Media Watchdog Of Sanctity Of Judicial Process; Reporting Of Hearing Builds Public Confidence : Supreme Court [Full Court Room Exchange In ECI Case]

The following is the courtroom exchange as transpired before Justices D. Y. Chandrachud and M. R. Shah.

"Without any pleadings, without any opportunity to us to respond with evidence as to what we did, who has the responsibility under the Disaster Management Act to implement the guidelines, which political leaders are holding authority, allegations have been made against us! We are not the disaster management authority but we have been castigated!", began senior advocate Rakesh Dwivedi, for the Election Commission of India.

"What are your functions and duties?", asked Justice Shah.

"There are officers in charge of different ministries who have the responsibility (of implementing ECI guidelines)! We were not even given one chance and we were castigated in a writ petition where the relief sought pertained to counting in 1 constituency which has some 77 candidates. And this was after the election and the polling were over on April 4!", argued Mr. Dwivedi.

"Let's place things in perspective. The writ petition was with respect to counting in the district of Karur which has a large number of candidates. The High Court had first issued directions as regards the steps to be taken by the Election Commission in Karur, social distancing etc. You came back and said that the same have been followed. The matter was disposed of on 30th April, considering that the purpose of the petition had been resolved. Now there are only two things left- your IAs with the prayers that media should only report the contents of the order and not the oral observations during the hearing and that there may be no registration of complaints based on any news reports or such oral observations", observed Justice Chandrachud.

"Interestingly, there is no challenge to the April 26 order (where the High Court remarked that the Election Commission is Singularly Responsible For COVID Second Wave and that its Officers Should Probably Be Booked For Murder", pointed out the judge.

"I have filed an IA that these observations are not in context the relief as regards counting which was sought in the petition, but the High Court was castigating us...", submitted Mr. Dwivedi.

It may be noted that after the observations were made by the High Court on April 26, the ECI moved the court praying:

· That the Court direct that only what forms part of the record in the present proceedings WP No. 10441/2021 (the Karur case) 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.

· That the Court direct the police not to register any FIR for the offence of murder on the basis of media reports on the oral observations attributed to the Court.

"But the order worked out, you did all that was asked...The High Court said that since they are disposing off the writ petition, the IAs don't survive.", observed Justice Chandrachud.

It may be noted that the Madras High Court on Friday (April 30) expressed its hope that political parties, media personnel, and citizens at large adhere to the COVID instructions and the guidelines of the Election Commission and follow all the norms."The post mortem on either counts (of Union's Stance On Covid Readiness And EC's Sensationalism Concerns) may have to wait particularly in the light of the immediate measures that have to be put in place", the High Court had said.

'In superior courts, discussion between bar and bench is at same pedestal as final order; it reflects the unfolding of the judge's thinking process'- SC

"You are aggrieved by the High Court's observations. I think the ECI is a seasoned constitutional body, having superintendence and control over the conduct of free and fair elections in the country. But let me say it at the outset that we cannot direct, at this time or any other time, that the media cannot report the contents of the discussion in court and only report the order. This is because the discussion in a court of law is equally in public interest. Particularly, when we are dealing with the superior courts like the High Courts, I place this discussion at the same pedestal as the final order. This is because in the Indian pattern of conducting judicial proceedings which we have evolved over time, it is not in the nature of a monologue where one lawyers speaks and then the second lawyer speaks and then the judges asks questions and closes the matter. It is in the nature of a discourse, there is a conduct of dialogue", said Justice Chandrachud.

Media is the watchdog of the sanctity of judicial process; reportage necessary to assuage concerns of citizens and instill confidence in them- SC

" Personally speaking if I was appearing before a judge who did not ask any questions of me, I would be worried as I would not know what is weighing with the judge and what is not. It is this manner of conducting judicial proceedings which helps in the unfolding of the process of the judge's thinking in the court of law. And the media is of course the watchdog of the sanctity of this process! It is the reporting of this process which gives confidence to the public, and not just the judgments. It is this process which discloses to the public that there has been an application of the mind to assuage the concerns of the citizens, that there are questions asked and answers given . It was too far-fetched on the part of the ECI to pray that such reporting may be curtailed", reflected Justice Chandrachud.

Mr Dwivedi clarified that this relief has been sought only in the context of the observations made by the Madras High Court- "We have been in the bar for 40 years. We want Your Lordships to ask questions as it helps in eliciting the correct responses from us and it is also a reflection of the prima facie opinion of the court. And of course, in the wider perspective, the media can report all of this. Our only concern is that here, the court goes outside the ambit of the writ petition and makes off-the-cuff remarks"

"Whoever is arguing is always in the dock. It is not because the judges are against that person, but that is the only way of testing the hypothesis. We have to be critical of the line of argument", Interjected Justice Chandrachud. "And we welcome it...", Mr Dwivedi sought to submit.

Referring to the complaint for culpable homicide filed against the Deputy Election Commissioner Sudip Jain by Nandita Sinha, wife of deceased Trinamool Congress leader Kajal Sinha in Kolkata, Justice Chandrachud reflected, "if there is a complaint in a remote part of the country based on these observations, there may be no control over it. But you have your entire range of remedies to deal with it-you can approach the High Court under section 482, CrPC"

"But these kinds of instances are arising now and again. We know that the judges are very conscious and disciplined and act within their jurisdiction, but such instances need to be checked. Justice Chandrachud has experience of the Allahabad High Court- There used to be judges who used to say things which had nothing to do with the matter", advanced Mr, Dwivedi.

"The Allahabad High Court is your High Court. I am their adopted child, so it is very close to my heart...But the fact is that there are judges and judges in this country. Some judges are more garrulous and some are reticent. It is a reflection of the individual judge's personality", noted Justice Chandrachud.

"Some judges are more aggressive...We have appeared before them…", agreed Mr Dwivedi. "I have appeared before all kinds of judges. Brother Justice Shah has appeared before the whole range of judges", added Justice Chandrachud.

"But it is in the larger public interest also if somethings are observed. The judges are also human beings – they are also frustrated, anguished, sometimes they have anger. Like a doctor has to give a bitter dose to the patient...accept all remarks in the right spirit, accept them as a bitter pill and see the result. Look at the results achieved by the ECI subsequent to the remarks- you have improved the system, see the results in the counting etc", observed Justice Shah.

When Mr Dwivedi repeated the Commission's objection to the use of words such as "murder", Justice Chandrachud said, "Let's give this a sense of proportion. You are a seasoned counsel. We have also seen the complete cycle of life, having been on that side of the bench and now this. We cannot pass an order which would have an impact on the functioning of our High Courts in the long term. They are the vital pillars of our judicial process. We don't want to demoralise them in the course of open dialogue between the bar and the bench. When we come to court in the morning, we do not have points jotted down as regards what to ask the counsel and what to comment. You yourself argued the West Bengal HIRA-RERA matter and there were some interesting questions of law which were thrown open and met by the opponents. It is a human process"

In the same breath, the judge added, "We respect the EC- it has been a vital pillar of the Constitution of India, responsible for conducting free and fair elections in the country since the time of independence. Democracy survives on the strength of the institutions and the faith and the confidence of the citizens which these institutions engender. This is not an adversarial matter for us. We are not even for a second belittling the significance of the ECI"

"But this was no dialogue! It was just a conclusion! Off-the-cuff!"!, stressed Mr Dwivedi.

'The test is that if an observation is inappropriate for incorporation in judicial order, it should also be excluded from the hearing'- SC

"You can't control how the day-to-day hearing is conducted. Except for when we are talking in a lighter vein, like we did earlier with regard to the Allahabad High Court, ordinarily we are very careful to not say things which may be inappropriate to be incorporated in our judicial orders. That is a very important test. Should I want to say something spontaneously, if it is inappropriate to form part of my final judicial order, I won't say it at all. If there is something which I can finally include in my order, I would say it in court with a view to elicit response. We take your point that some observations were made which were neither on the subject matter of the petition, nor did they arise at all for decision in the order finally", said Justice Chandrachud.

"We welcome the courts' suggestions. That is how we improve our functioning. But any such observations or suggestions must pertain to the subject matter. The judges cannot read something in the newspaper and without any opportunity to us, without any evidence, make such remarks", argued Mr Dwivedi.

"When we pass our short order, we will bear in mind your concerns", assured Justice Chandrachud

"Like Your Lordships said, all observations can be made orally if they can be finally put in the order. It can't be like this where the judges call it a murder during the court proceedings and there is nothing at all remotely on that point in the order", submitted Mr Dwivedi.

"But sometimes everything is not placed in the order. Some comments may also be based on the past experience of the judges. If there has been a series of orders and nothing has been done in that direction, the High Court will say something", explained Justice Shah.

'Free media reportage ensures accountability of public bodies and also that of judges; ensures that judges are true to their oath'- SC

Mr Dwivedi repeated that a high constitutional body in the country can still not be accused of murder in the course of the proceedings.

"Point taken. When we write our order, we will give the balance the perspectives- your concerns; the sanctity of the judicial process and the High Court judges' liberty to ask inconvenient questions without any restraint; the right of the media to report freely which ensures not just the confidence of the citizens but accountability of public bodies and even judges! It ensures that we are true to our oath and conduct proceedings with a sense of dignity", said Justice Chandrachud.

"We all have our individual techniques in conducting the proceedings – for example, I follow a dialogue structured on what my final order would encompass. But sometimes a dialogue goes beyond – there is an umbrella, an envelope which is to be covered- whether it is 32 or 136, or 226 which is even broader than 32. High Courts are not district courts. While they might not have 136 jurisdiction, but they have 226 which is an equal jurisdiction The comments which are made may not exclusively be in the facts of the case", continued the judge.

'The Parliament is sovereign but subject to judicial review', SC says ECI cannot argue that HC cannot 'trench' on powers of another constitutional body

However, the Justice Chandrachud pointed out that the ECI in its SLP has averred that one constitutional authority, being the High Court, cannot trench on the powers of another, being the ECI- "I understand the ECI felt pained, but there is an error in your SLP in as much as you say that you are an independent constitutional authority as is the Madras High Court and so one such authority must not trench on the power of another"

"I didn't say trenching and all. If any such impression has been given out, all those submissions may stand withdrawn", clarified Mr Dwivedi.

"The Parliament is a sovereign body. But it is still subject to judicial review – we have the authority to test the legislative competence of a law, if it violates any fundamental rights. That does not mean that the courts are higher than the Parliament or the state legislature, we are all coordinate organs of the State. We also proceed on the assumption that the law has been framed by a body comprising of the elected representative of the country who, from 1950, have been aware of the needs and requirements of the people and that is why we have the principle of presumption of constitutionality. But to say that the ECI is an independent constitutional body…", added Justice Chandrachud.

"Yes, checks and balances are needed", agreed Mr Dwivedi.

"So the courts must see your position also. We will follow a balanced approach in passing the order", said Justice Chandrachud.

The judge proceeded to add, " Also, we must see that in the 1950s there were only a few newspapers which were reporting the court dialogue. Today the times have changed and we have social media, electronic media. We have to be conscious that every word that we say comes into the public domain. I am sure that this hearing as of now is also being reported. But that does not mean that we curtail the free-flowing dialogue with the advocates, it would be detrimental to the process also if the lawyers don't know what is going on in the mind of the judges"

"But the language also has to be temperate", argued Mr Dwivedi.

"Yes and no, yes and no. You must know that some judges are very temperate and some not so much", responded Justice Chandrachud.

"Half the election staff is down with Covid and we still carried out the election successfully. And while we got no pat on the back, we have been perilled by such remarks", continued Mr. Dwivedi.

As Mr Pradeep Kumar Yadav, the counsel appearing for the respondent, sought to make a submission, Justice Chandrachud silenced him for the time being, saying, "We are in the course of a very careful dialogue here. We agree that it is serious to use words like 'murder'…"

HCs, which are ultimate protector of Fundamental Rights, are functioning under enormous burden; Judges may feel frustration, anguish in the circumstances - SC

"Free and fair elections are one of the most important cornerstones of our democracy. We want this constitutional value to be enhanced. We are not castigating the ECI. We will bring a balance when we write the order. But the issue is quite complex – we can't ask the High Court to confine to the pleadings only in making the observations. You know that the High Courts are under an enormous burden, they are operating under a huge stress of litigation. They are overwhelmed by the circumstances, by Covid etc. So it is bound to affect their psyche at some level! They are burning the midnight oil!", explained Justice Chandrachud.

As Mr Dwivedi pressed that the ECI could have been given 24 hours notice to respond, Justice Chandrachud continued to note: "I, for one, would not have used such words in an election petition raising these kind of issues, in the course of a judicial dialogue. I am sure Justice Shah would not have too. But while we deal with your apprehensions, we cannot reduce the sanctified position of the High Courts. They are the ultimate protector of fundamental rights in the country. How many people can come to the Supreme Court under 32?"

"We must also note that the High Court was in seisin of its suo moto cognizance of the Covid related issues. The High Court saw that some of its orders have not been implemented and so they made certain remarks. We could not said that those remarks were made deliberately by the High Court. But let us close it! What is said is said. Take it in the right spirit", added Justice Shah.

"Several high courts like the Calcutta High Court and the Kerala High Court kept pushing us and we satisfied them. The High Courts were right, that is why took all those steps. ", pressed Mr. Dwivedi.

"That you are bound to do. And look at the results that you have achieved. Over the past two days, we have been seeing that during the voting, even after the voting, even after the counting, there have been no large celebrations. And this has been possible because of your intervention. The credit for this goes to you", said Justice Shah.

"And we have been continuously perilled by some political party or other- as regards EVM, or saying that there is no police force and it is our responsibility to check violence. And after everything we have done, the High Court is saying this", pressed Mr Dwivedi.

'EC not responsible for governance; it is for the State government to implement EC guidelines'- SC

"One thing from your submissions which has stuck in my mind is that while under Article 323, the ECI has superintendence over the election process, guidelines issued by you are to be implemented by the state government. You lay down the broad parameters as regards the EVMs and the deployment of the paramilitary force etc but they have to be complied by the state government within whose jurisdiction the election has been conducted", noted Justice Chandrachud.

"We cannot take over the governance of a state", agreed Mr Dwivedi.

"You may post officers or even transfer officers. But you cannot take over the governance in any state and you are responsible only for the electoral process in that state", conceded Justice Chandrachud.

"If rallies are being conducted in remote areas by the chief ministers and by the Prime Minister, where lakhs of people have congregated, we don't have that kind of force to check these rallies or for firing or lathicharge. ('There is no question of firing', said Justice Chandrachud). The government, which is the disaster management authority, has to check these things. There is the perception that the ECI has the panacea for everything. Covid is not our responsibility. In Delhi and Maharashtra, there were no elections but there has been a monumental surge in cases. In Madras, the campaigning ended on April 4 and the polling on April 6, the petition was filed on April 19 and the remarks came on April 26. Neither the high court nor the petitioners had told us to do anything other than what we were already doing", pressed Mr. Dwivedi.

"But why did the Madras High Court then state that the Court has been repeating certain things like a broken record, pointed out Justice Chandrachud.

It may be noted that in its order of April 26, the High Court had 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 rallies were conducted without distancing norms being maintained and in wanton disregard of the other requirements of the protocol", the HC had said.

"Let them show any order that we were asked to do something by the High Court which we didn't...now we cannot ensure that everybody in these rallies should wear mask", pressed Mr. Dwivedi.

"But you came up with a circular that no rallies shall comprise of more than 500 people. The perception in the public is that when this was the subsequent policy decision taken by you, why were lakhs of people allowed earlier?", explained Justice Shah.

"Earlier, the situation in Madras was not bad. We had issued the circular for Calcutta…", Mr Dwivedi sought to explain. "We are not finding any faults here. We are just trying to find a way for the interests of the public at large", added Justice Shah.

"We have no problems with the High Court directions to us. But to say that we have committed murder?! And this was in continuous discussion in the media for a day or two", advanced Mr. Dwivedi

"Perhaps it was not a proper word. But we don't know what went through the mind of the judge, why it was said spontaneously", noted Justice Shah.

'Oral observations are momentary; written orders leave footprints on the sands of time'- SC

"Ultimately, what leaves footprints on the sand time is the written words, the oral observations are only momentary. People hear them and discuss them... The law is not in the dialogue, but what we say in the order", added Justice Chandrachud.

"But this was not momentary. This is going on and on,. We have been perilled, there have been FIRs", argued Mr. Dwivedi.

"We have 24/7 reportage today. There is breaking news etc. The media is concerned with how to fill up time also", commented Justice Chandrachud.

"But I have to say what I have been instructed. The Commission is hurt", pressed Mr Dwivedi.

"We have taken note of it", assured Justice Shah.

"We have taken cognizance of your point that you are a constitutional body and in discharge of your duty to conduct free and fair elections. We will serve a balance in order. We have noted that the remarks were outside the relief sought and were not warranted. In these diverse considerations, leave the framing of the order to us", said Justice Chandrachud.

"We are in your hands. Your Lordships may castigate us, but we must also be appreciated", advance Mr Dwivedi.

"Forget it. Some things were said but later you produced good results! Tell your Commissioner this", said Justice Shah.

"When we were hearing the suo motu Covid matter, senior advocate Ranjit Kumar appearing for the state of Bihar, also made a similar grievance. Then also we had made the same statements across the screen as we are now- They were also reported, I read a report in The Indian express. In our functioning, we must stick to the middle line of the road, but sometimes we are anguished. We don't want to dilute the spontaneity. We will take into account your concern but also preserve the strength of the High Court. However, be rest assured that we will give expression to your concerns. How to craft a judicial order is of essence in this case now. We will do so humbly and to the best of our abilities", assured Justice Chandrachud.

"We have appeared before both Your Lordships. Your lordships are also harsh at times but…", began Mr. Dwivedi.

'If, after a series of orders, nothing is implemented, HC may say something harsh in public interest'- SC

"For the larger public interest, sometimes harshness is important. If after a series of orders, nothing is being implemented, the judge looking at the ground realities may say something harsh. Like, for example, in Gujarat, 18 people died in the hospital fire. We had said that NOC from the fire department is needed. Nothing was done in that direction. So the High Court may say something harsh in the situation. But it is only to ensure that corrective measures are taken", explained Justice Shah.

"I fail to see how such comments of the Chief Justice (of Madras HC) would help us improve", remarked Mr Dwivedi.

"Chief justices of high courts are seasoned judges with years of experience. We have to stand by our own institution as we support other institutions", said Justice Chandrachud.

"I am not saying that this liberty should be taken away. Harsh criticism is welcome. But some line has to be drawn somewhere", pressed Mr. Dwivedi.

"We have the same perspective as we did two days ago (during the Suo Motu matter). But we will pass a small order, not running into reams and reams of paper. We will say in order that institutions have to be strong and vibrant for the system to survive. But please tell the EC that the point of the court is not to run it down", said Justice Chandrachud.

"Yes, there is no intent to tarnish the image of any institution", added Justice Shah.

In his turn, Mr Yadav sought to draw the attention of the bench to the larger picture, that while elections in the state of Tamil Nadu are over, the process of elections and counting in West Bengal and Assam is ongoing. "The ECI is even more powerful than the head of the state when the elections are happening. There have been instances where police superintendents and even the DGP has been changed at the behest of the EC during the elections. If they had issued a direction to the district magistrates or to the DSPs that every rally must have only 500-1000 people, lest the elections are abolished, these authorities would have ensured that these guidelines are implemented", advanced Mr. Yadav.

"What is the urgency in conducting the elections now at this time? Election can be postponed for even one year", continued Mr Yadav. The bench asked him to confine himself to his submissions as regards the observations of the High Court.

"I am supporting the Madras High Court. The words must have been harsh but they were very right", said Mr. Yadav.

AOR Amit Sharma, for the ECI, intervened to say-"if FIRs are registered just like that, on the basis of some observations, it will lead to complications. There cannot be FIRs for an offence which never happened! These observations cannot become 161 statements"

"Just like the judges said, you have 482 for that. Move the High Court", added Mr Yadav.

The bench then reserved the order.