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
You were betrayed, wouldn’t you be sad?
Yesterday I was sad, today I am working on something else.
But if something like this happens with a lawyer like you
I was saddened, this is betrayal.
Don’t you feel in hindsight, that you should not have taken up such a case.
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.
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
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.
Which means they betrayed the Supreme Court too
It is a betrayal of the Supreme Court too.
Do you think their case was strong on legal grounds, was this not a fight
against the country?
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
But they betrayed the Supreme Court
They betrayed the Supreme Court.
What do you feel about the ambassador having immunity in the context of what
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
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.
You mean they surrendered their sovereignty
Certainly, any immunity is for your protection
Ambassador is bound by judiciary
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
Do you feel it was the governments fault, did Italian government misused our
I will say we all believed him, they betrayed us.
In hindsight you believe they should not have been trusted
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.
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
As far as my anguish is concerned, I gave undertaking on behalf of a client in
Should the ambassador be restrained or arrested
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
What was the undertaking?
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.
The next step is to enforce the commitment, after that he can be arrested
Certainly, court has constitutional power under article 129 to punish, which includes
Now henceforth there will be issue on trusting ambassadors in various countries
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.
But I saw your statement which said that legally their case was strong
Even today I feel that legally their case is strong, partly we succeeded in
court, Kerala jurisdiction had quashed.
Special court would have formed
It would have formed, and I said that I would have appeared
Is it normal to transfer the case
No, it is a issue of jurisdiction, 12 miles into the ocean, is it the
jurisdiction of state or centre.
Would the case have been heard outside Kerala
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
The earlier investigation would not be taken cognizance of
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.
Supreme Court had the objective to prove that rule of law runs in the country
Certainly it does
And Italians showed they don’t believe in any law
Italians showed they will go by the law to the extent it suits them.
You took their brief, argued for them, got them relief. Didn’t they tell you in
advance about what they intended to do
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
I have felt bad
How will you get back
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.
What is the right political and legal way to do it
As Arun said, when in Rome, behave as Romans do, detain their person and keep
What is the other way
What is the other way
Isn’t such thing taken care of by Geneva Convention
Geneva Convention is for civilized nations.
You mean Italians are not civilized
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
I heard that even treaties done with them are one sided
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.
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
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.
18 for marriage, and 16 for consent
This is adhocism.
You would not have given approval if you had been solicitor general
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
Hence you can see a contradiction
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.
Do you feel that bill is brought under pressure
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.
You think there is a political mismanagement, be it Italian issue, be it rape
Two wrongs don’t make a right.
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
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.
Judicial activism is due to non performance of government?
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.
According to you, there is no judicial over reach
I have a concern, that court is working leaving is maiden ground, is an
Hence judicial overreach is because government is not doing its work
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
Executive is not doing its work, hence judiciary has to intervene
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.
They get a kilometre area, they capture three kilometre
You know why they are doing it, who pays by the bagfuls during election time.
There was talk about collegiums for judicial appointments, the structure should
be changed, there should be public accountability
Certainly, it should.
Do you feel the procedure of appointment be changed
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
In India people trust the judiciary
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.
On all institutions there are some questions
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,
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
What is the solution for this
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.
Nobody wants to agree to this
Nobody wants to agree to this, everybody wants sweet heart deals.