'Take It In The Right Spirit, As A Bitter Pill' : Supreme Court To Election Commission In Plea Against 'Murder Charge' Remark Of Madras High Court

"Take it as a bitter pill; in the right spirit", said the Supreme Court to the Election Commission of India (ECI) while hearing the petition filed by the ECI against the oral observations made by the Madras High Court that ECI was "singularly responsible for COVID second wave" and that its officers "should probably be booked for murder".

A Bench of Justices DY Chandrachud and MR Shah told Senior Advocate Rakesh Dwivedi, appearing on behalf of the ECI, that sometimes judges make observations in larger public interest.The bench reserved orders on the petition filed by ECI. The order is likely to be pronounced on Thursday.

Mr.Dwivedi submitted before the Bench that such harsh remarks could not be made against a Constitutional authority, that too without giving an opportunity of being heard.

To this, Justice Shah stated, "Sometimes when something is observed, it is for the larger public interest. Sometimes they(judges) are frustrated, they are angered. You should accept it in the right spirit. They are also human beings. It is your subsequent decisions which matter".

Justice Chandrachud supplemented this comment by noting that the Supreme Court did not want to demoralize the High Court.

"They are vital pillars of the judicial process. It's a free-flowing conversation between the Bar and the Bench, it's a human process. We respect the ECI, don't take it otherwise. This is not to belittle because ultimately democracy survives due to the faith we have in the institutions", said Justice Chandrachud.

He continued, "The ECI is an important pillar, but sometimes in dialogues, sometimes some things are expressed."

Justice Shah pointed out that following the sharp remarks of the Madras High Court, the ECI took steps to ensure that the COVID protocol was observed during the counting day.

"Your subsequent decisions after the remarks have improved the system. Look at what happened in counting. You take it in the right spirit.. as a bitter pill", Justice Shah told Senior Advocate Rakesh Dwivedi, who was appearing for the Election Commission.

Justice Chandrachud said that the Supreme Court cannot say that the High Court judges should confine only to the written pleadings in case.

"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.

Dwivedi responded to the same stating that all suggestions were welcomed and the ECI followed the same. However, certain things could not be said without evidence and that the oral observations should pertain to the subject matter.

On the matter of the SLP, Justice Chandrachud further observed that despite being a Constitutional authority, it could not be said that ECI was not amenable to judicial review.

"There is a judicial review power which is given to the Court. That doesn't mean we are higher, it's a process of checks and balances. We are conscious that there is a law made by authorities who have understood the needs of society", remarked Justice Chandrachud.

Justice Shah also added that when the Madras High Court was considering the matter, they were taking into account the suo moto case before it and the fact that certain orders were not being followed. Therefore, the oral observations made by the High Court had to be taken in the right spirit.

To this, Dwivedi submitted that the ECI had complied with orders and had also considered the suggestions put forth by various High Courts. Justice Shah acknowledged the ECI's contribution in ensuring that no celebrations took place took place post the counting of votes.

Dwivedi further informed the Court that the ECI had discharged onerous tasks.

"So many people were down with COVID. But, instead of a pat on the back, it is said that we should be charged with murder. We don't take over governance. We don't have control over CRPFs or other paramilitary forces. The directions are to be implemented by the States. We don't have the staff. They are the ones committing the breach. We don't have the force to check lakhs of people and firing and lathi charge. It is the government that has to ensure. There is a perception that ECI has the panacea for everything", contended Dwivedi.

Justice Chandrachud concluded the hearing by stating that "a wanton charge against the ECI was perhaps not warranted" and the same would be considered in the short order which would be passed by the Court.

Media cannot be stopped from reporting judges' oral remarks

The bench also said that the prayer of the ECI to stop media from reporting oral observations made by judges was "far-fetched".

 The poll panel moved the urgent petition in the Supreme Court saying that people have started lodging FIRs against it for murder based on the oral remarks of the High Court. The ECI said that the "disparaging" oral remarks of the High Court, which were widely reported, damaged its reputation, although they were not part of the final order.

On April 30, Justice Chandrachud, during the hearing of suo moto COVID case, had orally remarked that High Courts should avoid 'off-the-cuff' remarks which can be damaging to others.

Though the Election Commission had approached the Madras High Court against the oral remarks, the High Court refused to consider it on April 30, saying that the issue can wait till the larger issues relating to COVID management are addressed.