"Somebody will fill the space that government is vacating in governance. When Mrs. Gandhi was running the government, nobody used to enter the space" – Harish Salve
Interview with leading lawyer Harish Salve for Teekhi Baat on IBN7
PC: You were betrayed, wouldn’t you be sad?
HS: Yesterday I was sad, today I am working on something else.
PC: But if something like this happens with a lawyer like you
HS: I was saddened, this is betrayal.
PC: Don’t you feel in hindsight, that you should not have taken up such a case.
HS: If instructions come for the leadership of the government of such a big country. In the affidavit it is written that he comments are made by the Prime Minister’s office. When a government makes a promise and then turns away.
PC: As an advocate, you are famous for honesty, putting up a fight, social causes, do you will that you will think again before defending foreign countries
HS: I believe that the main issue has been side tracked. We don’t give training to our fisherman for working in contiguous zone. They go into waters to earn bread, the area is a high piracy area. Our small boats go there on one side and armed vessels come from other side. There are a lot of legal complications regarding what happens in such a situation. Prabhu, let me tell you that I was very happy that the first that a sovereign government for the first time came to our court and said that we have full trust we will get justice here.
PC: Which means they betrayed the Supreme Court too
HS: It is a betrayal of the Supreme Court too.
PC: Do you think their case was strong on legal grounds, was this not a fight against the country?
HS: Not at all, our country respect went high as the Supreme Court moved the trial from Kerala, there was so much public sentiment there. Our country gained respect the actions stated that courts do not go by sentiment but by law and constitution.
PC: But they betrayed the Supreme Court
HS: They betrayed the Supreme Court.
PC: What do you feel about the ambassador having immunity in the context of what happened?
HS: I can give you my personal opinion now as I am not more their lawyer. My understanding of immunity is that one sovereign is different from other sovereign. Court is also a sovereign institution. Italy can say that we have no jurisdiction on them
PC: Geneva Convention
HS: Geneva Convention. Like Italian courts have no jurisdiction on our ambassadors there. But I Italian government comes to your court, files an application under article 32, that please give me relief, what I am facing is unconstitutional, the courts entertains the application. Then they gave an undertaking, why was it given if they believed that court that no jurisdiction. Now they ran away and said that the courts have no jurisdiction, I cannot agree with this.
PC: You mean they surrendered their sovereignty
HS: Certainly, any immunity is for your protection
PC: Ambassador is bound by judiciary
HS: It is an interesting question, in my personal opinion he is bound. The Supreme Court did the right thing by barring him from leaving the country
PC: Do you feel it was the governments fault, did Italian government misused our trust
HS: I will say we all believed him, they betrayed us.
PC: In hindsight you believe they should not have been trusted
HS: Certainly, the Supreme Court, me, nobody should have trusted them. I feel this is a big setback to the development of Public international law. It would be good if countries could go to courts of other countries and keep the faith. Now it is the contrary.
PC: We will take relief from you and then betray. What is the way now; they betrayed our Supreme Court and our political leadership. And your name was dragged in controversy
HS: As far as my anguish is concerned, I gave undertaking on behalf of a client in court.
PC: Should the ambassador be restrained or arrested
HS: He has been restrained from leaving the country, a process is in place, he will have to answer, why are they not coming back, then if breach of undertaking is established.
PC: What was the undertaking?
HS: Ambassador gave an undertaking in clear language, that am giving an undertaking on behalf of the Italian government, that they will be under watch, supervision throughout their visit and we take the responsibility to get them back. You are the ambassador and you have said this to the Supreme Court, if you are going back, you cannot say that your government has done this.
PC: The next step is to enforce the commitment, after that he can be arrested
HS: Certainly, court has constitutional power under article 129 to punish, which includes imprisonment.
PC: Now henceforth there will be issue on trusting ambassadors in various countries
HS: This is a sad part, see the larger picture, one cannot trust the other. How will co-operation happen in common piracy areas, we have to work together, if one shows how one can outsmart the other, then how can one work together. Somalians must be laughing now, saying let them fight among themselves, we will go and loot.
PC: But I saw your statement which said that legally their case was strong
HS: Even today I feel that legally their case is strong, partly we succeeded in court, Kerala jurisdiction had quashed.
PC: Special court would have formed
HS: It would have formed, and I said that I would have appeared
PC: Is it normal to transfer the case
HS: No, it is a issue of jurisdiction, 12 miles into the ocean, is it the jurisdiction of state or centre.
PC: Would the case have been heard outside Kerala
HS: It was a Union of India case, Kerala government had lost. The central government would have had to build a mechanism, regarding who will investigate the case, would it be given to CBI, NIA. They agency would have filed a charge-sheet.
PC: The earlier investigation would not be taken cognizance of
HS: Yes, as that was done by Kerala police, they had no jurisdiction. Some central police would have filed charge-sheet and the defence would have contested it. The Supreme Court arrived at a very balanced judgement, which said that first see which country has jurisdiction.
PC: Supreme Court had the objective to prove that rule of law runs in the country
HS: Certainly it does
PC: And Italians showed they don’t believe in any law
HS: Italians showed they will go by the law to the extent it suits them.
PC: You took their brief, argued for them, got them relief. Didn’t they tell you in advance about what they intended to do
HS: On Monday evening I was seeing television, that Italian marines won’t come back, when I called they are some issues, they should have had the decency to call and tell me that such a thing has happened in their country, what has to be done, it would have gone to court, but the Supreme Court will take notice of what they did
PC: They betrayed
HS: I have felt bad
PC: How will you get back
HS: My personal opinion is that the undertaking given by the ambassador has to be enforced. If he is expelled, another man would come after two months and say that he had not given any undertaking. What Supreme Court did was right.
PC: What is the right political and legal way to do it
HS: As Arun said, when in Rome, behave as Romans do, detain their person and keep him.
PC: What is the other way
HS: What is the other way
PC: Isn’t such thing taken care of by Geneva Convention
HS: Geneva Convention is for civilized nations.
PC: You mean Italians are not civilized
HS: The person who goes back on his words, he is not civilized in my definition. The Geneva Convention was made when there was talk that all nations will come and work together and not fight. They did the reverse, they came, used the system, make a promise, and the day they are out, they will betray. How can joint operations happen with them tomorrow, we have joint agreements with them, tomorrow we too will tell come, pass through our waters and then detain that ship?
PC: I heard that even treaties done with them are one sided
HS: Treaties are all in standard terms, but there is a promise in every treaty, is a result of faith and confidence between two sovereigns. That I will allow my citizen to board your ship, don’t drown it.
PC: On Rape law, cabinet has said that consent age be lowered from 18 to 16, but the age of marriage is 18, isn’t there a contradiction
HS: Not only contradiction, I find the whole decision making process to be wrong. These are sensitive decisions, opinions of sociologists need to be taken and considered. Verma committee was consisting of jurists. You and me cannot decided on this issue, sociologists should. I was on a panel the other day, a lady principal said what you have done, you are giving a signal to students at 16 years, and students are in school till the age of 18, the 12th class. Now, if I tell a student of 10 class as to what she is doing, she will say that parliament has given the right. Now, you and me cannot think this, but a principal can.
PC: 18 for marriage, and 16 for consent
HS: This is adhocism.
PC: You would not have given approval if you had been solicitor general
HS: I would have put up objections, tell to take a comprehensive view, either make age of marriage 16, but that has so many downsides, everybody agrees to it. According to me, a wrong solution has been found. De-criminalize means keep an offence, but not punishment, keep it on probation, find different solution. The act is wrong, but jail is not the punishment for every wrong act, one is not handcuffed for every wrong act. Make a different status for 16 to 18 years. That it is illegal, and if it is as a result of consent, it would not be taken as such. But the child should be given psychological training, community service, there are so many ways to get a child back on path when he goes astray. Hence, when people argue that is a 17 year old kid does this put him in jail. Do not put him in jail, but that does not mean reduce the age of consent to 16.
PC: Hence you can see a contradiction
HS: Certainly. When you talk of decriminalizing, change the punishment, that is a person does so, he will have to do community service, social service, put on probation, I don’t say put him in jail.
PC: Do you feel that bill is brought under pressure
HS: First you used water cannons on people at Raisina hill. I felt very saddened that if some people want to meet the President, middle class people of country, not thieves and criminals, you had time, a meeting could have been arranged for 100-200 people, he is also a father, he could have folded his hands and said that I am with you, people’s anger would have cooled down. But you used water cannons, this leads to increased anger, it does not cool down anger. First you do this, then make a knee jerk law.
PC: You think there is a political mismanagement, be it Italian issue, be it rape law,
HS: Two wrongs don’t make a right.
PC: The other is regarding judicial accountability, people from Congress and other parties are saying that judges are interfering in work, even Sibal saab said it recently
HS: There are two reasons, Sibal saab said judges are interfering, you have been a senior political correspondent, you know the sociology of politics. Nature abhors a vaccum, there is no empty space left. Somebody will fill the space you are vacating in governance. When Mrs. Gandhi was running the government, did judges enter domain like that, she used to leave no space for anybody else. You have left so many spaces now. In 1992, when Babri Masjid fell, what did your attorney general tell the Supreme Court, that my army is standing there, waiting for your orders. Wasn’t is judicial over reach then? Should army be deployed, should arms or sticks be used, whose decision is this? Justice Venkatachaliah said that they have deployed army, was there no judicial over reach then. In every controversial decision, you hide behind the judges.
PC: Judicial activism is due to non performance of government?
HS: If there is a fight over water between two states, you go before the Supreme Court, if there is border dispute between two states, Maharashtra and Karnataka, you go before Supreme Court. Judges are in tension as the union government is not ready to take a stand in cases. In Politically controversial cases, hence when it does not suit them, they say it is judicial over reach.
PC: According to you, there is no judicial over reach
HS: I have a concern, that court is working leaving is maiden ground, is an unsustainable model.
PC: Hence judicial overreach is because government is not doing its work
HS: Today some states have sent affidavits on VIP security, in a state like Bihar, Rs. 140 crore is being spent. This when people have no money to eat food, there are below poverty line people and Rs. 141 crore is being spent in one state. In Delhi, I have heard that Rs. 3 crore is spent for security on a person under prosecution. Now judges are asking what don’t you remove this, you say you won’t, now when they would quash this, there would be a lot of noise saying that judges have taken away our read-beacons, this is judicial over-reach. But when there is a quarrel over water between two states, which is a political issue, you plead the judges to take decision, that would not be judicial over reach.
PC: Executive is not doing its work, hence judiciary has to intervene
HS: On the issue of coal, when Supreme Court asked for reports, they are saying that court is acting arbitrarily. Where is judicial over reach in this? Fairness is a proposition of administrative law. Now there will be talk that Supreme Court has shut industries. In Mining sector, Supreme Court ordered it be stopped because private sector was doing illegal mining everywhere.
PC: They get a kilometre area, they capture three kilometre
HS: You know why they are doing it, who pays by the bagfuls during election time.
PC: There was talk about collegiums for judicial appointments, the structure should be changed, there should be public accountability
HS: Certainly, it should.
PC: Do you feel the procedure of appointment be changed
HS: Certainly, it should be changed, the system is not working and has become controversial. Secondly, I am worried because if tomorrow if court becomes part of controversy.
PC: In India people trust the judiciary
HS: And it should be above controversy. Tomorrow if there judges are appointed, and there is talk in the corridor that a certain person was appointed as the chief does not like him, why should they take this. I believe, that judges, till proved wrong, are right.
PC: On all institutions there are some questions
HS: Those are institutional faults. It is wrong that you five people will sit quietly and take a decision, it should be transparent. Make a committee, collegiums. If the Prime Minister can run the country and leader of opposition can keep check, than cant you take them in the collegiums, cant you take President in collegiums, cant you appoint three four independent people jointly, when the decision of our life and death is in your hands, shouldn’t we see who is coming on the post,
PC: You feel that the judiciary should be transparent to resurrect its image and executive is not working hence the image of all institutions is getting spoiled
PC: What is the solution for this
HS: For good governance, where will political reforms come from, I firstly said one thing, which annoyed the media, that is state funding of elections, there is no need of cash for everything. Every news channel, television channel, will give free air time during elections for some time. Election commission did not agree. I said one more thing, tell all corporate to pay by cheque, deposit in one account, it will go to election commission, which will distribute it.
PC: Nobody wants to agree to this
HS: Nobody wants to agree to this, everybody wants sweet heart deals.