[Breaking] Election Commission moves Madras High Court against "murder charges" comment; says media should not report oral comments made by court

The Election Commission of India (ECI) has moved the Madras High Court seeking directions to be issued to media houses to confine their reports to observations recorded in orders or judgments and to refrain from reporting on oral observations made during court proceedings in a case concerning COVID protocol for vote counting in Tamil Nadu. .The plea has been filed in the wake of wide reportage of the Madras High Court's April 26 oral observations that the ECI is singularly responsible for the COVID-19 situation in India today and that it should probably be put on murder charges for failing to ensure compliance of COVID-19 protocol during election rallies.."Election Commission should be put up on murder charges:" Madras High Court on ECI's failure to stop "abuse" of COVID norms in election rallies.The affidavit filed by Chief Electoral Officer at Tamil Nadu, Satyabrata Sahoo, has highlighted that the said oral observation was not finally recorded in the order passed that day in the case, which was concerned with the adherence to COVID-19 protocol during counting of votes in the Karur constituency. .While so, the ECI is aggrieved that media publications of the Court's oral comments that the ECI is “the institution that is singularly responsible for the situation prevalent today” and that the ECI “should be put up for murder charges” has caused grave prejudice to the Commission. It also highlighted that a police complaint has been filed against a Deputy Election Commissioner alleging murder after media reports were published over the Court's oral comments. .These reports have tarnished the image of the ECI as an independent constitutional agency that is entrusted with the constitutional responsibility of conducting elections, the plea stated. It added that such aspersions have the potential of lowering the faith of the masses in democracy and democratic processes..The ECI has gone on to contend that no one must be permitted to report on the proceedings of this Court that are not borne out by the record, especially when the detailed order is made available by the Court the same day. In this regard, the following points were raised:.It is a fundamental principle of Anglo-Saxon jurisprudence that Judges speak through their judgments alone. It is indisputable that quoting questions raised by Judges as though they were findings of the Court has a chilling effect on the conduct of the Court proceedings. An exchange between the counsel and the Bench do not constitute an expression of opinion of the Court. Reporting exchanges in court has to be circumspect and purely factual. Any report that suggests that a course of an exchange of the Court has cast any aspersion on any person or functionary is simply wrong. While a judge speaks through his judgments, oral comments made by judges during a hearing routinely make headlines as “views of the Court”. The views of a Court of law have to reflect only in judgments or orders. Oral observations have no sanctity in law. When oral comments and observations of a judges are quoted in mainstream media as views of the Court, it has the potential of masquerading as the institutional opinion of the Judiciary which ought to be reflected only through its judgments. To cloth oral remarks as “views of the Court” tantamount to undermining the constitutional authority of the Courts the Court is seen as some as exceeding the boundaries of judicial propriety. Misreporting of court proceedings has often caused great hardships for litigants and Judges. In Mohit Subhash Chavan v State of Maharashtra and anr, in a case related to termination of pregnancy, the former Chief Justice of India was misquoted by placing a query out of context which created a furor. The CJI had to clarify that the Supreme Court always has the greatest respect for womanhood during the proceedings in a mother case. While both statements never found their way in the orders passed by the Court, the misquoting was criticised by members of the Bar appearing from both sides in the said matters and otherwise. In Harsh Mander v. Union of India, the petitioner moved an application before the Supreme Court seeking recusal of the then CJI on the basis of oral observations made during court proceedings and reported in the media, which raised the doubt of bias in the mind of the petitioner. Such an instance had caused great paint to he Court and the same can be gauged from the order passed on May 2, 2019. The Bombay High Court in the case of Nilesh Navalakha v. Union of India recently directed the press/ media to exercise restraint..As far as the oral observations made by the Court are concerned, the ECI argued that they were made without an adequate opportunity being afforded to the ECI to place the entire factual position before this Court. In this regard, the ECI further highlighted the following:There was no occasion for this Court to make such observations since the campaigning in the State of Tamil Nadu ended back in April 4. The Calcutta (in an April 23 order) and Kerala (in an April 27 order) High Courts have expressed satisfaction with the COVID related measures taken by ECI on counting day. Governance of the State is not linked to the conduct of elections. It remains the responsibility of the State. The ECI’s duty to conduct free and fair elections does not absolve the State Government from obligations to enforce laws of general application in the interest of safety and health of the citizenry. 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. Comparison of data between the poll-going States and non-poll going States during the campaign period, i.e. between March 20 and April 4 does not indicate that the election campaigns were a significant factor much less than what the Court termed as a “singular factor.” No general elections were conducted in States where the highest number of cOVID cases are being reported i.e. Maharashtra, Karnataka, Uttar Pradesh and Delhi..It cannot, therefore, be said that the ECI is “singularly responsible for the second wave of COVID-19” nor the officers of the Election Commission of India be said to be culpable for “murder", the ECI has argued. .The case of Bachaj Nahar v. Nilima Mandal has also been cited, wherein the Supreme Court held that a Court cannot make out a case not pleaded and that the Court should confine its decision to the question raised in the pleadings before it. .In this backdrop, the ECI has made the following prayers:That the Court direct that only what forms part of the record in the present proceedings WP No. 10441/2021 (the Karur case) is to be reported by the press and electronic media and further directions may be issued to the media houses to issue necessary clarification in this regard. That the Court direct the police not to register any FIR for the offence of murder on the basis of media reports on the oral observations attributed to the Court..In a separate counter-affidavit detailing the measures put in place by the ECI to ensure that COVID-19 protocol is maintained, the ECI has also submitted that broad guidelines were issued as far back as August 2020 keeping in view the pandemic situation. .In view of reports of COVID-19 protocol violations being reported in West Bengal, the ECI on April 22 prohibited roadshows, vehicle rallies and public meetings of more than 500 persons, and withdrew permission already granted, it was pointed out. Among recent measures, the ECI pointed out that the Commission has now banned victory processions and gatherings after the counting of votes of the legislative assembly election results in various States..Election Commission of India bans victory processions in view of COVID-19 surge [Read Notification].It was further highlighted that many election officers themselves have braced the pandemic with their lives on the line during the conduct of elections. Many continue to be infected and are equal victims, it was stated. They continue to assist in their best capacities to ensure that the constitutional trust reposed in the Commission is well discharged, the plea added..The matter is slated to be taken up today by the Madras High Court Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy.