Freedom Of Speech & Expression Extends To Reporting Judicial Proceedings: Supreme Court Rejects ECI Prayer To Stop Media Reporting Of Oral Remarks

The Supreme Court on Thursday dismissed the plea made by the Election Commission of India to restrain media from reporting the oral remarks of judges.

"Freedom of speech and expression extends to reporting proceedings in judicial institutions as well", the Court held.

"It would do us no good to prevent new forms of media from reporting our work", a bench headed by Justice DY Chandrachud said.

"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", the Court observed.

It said the the freedom of media to report court proceedings was also a part of the process of augmenting the integrity of the judiciary and the cause of justice as a whole

The judgment also referred to the new-age developments in court-room reporting, such as live-accounts of hearing given in twitter and other social media platforms.

The Court said that real-time updates about the hearing are an extension of the concept of "open court", and that they are not a cause of apprehension but a celebration of the constitutional ethos.

"With the advent of technology, we are seeing reporting proliferate through social media forums which provide real-time updates to a much wider audience. As we have discussed in the previous section, this is an extension of the freedom of speech and expression that the media possesses. This constitutes a ̳virtual' extension of the open court. This phenomenon is a not a cause of apprehension, but a celebration of our constitutional ethos which bolsters the integrity of the judiciary by focusing attention on its functions".

The judgment referred to the fact that courts in many foreign countries are live-streaming their proceedings. Even the Gujarat High Court has started to live-stream its hearing in YouTube.

"The courts must be open in the physical and metaphorical sense, except in in camera proceedings...open access to courts is essential to safeguard valuable constitutional freedoms", the Court said.

In this backdrop, the Court said "We cannot gag the reporting of proceedings".

"We find no substance in prayer of Election Commission to restrain media from reporting court proceedings. It is essential to hold judiciary accountable", the Court said.

"Acceptance of a new reality is the surest way of adapting to it. Our public constitutional institutions must find better responses than to complain", the Court said.

No question of expunging oral remarks which are not part of judicial record

The Court said that there was no question of expunging the oral remarks of the High Court as they are not part of the judicial record. At the same time, the bench added that the remarks made by the High Court were harsh and the metaphor used was inappropriate. The Court advised that the judges should exercise restraint while making off-the-cuff remarks.

The Court also added that the High Courts have been doing commendable work dealing with the COVID crisis and the strong remarks might be a reflection of their anguish.

"A degree of caution and restraint on part of the High Court would have allayed these proceedings. Oral remarks are not part of the order and hence there is no question of expungement", the top court said in the judgment.

"The remarks of the High Court were harsh. The metaphor inappropriate. The High Court-if indeed it did make the oral observations 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...

All that needs to be clarified is that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record. The EC has a track record of being an independent constitutional body which shoulders a significant burden in ensuring the sanctity of electoral democracy. We hope the matter can rest with a sense of balance which we have attempted to bring", the Court said in the order.

During the hearing, the bench had said that the ECI should take the remarks in the "right spirit" like a "bitter pill".

"We don't want to demoralize our High Courts, which are doing tremendous work during the COVID...We cannot tell the Judges that confine yourself to pleadings. The HC Judges are doing tremendous work, burning the midnight oil, they are overwhelmed. They know what's happening on the ground. It is bound to affect your psyche", Justice Chandrachud observed.

The bench had also observed that media cannot be stopped from reporting oral remarks made by the judges, as the discussions in the court are also of public interest. The bench also said that media reporting increases accountability.

The bench had said that the ECI's prayer that media should only report the contents of the written order passed by the court and not the oral remarks made by the judges during the hearing was "far-fetched".

Senior Advocate Rakesh Dwivedi, appearing for the ECI, had submitted that the Madras High Court castigated the poll panel without hearing it, while hearing an unconnected case.

It was on April 26 that the Madras High Court made the sharp oral remarks against the Election Commission for its failure to stop election rallies and political meetings involving large crowds during the COVID second wave.

Case Details

Title : Election Commission of India v MR Vijaya Bhaskar

Coram : Justices DY Chandrachud and MR Shah

Citation : LL 2021 SC 244

Click here to read/download the judgment