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Tuesday, May 18, 2021

‘Murder’ remark: Supreme Court tells EC we can’t gag media, undermine courts

“We cannot in today’s times say that media will not report the discussions that take place in court,” a Bench of Justices D Y Chandrachud and M R Shah told the Election Commission of India (ECI).

By: Express News Service | New Delhi |
Updated: May 4, 2021 5:43:48 am
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Observations made by judges while hearing cases are in the “larger public interest”, and the media cannot be stopped from reporting them, the Supreme Court said Monday.

“We cannot in today’s times say that media will not report the discussions that take place in court,” a Bench of Justices D Y Chandrachud and M R Shah told the Election Commission of India (ECI).

The ECI had approached the court with a special leave petition against oral observations by the Madras High Court that the Commission “should be put on murder charges” for “not stopping political parties from wanton abuse of the Covid-19 protocol” in election rallies.

In its plea, the Commission termed the HC’s remarks as “uncalled for, blatantly disparaging and derogatory”. The High Court, which is an independent constitutional authority, had made “serious allegations of murder on another independent constitutional authority (ECI) without any basis, which has ultimately dented both the institutions”, the Commission said.

“The discussions that take place are of importance…and are in public interest. It’s not a monologue that one person will speak and then judges will speak. We have an Indian pattern of arguments in court,” Justice Chandrachud told Senior Advocate Rakesh Dwivedi, who appeared for the ECI.

Explained

In public interest: Court

The court asked the EC not to take criticism otherwise because discussions are in the public interest, and faith in institutions is vital to democracy. It also underlined that High Courts were doing a very important job, and it could not demoralise them.

“If I was a member of the Bar, and I wasn’t asked a question, I would be worried. The unfolding of debate in the court of law is equally important and the media has a duty to report. It’s not only our judgments that are present for our citizens… What is happening in the court is also of concern to the citizens. What is happening, whether there is application of mind, how it fosters justice, is all of concern to the citizens,” Justice Chandrachud said.

Justice Shah remarked that “sometimes when something is observed, it is for the larger public interest. They (judges) are also human beings. Sometimes they are frustrated, angered.”

Asking the Commission to take it in the “right spirit”, he added that “your subsequent decisions after the remarks, matter”.

Justice Chandrachud said High Courts were “vital pillars of our democracy”. The matter is not adversarial, and the Bench was looking at it “from a long term and impact on functioning of High Courts”, he said. “We don’t want to demoralise our High Courts.”

Calling upon the ECI to “understand the perspective, he added that “things are often said in an open dialogue between Bar and Bench”, and “we don’t write down what we will ask”.

“It’s a free-flowing conversation. Sometimes in this dialogue, it’s a human process. We respect the EC, don’t take it otherwise. This is not to belittle because ultimately democracy survives on the faith in the institutions,” the Bench said.

Reserving its order, the Bench said: “We have to protect the judicial sanctity of the process…to make sure that High Court judges and Chief Justices are independent to make views. We have to make sure that the media reports everything that happens in court so that we judges conduct proceedings with dignity.”

Dwivedi submitted that he was not saying the media could not report. “But to say that ECI should be charged with murder… I am not saying take away their (judges’) right to make observations. Harsh criticism is also welcome, but somewhere a line is drawn,” he said.

Justice Chandrachud observed that media coverage of court proceedings “should also show that we are dispensing our duties fully… Often the dialogue in court is to create an umbrella of discussion. High Courts are not district courts but have power under Article 226…

“In 1950s, when there was court dialogue, whatever happened would be reported in one or two papers. Times have changed, there is electronic media, social media. The dialogue which is happening today, I’m sure it’s being reported but to contain what we want to ask or say in court just because of this, will not do justice to the judicial process.”

The public, Justice Chandrachud said, should know what the judges have in mind. When Dwivedi said it should, however, be temperate, Justice Chandrachud said that would depend on the judge. While some judges could be reticent, others could be verbose – it was a reflection of the individual judge’s personality, he said.

Dwivedi contended that “There is no dialogue, it’s just a conclusion (drawn by the court) that we are murderers…”. The EC’s role is to provide guidelines and implement them, and for other officials to ensure that, he said. “We don’t have the CRPF to see what is being done at rallies. We needed to be given a chance.”

Justice Chandrachud responded that “these are all things that come spontaneously”. He added that “ordinarily we are conscious of not saying things in court which will not be proper to include in a judicial order”.

Dwivedi said that he welcomed all suggestions and would follow them, but the court “cannot say something without any evidence”.

He said: “Just because newspaper reports stated something and (though) no evidence is placed before, and conclusion is passed… “We have a serious objection to the observation. We were very hurt. It wasn’t momentary. It went on and on. We were castigated. It led to serious discussion on electronic media that we are murderers.”

However, Justice Chandrachud said that could not be helped. “We have 24/7 coverage.” He added: “What forms a part of footprints of time, is the order, the written word. Whatever is said in court is momentary.”

It could not “tell the judges that confine yourself to pleadings,” the Bench said. “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 their psyche.

“I would not have said this during the course of dialogue and I’m sure Justice Shah would not have said that too, but the SLP is much broader”, Justice Chandrachud said. He added that he understood the ECI’s agony, and assured that the court “while preserving the strength of the HCs, will try to bring about a balance to maintain the sanctity of the ECI” while writing the order.

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