VERY recently, the Indian supreme court delivered a landmark judgement on judicial restraint. Elections to the legislative assemblies of certain states were announced. The Election Commission of India (EC) issued letters to presidents of political parties on the norms to be observed by citizens, elected candidates and the rest, and threatened that in the event of non-observance of those norms, it would ban public meetings and rallies. Eventually, it did ban them as well as street plays.

An election candidate asked the EC to take proper precautions to ensure the safety and health of its officials in the counting booths. Since he received no response, he petitioned the Madras High Court for direction to ensure fair counting of votes of that constituency by taking effective steps and arrangements in accordance with Covid-19 protocols.

During the hearing, it was said that the Madras High Court had observed orally that the electoral body is “the institution that is singularly responsible for the second wave of Covid-19” and that it “should be put up for murder charges”. These remarks, though not part of the order, were reported in the media. An individual filed a complaint against the deputy election commissioner and other poll officials. It made no reference to the high court order.

Should the bench’s oral remarks be reported?

The “EC filed a counter-affidavit detailing the orders issued and the steps taken for management of poll processes in view of the pandemic”. It also filed a petition seeking direction that only what forms part of the record in the writ proceedings and not oral observations of the high court must be reported by the press and the electronic media and that media houses must issue necessary clarifications in this regard.

The EC also sought direction that “the police authorities shall not register any FIR/complaint for offence of murder on the basis of the media reports of the oral observations attributed to” the court.

Hearing the matter again the Madras High Court decided to dispose of the petition, in view of the steps taken by EC with regard to Covid-19 protocols during the vote count. The application was also closed in light of this order.

In the present appeal before the supreme court, the EC contended that its grievance in regard to the oral observations made during the previous hearing has not been addressed.

The supreme court said that during the hearing, it had been alleged that the high court had remarked that the EC had been held as “singularly responsible” for Covid-19’s second wave and quoted the allegation about the murder charges. These remarks were not part of the high court’s order but were reported in the media.

The EC also filed an application that the court “may be pleased to pass an order of interim direction directing that only what forms part of the record in the present proceedings is to be reported by the press and electronic media and further directions may be issued to the media houses to issue necessary clarification in this regard and thus render justice.

“In the circumstances, it is prayed that the hon’ble court may be pleased to pass an order of interim direction directing that the police authorities shall not register any FIR/ complaint for offence of murder on the basis of the media reports… .”

The EC appealed to the apex court which observed: “Courts must be open both in the physical and metaphorical sense. Save and except for in-camera proceedings in an exceptional category of cases … our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms. The concept of an open court requires that information relating to a court proceeding must be available in the public domain. Citizens have a right to know about what transpires in the course of judicial proceedings. Oral arguments are postulated on an open exchange of ideas. It is though such an exchange that legal arguments are tested and analysed. 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.”

This puts paid to the law laid down by one chief justice of India. He prided himself on his quick temper openly in a press interview. What riled him was the wide press coverage of his intemperate words. He did the incredible and a supine press submitted to this edict: “You will not mention the name of the judge so as to identify him. You will simply report ‘the bench said… .’” This was as arrogant and puerile as it was illegal. The bench speaks through its judgement. The oral outbursts are the doings of the judge — an individual.

But this edict was obeyed by the press. Will it change its style now?

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, December 18th, 2021