He also speaks at length over the Sahara case and the Vodafone tax case and how certain judgements under the UPA have hurt investor sentiments and hence the economy. He advises that India's judiciary could do well if it detaches itself from the executive and the noise and contrarily the political executive to listen to the noise. To the media he urges to assume responsibility as it is now more a part of governance than ever before.
Here is the full transcript of the interview:
Shekhar Gupta: Hello and welcome to Walk the Talk, I'm Shekhar Gupta in New Delhi's Nehru Park, not a place that I know very well but my guest this week has frequented for many years. Harish Salve welcome to 'Walk the Talk' and I know you are smiling, you are smiling for many reasons, not the least of all being that you have lost 13 kilos of weight and you are feeling, looking twenty years younger. You've won many legal battles. You have your new Padma Bhushan and many new ideas going ahead because we have a new government and a new turn in India's political economy as well as a sort of mindset.
Harish Salve: That's right, that's the most important.
Shekhar Gupta: So what exercises your mind these days?
Harish Salve: India is at a inflection point I've always believed and I think hopefully we are seeing behind us the caste politics which dominated us for over a decade now. Pre-dominantly I mean its been there in the woodwork for a while. I think the noises notwithstanding the public reaction to the kind of extreme, volatile, religious or regional talk is also very negative and politicians know when to back off on agendas. If they feel it's not selling they will stop selling it, so I think India is at an inflection point where finally development is becoming the linchpin of governance.
Shekhar Gupta: You know if I can be a lawyer at the other end, which is a risky thing to do with Harish Salve, you say politicians back off when something is not working. This government did not back off when they found that povertarianism was not working?
Harish Salve: See politicians back off when they realise something is not working. Now the point is somebody has to make them realise it's not working and that is where I feel, and this is peculiar to India, but then we are a country by ourselves so we shouldn't worry about other countries, the media today is virtually decisive in what the politicians realise. I think they in their free time watch TV instead of connecting with their electorate or Twitter or whatever. And I don't think that media always romanticises povertarianism. I'm sorry to say this, public sector is great in the media, anybody who's making money is a bad guy in the media and everybody privately aspires to live the good life, publicly condemns the good life; and UPA was romanticised by the media. The only place in fairness when the media banged the UPA was over corruption. Let me give you the Vodafone example. I think that's the inflection point for India
Shekhar Gupta: And you were Vodafone's lawyer
Harish Salve: I was Vodafone's lawyer. But when I stand back and when the retrospective amendment came on Vodafone and everybody said, oh no it's going to be a bad reaction, I told myself this is India. They will soon realise we don't react to this kind of stuff. I was delightfully wrong. We've had retrospective amendments in the past and who cares? See the debate, which followed Vodafone. You know the day I was opening arguments in the Supreme Court there was a full page on the Times of India, if Vodafone pays up its tax how many hospitals you can build; how many mid-day meals you can serve. That is romanticising povertarianism according to me and when the retrospective amendment came yes, the economic channel said may be the investor sentiment etc, what about your regular feedback? Feedback you initially gave the government was its okay, who cares. I remember we had a senior Congress leader who came and said, and you know him and I won't name him, he came and said these fellows who want black money, obviously he didn't understand the difference between black money and money, he said these fellows should be taught a lesson. If you remember the then Finance Minister in his closing speech, then somebody got up, I think Piyush got up and said this is FDI. The Finance Minister said if it's bad for FDI so be it. We didn't eat lizards before FDI, correct. See how India has reacted thereafter. We are now becoming alive to the fact that there is a world outside and we need the world outside.
Shekhar Gupta: So how would you deal with the Subrata Roy case? Because he also has been brazen and there is an issue there and there is a general impression that he has got the system under his thumb and that's the reason nobody has brought him to book so far. That's why he has zero popular support, he has zero sympathy nobody feels sorry for him
Harish Salve: See the problem today, Shekhar, is the small screen has become the judge and jury of everything
Shekhar Gupta: Mostly executional.
Harish Salve: And now also executional, so if on the small screen Subrata can't defend himself, the system doesn't defend him. And I'm afraid, I confess, the fact that these perceptions do not affect the final decision-making is a legal fiction, they do affect is my feeling as a lawyer. These are the highland premises.
Shekhar Gupta:: How will you deal with him, how will you get this money out of him of so many ostensibly deprived?
Harish Salve: See what has happened, it's a very curious thing. Our system is established today that it is incapable of dealing with this problem. The SEBI said this man should have listed his script. This man said I don't have to list the script. This matter reached the Supreme Court. Everybody decided against him and said this script should have been listed and the other issue in Supreme Court, whose money is this anyway? Supreme Court said if you collected the money without listing your script, return it. Now all this is going out on return it. While SEBI is saying return the depositors' money, the Income Tax is appearing in Supreme Court and saying, I can't return this money because this is his black money and we are entitled to attach it. So Subrata's lawyers are saying make up your mind. Is this Subrata's money, in which case the SEBI is wrong and if the SEBI is right, then Income Tax is wrong, where do we go? So you see this kind of thing shows govt as an institutional role doesn't know how to deal with this man? Yes he's unpopular as he is and may be for good reason but the government doesn't know how to deal with him. The legal system has passed around saying return this money. They've set up a machinery, I believe, of the money which they have recovered a small fraction. A few hundred crores has been distributed; they don't know where to go so everybody now is painted in a corner.
Shekhar Gupta: So it may end up being a life sentence with this stalemate.
Harish Salve: Now this man is saying I'm trying to raise money; I'm not trying to raise the money; I'm doing this, I'm doing that, spent one year in jail. And this is my personal take on this pehle toh izzat jati hai, phir takleef hoti ha. After one year in jail I don't know what his mindset is, may be he is daring the system and saying let me see, I don't know.
Shekhar Gupta: Judges got lectured by the Prime Minister the other day on succumbing to 5-star activism.
Harish Salve: Well I must say choice of words for the Prime Minister, he's an eloquent speaker, sentiment is something, which needs all right-thinking people to sit back and consider seriously. What happens is the Court lacks the equipment, unlike executive government, to decipher agendas. Secondly when you start dealing with agenda-driven people, agenda-driven people used you as an instrument. Let me give you an example. When we used to do the Narmada Bachao Andolan case I was appearing for the Gujarat government, I was always for the bad guy.
Shekhar Gupta: Always for the bad, dirty corporate
Harish Salve: I have feelings for the horrible fellows. We told the Supreme Court look at it this way, these guys go and yank trees out, which you are doing for part of your rehabilitation programme, replanted trees in the catchment region and then file a petition before you, stop the dam because the catchment region is incomplete. The answer given was removing those trees is our right to protest; you judges you deal with the law. Now Supreme Court entertained that. For years the dam was stayed. Finally that judgment came. So what I'm saying is this agenda, there are some agendas against multinationals on genetic testing, I think the Court is ill equipped to deal with these problems. There are some big corporate matters, I won't go into details because I'm appearing in those, but I'm telling you I feel the difficulty in people dealing with this.
Shekhar Gupta: So your sympathy with the Prime Ministers view languages, as you say.
Harish Salve: See I'll put in a different language. Lord Louis gave a beautiful speech, he's one of the finest minds, he's one of the scholars; he gave me a copy of a lovely speech he gave. He said why should judicial review stay away from areas of policy and governance? His argument was judicial review and the role of a judge is logical, governance is empirical and experimental.
Shekhar Gupta: Very true
Harish Salve: Correct?
Harish Salve: Correct and experimental governance is matched by public accountability. You come, you experiment with your policies, if you don't work after five years out you go. And there are other public ways including public opinions, which contains wrong decisions. You cannot look at the economic cases, which have come, look at the Coal case, which has come, and I criticise this in Court and I will criticise this outside Court. The Supreme Court canceled a whole slew of mines, there were cases; yes they were my clients. I told the Court you haven't heard us, you've gone by the Screening Committee and damned our client. Look at the fate of our client. There's a government whose credibility is seriously in question, that's why you are doing all this. A person goes to the government, they say go to the state, he goes to the state and gets a letter from the state; he comes back to the Union, Union tells him go to the Screening Committee; he goes to the Screening Committee, 1200 pages of statistics, details, materials are placed before the Screening Committee; the Screening Committee makes the allocation in one paragraph. When the government is asked on what basis was this done, they said 'humare paas kuch nahi hai'. Right. Ask the man. He would have produced those thousand pages. You tell the private party but we will cancel the allocation. That person up till now has been given a green site, so now he has gone and spent Rs 180 crores in acquiring land for re-afforestation because he needed forest permission; he has gone and acquired surface rights, which is not easy in India with the current mood, and when he's ready to start mining you tell him sorry, Screening Committee didn't give proper reasons, out you go. Why did the government not produce all the material? I had a sinister reason for it and I said so in Court and I'm saying it on TV, maybe out of the fifty allocations forty five didn't have materials, for five you didn't...
Shekhar Gupta: And to protect yourself from those five...
Harish Salve: You said I have nothing. Where did those thousand pages or representations go? Must have been in somebody's file. So see, now the Supreme Court followed these kind of shortcuts, the judges find that the case was too huge, if we hear everybody it will take too long, somewhere along the way the rule of law suffers. People outside ask so now how do we invest? If three years from now there is a PIL, will our lease be canceled?
Shekhar Gupta: But tell me when the Prime Minister gave this sermon to an entire sort of pantheon of Indian judges and judiciary should someone have responded?
Harish Salve: I think it's wise they didn't respond. This is something, which they need to consider; to reflect upon. He's the popularly elected leader of India. He's captured the country's imagination, which is obvious by the fact that he has 300-plus seats in Parliament. He's not a youngster. He's making a statement, consider what he's said.
Shekhar Gupta: But you know this will now be read, this is being read already on along with, as you lawyers say this, this, this so this is now being read as justice statement praising him, the previous Chief Justice accepted appointment as a Governor.
Harish Salve: I don't want to comment on the previous Chief Justice who took that appointment as a Governor, I disagree with the government that that's a right precedent. But the current Chief Justice, the two lines he's spoken in favour of Modi remind me of telling the example of the distance we have to cover. Can you imagine Lord Chief Justice praising Cameron and media didn't even bother mentioning it or if Chief Justice Robert said that Obama is a fine guy, would the American media even bother about it?
Shekhar Gupta: You think they'll ignore it?
Harish Salve: Of course it's a matter of moment and he said it in a context he was not campaigning for the party, somebody said what's your relationship like. I personally feel PM is a fine person. Don't we say Shekhar, you and I, may be friends but have sharp differences. I can say Shekhar is a nice guy but sorry I don't agree with him on this. So in that sense he said a little tension between government and judiciary is healthy.
Shekhar Gupta: Where do you put yourself over the controversy of meeting on Easter weekend? Most people don't realise that you are a Christian, you and your entire family practice Christianity
Harish Salve: Yes I'm a Christian married to a Hindu, my mother is Hindu and my son-in-law is Muslim
Shekhar Gupta: And your aunt was a baptised Christian, a famous God woman and everybody thought she's a Hindu, Nirmala
Harish Salve: She wasn't, she was married to a Hindu and we have grown up with very liberal secularism at our home. If I have to go to church I don't force my wife to come to church. Many times on Friday I don't go to church on a principle. I have a problem with this controversy, a private meeting of the Judges. I don't know why this came into public domain at all. Please do not set the Court's calendar. The one Institution that has always stood for minorities in this country is the Supreme Court. It is a trade-off. You have a three-day conference without any; it's a great job that they are doing this on a weekend. You ask anyone in a remote High Court who goes all the way to Court, spending Rs 50 on a train or bus ticket, only to be told Chief Justice sahab Delhi gaye hain meeting ke liye, tumhari tareekh gayi ab 6 mahine baad aana. So that is one very important factor, should you have it on a religious day, should you not have it on a religious day, be it Diwali or Good Friday.
Shekhar Gupta: The judge writing the letter and the leaking of the letter, I believe he's a good judge
Harish Salve: Justice Kurian is one of our finest judges and let me tell you his credentials on secularism are incapable of being questioned. I'm telling you this; I have appeared before the judge; I have seen his body language. He's a fine human being. I don't know why this letter came into the public domain.
Shekhar Gupta: And the letter to the Prime Minister?
Harish Salve: It came into the public domain because it was written to the Prime Minister. The controversy ballooned out of proportion, it's a family dispute and I agree with the Chief Justice, it should have remained within family.
Shekhar Gupta: Now you tell me there are many disputes going on between families and across families, so if we take three families in India right now Judiciary, media and political executive, what is your one parting advice to each one of them?
Harish Salve: I think for political executive, unlike judiciary, there are some sharp differences. Political executive can't be oblivious to noises. Your credibility at some point will come into question if you are oblivious to noises, They may be by some fringe elements, speaking for myself I refute the notion that there is any fear psychosis in minorities. I think it's a very unfortunate allegation to make. For the present I have no reason to say that government is party to any of this nonsense, desecration of churches etc, they are criminal acts. But political governments cannot be oblivious to noise. I have the reverse for judiciary, please be oblivious to all noises. Don't ever get psychologically swayed by the fact that there is a perception against corruption, there's a perception against so and so. See what Modi brought up about perception is very important and I'm saying so with a full sense of responsibility. How can the Supreme Court take away Constitutional remedies? What is more important, Constitutional remedies or quick trial? So one institution that needs to be oblivious to noises is judiciary.
Shekhar Gupta: And third one, media as it is?
Harish Salve: Media needs to stop profiting out of the fact that our laws of defamation are never enforced. Reputations take a lifetime to build and a moment to destroy. Please remember that you have members of media who had been slandered, I know they are hurt. Please remember you too today have become a key player in governance, you're no longer an entertainment channel. You are today communicating the voice of people to those who should be hearing the voice of the people. Secondly no country has these evening debates as we do. If you tear away the noise, because I'm sure we'll mature sometime, it is a very good occasion for intellectual India to get together and slang out issues. You are playing a vital role in governance. Please assume the responsibility, which you have invited upon yourself.
Shekhar Gupta: Nothing can be better than getting Harish Salve's advice, equivalent to getting a BMW, thank you Harish for the gift of time
Harish Salve: A pleasure.