Regulatory Mechanism Needed To Define Contours Of Free Speech, Former Solicitor General Tells The Supreme Court

Former Solicitor General Harish Salve has told the Supreme Court that it is necessary to formulate a regulatory mechanism to define contours of free speech.

The government should come up with regulations to define the components of “free speech”, the ones protected under the Constitution and the ones which are not, he contended.

“The state is under a constitutional duty to ensure that the rights of its citizens are not violated and to create an ecosystem in which these rights can be enjoyed in their activist dimension,” Salve stated.

The Constitution being a living document had to be interpreted in a manner so as to accommodate competing rights of citizens to meet each emerging challenge that tended to disturb this balance, the veteran lawyer said.

He said the proposed regulatory mechanism might even address issues originating out of content on social media platforms, such as WhatsApp and Facebook. The Supreme Court could test the regulatory mechanism, he added.

Incidentally, the Supreme Court has appointed Salve to assist it as amicus curiae to examine whether elected representatives and politicians can be restrained from making statements on pending criminal matters and, whether it would be tantamount to curbing the fundamental right of free speech, if they are restrained.

Making his submission on the statements made by ministers under the garb of free speech, Salve said that a minister was a constitutional functionary who was liable for damages if he committed a constitutional tort by violating the fundamental rights of a citizen.

“Fundamental rights have to be interpreted in harmony with each other so that each right may be exercised without disabling other fellow citizens from enjoying their freedoms and liberties,” Salve said.

Salve also insisted that the interplay between the right to privacy and the right to free expression was crucial. Any comment by a member of the cabinet of the government that tended to interfere with the course of an investigation -- or even capable of creating a public perception of the absence of fairness in the investigation -- was gross violation of Article 21 as well as the constitutional oath of office, he said.

When the court told him it couldn't direct Parliament to frame laws, Salve cited the Vishaka guidelines, a case of harassment of women at workplaces, where courts recommended the broader framework.

“You can recommend Parliament to frame law, citing them as broader principles,” Salve told the Supreme Court.