Salve favours regulating free speech

Harish Salve. PTI file photo

Senior advocate Harish Salve on Wednesday favoured regulating free speech before the Supreme Court.

He said that time has come for the state to take the next step in the phase of jurisprudential evolution of this country and create an ecosystem for the protection of everyone's fundamental rights even against non-state actors.

“Up til now, we fought with the state. But today's challenges sought the right to be recognised as the role of the state is shrinking. We have to reinvent to meet this challenge,” he submitted before a five-judge bench presided over by Justice Arun Mishra.

He said that the right to food, shelter, dignity, reputation, health, fair investigation, fair trial and clean environment though not specified in the Constitution have been recognised to be fundamental to human existence.

“It would be impossible to interpret a right in a manner which takes away any of these fundamental rights enshrined in the Constitution," he said, adding it was inconceivable that the founding fathers fashioned free speech in such wide terms that it could impinge upon equally sensitive rights under other provisions.

He was making his submission as amicus curiae before the Constitution Bench, which is considering issues, including the right to free speech exercised by public representatives, arising out of a statement of former Uttar Pradesh minister Azam Khan, questioning the authenticity of version of a mother-daughter duo who alleged gang-rape at Bulandshahr in 2016.

Referring to protests faced by movies Tamas, Fire, Padmavat etc, Salve said that the courts can't be a mute spectator if constitutional rights are violated and the state can't say that it can't do anything if the violation was done by private bodies.

"There may be situations where the holder of a constitutional office, who has taken an oath to do right to all manner of people in accordance with the Constitution, has to exercise his right of free speech consistent with his constitutional oath,” he said.

He said that one of the solemn duties of any government established by the Constitution and the laws was preserving the integrity of the criminal justice system.

“The failure of the state to discharge its constitutional obligation would constitute a Constitutional tort and make it liable for damages under public law. Similarly the minister, a constitutional functionary would, by the same token, be liable for damages if he commits a constitutional tort by violating the fundamental rights of a citizen,” he said.

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