LAW RESOURCE INDIA

Need to revamp the team:Salman Khurshid, Union Law Minister

Posted in CONSTITUTION, COURTS, DEMOCRACY, GOVERNANCE, JUDICIAL ACTIVISM, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on July 18, 2011

Supreme Court of India

The law ministry, and its handling, has been cited as the source of much of Congress and UPA-II’s recent problems. It could also hold the keys to UPA-II’s redemption. Navigating this tricky task is Salman Khurshid , the suave Congress veteran, who was appointed law minister in the recent reshuffle. He walked a controversy days after he was sworn in – the resignation of Solicitor General Gopal Subramaniam. Khurshid spoke to ET’s Rohini Singh and Soma Banerjee about this episode and the many challenges facing the government. Edited excerpts..

What went wrong with Gopal Subramaniam and what would you look for in the new Solicitor General (SG)?

The team leader is the Attorney General and quite clearly he is a real law officer. The constitutional position is of the AG, and the SG is in a sense an extension of the AG. I am quite sure Gopal Subramaniam and the AG were like that when they began and I assume that was one of the factors that went into the selection of that team. It didn’t unfortunately appear to work like a well-oiled machine and there may have been reasons why things were not working that effectively.

I am sad it came to this point of no return and I regret that because these are all fine lawyers. But sometimes two outstanding judges don’t get along and therefore one requirement is that we must have a good team and coordination. In all fields, and particularly in this field you must show due deference to your leader. I think the AG, as I understand him, will expect loyalty, comradeship and free and frank discussions.

Alot of criticism was heaped on Subramaniam for his handling of various cases. Do you think the government’s law officers have done a shoddy job in representing its view?

I would ask you read a book by F Lee Bailey, a top criminal lawyer of the United States. A book called The Defence Never Rests. He says a lawyer has to think on his feet… there is nobody there to help him. I think a lawyer’s role in front of a court is somewhat like that. You have to take a decision all by yourself. Of course you are trained but despite all the training there is something extra.

What’s your strategy going to be? The top three things you need to do.

First thing is we need to give a clear message that we are not ambiguous, we know where we are and where we need to go. We need an SG quickly and we will give you one quickly. We need to revamp the team and put it in a higher gear. Two, I would like to know whether our law officers are receiving their brief quickly enough before the actual hearings to give them enough time to prepare? I suspect this is not happening in all the cases as we are an overworked system.

The third thing is (on a longer time frame) that if the judiciary and the government are to disagree, it should be the judiciary and the government that should disagree and not a minister of the government disagreeing with a judge of the SC. I think in both the judiciary and the government, we need internal effort to make sure what is finally the product of the institution is a common product.

Are the courts sending out a message that this is a weak government?

The courts give different articulation depend- ing on what bench is talking about it. ..The same SC has done a remarkable thing with Binayak Sen. I respect the matter is sub-judice, but I am looking at the reasoning of the court. It’s interesting. They make a distinction between thought and action. They say you can’t punish someone for his thoughts.

The courts have done a fantastic thing. It has reviewed the extent to which in a democracy you allow people to disagree. In Binayak Sen’s case it has wholly strengthened democracy …But we don’t want to be made accountable where we are not wrong. But I don’t blame the courts. They will go up to a point to judge whether I am right or wrong.

Several lawyers, politicians are worried by the inability of accused persons in high-profile cases to secure bail. What’s your opinion?

I will say nothing except that when I read the SC judgements over the years, I get a different conclusion. I can’t say all those judges were wrong, starting from Krishna Iyer. Lalit Mohan Thapar was given bail at the judge’s residence. Now you may not like it, but the point remains that that was the law of the land. That you must go the extra mile to ensure that the person does not suffer before you are able to finally, institutionally be able to condemn him. This is not my view but the view of the SC of the country. The judges can change their mind and there is nothing wrong with it. The problem today is that irrespective of any merits of the individuals involved in these cases we have to care about the law. Therefore legal philosophers have said that hard cases make for bad laws. These may be hard cases, taking the totality of circumstances. I don’t think we should submit ourselves to making bad law.

Do you think the media frenzy around these cases- especially the 2G and Commonwealth games cases weighing on the judges while reviewing bail petitions of the accused?

Undoubtedly. Media pressure is very great and not every judge can withstand media pressure. Forget a judge, not any minister can withstand media pressure. Quite often you don’t take a decision simply because you are advised by your advisers that: “negative bahut ho jayega media main… aap chodiye na isko, kya karna hai, GoM bana dejiye.” You don’t get involved, pass the buck etc. But we have to learn to live with media pressure if you are a judge, a minister or an MP. You have to learn to handle media pressure.

Former law minister Veerappa Moily says he is being blamed for being inept when it wasn’t all his fault.

For one thing, nobody is blaming him. He did some very, very good things, but these are tough times and for us to be able to show a 100% score is tough.

What kind of a score on your performance do you aspire to get?

Three months down the line I must admit I want at least 60% marks, at least a first division. What score would you give law ministry for the last three months? It’s difficult to judge that simply because I don’t know what their question paper was!

LAW MINISTER ADVOCATES REFORMS

The new law minister has urged the Supreme Court to speak in one voice and reform in the direction of consistency, an oblique suggestion that the high-profile individuals arrested in the 2G spectrum scandal and other corruption cases deserve to get bail.

In an interview to ET, Salman Khurshid pointed to the precedent of the judiciary giving bail to industrialist Lalit Mohan Thapar in 1986. “I can’t say all those judges were wrong, starting from Krishna Iyer. Lalit Mohan Thapar was given bail at the judge’s residence.

Now you may not like it but the point remains that that was the law of the land. That you must go the extra mile to ensure that the person does not suffer before you are able to finally, institutionally condemn him. This is not my view but the view of the Supreme Court.The judges can change their mind and there is nothing wrong with it. But my question is: Is it the position of the court or is it one of the positions it has taken?” Members of Parliament A Raja, Kanimozhi and Suresh Kalmadi, as well as top executives of companies, are in jail facing corruption charges, unable to secure bail, leading many to observe that the courts are parsimonious with granting bail.The relentless media attention and pressure could have played a part in courts denying bail to those accused of involvement in corruption scandals, Khurshid said. Media pressure is very great and not every judge can withstand media pressure. Forget a judge, not any minister can withstand media pressure.”

Khurshid admitted the government’s shortcomings, but said the judiciary, too, has failings it must correct. “They must have their own internal norms and codes which allow for a greater reflection of a collective opinion rather than an opinion of one or two benches,” he said.

The minister’s remarks, made in the backdrop of a testy relationship between the government and the judiciary, presage a more assertive attitude towards the Supreme Court by the centre. Khurshid, 58, took over as law minister from Veerappa Moily , during whose two-year tenure the government suffered a series of legal reverses.

Just in recent weeks, the country’s top court annulled the appointment of PJ Thomas as Central Vigilance Commissioner and declared unconstitutional the government- backed anti-Maoist militia group Salwa Judum. It is monitoring the probe into the 2G wireless spectrum scandal and has taken over the investigation of the black money stash overseas by appointing a special team, leading to concerns that the judiciary is encroaching into the domain of the executive.The government has asked the Supreme Court to review its decision to appoint the special investigation team in the black money case. The voice of the Supreme Court, not just that of a judge or a bench, should be heard, Khurshid, who has been designated a senior advocate of the court, said. He cited the examples of Pakistan, the US and Canada, where all the judges of the top court sit together to hear cases, but not in India.

“People say it is now too late for us to turn back the clock. But how can we say we can’t do this but we can clean up black money? Cleaning up black money is as hard as reforming the Supreme Court, not in order to get something of an advantage over them but to actually give them an advantage they need,” he said.”I am not happy that we don’t get to know the vision and the view of the entire court.” Khurshid suggested that Gopal Subramanium , who resigned as solicitor general earlier this month, did not get along well with Attorney General Ghoolam Vahanvati, the country’s top law officer.”It didn’t, unfortunately, appear to work like a well-oiled machine and there may have been reasons of different nature on why things were not working that effectively. I am sad it came to this point,” he said, referring to the relationship between the two men.

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