PRONOUNCED ON- 06.05.2021

LAW POINT- Freedom of Speech and Expression also includes Reporting of Judicial Proceedings by Media.


This Special Leave Petition arises from an order of a Division Bench of the High Court of Judicature at Madras. The High Court entertained a writ petition under Article 226 of the Constitution to ensure that COVID-related protocols are followed in the polling booths at Legislative Assembly Constituency in Tamil Nadu. During the hearings, the Division Bench is alleged to have made certain remarks, attributing responsibility to the EC for the present surge in the number of cases of COVID-19, due to their failure to implement appropriate COVID-19 safety measures and protocol during the elections. At issue are these oral remarks made by the High Court, which the EC alleges are baseless, and tarnished the image of the EC, which is an independent constitutional authority.

  • The EC is aggrieved by the oral observations of the  High Court during the course of the hearing and by it not having addressed the merits of its miscellaneous application.
  • In its miscellaneous application, the EC sought Media reporting of  only  what forms a part of the judicial record before the Madras High Court and not the oral observations of the judges

Open Courts and the Indian Judiciary

Courts must be open both in the physical and  metaphorical sense. Save  and except for in-camera proceedings in an exceptional category of cases, such as cases involving child sexual  abuse  or  matrimonial proceedings  bearing  on  matters  of marital privacy our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms. The concept of an open court requires that information relating to a court proceeding must be available in the  public domain. Citizens have a right to know about what transpires in the course of judicial proceedings.

There are multiple ways in which an open court system contributes to the working of democracy. An open court system ensures that judges act in accordance with law and with probity.

The impact of open courts in our country is diminished by the fact that a large segment of the society rarely has an opportunity to attend court proceedings.

This is due to constraints like poverty, illiteracy, distance, cost and lack of awareness about court proceedings. Litigants depend on information provided by lawyers about what has transpired during the course of hearings. Others, who may  not  be personally involved in a litigation, depend on the information provided about judicial decisions in newspapers and in the electronic media. When the description of cases is accurate and comprehensive, it serves the cause of open justice.

Freedom of Expression of the Media

Article 19(1)(a) of the Constitution guarantees every citizen the right to freedom of speech and expression. Over six decades ago, in 1958, a  Constitution  Bench  of  this Court, in Express Newspaper (P) Limited vs Union of India15, explained that Article 19(1)(a) would carry within it, implicitly, the right to freedom of the press.

A free press is free for the expression of opinion in all its phases. It is free for the achievement of those goals of press service on which its own  ideals  and  the requirements of the  community  combine  and  which  existing  techniques  make possible. For these ends, it must have full command of technical resources, financial strength, reasonable access to sources of information at home and abroad, and the necessary facilities for bringing information to the national market.

Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well. Courts are entrusted to perform crucial functions under the law. Their work has a direct impact, not only on the rights of citizens, but also the extent to which the citizens can exact accountability from the executive whose duty it is to enforce the law. Citizens are entitled to ensure that courts remain true to their remit to be a check on arbitrary exercises of power.

The ability of citizens to do so bears a direct correlation to the seamless availability of information about what happens in a court during the course of proceedings. Therein

lies the importance of freedom of the media to comment on  and  write  about proceedings. This principle was recognized in  the  Madrid  Principles  on  the Relationship between the Media and Judicial Independence

Public Discourse, Media Reporting and Judicial Accountability

Court proceedings in colonial India, especially sedition trials, were also sites of political contestation where colonial brutality and indignity were laid bare. The widespread reportage on Lokmanya Balgangadhar Tilak’s first trial for sedition was seminal in highlighting the variance in procedural laws and rights denied to Indian undertrials, as he struggled to access legal aid and was convicted in spite of a non- unanimous verdict of the jury.

Post-independence, matters of seminal constitutional importance have witnessed widespread reportage in newspapers and magazines – which did not merely report on the pronouncement of verdicts, but also the quirks of the counsel and judges. These tales have now passed down as the legacy of our profession and also provide useful context for our study of the law.

With the advent of technology, we are seeing reporting proliferate through social media forums which provide real-time updates to a much wider audience, this is an extension of the freedom of speech and expression that the media possesses. This constitutes  a ‘virtual’ extension of the open court. This phenomenon is a not a cause of apprehension, but a celebration of our constitutional ethos which bolsters the integrity of the judiciary by focusing attention on its functions.

The Gujarat High Court also recently  introduced livestreaming of its  proceedings, in  a bid to enhance public participation in the dispensation of justice.

In this backdrop, it would be retrograde for the  Top Court to  promote  the  rule of law and access to justice on  one  hand,  and  shield  the  daily  operations  of  the  Courts  t from the media in all its forms.

Freedom and constraints of judicial conduct

The independence of the judiciary from the executive and the legislature is the cornerstone of our  republic.  Independence  translates  to  being  impartial,  free  from bias and uninfluenced by the actions of those  in  power,  but  also  recognizes  the freedom to judges to conduct court proceedings within the contours of the well- established  principles  of  natural  justice.  Judges  in  the  performance  of  their  duty must remain faithful to the oath of the office they hold, which requires them to bear allegiance to the Constitution. An independent judiciary must also be one which is accountable to the public in its actions and omissions.

The manner in which judicial proceedings are conducted, especially in our superior courts, is unique to each judge and holds great weight in the dispensation of justice.

The issues raised or comments made by the Bench during an oral hearing provide clarity not just to the judges who adjudicate upon the matter, but also allow the lawyers to develop their arguments with a sense of creativity founded on a spontaneity of thought. Many a times, judges play the role of a devil’s advocate with the counsel to solicit responses which aid in a holistic understanding of the case and test the strength of the arguments advanced before them. That is where the real art of advocacy comes to play. The order or judgment of the  court must indicate  a process of reflection and of the application of mind of the judge to the submissions  of opposing parties.

The humanity intrinsic to each judge allows them to transcend the language of the law to do complete justice. In the pursuit of doing justice and in  the  course  of an open deliberation in court, propositions may be put forth and observations are made in order to facilitate the process of arriving at an acceptable outcome  based on the law but which is in accord with justice. Observations during the course of a  hearing do not constitute a judgment or binding decision.

Every judicial officer must be free to  express  his  mind  in  the  matter  of  the appreciation of evidence before him. The phraseology used by a  particular  Judge depends upon his inherent reaction to falsehood, his comparative command of  the English language and his felicity  of expression.  There  is  nothing more  deleterious  to the discharge of judicial functions  than  to  create  in  the  mind  of  a  Judge  that  he should conform to a particular pattern which may, or may not be, to the liking of the appellate court. Sometimes he may overstep the mark. When public interests conflict, the lesser should yield to the larger one. An unmerited and undeserved insult  to  a witness may have to be tolerated in the general interests  of  preserving  the independence of the judiciary.

A duty is cast upon the judicial officer not to deflect himself from the even course of justice by making disparaging  and  undeserving  remarks  on  persons  that  appear before him as witnesses or otherwise. Moderation in expression lends dignity  to  his office and imparts greater respect for judiciary.

The duty to preserve the independence of the judiciary and to allow freedom of expression of the judges in court is one end of the spectrum. The other end of the spectrum, which is equally important, is that the  power  of  judges  must  not  be unbridled and judicial restraint must be exercised, before using strong and scathing language to criticize any individual or institution.

In balancing these two ends, the role of superior courts is especially relevant. This Court must strike a balance between reproaching the High Courts or lower courts unnecessarily, so as to not hamper their independent functioning.

These courts must also intervene where judges have overstepped the mark and breached the norms of judicial propriety.


These oral remarks are not a part of the official judicial record, and therefore, the question of expunging them does not arise. It is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing. Hence there is no substance in the prayer of the EC for restraining the media from reporting on court proceedings.