The High Court should normally consider the possibility of the implementation of the directions given by it, and such directions which are incapable of being implemented should be avoided.
The doctrine of impossibility, in our view, would be equally applicable to Court orders as well. While concluding, we may also mention that in matters which have transnational and international ramifications, the High Court should normally refrain from issuing directions in such matters,especially when such matters of national level are being considered by this Court in separate proceedings.
In restricting ourselves to the specific grievances that have been urged by the EC,regarding the remarks made by the judges of the Madras High Court, we find that the High Court was faced with a situation of rising cases of COVID-19and,as a constitutional Court, was entrusted with protecting the life and liberty of citizens. The remarks of the High Court were harsh. The metaphor inappropriate. The High Court-if indeed it did make the oral observations which have been alluded to -did not seek to attribute culpability for the COVID-19 pandemic in the country to the EC. What instead it would have intended to do was to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections.
Having said that, we must emphasize the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation. Language,both on the Bench and in judgments,must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values.Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the present case. All that needs to be clarified is that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record. The EC has a track record of being an independent constitutional body which shoulders a significant burden in ensuring the sanctity of electoral democracy. We hope the matter can rest with a sense of balance which we have attempted to bring.
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, in view of the above discussion, we find no substance in the prayer of the EC for restraining the media from reporting on court proceedings. This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable tothe values which justify its existence as a constitutional institution.