of Public Health.
The case was then adjourned for hearing on April 30th, 2021 to review the efforts made. Later on April 30th, the petition was disposed of in light of the measures taken along with the miscellaneous application.
Aggrieved by the order dated 30 April 2021 under WP 10486 & 10812 of 2021, the EC filed a Special Leave Petition before the Supreme Court for the miscellaneous application not being evaluated on merits and the oral observation made by the Division Bench regarding the responsibilities of the EC as the cases surged due to their failure of proper implementation of the COVID-19 safety measures during the conduct of elections were not addressed. Thus, the issue remains these remarks which the EC alleges to be baseless and of tarnishing the image of EC as an independent constitutional authority.
Before the Supreme Court
The Election Commission in its appeal moved to the Supreme Court where the Court had to determine the balance of powers of the two constitutional authorities. In the backdrop of issues pertaining to the freedom of speech and expression of media, the Court had to establish the extent of the exercise of the right to information of citizens under the purview of the judiciary’s accountability towards the nation. The EC challenged the order dated 30th April 2021 and interim relief was granted in the form of a stay order.
The judgment addressed the contours that outline judicial conduct, the authority of the judge to engage in dialogue during hearings, and the extent to which media is allowed to free flow of information to report judicial proceedings beyond just reporting judgments. They also observed that whether a constitutional body (EC) can set up such a plea of constitutional status as that of immunity from judicial oversight under the various checks and balances that are imposed.
Contention on behalf of the EC
The council, on behalf of the EC, stated the High Court ought not to have made disparaging remarks such as EC is “the institution that is singularly responsible for the second wave of COVID-19” and that the EC “should be put up for murder charges”. It was further contended:
- That those observations made have no relevance to the nature of incident relating to maintaining safety measures.
- That the polling had been completed and the only counting of votes was to take place on May 2nd, 2021.
- That the EC was not given an opportunity to explain the safety measures taken by them before making such observations.
- That the High Court has made such remarks without any proof or material, and then disposed of the writ petition without addressing the miscellaneous application filed by EC.
- That the remarks made by the High Court were widely circulated in the media thereby reducing people’s faith and confidence in the EC and has undermined its sanctity as an independent constitutional authority.
- The scope of judicial review is limited in such matters pertaining to the EC’s conduct of the election and the court should exercise restraint making such remarks about the authority or the electoral process.
- That the EC did its part of taking adequate measures for enforcing safety protocols and that the actual enforcement of these measures are under State’s governance into which the EC does not interfere due to limited personnel at hand.
- That during the decision-making for conducting elections, the cases were in control and analysis would indicate that the elections were not a significant contributor to a surge in cases. Rather other states which did not even have elections had witnessed a severe surge in cases.
- That the EC had taken adequate measures and formulated guidelines for campaigning and had restricted the scope of engineering.
- That the High Court’s remarks being not a part of written judicial record have caused undue prejudice and that the media must ensure that only accurate reporting is made public without sensationalizing the proceedings can cause loss of public confidence.
- That there should be guidelines for framing the manner of court proceedings and a balance must be maintained between conducting the court proceedings and the media’s freedom of reporting.
- Though the High Court’s views are reflected through its opinion in judgments, the media has been quoting the oral remarks of judges which exceeds the judicial propriety and makes it seem like an institutional opinion.
These submissions were then opposed by the respondent’s counsel who stressed the fact that during elections the EC has a wide range of powers in a State. Powers such as deploying paramilitary forces, suspension or replacement of officers such as District Magistrates, police officers, and even the Director-General of Police, can be exercised to ensure all the guidelines and directives are followed. Thus, they were responsible for carrying out the safety protocols and ensuring the same related to COVID-19 in the elections.
In the miscellaneous application, the EC had sought two things. Firstly, the media reporting only has what forms a part of the judicial record before the Madras High Court and not the oral observations of the judges. Secondly, to issue a direction that no coercive action be taken against the officials of the EC on the basis of the complaint filed before the Khardah Police Station, Kolkata.
For the first prayer, the Court observed that two fundamental principles are roped in for determining what should be the part of the media report. These are open court proceedings; and the fundamental right to the freedom of speech and expression.
Open court hearings
These are essential to safeguard constitutional freedoms and to let the citizens have a right to information relating to court proceedings. The dialogue during the course of proceedings indicates the structure of the manner of the process and should be available in the public domain. Oral arguments are based on the open exchange of ideas and through which these are tested and analysed. The citizen has a right to be informed about the arguments addressed before the court, the response of opposing counsel, and issues raised and dealt with in court – all of which would ensure the judicial process be subject to public scrutiny. It is needed in order to maintain transparency and accountability in the functioning of the democratic institutions and establish the public’s faith in them referring to the opinion, as noted in the case of Mohammed Shahabuddin v. State of Bihar (2010). They further substantiated by relying on Lord Widgery‘s remarks in the case of R v. Socialist Workers Printers, ex p Attorney General (1974) on the role of public hearings on the conduct of the judge and judicial behaviour as well the parties and their witnesses. They referred to a few more cases, such as Naresh Shridhar Mirajkar v. State of Maharashtra (1966) regarding the conduct of the judge, and Swapnil Tripathi v. Supreme Court of India (2018) stressing the importance of the live streaming of judicial proceedings with an exception to the rule of open courts as observed in Mirajkar (supra).
Freedom of expression of the media
The right to freedom of the press comes under Article 19(1)(a) of the Constitution as explained in the case of Express Newspaper (P) Limited v. Union of India (1959), and that while this freedom is guaranteed in order to distill information and express ideas and opinions, it is subject to regulatory provisions in Article 19(2), as was stated in the case of LIC v. Manubhai D. Shah (Prof.) (1992). That this freedom extends to reporting of proceedings of judicial institutions as well as courts are entrusted to perform crucial functions of law which has a direct impact on the rights of citizens and the expectation of accountability from the executive.
This ability of the citizens to be informed has a direct correlation to the seamless availability of information regarding the judicial proceedings wherein lies the importance of freedom of media to comment and write on them as recognized in the Madrid Principles on the Relationship between the Media and Judicial Independence. This has also been recognized in the Indian jurisprudence granting the right to media for reporting the ongoing litigation before the courts with certain limitations not affecting the processes of the justice for the parties involved.
The Court focused on the technology and its impact over the years and stated that the acceptance of new reality is the way to adapt to it and thus the public constitutional institutions must find ways of keeping up with it rather than complaining as putting a restraint on the flow of such information would do no good.
Public discourse, media reporting, and judicial accountability
In this context, the right of media is not only restricted to disseminate issues in the public domain but also a part of the process of elevating the integrity of the judiciary and the cause of justice. It is important that a court should do nothing to discourage fair and accurate reports of proceedings.
Freedom and constraints of judicial conduct
It was observed that the grievance of the EC was more from the oral remarks that were made by the judges during the hearing. Those remarks received widespread publicity in the media however, these do not constitute a judgment or binding decision. They act as a tentative viewpoint which enables the judge to decide the final outcome based on the rival perspective of the parties. An exchange of view of the Bench is an intricate part of open and transparent judging where their revealed mindset enables the parties to further persuade the decision of the judge. Thus, the duty to preserve the independence of the judiciary and allow freedom of expression to judges, and putting some sort of restraint and control on their powers so as to prevent using strong and scathing language to an individual/organization are two ends of the same spectrum. That is where the superior courts need to establish a balance so as to now overstep the independent functioning of the court and intervene when the judges have overstepped the norms of judicial propriety.
Regarding the remarks, the Apex Court further observed that the High Court had to face a situation as a constitutional court for ensuring the protection of the life and liberty of citizens amidst the rising COVID-19 cases. Therein, though the remarks made were harsh and inappropriate, they did not seek to attribute culpability to the EC. These remarks were not a part of the official judicial record and that the formal opinion of the judgment is reflected through its judgments and orders and not through its oral observations.
Thus the Court concluded that they found no substance in the prayer of the EC for restraining the media from reporting on court proceedings. Language is an important instrument in the judicial process and is sensitive to constitutional values. However, the remarks made were more in the intention to urge the EC to ensure strict compliance of protocols and if the High Court had had a more cautious approach after circumspection then this grievance would not have risen.
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