Thread by @barandbench

Justice DY Chandrachud led bench of the #SupremeCourt to shortly hear appeal by Election Commission against Madras HC observations that @ECISVEEP is singularly responsible for the #COVID19 situation in India and that it should probably be put on "murder charges"

The plea is an appeal against an April 30 order of Madras High Court which had refused to entertain ECI's petition in this regard.

The ECI sought 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.

Bench assembles.

Senior Advocate Rakesh Dwivedi for ECI: Without any opportunity to election commission or seeking any reply from officers responsible under disaster management act, we have been castigated

Justice MR Shah: what are your duties and responsibilities?

Dwivedi: To provide guidelines and implement and for other officials to ensure it. We don’t have the CRPF to see what is being done at rallies. We needed to be given a chance. Look at the affidavit. In Madras, the poll was 4th April and this writ was filed on 19th.

Justice Chandrachud: need to put the matter in perspective. There were 77 candidates in the constituency. The HC issued certain directions on 26th April directing certain precautions and said that whatever steps have been taken, need to be enforced in rest of the State.

Justice Chandrachud: Eventually when matter was disposed of on 30th April. We were left with two things. One was your IAs which were filed before the HC. You had raised two prayers. First was that media should report contents of order and not oral observations.

SC: Second was there should be no registration of complaint on the basis of news reports or observations. Interestingly, there is nothing to challenge the earlier order. you seem to have been aggrieved by observations by the HC

Justice Chandrachud: ECI is a seasoned constitutional body. which has entrusted with functions of conducting the elections. We cannot in today’s times, say that media will not report the discussions that take place in Court.

Justice Chandrachud: The discussions that take place are of importance, in fact of the same order and are in public interest. It’s not a monologue that one person will speak and then Judges will speak. We have an Indian pattern of arguments in Court.

Justice Chandrachud: only our judgments is not important. there is an aspect of the application of mind. first prayer of don't report what is said in court was far fetched

Dwivedi: it is with regard to observation. I am 40 years at the bar and media can always report.

Justice Chandrachud: We are looking at from a wider constitutional perspective whoever is arguing is always in the dock and judges will always follow a line of questioning

Dwivedi: to elicit a response from us and get a reply from us on a matter

Justice Chandrachud: you have stated that a criminal complaint has been filed in a remote part of the country you have to follow your remedies which crpc has and approach Calcutta high court

Dwivedi: most of the judges in judiciary is conscious, but there are judges in Allahabad HC where judges say a lot of things which is not related to the case

Justice Chandrachud: I am allahabad hcs adopted child its your parent HC

Justice Chandrachud: Some judges are reticent and some judges are more verbose

Justice MR Shah: when something is observed it's in the larger public interest. they are also humans and they are also stressed.

Justice Shah: take this in the correct spirit..

Dwivedi: but such a remark of murder charger against a constitutional body

Justice Chandrachud: we are looking at this from a long term and impact on functioning of high courts. we don't want to demoralise our high courts. they are vital pillars of our democracy. Things are often said in an open dialogue between bar and bench.

Justice Chandrachud: What i am saying is not to belittle ECI. Democracy survives only when institutions are strengthened. In the course of a dialogue..

Dwivedi: there is no dialogue its just a conclusion that we are murderers...

Justice Chandrachud: we cannot complain how judges will react. ordinarily we are conscious of saying things in court which will not be proper to include in a judicial order. should I say something in judicial proceedings which I may not include in order

Justice Chandrachud: I get your point that observation of criminal charges against ECI was not the subject matter of case or being adjudicated

Dwivedi: just because newspaper reports stated something and no evidence is placed before and conclusion is passed

Dwivedi: what you just say that observations can be made which can be put in judicial order...

Justice Shah: often something is said due to past experience or after a series of orders not being adhered to. everything cannot be in order

Justice Chandrachud: its a human process.

SC: We have to protect the judicial sanctity of the process. we have to make sure that high court judges and chief justices are independent to make views. we have to make sure that media reports everything that happens in court so that we judges conduct proceedings with dignity

Justice Chandrachud: media should be able to report everything also to create accountability. often the dialogue in court is to create an umbrella of discussion. High courts are not district courts but has power under Article 226.

Justice Chandrachud: Your SLP says ECI is a constitutional body and HC being another such body cannot make comment on the other

Dwivedi: No my lord we don't say that..

Justice Chandrachud: whether law passed is violative of constitution is entrusted with court but that does not mean we are taking over the powers of the parliament. its about powers as divided since 1950.

Justice Chandrachud: to say that ECI is a constitutional body is not amenable to judicial review is not correct

Dwivedi: if the SLP gives such an impression then consider the statement withdrawn

Justice Chandrachud: now you have electronic and social media we are also conscious how we conduct. i am sure what are we saying is being reported now. but to contain what we want to ask or say in court just because of this will not do justice to the judicial process

Justice Chandrachud: please be rest assured that elections in our country has been a corner stone of the existence of our democracy and we want all institutions to be free. when we write an order don't think we are castigating ECI. we will bring balance. issue is complex

Justice Chandrachud: we cant just say judges should stick to pleadings. they are over burdened and they are saying whats happening around them. they are burning the midnight oil.

Justice Chandrachud: speaking for myself I would have said this while hearing an election petition. issues in the SLP is much broader. we cannot reduce the sanctified authority of the High Courts

Justice Shah: High courts was considering orders and noted that orders were not followed. it was not impromptu. What said is said. take it in the right spirit.

Dwivedi: if it was not so we would not have cooperated with all the high courts who passed directions..

Justice MR Shah: you are bound to...

Dwivedi: we are often pilloried by one party or someone else and then its said we should face murder charges

Justice Chandrachud: ECI lay down paramters and the actual mode of conducting elections is with the state and such orders need to be adhered to. you don't take over the electoral functioning of the state. there is a area where state has to implement guidelines

Dwivedi: ECI does not have the staff to contain the people who take part in the rally by prime minister or chief minister. there is an assumption that ECI has responsibility for all of this. COVID management is not the prerogative of @ECISVEEP

Justice Chandrachud: why did the HC say on April 26 that like a broken record it directed something to be done but was not done

Dwivedi: but how do we ensure a rally where people wear face masks?

Justice Shah: but you got a circular where rally number was limited to 500. this you could have done earlier

Dwivedi: we have a serious objection to the observation. it led to serious discussion on electronic media that we are murderers

Justice Shah: we don't know what spontaneously happened and why judges said it

Justice Chandrachud: What leaves its footprints on sands of time is the written judicial order of the judge. observations are momentarily things

ECI: we are deeply hurt and hence our objection..

Justice Chandrachud: the other day when we were hearing the COVID suo motu matter Mr Ranjit Kumar raised a similar issue and we responded the same way. while we can ask jusges to stick to the case we also have to take into account the circumstances faced by them or anguish

Justice Chandrachud: we cannot dilute the hallmark of our judicial process. we will strike a balance to maintain the independence of our high courts while taking your concerns into account.

Justice Shah: sometimes we are harsh because we want to see in larger public interest something is done. after a series of orders HC may be anguished. look at gujarat 18 people due to fire in covid ward and this in spite of series of orders where Fire NOC is required.

Dwivedi: harsh criticism are also welcome but somewhere line has to be drawn.
#supremecourt

Justice Chandrachud: we will try and post it this week for orders. but tell ECI that the intention is not to run down an institution. in our order, we will clarify that institutions have to be strengthened.

Adv Pradeep Yadav: HC may have used harsh words but if ECI would have directed the concerned District Magistrate that more than 500 people should not gather then it would not have happened, and if its violated then the candidature of that person should be cancelled.

Adv Yadav: when COVID is going on polls should be deferred by a year

Justice Chandrachud: we are not on that

Adv Amit Sharma: FIRs being registered on basis of such observations how do we elicit a section 161 statement. Mr Yadav should understand these complexities

Justice Shah: sometimes such comments are for the benefit

Matter closed for orders.

#SupremeCourt @ECISVEEP

[BREAKING] "Don't want to demoralise High Courts, media should be allowed to report oral observations:" Supreme Court to Election Commission

report by @DebayonRoy

#ElectionCommissionOfIndia #SupremeCourt #media

@ECISVEEP

barandbench.com/news/litigatio…

Correction: would *not* have said this....