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Election Commission has approached the Madras High Court seeking directions against reporting of oral observations made by the bench, in its hearing dated April 26^th.

Chief Justice Sanjib Banerjee had orally remarked that Election Commission was singularly responsible for the second wave of COVID 19 and that the EC Officials should be booked on murder charges. However, the order sheet did not record these oral observations made by the bench.

The bench was hearing a petition pertaining to counting of votes at a solitary assembly constituency.

Election Commission in its affidavit says,

“Media publications of this Hon’ble Court’s oral observations that the Election Commission of India is the institution that is singularly responsible for the situation prevalent today and that the ECI should be put up for murder charges, have caused grave prejudice to the Election Commission. It is a matter of fact that a police complaint has been made against a Deputy Election Commissioner in relation to the aforesaid allegation after the publications widely disseminating the oral observations of this Hon’ble High Court.”

“None must be permitted to report on the proceedings of this Hon’ble Court that are borne out by the record, especially when the detailed order is made available by this Hon’ble Court on the same day at around 7:30 PM, well before the news went to the press”, the affidavit adds.

The petition where such remarks were made, confined its prayer to the counting of votes in the constituency and in this regard, reliance is placed on Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491, where the Top Court observed that A Court cannot make out a case not pleaded, nor can it grant relief which is not claimed or does not flow from the facts and cause of action alleged in the plaint.

Attention is further drawn towards the orders passed by the High Courts of Kerala and Calcutta, expressing their satisfaction with the COVID measures taken by the ECI.

“Election Commissioners along with various senior officials of the ECI visited each of the five states where elections have been held recently. The ECI held wide ranging consultations with the State Government and its officials in relation to all matters related to conduct of the elections including precautions to be undertaken due to COVID 19. It is also a matter of public record that the ECI has also undertaken consultations with recognized political parties in each States who are primary stakeholders in the conduct of free, fair and safe elections”, adds the ECI clarifying its position.

Reliance is further placed on the case of Abani Kanta v. State of Orissa, 1995 Supp (4) SCC 169, where the Supreme Court said, “Judges should not use strong and carping language while criticising the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognize that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice.”

Averments are further made on Media Rights and Obligations; “Exchange between Counsel and the Bench do not constitute expression of opinion of the Court. Reporting of Exchanges in Court has to be circumspect and purely factual.”

On Oral comments and views of the Court, the ECI states; “A Judge speaks through his judgments. However, oral comments made by judges during a hearing routinely make headline news as ‘views of the Court’. The views of a Court of Law have to reflect only in judgments or orders and oral observations or comments have no sanctity in law. When oral comments and observations of 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 clothe the oral remarks made during the course of proceedings as the view of the Court, tantamount to undermining the constitutional authority of the Hon’ble Court itself.”

Reliance was further placed on Mohit Subhash Chavan v. State of Maharashtra, SLP (Crl.) No. 1573 of 2021 and Harsh Mander v. Union of India, WP (C) No. 1045 of 2018.