In a new twist to developments in the case where the Election Commission (EC) had demanded that news media be barred from reporting oral observations of judges, it has now emerged that the two Election Commissioners had vastly different views on the subject.
EC – A divided house?
According to the Indian Express, the dissenting EC wanted to put his views in a separate affidavit, but this was shot down by the EC that did not file his affidavit with the Madras High Court. But that’s not all. The EC reportedly also ignored his request to attach his separate affidavit to the Special Leave Petition (SLP) filed before the Supreme Court.
After Sunil Arora retired as Chief Election Commissioner on April 12, he was succeeded by Sushil Chandra. Rajiv Kumar is the Election Commissioner. The third post is yet to be filled. It is not yet known which one of the – Chandra or Kumar – dissented, but as per Indian Express, the submissions in the affidavit before the courts were not unanimous.
Questionable decisions during assembly elections
The EC is already facing flak for its alleged bias towards the Central government given the manner in which it conducted the recently concluded assembly elections in four states and one Union Territory (UT). It was particularly worrying how it allowed large political rallies to continue where thousands of people gathered without masks and in complete contradiction of basic Covid appropriate behaviour like maintaining social distancing. It is noteworthy that it was Mamata Banerjee who took initiative and willingly suspended campaign rallies, well before other parties were made to do so by the EC. The same Mamata Banerjee was in the EC’s crosshairs when as a parting shot, Sunil Arora slapped her with a 24 hour campaign ban on his last day on the job, despite many BJP leaders getting away with a light rap on the wrists for delivering speeches that were far more provocative, communally hateful and outright inflammatory in nature.
Brief background of the “media-gag” case
On April 26, a Madras High Court Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy pulled up the Election Commission officials for their gross abuse of pandemic protocol, while hearing a petition about Covid related concerns during voting. Bar & Bench quoted the upset Bench orally observing, “You are the only institution that is responsible for the situation today. No action against political parties taking rallies despite every order of the Court. Your election commission should be put up on murder charges probably!”
This oral observation was also reported widely by the news media and this upset the EC. On May 1, during the hearing of the suo moto case where Madras High Court is taking stock of the Covid situation in the state, the Election Commission, upset about the remarks of the bench being “sensationalised” by the media, pleaded for directions. The counsel for EC submitted that it was tasked with a difficult job of conducting elections, and the media should be instructed not to sensationalise.
However, the court was in no mood to deal with this issue considering other issues that needed the court’s attention. “The post-mortem on either count may have to wait, particularly in the light of the immediate measures that may be put in place,” the court said referring to EC’s appeal and Centre’s claim of preparedness.
The EC then moved Supreme Court via a Special Leave Petition but a Bench of Justice DY Chandrachud and Justice MR Shah refused to entertain the plea and observed that unfolding of debate in a court of law is important and the media has a duty to report. The bench also defended the high court judges stating that what is happening on the ground is bound to affect them and such comments are part of a dialogue and should be taken in the right spirit.
When Senior Advocate Rakesh Dwivedi appearing for EC pointed towards the comment of Madras High Court that EC officials should be charged with murder, Justice Chandrachud said, “We don’t want to demoralise the HC. They are vital pillars of the judicial process. Understand the perspective… It’s a free-flowing conversation. Sometimes in this dialogue, it’s a human process. We respect the EC, don’t take it otherwise. This is not to belittle because ultimately democracy survives on the faith in the institutions.”
The court held that sometimes judges say things spontaneously and they can “say something if they observe something. They have experience”. When Dwivedi pointed out that the harsh criticism has to stop, Justice Shah retorted, “Harsh criticism is because we want orders to be followed. Sometimes orders are not followed. Last week, people died in fire in Gujarat, the HC can say anything looking at the hard realities.”