Thread by @barandbench

Can persons holding public office make statements on pending trials:

Constitution Bench resumes hearing in the case, Senior Counsel Harish Salve making submissions before the Court on the aspect of Article 19(1)

Salve: State has duty to enforce human rights of a person and providing for fair trial

Salve cites the Puttaswamy judgment on facet of positive and negative right when it comes to privacy.

Salve: Each of us have private conversations in life. If an agency has gathered this information, can they wash their hands off and say I have the right to publish it. This is the positive facet of privacy, I have the right under A.21 which cannot be violated by another.

Salve: The State has the duty tu regulate. It cannot say that we cannot do anything. State has the duty to create an ecosystem to create this protection

Salve: The building blocks are there, they just need to be put together by State and say that this is our new jurisprudence

Justice Shah: What are the remedies when certain rights under A 21 or Rights recognised by Courts are violated but these are not covered under A. 19(2)? We can't ask the Legislature to make laws on this.

Salve: Courts can recommend a law and like the Court did in Vishakha guidelines, propose a model.

Justice Shah: Right, because the Courts will otherwise become mute spectators when fundamental rights are violated.

Salve: These rights are the heart and soul of the Constitution

Salve cites examples of instances of when certain films were sought to be banned but Courts protected the rights of filmmakers and allowed for the release and exhibition of those films.

Salve: Constitution is the complex weave of rights and duties which are the arteries and veins if the document
Rights and duties are two sides.

Salve: Courts have to reinvent and reform the jurisprudence to take into account the present situation

Salve: When we came.out of the feudal system...

Justice Mishra: But have we come out of it? We have adopted the British system when it comes to English language

Salve: That is the only non-dividing language these days

Justice Mishra: Have we come out if feudalism but?

Salve: We may have come out of the feudal legal system but not our if the feudal mindset

Salve mentions the BCCI case to say that the monetary control of the government was used as the yardstick to assess control.

"Your Lordships may have to reconsider the decision some day"

Justice Mishra: So you are saying that if public duties like railways and collection of toll etc is given to private entities, they should be made responsible for upholding rights

Salve: The idea that you have to be state employee to carry out public duties died decades ago. Why not marry the Constitutional principles with privilege to private entities?

Salve: Trinity of Articles 14, 19, and 21 is the bedrock and core of the basic structure of the Constitution

Salve: A. 19(1)(a) gives rights to an individual and 19(2) imposes restrictions on these rights. Nowhere does it say that rights under 19(1)(a) are above and beyond other rights under the Constitution

Justice Bhat: When it comes to public interest, right can be upheld in public interest and restricted in public interest. Interestingly, Right to privacy is recognised as a Constitutional right and is mentioned as an exception under RTI

Salve: There needs to be a balance when it comes to things like social media.

Salve cites an example from the UK where action was taken against the Speaker's wife for demation who retweeted a news item published by a newspaper.

Salve: Democracy is very fragile, it depends on the faith of the public on the system. The law of contempt is used not for protection of an individual but for protecting the public faith in an institution. Same principle should be used for a victim.

Salve: The victim should be led to have faith in the system that he will get fair trial. Why he doesn't pick up a gun or goes to the streets is because you convince him that he will get justice and the system will give him justice

Salve: If you undermine the faith of the public in the justice delivery system, there will be complete anarchy

Salve: Judges exercise restraint but can this principle be restricted to only Judges? Public officials also take an oath to protect the rights of all persons

Justice Mishra: So having taken oath of office, the public officials should not violate the rights of the people

Justice Bhat: Even the Rules and Code of conduct for Public officials say that they should not do anything against public order

Salve: If the government is responsible for upholding the Constitution and rights of the people, then every cabinet minister is responsible

Salve: A minister cannot escape responsibility just because he is not in-charge of a ministry.

Justice Saran: So just because he is not a Home minister, he cannot be discharged of responsibility

Justice Bhat: Every minister is individually liable on account of holding office

Salve: Not saying that the cabinet should be made vicariously liable for the statements made by one minister. But a minister cannot be discharged of liability merely because he does not hold the portfolio of Home Ministry and is not directly in-charge of law and order

Salve: What is at stake is public faith in the system and in the institution. How it can be restored is by making the man (public official making comments on pending trials) accountable. A message will be sent and that is sometimes necessary to preserve the fragile democracy.

Justice Bhat: When it comes to the State, the acutest forms of violation of fundamental rights is also addressable as tort

Salve: Because private law suit cannot be brought under Article 226/32 does not mean that converse is not possible and there cannot be institution of suits for public law remedy.

Justice Shah: Offences against women are said to be offences against the State at large, can a writ of mandamus be issued.

Salve: If there is vacuum, then the gap can be filled by the Courts till the time necessary legislative action is taken.

Salve: Article 21 is supreme and in the post Emergency judgments the Courts have evolved the scope of A 21 and really brought the Constitution to life

Justice Mishra: Suppose a minister is delivering public speech and something is happening in his constituency and he has reasonable doubts that the same is politically motivated, then?

Salve: He is speaking in his official capacity

Justice Mishra: What if he is speaking about something happening ti his family which he believes is politically charged?

Justice Saran: Then it may be in his personal capacity he is speaking

Amicus Curiae Harish Salve concludes his arguments

Senior Counsel Rajeev Dhavan commences his submissions

Dhavan to address the Court on the aspects of Constitutional tort and whether fundamental rights can be enforced through Civil Courts

Dhavan: Civil action under section 9 of the CPC can be taken in case if violation of fundamental rights.

Can persons holding public office make statements on pending trials? Live Updates from Supreme Court hearing

bit.ly/35jQ5LL

Dhavan: Violation of Constitution is not violation of Constitutional tort

Justice Bhat: S. 9 will have to be read with A.228. Limit of expansion should be considered seriously

Bench rises for lunch