Election Commission
Election Commission

Days after the Madras High Court held the Election Commission of India “singularly responsible” for the COVID second wave and observed that it should probably face “murder charges,” the Election Commission has sought a blanket ban on the national media, barring it from publishing oral remarks of judges in courts.

Appearing on behalf of the poll body, senior advocate Rakesh Dwivedi submitted that the media’s reportage of the court’s observations during the last hearing of the main case “had caused great damage to the reputation of the ECI”.

According to him, after the media reported that the court had made observations about pressing murder charges against the ECI, some people had indeed lodged police complaints to register “murder and culpable homicide” charges against the poll body and its officials.

Dwivedi further pleaded that the court should direct media outlets to carry a clarification on the issue [as the court’s oral observations did not find mention in its written directions]. He also said the media should be given a direction not to report oral observations but stick to written orders. Also, the poll body sought a direction to the police not to register FIRs against the ECI on charges of “murder and culpable homicide” based on the media reports.

Legal experts see in the EC plea a clear attempt to camouflage its failure to discharge its Constitutional duty to the country – to enforce Covid norms during the Assembly elections. Its petition tries to whitewash the EC’s failure to ban rallies, postpone the election dates or declare a single date for all elections.

Its reaction, seeking the media gag order, is prima facie absurd. Rather than pull up its socks, the EC has chosen to demonize the media by saying publication of such oral remarks should be banned. Experts feel such an absurd ban would traverse beyond the eight reasonable restrictions imposed by Article 19 (2) on the right to freedom of speech and expression guaranteed by Article 19 (1) (a).

The sledge-hammer approach is more than manifest at a time when other countries permit live recordings of court proceedings and which is also being contemplated in India.

TN poll officer Satyabrata Sahoo’s affidavit uses hyperbole to claim, “These reports have tarnished the image of the ECI as an independent constitutional agency that is entrusted with the constitutional responsibility of conducting elections,” leading to the people losing faith in democracy and democratic processes.

Usurping the role of the Press Council of India, the ECI claims detailed orders are made available by the Court on the same day which supposedly justifies a blanket ban on reporting what actually transpires in courts. This appears palpably false because judges correct drafts of judgments which court typists cannot upload immediately.

The ECI has justified its seeking a ban on media reporting of oral remarks of judges by alleging such remarks wrongly made headlines as “views of the court” which were only contained in judgments or orders because “judges speak only through their judgments.” Oral remarks had no legal sanctity and were not the “views of the court,” the affidavit has contended.

The affidavit even goes on to say the Madras high court was not justified in passing such remarks against the EC because campaigning ended on April 4. It says the EC’s duty to conduct free-and-fair elections did not absolve the state government of its duty to protect the health of its citizens by enforcing general laws.

In his affidavit, Sahoo claimed the number of COVID-19 cases were relatively low when legislative assembly elections were announced in Kerala, West Bengal, Assam, Tamil Nadu and Puducherry on February 26, 2021. A comparison of Covid-19 data between poll-going and non-poll going states did not justify the remark that the ECI was “singularly responsible for the second wave of COVID-19;” nor were its officers “culpable for murder", the ECI argued.

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