Saturday, Oct 01, 2022

SC strikes balance: Madras HC remarks were harsh; free speech, open court key to citizens’ right to know

The apex court also underlined the need “for judges to exercise caution in off-the-cuff remarks in open court”.

The Bench of Justices D Y Chandrachud and M R Shah rejected the ECI’s prayer to direct the media not to report oral observations. (File Photo)

Days after it said it would strike a balance, the Supreme Court did so Thursday. “Harsh,” and “inappropriate,” was how it described the Madras High Court’s remarks that the Election Commission of India (ECI) “should be put on murder charges” for “not stopping political parties” from violating Covid protocol during their campaign rallies last month.

The apex court also underlined the need “for judges to exercise caution in off-the-cuff remarks in open court”. But the bench of Justices D Y Chandrachud and M R Shah rejected the ECI’s prayer to direct the media not to report oral observations but only what is part of the judicial records saying: “The freedom of speech and expression guaranteed by the Constitution extends to reporting the proceedings of judicial institutions as well”.

“Balancing the rights” of the two constitutional bodies, the HC and ECI, the bench said the former’s “anguish” must be understood in the light of the fact that it “was faced with a situation of rising cases of Covid- 19 and, as a Constitutional Court, was entrusted with protecting the life and liberty of citizens”. The judgment said that the HC’s oral observations were not part of any judicial record and hence the question of expunging them does not arise.

It added that the court’s observations “were harsh” and “the metaphor inappropriate”. If the HC, indeed, made the remarks, it “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”, said the SC.

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The bench added: “Having said that, we must emphasize the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation”.

Writing for the bench, Justice Chandrachud underlined the importance of judicial language and said: “Language, both on the Bench and in judgments, must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity”.

Turning down the ECI’s request to direct the media to refrain from reporting oral observations, the court said it “stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution”.


The ruling also dwelt on the importance of an open court system.

“Courts must be open both in the physical and metaphorical sense. Save and except for in-camera proceedings in an exceptional category of cases, such as cases involving child sexual abuse or matrimonial proceedings bearing on matters of marital privacy, our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms”, it said adding this “requires that information relating to a court proceeding must be available in the public domain”.

“Citizens”, said the court “have a right to know about what transpires in the course of judicial proceedings…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” also “ensures that the judicial process is subject to public scrutiny” which in turn “is crucial to maintaining transparency and accountability” and “transparency in the functioning of democratic institutions is crucial to establish the public‘s faith in them”. Also, it “ensures that judges act in accordance with law and with probity”.

The ruling said that “cases before the courts are vital sources of public information about the activities of the legislature and the executive. An open court serves an educational purpose as well” becoming a platform for citizens to know how the practical application of the law impacts upon their rights.

“Courts”, it said “are entrusted to perform crucial functions under the law” which have “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”, said the bench.

The judgment also touched upon the media’s evolution from print and electronic forms and now to the digital and said that in the fast changing world of technology, “it would do us no good to prevent the new forms of media from reporting on our work”. It added that “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 ruling referred to proliferation or reporting through social media platforms and said “this is an extension of the freedom of speech and expression that the media possesses” and “constitutes a ?virtual extension of the open court”.

The SC said that with the exception of in camera proceedings, a courtroom is a public space” and “an open court and transparent dispensation of justice in all its modalities, is an end in itself”.


On the significance of oral observations during a hearing, the SC ruling said they “do not constitute a judgment or binding decision” but “are at best tentative points of view, on which rival perspectives of parties in conflict enable the judge to decide on an ultimate outcome”.

“This exchange of views, perspectives and formulations is but a part of evolving towards a solution which accords with justice according to law. An exchange of views from the Bench is intrinsic to a process of open and transparent judging. The revealing of a judges‘ mind enables opposing parties to persuade her to their points of view. If this expression were to be discouraged the process of judging would be closed”, it said.


The SC further said that while there is a duty to preserve the independence of the judiciary and to allow freedom of expression of the judges in court, the power of judges must not be unbridled and judicial restraint must be exercised, before using strong and scathing language to criticize any individual or institution.

Tracing the history of media coverage of court proceedings, it said that “in colonial India, especially sedition trials, were also sites of political contestation where colonial brutality and indignity were laid bare” and referred to the first sedition trial of Lokmanya Balgangadhar Tilak.

First published on: 07-05-2021 at 04:12:34 am
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