VERY recently, the Indian Supreme Court issued a landmark judgment on judicial restraint. Elections for some state legislatures have been announced. The Election Commission of India (EC) sent letters to presidents of political parties on standards to be observed by citizens, elected candidates and others, and threatened that in the event of non-compliance with these standards, it would ban public meetings and gatherings. Finally, he banned them as well as street plays.
An election candidate asked the EC to take the necessary precautions to ensure the safety and health of its officials in the voting booths. Having received no response, he asked the Madras High Court for instructions to ensure a fair count of the votes in that constituency by taking effective action and arrangement in accordance with Covid-19 protocols.
During the hearing, it was clarified that the Madras High Court had verbally found that the electoral body is “the institution singularly responsible for the second wave of Covid-19” and that it “should be charged with murder “. These remarks, although not part of the order, were reported in the media. An individual filed a complaint against the Deputy Election Commissioner and other election officials. He made no reference to the High Court order.
Should oral remarks from the judiciary be reported?
The “EC has filed a counter-affidavit detailing the orders issued and the measures taken for the management of the voting process in light of the pandemic.” He also filed a petition requesting that only the material in the record of the written proceedings and not the oral submissions of the High Court be reported by the press and electronic media and that the media be required to provide the necessary clarifications in this regard.
The EC also demanded that “law enforcement authorities not register any FIR / murder offense complaint based on media reports on oral observations attributed to” the court.
Hearing the case again, the Madras High Court decided to rule on the petition, in light of the actions taken by EC regarding the Covid-19 protocols during the counting of the votes. The request was also closed in light of this order.
In the present appeal to the Supreme Court, the EC argued that its complaint regarding the oral submissions made at the previous hearing had not been taken into account.
The Supreme Court said during the hearing it was alleged that the High Court noted that the EC was held “singularly responsible” for the second wave of Covid-19 and cited the allegation regarding the murder charges. These remarks were not part of the High Court order but were reported in the media.
The EC also filed a claim that the court “may be happy to issue an interim investigative order directing that only what is part of the record of these proceedings should be reported by the press and electronic media and other instructions can be given to the media houses to provide the necessary clarification in this regard and thus do justice.
“Under these circumstances, we are praying that the honorable court can pass an interim investigative order ordering law enforcement authorities not to register an FIR / murder offense complaint based on media reports…”.
The EC appealed to the Supreme Court which observed: “Courts must be open in both the physical and metaphorical sense. Except and with the exception of closed-door proceedings in an exceptional category of cases … our legal system is founded on the principle that free access to the courts is essential to safeguard valuable constitutional freedoms. The concept of a public hearing requires that information relating to legal proceedings be available in the public domain. Citizens have the right to know what is happening during legal proceedings. Oral arguments are postulated on an open exchange of ideas. It is through such an exchange that legal arguments are tested and analyzed. The arguments presented in court, the response of the opposing lawyer and the issues raised by the court are matters about which citizens have a legitimate right to be informed. An open court process ensures that the court process is subject to public scrutiny. Public oversight is crucial to maintain transparency and accountability.
This ends the law established by a Chief Justice of India. He boasted of his quick temper openly in a press interview. What annoyed him was the wide media coverage of his untimely remarks. He acted unbelievably, and a recumbent press obeyed this edict: “You will not name the judge to identify him.” You will simply report “the bench said …”. It was as arrogant and childish as it was illegal. The bench speaks by its judgment. Oral explosions are done by the judge – an individual.
But this edict was obeyed by the press. Will he change his style now?
The writer is an author and lawyer based in Mumbai.
Posted in Dawn, December 18, 2021