The Election Commission has made a dramatic U-turn in its approach to media coverage by stating that it is committed to a free media, who it even terms as its “natural ally”. This volte-face by the EC seems to be an outcome of a lesson learnt after appealing to the Madras High Court for a gag order against the media and then approaching the apex court against the High Court’s stinging criticism of its conduct.
The EC’s claims that it was unanimously against seeking restrictions on media must be understood in the context of its earlier demand to ask the media to stop reporting oral observations made in the courts about the EC. The EC quoted a news report of differences among its members about approaching the apex court on HC’s criticism. Then, why it they go ahead and appeal to the SC, which effectively turned down its plea? The SC on May 6 refused their plea stating that restricting the media will be a “retrogade act”.
The credibility of the EC, which was at its pinnacle during TN Seshan’s term, has touched its lowest ebb with its pro-BJP approach while conducting elections in West Bengal and to its reaction to Madras High Court’s murder charge comment. Is it not true that there has been a 530 per cent spike in COVID cases in the five states where elections were held? Is it not a biased decision to have an eight-phase poll in West Bengal and two in Tamil Nadu?
The way EC took decisions during elections transferring West Bengal officers and imposing a day ban on Mamata Banerjee came under a shadow. Had there been no criticism from the media, the EC could have very likely behaved like a wing of the election campaign cell of a political party.
What did the EC expect? Should we muzzle the judges of our courts and throttle the throats of the media? Justice Chandrachud gave an answer to this question: “The unfolding of the debate in the court of law is equally important and media has a duty to report. It is not only our judgements that are significant, but the dialogue also is.”
Apart from the doubts about efficiency and independence, the EC also came under attack for its constitutional ‘wisdom’. An EC that had ruled for prolonged campaigning for more than a month in the West Bengal Assembly Elections claims that it is ready to simultaneously conduct elections for all the states and Lok Sabha.
The people are questioning the EC for its failure to act after the second wave of the coronavirus was spreading in the country, much like the government at the Centre was behaving. The Model Code of Conduct framed decades ago does not have anything like precaution protocols against the corona spread.
Madras High Court had raised this question and called that EC could probably be guilty of murder. The poll body’s “wisdom” has also been reflected in its appeal to Supreme Court recently when it challenged observations of the Madras High Court exposing its blinded vision. The Supreme Court carved out some of its valuable time to teach EC that High Court has the freedom to speak out its mind from the Bench and the media has a legal authority to report the proceedings of the High Court.
Madras High Court said: “You (ECI) are the only institution responsible for the situation that we are in today. You have been singularly lacking any kind of exercise of authority…You have not taken measures against political parties holding rallies despite every order of this court saying maintain Covid protocol, maintain Covid protocol like a broken record”. These anguish-filled-remarks were not from opposition parties. The Madras High Court used this language against ECI on April 26.
About the protocols, HC explained: “the significance of adhering to such protocol may have been lost on the EC going by the puerile silence on the part of the commission, as campaigns and rallies were conducted without distancing norms being maintained and in wanton disregard of other items of the protocol….Public health is of paramount importance and it is distressing that constitutional authorities have to be reminded in such regard. It is only when a citizen survives that he will be able to enjoy the rights that a democratic republic guarantees. The situation is now one of survival and protection and everything else comes thereafter”.
The HC reminded EC that it was the “the most irresponsible institution” and even said its officials may be booked under murder charges. It has castigated the EC for the surge in COVID-19 cases during the second wave of the pandemic. When HC held the EC “singularly” responsible for the spread of the viral disease, people found reason behind it. It is widely felt that EC needed to be reminded in strong words about the need for accountability.
Causing death by negligence or recklessness by refusing to see the killer virus is murder strictly as per the definition in IPC. Sections 299 and 300 of Indian Penal Code framed in 1860, which these IAS officers must be aware of. Murders are of two types. One is intentional murder and the other is reckless or negligent causing of death, if not with intention. When such cases are booked against Tablighi Jamaat in Delhi, for negligently spreading corona, why shouldn’t Election Commissioners not be booked for their decision to conduct prolonged elections?
What is wrong in Madras High Court’s observation? EC should be happy that it was only an observation and not the judgment. On April 30, Chief Justice Sanjib Banerjee and Justice Senthil Kumar Ramamoorthy rejected their repeated requests to stop media from reporting. The EC wanted the media to confine its reporting to the observations from written orders and not the oral remarks during the hearings. The EC felt that the Judges’ remarks caused grave prejudice to the poll body and police complaints were being filed against their Commissioners.
EC says in its appeal to SC the comments were “uncalled for, blatantly disparaging and derogatory”. If an individual faces baseless defamatory insinuation, he may approach the court with these expressions. An institution like ECI, which is a ‘state’ under Article 12 of the Constitution claims that these comments are derogatory.
If their decisions and actions are being scrutinised and reviewed by judiciary and civil society, EC must correct itself. State institutions do not have thee ‘reputation’ to be protected under Section 500 of Indian Penal Code (criminal defamation) or claim huge compensation in torts cases. If they do not perform their constitutional duty, it is in fact a Constitutional crime. Fortunately for them, Constitution of India did not prescribe jail terms for this kind of abdication of duties.
SC became a law teacher to explain to the EC that it cannot favour applying fetters on judges’ remarks or their reportage by the media. The Bench of Justice DY Dhananjay Y Chadrachud and Justice M R Shah emphasised that high courts must get “complete freedom” to decide issues before them, and that the “media is a very important and powerful watchdog of the judicial processes”.
Judges further explained: In today’s time, we cannot say that the media won’t report contents of discussion in a court and only orders. Since the discussion is of equal public importance, we will put it on the same pedestal like our orders. There is a dialogue between the court and the lawyers and when they are reported, people get to know about the judicial process. Though mainstream TV media has totally forgotten this duty, the civil society through some print media and social media, is rightly exercising this freedom.
The questions raised by Madras High Court are actually the unasked statements of the people. It is a shame that all political leaders and parties turned state elections into Kumbh Melas and participated in them. They should bear the joint liability for behaving in a hazardous manner, as if none has any respect for a common man’s life.
It is a simple, common, and universal principle that the judicial adjudication is open to public view. Open hearing does not mean that process is open only to the people sitting in the court room. They represent the entire world.
Working amidst the scrutiny of the people in general is the characteristic of this Constitutional estate. Legislature is also expected to debate the process of consolidating a policy into a law. Only estate that operates in utmost secrecy and fear the transparency is the executive government. They are afraid of the mirror. All the commissioners since the inception of EC come from such bureaucracy and its functioning atmosphere.
Can EC wipe out the perception that the victory of TMC in West Bengal is over Modi-Shah combine’s concerted battle along with EC? At least, under the new chief, the EC should behave like an unbiased and independent institution with some spine. The EC should know that the third estate – the judiciary – shall question, and the fourth estate, the media shall report.
M Sridhar Acharyulu is a Professor of Constitutional Law, and former Central Information Commissioner
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