TaxTMI 
TaxTMI 
2021 (5) TMI 1101
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....kground 2 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, the 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. What are the contours which outline judicial conduct? What are the concerns courts must be alive to in an age defined by the seamless flow of information? What purpose does the media serve in a courtroom? Above all, in a constitutional framework founded on a classical scheme of checks and balances, can a constitutional body - in this case the Election Commission of India ["EC"] - set up a plea that constitutional status is an immunity from judicial oversight? Each of these components will be addressed in this judgment. 3 This Special Leave Petition ["SLP"] arises from an order dated 30 April 2021 of a Division Bench of the High Court of Judicature at Madras. The High Court entertaine....
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....ficers 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 ralli....
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....iate measures in place immediately. 9. The matter will appear on April 30, 2021 to review the situation when a complete picture as to adequate steps having been taken at all counting centres should be indicated by the Election Commission. [ ... ]" 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 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 application [WMP No. 120....
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.... that the EC is the "the institution that is singularly responsible for the second wave of COVID-19" and that the EC "should be put up for murder charges": (a) These observations bear no relevance to the nature of the controversy before the High Court, which related to the need to make arrangements for safe counting of votes consistent with COVID-19 protocols at the 135- Karur Legislative Assembly Constituency; (b) The polling had already been completed and only the counting of votes remained on 2 May 2021; (c) These observations were made without giving the EC an opportunity to explain the steps it had taken for maintenance of COVID-19 protocols and it had no notice that its conduct of the elections during the campaign would engage attention during the hearing; (d) The High Court has made disparaging oral observations without proof or material; and (e) The High Court disposed of the writ petition without addressing the miscellaneous application filed by the EC; (ii) The remarks made by the High Court were widely reported in the media and have tarnished the image of the EC as an independent constitutional authority. These remark....
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....ide ranging powers in a State during the time of an election, including powers to deploy para military forces, suspend or replace officers such as District magistrates, police officers and even the Director General of Police, to ensure that their directives are followed. Thus, the EC was responsible for the implementation of safety measures and protocols related to COVID-19 during the elections. 15 We shall now consider the submissions of the counsel from the perspective of the issues this case has raised. C Legal Position & Analysis 16 Before this Court, the EC is aggrieved by the oral observations of the High Court during the course of the hearing and by it not having addressed the merits of its miscellaneous application. In its miscellaneous application, the EC sought (i) media reporting of only what forms a part of the judicial record before the Madras High Court and not the oral observations of the judges; and (ii) a direction that no coercive action be taken against the officials of the EC on the complaint filed before the Khardah Police Station, Kolkata. 17 At the outset, it must be noted that the second prayer noted above was thoroughly misconceived. If an FIR h....
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....mission, the proceedings cannot be considered to go on in open courts ... an "open court" is a court to which general public has a right to be admitted and access to the court is granted to all the persons desirous of entering the court to observe the conduct of the judicial proceedings." 20 There are multiple ways in which an open court system contributes to the working of democracy. An open court system ensures that judges act in accordance with law and with probity. Lord Widgery's remarks in R vs Socialist Workers Printers, ex p Attorney General [[1974] 3 WLR 801] sum up the role public hearings play on the conduct of the judge in the following terms: "The great virtue of having the public in court courts is that discipline which the presence of the public imposes upon the court itself. When the court is full of interested members of the public ... it is bound to have the effect that everybody is more careful about what they do, everyone tries just that little bit harder and there is disciplinary effect on the court which would be totally lacking if there were no critical members of the public or press present. When one has an order for trial in camera, all the p....
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.... in newspapers and in the electronic media. When the description of cases is accurate and comprehensive, it serves the cause of open justice. However, if a report on a judicial hearing is inaccurate, it impedes the public's right to know. Courts, though open in law and in fact, become far removed from the lives of individual citizens. This is anomalous because courts exist primarily to provide justice to them." (emphasis supplied) 23 However, there are certain exceptions to the rule of open courts in India. In Mirajkar (supra), Chief Justice PB Gajendragadkar observed: "21. ... While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a cause is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? If the primary function of the court is to do justice in causes brought before it, then on pri....
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.... combine and which existing techniques make possible. For these ends, it must have full command of technical resources, financial strength, reasonable access to sources of information at home and abroad, and the necessary facilities for bringing information to the national market. The press must grow to the measure of this market."" (emphasis supplied) 25 The Constitution guarantees the media the 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 the regulatory provisions of Article 19(2). The decision in LIC vs Manubhai D. Shah (Prof.) [(1992) 3 SCC 637] develops these ideas : " ... The print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy. Freedom to air one's views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. It cannot be gainsaid that modern communication mediums advance public interest by informing the public of the events and developments tha....
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.... The media has over the years, transitioned from the predominance of newspapers in the printed form, to radio broadcasts, television channels and now, to the internet for disseminating news, views and ideas to wide audiences extending beyond national boundaries. The internet, including social media, have refashioned and, in significant ways, revolutionized the means through which information is relayed. At every stage of this transition, new questions have been raised about how court processes will adapt to the change, so that the rights of the parties before the courts and processes of justice are not affected^2. However, while these are valid concerns, they should never be a good enough reason for Courts to not engage with evolving technology. Technology has shaped social, economic and political structures beyond description. The 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 the news. This, understandably, would also include information repo....
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....gs 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. 30 With the exception of in camera proceedings, a courtroom is a public space. In Attorney General vs Leveller Magazine [[1979] A.C. 440], Lord Diplock, held that "The principle of open justice requires that the court should do nothing to discourage fair and accurate reports of proceedings." An open court and transparent dispensation of justice in all its modalities, is an end in itself. As we have discussed above, technology is an accelerant in this endeavor, but not the harbinger of this thought. Media reporting has operated alongside formalized court processes for close to a century. Court proceedings in colonial India, especially sedition trials, were also sites of political contestation where colonial brutality and indignity were laid bare. The widespread reportage on Lokmanya Balgangadhar Tilak's first trial for sedition was seminal in highlighting the variance in procedural laws and ri....
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....sters the integrity of the judiciary by focusing attention on its functions. Several courts across the world, including the US Supreme Court, the UK Supreme Court, the Court of Appeal of the UK and the International Criminal Court enable public viewership of proceedings through livestreaming or other suitable open access methodology. The Gujarat High Court also recently introduced livestreaming of its proceedings, in a bid to enhance public participation in the dispensation of justice. In this backdrop, it would be retrograde for this Court to promote the rule of law and access to justice on one hand, and shield the daily operations of the High Courts and this Court from the media in all its forms, by gagging the reporting of proceedings, on the other. 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....
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....e 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 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 Moore [[1975] QB 118]: "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 un....
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....orienting, but rarely as a rebuke. Sharp reaction of the kind exhibited in the afore- extraction 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 Another [(1964) 2 SCR 336], 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 to create in the mind of a Judge that he should conform to a particular pattern which may, or may not be, to the li....
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....ect. 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 ....
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....ons 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. 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 ha....