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The International Centre Goa (ICG), in its development dialogue on “The Constitution of India and the Rule of Law” with Senior Advocate Mr. Harish Salve, gave great insights on the evolution of Rule of Law in India, Constitutional morality v. social morality in light of the Sabarimala judgment, intervention of social media platforms vis-à-vis Right to privacy and the role/responsibility of executive in context of the recent controversy that arose in Bombay.

The session also saw some candid remarks by the Learned Senior;

President ICG, Mr. Dattaraj Salgaocar: What are your five personal mantras, how do you become Harish Salve?

Mr. Salve: First of all, why would anyone want to be Harish Salve; let’s assume someone does want to embark on that misadventure, (continues to enumerate the five points)

1. When you choose your vocation, it should be something which you can pursue with a passion.

2. Never kill that little child in you. You must always have some mischief up your sleeve.

3. Whatever you pursue, always remember, Health is Nine points in Life. Good Health is Important.

4. One must always have an open mind; Open to new Ideas, and always challenge your beliefs and always recognize that however strong a point of view you may have, there may be a divergent or a contrary point of view. If you keep doing that, you grow your mind.

5. Always be Open to criticism; Criticize and Be Criticized.       

Citing what Mr. Nani Palkhivala once shared with him, Mr. Salve says, “When you come out of the Courtroom, don’t think whether you won or lost the case, ask yourself could anybody else have argued it better, if the answer is yes, you have a margin for improvement, if the answer is no, if you have lost the case doesn’t matter, go home have a drink and everything will be fine!”

In light of the recent remarks made by the CJI on the Uniform Civil Code, President ICG asks Mr. Salve his opinion and the possibility of having a UCC throughout India

Mr. Salve: Goa could be a great model for India, of how diversity can be preserved, and how diversity can blossom. Goa has evolved, but Goa is still Goa. It hasn’t lost its identity.

If we can go back into celebrating our diversities and have for our purposes, Courts which confirm to diversity of our region, rather than have a slam dunk law across India, it could be something which we could do. And I think today, to some extent the intolerance you see in society is coming because we have lost celebrating Diversity.

On the issue of Reservation raised by audience,

Mr. Salve: I have always been a critic of reservation in India and my one line argument is, Our Constitution was put into place in 1950, we are in 2021, if reservations worked they should have achieved their purpose, and be removed and if in 60 years they haven’t worked, they obviously are a failure and should be removed.

Reservations made sense when Government Jobs gave you status.”

On Constitutional Morality v. Social Morality as observed in Sabarimala judgment;

Mr. Salve: Constitutional Morality is one of the most important dimensions of Social Morality… What concerns me is, Is law going to be the medium for repairing religious malpractices in religious areas… (referring Sabarimala argument) Should the reform come from the Hindu community or should it come by Law.”

On Rule of Law and Criminal Justice System;

Mr. Salve: Rule of Law means you must have an Honest Executive; Both Political Executive and the Civil Service. Rule of Law also means a very insulated and sensitized Criminal Law Jurisprudence. (Referring Telecom Dispute cases and political interference)… Criminal Justice System today has become Trial by Embarrassment. You are Arrested where you need not be arrested, because there is an allegation specially in big cases, the allegation hits the small TV screens with people screaming when will justice be done, so you have lynch mob…followed by arrest, followed by embarrassing leaks from the Police, followed by incarceration, followed by refusal of Bail…and we have Zero Accountability…Our Criminal Justice System has to be de-politicised...

Reference is also made to the system in UK, where Police is directly accountable to the common public.

Further reference is made to the Arnab Goswami case and the judgment by Hon’ble Justice DY Chandrachud in the matter to say that if the approach, the system remains the same, why would any businessman would like to invest in India.

“We need serious repair if we want to bring back the Rule of Law”, added Mr. Salve.

On the balance between Right and Duties of Citizens;

Mr. Salve: Democracy is work in progress; Freedom is the most fragile virtue and the biggest threat to freedom comes from freedom. You have the right to criticize, you have a right to call the government, you have a right to express views which differ from the views of the mainstream but, Is there a boundary, Is there a boundary which says you will not question the territorial integrity of India, or is it your right to say that the Indian Army in Kashmir is an occupying Army… Is that freedom of Speech? Is that your right to say that we must not fly the Indian flag over the Red Fort? … Is freedom inviting people to Anarchy?

He further cites a famous saying which goes like, My right to stretch my arm ends at the tip of your nose and that it is my duty to stop stretching my arm at the tip of your nose

Another very interesting point shared in his discourse was about ‘binarism’. He says there is a group, so convinced of their infallibility that when they reach Court, the Court has only two options; either to deliver verdict in their favour or be declared spineless. Learned Senior Advocate adds, there are Institutions that are ought to be respected.

With respect to Right to Privacy and the recent guidelines where the Government seeks to know the first originator, Mr. Salve said that as a society we will have to make choice as to which principles do we intend to carry forth, and to what extent; “Writing the law is going to be the next step. These are such issues which we as a society have to come to some conclusion & then the laws will follow.”

With respect to his cases for the Government;

“I made a rule of whenever I'll appear for Government of India, I would only charge Rs 1. That’s where I can save the controversy of how much will I charge. My father told me, until I am a minister, you will not charge anything for briefing from any PSU.”

With respect to the three most important cases in his career, Mr. Salve recalls his appearance in Bearer Bonds Case, Narco Analysis, Enviornmental Law cases and his appearance in IR Coelho, which he argued pro bono, essentially to make IX Schedule subject to the Basic Structure Doctrine.

Two primary influences, as mentioned by the Learned Senior, on our Indian Constitution are; The Government of India Act, 1935 and the American Constitution; The Bill of Rights and specially the concept of Judicial Review.

“Minority Rights were created by ourselves”, added Mr. Salve

On three most important Amendments,

1. Pandit Nehru’s Amendment; No Judicial Review to subjects under IX Schedule.

2. Indira Gandhi Government’s 42^nd Amendment.

3. The one which outlawed Emergency.

Reference is also drawn to the cases of Kesavananda Bharti, Minerva Mills and Maneka Gandhi to discuss the evolution of Golden Triology of Articles 14, 19 and 21 and jurisprudence on Human Rights.