While hearing a special leave petition filed by the Election Commission of India against an order of refusal by the Madras High Court to accede to the plea of the Commission that the media confine their reports to observations recorded in orders or judgements and refrain from reporting oral statements made during court proceeding, the Supreme Court told the Commission that it would neither gag the media nor undermine the courts subordinate to it.

The context and occasion for expressing such a balanced view by the Apex Court was that the chief Justice of Madras High Court, Justice Sanjib Banerjee sitting with Justice Senthilkumar Ramamoorthy made certain remarks on inept handling of election campaigns of political parties in spite of repeated orders of the court that Covid protocol ought to be maintained during such campaigns as “survival and protection” was the first priority and everything else came next. The Court observed that rallies were held without distancing norms being maintained and in wanton disregard of the requirements of the protocol.

The court expressed its utter anxiety and equal displeasure by adding that the Commission should be put up on murder charge probably. As soon as those remarks were made by the Court, the media publicised those remarks which reasonably gave rise to an apparent legal debate as to whether the Court could make such remarks against another constitutional institution in a democratic republic when the said institution’s authority and powers have been delineated in the Constitution providing in an exclusive Part as many as six Articles(Articles 324 to 329) making the Commission sole authority in charge of superintendence, direction and control of election.

The Commission felt that it did not deserve such disparaging remarks from the constitutional court. All constitutional institutions are amenable to the jurisdiction of the Constitutional Court in its writ jurisdiction unless expressly barred or restricted by the Constitution itself. A Constitutional Writ Court has both jurisdiction and power to pass any judicial order against or in respect of any constitutional institution and particularly so in a public interest litigation. From the tenor of the report, it was apparent that the Madras High Court was sitting as a Writ Court taking up public interest litigation.

The seeming debate is however not on the authority of the writ court to pass a legal order but as to whether it is equally competent and free to make observations and remarks on the efficiency or otherwise of another constitutional institution. If the constitutional Writ Court has the authority to pass a legal order on the deeds or misdeeds of another constitutional institution, there appears to be no reason why the same court would be barred from making any observation as appropriate on such constitutional institution.

It is more than justified to make it clear that an observation (or remarks) made either off the cuff or otherwise by the court during the hearing of a matter is of no consequence unless the observation is reduced in writing to make it a part of an order or judgement. An observation or remark however pungent if not made a part of an order of the court is of no legal value or consequence. During hearing a court may and does often make such observations or remarks which may or may not get reduced in writing to make it a part of an order. It needs to be reminded that courts function through their authorised agents i.e. the judges who are human beings like any other and are susceptible to human frailties.

Depending upon factual situations, the judges as courts’ agents more often than not express observations and those observations also more often than not do not find place in orders or judgements. Reactions also vary from judge to judge, case to case and also from time to time. There are judges who refrain from making any observation and pass only orders and deliver judgements. There are also judges who make observations incessantly. And there are judges who fall in between. It is also true that there are plenty of instances when observations or remarks or even threats of contempt proceedings do help to make constitutional bodies act and/or rectify its misdeeds in accordance with law.

The Commission after the observation made by Madras High Court swung into action by issuing new directions with regards to political campaigns and rallies just on the following day. The issue which may call for an answer is to what extent a court should (and not can) have his discretion in making observations and remarks and how and when such discretion is to be exercised. Discretion is also expected to be exercised judiciously and judicially and not arbitrarily or whimsically. Judicial restraint is always considered to be a virtue which is not that rarely found.

There are and will be judicial officers in the system who are found to be not that restrained. It does appear from the facts of the situation that there were good reasons for the Madras High Court to exhibit its extreme displeasure in the backdrop of its repeated orders which could not make the Commission proactive enough about the extraordinary situation created by the Covid 19 pandemic. The Commission did not appear to have risen to the occasion as was expected by the court. The Supreme Court appears to have acted as an apex body in the hierarchy when it said that it could not do or say anything which was likely to undermine any court subordinate to it.

To undermine a subordinate court would have undermined the apex body itself and also the judicial system. It may not be inappropriate to mention that it is the Supreme Court which decides who can be made Judges of High Courts. An apex body is meant to correct the wrong, if any, committed by the subordinate court but while doing so should never ever undermine it. It is a matter of regret to say that there was a period in the Indian judiciary and that too in the apex court where the apex body often undermined the subordinate courts by expressing disparaging remarks in an attempt to correct them.

A shift in attitude of the Supreme Court towards its subordinate courts is therefore more than welcome. The Madras High Court however could have been a little more restrained while choosing its words in making observations in the case at hand. In a democracy there cannot exist either in theory or in practice absolute freedom in any sphere of life and from that angle media also is no exception. Real freedom is to be enjoyed along with all its attendant legitimate restrictions. As executive, legislature and judiciary enjoy their respective freedom with their attendant restrictions, so also the media as the so called fourth pillar of democracy must also enjoy its freedom accordingly.

Media’s primary job happens to be the dissipation of news, and nothing but true news. Fake news or yellow journalism are to be strictly avoided by the media to enjoy its respect as the fourth pillar of democracy. Degeneration and questionable credibility of the media is rather regrettably of recent origin. There happens to be a generation fond of unfair competition in the field of media with a craze for who will be first in publishing news irrespective of its quality and need for publication. In such unhealthy competition, the first victim is the truth and then the consumer of news in society.

Dissipation of incorrect news, coloured news and news unhealthy for society have been gaining ground for a number of reasons including absence of appropriate training of journalists and growth in demands of modern media. Reporting on the law needs not only a fair amount of knowledge of law but also reasonable knowledge in the practice of law in courts and tribunals. The reporters must be able to make a distinction between reportable and unreportable matters and be able to exercise their discretion in making a choice to report or not to report.

Responsible exercise of such discretion is bound to enhance the quality of reportable news. In the case at hand, there was nothing untrue or fake that was reported and the media cannot be faulted. The media reported exactly what had been said by the Madras High Court in its anguish. The hearing in the said Court was also not held in “camera”. The proceeding was in open court and observations or remarks were made in the hearing of all present in court. There was also no inept reporting.

(The writer is a Senior Advocate and former Advocate-General of West Bengal)