SC has said, in the age of internet, media is free to report on all judicial proceedings, including oral remarks, writes Olav Albuquerque

The Supreme Court has done a disservice to the high courts and the media by not levying hefty costs on the Election Commission (EC) for filing an absurd petition contrary to law and the people’s right to know. While dismissing the EC petition which may be seen as nonsensical, the Dhananjaya Chandrachud-led bench refused to gag the media and said as Madras high court’s oral remarks were not part of the order, expunging them “did not arise”. The EC had sought expunging the remarks of Madras High Court Chief Justice Sanjib Banerjee on why the EC should not “probably” be booked for murder.

The Supreme Court said, in the age of internet, the media is not only free to report on orders or judgments of all courts but also judicial proceedings which presumably include oral remarks, which is an integral facet of Article 19 (1) (a). The EC had approached the apex court to gag the media from reporting oral remarks made by judges throughout the country.

The apex court bench said there was no substance in the prayer of the EC to restrain the media from reporting court proceedings. “It is essential to hold the judiciary accountable,” Justice Chandrachud said while observing the Madras high court’s remarks were a bit “harsh”. The work of the courts has a direct impact on the rights of citizens. “We cannot gag the reporting of court proceedings,” declared Justice Chandrachud, reaffirming what is already laid-down law.

Justice Chandrachud’s judgment has negated the view that press freedom and independence of the judiciary are mythical concepts which exist in theory but not in practice. Some of these concepts are called legal fiction because although high court and Supreme Court judges are not employees of the state, it is the Consolidated Fund of India or of the states which pay judges’ salaries and pensions garnered from tax payers’.

It is either the Union or state governments which dole out funds to furnish the courts’ buildings and infrastructure for the judiciary to discharge their duty to the people. And when the Chief Justice of India retires, the Prime Minister throws a lavish banquet where all the apex court judges rub shoulders with cabinet-rank ministers and secretaries. This is never taught in law colleges, where hundreds of hours on judicial independence and the bulwark between the judiciary and the government are taught. Ideals which real life negates.

Be that as it may, the media is fortunate that the EC’s petition was heard by the Dhananjaya Chandrachud-led bench. This is because Justice Chandrachud or ‘Danny boy’ is known in Mumbai for his liberal values, unlike his conservative brother judges who may have opined differently. Banning the media from reporting oral remarks of judges would have totally extinguished press freedom in India which already ranks 142nd out of 180 countries in the World Press Freedom Index.

The admitting of another petition seeking to declare the law of sedition contained in section 124-A of the IPC as unconstitutional is another welcome step for press freedom. Just as CJI N V Ramana has insisted that the Kerala journalist Siddique Kappan be given medical treatment in Delhi for his many ailments.

After Kappan’s arrest, the jail authorities should be forced to pay from their salaries for ailments contracted by such undertrials while in jail. Kappan was alleged to have been chained to his bed like an animal, which is why the draconian Unlawful Activities Prevention Act is seen as misused to silence dissenters.

The Supreme Court consists of 17 court rooms, each headed by a senior judge. A few of these judges may have come down heavily on the media for reporting oral remarks. In 1997, the then chief justice of the Bombay high court, Manharlal Bhaichand Shah, upbraided the media for reporting his oral remarks flaying the Maharashtra government for allowing costly machines to rust in J J Hospital. “The media must wait for my signed orders,” he had said.

Despite having such an anachronistic mindset, Justice Shah was taken to the Supreme Court by the then 27th CJI A M Ahmadi. Shah hardly gave any judgments against the then government. His advice to the media to wait until his signed orders were available was ridiculed by another retired activist-judge of the Bombay high court, the late Justice Hosbet Suresh.

On November 29, 2016, Judge S J Sharma of the CBI special court ordered the media not to report the proceedings of the trial court in the Sohrabuddin fake encounter case during which CBI Special Judge B H Loya died while attending a wedding of a judge’s daughter. Justice Revati Mohite-Dere of the Bombay high court struck down Sharma’s order in 2017, observing the media had a right to report court proceedings.

The point here is that press freedom is already curtailed by eight vague restrictions in Article 19 (2), which allow Parliament to make innumerable laws to thwart the media from reporting the ongoing failures of the government. The latest is the Epidemic Diseases Act, 1897, which allows the government to ban the media from reporting Covid fatalities. The media is forced to rely only on government data, which, according to an investigative report by Dainik Bhaskar, underplays the total number of deaths due to Covid.

Time magazine has alleged senior editors, seen to be more loyal to India’s secular ethos rather than the present nationalist worldview, were replaced by more pliable editors who shared the same worldview as the ruling dispensation. It is debatable whether the judiciary and the media have been subverted by the ruling dispensation but the Dhananjay Chandrachud judgment upholds a free media while cautioning the judiciary against strong oral remarks.

The writer holds a PhD in law and is a senior journalist-cum-advocate of the Bombay high court

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