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

A Constitution Bench of the Supreme Court is presently in the midst of hearing a matter which deals with the question of whether persons holding public office should be allowed to make statements on pending trials..The hearing is underway before a Bench of Justices Arun Mishra, Vineet Saran, Indira Banerjee, MR Shah and Ravindra Bhat..Live updates from today’s hearing follow.Submissions by Amicus Curiae Harish Salve.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 Article 21 which cannot be violated by another.Salve: The State has the duty to 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 Article 21 or rights recognised by Courts are violated but these are not covered under Article 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.Salve: Courts have to reinvent and reform the jurisprudence to take into account the present situationSalve: 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 of feudalism but?; Salve: We may have come out of the feudal legal system, but not out of 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 ConstitutionSalve: Article 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, rights 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 defamation after she 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? Persons holding public office 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 public 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.Submissions by Senior Advocate Rajeev Dhawan.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 CourtsDhavan: Civil action under section 9 of the CPC can be taken in case if violation of fundamental rights.Dhavan: Violation of Constitution is not violation of Constitutional tort.Justice Bhat: Section 9 will have to be read with Article 228. Limit of expansion should be considered seriously.Bench rises for lunch