Lakshmana Venkat Kuchi
Thursday, the May 6th is the day that the Supreme Court stepped in to reiterate once and for all the right to freedom of speech and expression, especially when it came to the right of the media to report on all of the Court proceedings. This is what the apex Court did, after dismissing a petition from the Election Commission that sought to bar the media from reporting portions of proceedings in Courts, wherein the Judges make observations.
The Constitution guarantees the right of freedom of speech and expression to all individuals, along with reasonable restrictions, that are available to every Indian citizen. The Supreme Court once again upheld this right as sacrosanct when it ruled out barring the media from reporting any oral observations made by the Judges during the Court proceedings. In fact, the Election Commission moved the Supreme Court to expunge the very scathing remarks and observations made by the Madras High Court that said the Election Commission officials responsible for a prolonged election schedule in West Bengal and for permitting huge rallies at a time when the second wave of Covid is raging across the country to be booked under murder charges.
It is heartening to note that the Supreme Court refused to curtail the right of the media to report on all proceedings of the Courts and refused to limit the coverage to written Court orders. In an acceptance of the nature of minute-to-minute reporting of proceedings by internet websites, the Court said it only increased the transparency and public confidence in the adjudication process.
Stung by the criticism of the people, and Opposition parties and in particular of the Trinamool Congress of West Bengal to the protracted eight-phased poll schedule, and moreover by the oral observations that the Commission must be held accountable for any super spreader events that the poll process could become, the Election Commission sought to limit the covering of the Court proceedings by the media.
The presiding Judge of the Madras High Court in fact even wondered as to why the Commission official be not booked for murder, especially given the surge in the number of Covid cases around the time when half the phases were still left to be polled. Now this observation was widely reported by the digital media, print media and it found mention in most of the television news bulletins.
Stung by this sharp and scathing criticism of the functioning of the election panel, it moved the Supreme Court for relief, and sought a bar on coverage of parts of the proceedings by the media. In fact, this petition from a Constitutional body, going against the very grain of the fundamental right to free speech, raised quite a few eyebrows in the legal and media circles.
I distinctly remember from my early days in journalism, some over three decades ago, as a young Court reporter being told that we could report everything that we heard, saw, and uttered by the Magistrate in the Courtroom and from the facts contained in the case file and judgment copy. Unless of course a case was being tried in camera, there was no bar on us media colleagues to report the proceedings, including exchanges between the Magistrate and counsels of both sides. Most often Courtroom drama is provided by what takes place during the proceedings, with arguments and counter-arguments, and observations from the chair.
So, when the media was reporting on the Madras High Court proceedings in the case against Election Commission, the poll panel was at the receiving end of the intense questioning from the bench. This questioning of the counsels is reflective of the unique dialogue process of scrutiny adopted by Indian Courts before making a decision. If a lawyer is being asked searing questions, it does not mean that the Court is against the said lawyer.
The media is free to report all these aspects of Courtroom proceedings, the apex Court held and said “we cannot say the media will not report the dialogue process intrinsic to the adjudication process of the Constitutional Court. In today’s time, the media cannot be gagged in this manner, the Supreme Court bench ruled, and dismissed the plea of the Election Commission for ordering restrictions on media for coverage inside Courtrooms.
But, holding the right of the High Court Judges to make their observations, the Supreme Court sent out a mild rebuke to the Madras High Court saying that the observations sounded too harsh. Since they were not part of Court orders, there was nothing to expunge. But the poll panel could not succeed in convincing the apex Court to restrain the media, which of late has become the favourite whipping boy of everybody.
Perhaps, the Election Commission in its enthusiasm or in its bid to escape criticism and for being held accountable for the spread of Covid as the public perception was building sought to redeem itself and sought the apex Court’s help. On reflection, given the mood of the Nation, as being witnessed from the ground reports of increasing Covid cases and deaths, deaths due to shortage of oxygen, the collapse of public health systems the EC should have realized the prospects of an adverse comment from the judiciary as well.
Of late, over the past couple of weeks, India is witnessing a push back from the lower Courts to the High Courts in different parts of the country, questioning the preparedness of the country to face the Covid wave now sweeping the Nation, to shortages of oxygen, and Courts have been somewhat harsh over an apparent inaction and or ill-preparedness to fight the coronavirus spread.
If we look back on the issue of oxygen shortages, the Supreme Court came down heavily on the Central Government too and questioned why it was allocating nearly half of the amount of oxygen to Delhi and ordered it to ensure supply of 700 MT. Similarly, the Karnataka High Court ordered the supply of 1200 MT to the State, against which the Centre moved the Supreme Court. Today, the SC upheld the Karnataka High Court order and asked the Centre to do the needful.
Was it prudent for the Election Commission to approach the Court when they are grappling with Covid surge and an increasing number of deaths and general all-round gloom ? For anyone in public office, brickbats are part of the occupational hazard. Sometimes they get bouquets and sometimes brickbats.
West Bengal saw eight-phased elections and mega election rallies with thousands of people attending them, without any social distancing norms and little use of masks by people was seen as certain super spreader events. Incidentally, there was a sharp surge in cases in West Bengal from the middle of the elections, and the Trinamool Congress urged the Election Commission to merge the remaining four polls into one round and finish them off.
But these demands fell on deaf ears. Many people were questioning as to who would be held responsible for Covid deaths if any, because of the elections. As if echoing these sentiments, the Madras High Court Judge wondered if poll panel officials should be booked for murder. And thereby setting off the chain of events. The writer is a senior journalist tracking social, economic, and political changes across the country. He was associated with the PTI , The Hindu, Sunday Observer, and Hindustan Times. He can be reached on [email protected]
and Twitter handle @kvlakshman