- 7 weeks ago
In an exclusive interview with India Today TV's Managing Editor Marya Shakil, eminent jurist and former Solicitor General of India, Harish Salve said the 'criminal netas' bill is long overdue to prevent governments from being run from jail.
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00:00One of the most consequential pieces of legislation is now before the parliament, it's called
00:07the criminal netas bills.
00:10And at its heart lies a bold principle that no chief minister, no minister, not even the
00:16prime minister should continue in office if they are facing grave criminal charges and
00:22have been in detention for over 30 days.
00:25The bill, as expected, has already sparked heated political and constitutional debate.
00:30To help us unpack its legal, constitutional, and democratic implications, we are being
00:37joined by one of India's most eminent jurists, Harish Salve, a senior advocate of the Supreme
00:45Court, former Solicitor General of India, and one of the sharpest legal minds of our times.
00:51Remember, he has argued some of the country's most defining cases.
00:55Mr. Salve, I really appreciate your time.
00:57Let me go straight to my first question, sir.
01:00This bill, does this bill truly strengthen accountability and probity in public life as the government
01:09is trying to communicate?
01:11Or does it open the door to new challenges in governance and law?
01:15Well, this bill was long overdue.
01:24We have seen a very sorry spectacle over and over again of governments being run from jail.
01:37The first was during my experience as Solicitor General.
01:47When the then Bihar chief minister had gone to jail, at least in lip service to democracy,
01:56he had resigned.
01:59His wife had become the chief minister and I was, when his bail application used to come
02:06up, I was instructed by the CBI to appear.
02:10I have seen photographs of this Bihar jail brought by the CBI people with this former chief minister
02:20sitting in the jailer's chair with his feet on the table.
02:24And the jailers having tea and samosas to all the ministers who had come to have a de facto
02:29cabinet meeting with him.
02:32This was 25 years ago, Maria.
02:35And I felt something needs to be done.
02:38It has taken 25 years for a chief minister now who was brazen enough to say, well, why
02:43should I put somebody else in my place, even if I'm the de facto head of the party, I'm
02:49going to be in office and sometimes I flick through the debates on TV and it's very interesting
02:57to see party people saying he has been given a clean chit if he has been given bail.
03:03So today, and we'll come to the bail bit immediately, today, there has to be some rule by which, by
03:14constitutional law, people who are in office and who are in jail, if they do not have the morality
03:23to resign from office, they vacate office.
03:27It's a sad day that we have come to a situation where you need a law to say that you must leave office.
03:37When the constitution was framed, the founding fathers did not ever dream that people would
03:43be in a situation where they are refused bail by the highest court of the country,
03:49which has to be if there is a prima facie case, and despite which they are not demitting office.
03:55Yes, Mr. Salve, you spoke about that case of Lalu Yaadav playing out in the context of Bihar,
04:00but he had resigned. In the case of Mr. Kejriwal, he continued to govern Delhi from the jail.
04:08In our seven decade long history, Mr. Salve, no chief minister or minister has served in office
04:15after arrest. Mr. Kejriwal certainly was an exception last year. Why should a law then be enacted
04:21for an exception? Because normally, normally laws are enacted and exceptions are given?
04:26So, maybe there's another way of looking at this, Mare. In 25 years, we've gone first.
04:35You see, democracy is something which is always work in progress and society has to be astute.
04:43Society has to be unforgiving when it comes to democracy. Only then will it be preserved.
04:47So, 25 years ago, we found nothing wrong with somebody being openly proclaimed as a
04:55de facto chief minister and running from jail. That was 25 years ago.
05:03Now, the next 25 years later, we had somebody who said, so what if I'm in jail? I will run from there.
05:11So, that's the trajectory of our democracy. I think this bill is long overdue. If this is the level
05:18of political morality, and if people in public office feel that it is for them in their own
05:28subjective opinion to decide whether they are guilty or not, and if they feel they are innocent, then…
05:34Okay. Sir, under the principles of natural justice, an individual is considered innocent
05:41until proven guilty. Yet, the new bill proposes the removal of a sitting minister,
05:48chief minister, or even the prime minister during the course of investigation and trial,
05:52rather than after conviction. Isn't this a breach of that very principle?
05:57You… Natural justice is a principle of everybody being hurt before a decision is taken. It has
06:04nothing to do with guilt or innocence. Criminal jurisprudence is based on a presumption of innocence,
06:11which means that when a prosecution is brought, the prosecution has to prove the guilt.
06:19And I think a very regressive provision has been made in the money laundering law which reverses the burden
06:29of proof. Hopefully, Supreme Court will have a second look at it and maybe strike it down. But be that as it may.
06:35That's a principle of jurisprudence, which says that the prosecution has to establish the guilt. That's
06:40what you mean by saying innocent until proven guilty. Arrest takes place by an investigating agency,
06:49but the matter then gets carried to court. And the court… Ultimately, today, we have seen high
06:58court and even the Supreme Court does on occasion entertain cases involving grant or at least refusal of
07:04bail. And the Supreme Court will take into account the need for a prima facie case where it's a political
07:12nether. So, I don't think the principle of… And it has to be on a prima facie base. Now,
07:19today, what you're saying is somebody who the courts feel prima facie cannot be granted bail…
07:25Okay. …will continue to govern.
07:32That is… If you are willing to have that kind of a democracy, well, so be it.
07:36I don't think that's what was ever intended. Let me tell you what opposition leaders are saying
07:41here, Mr. Salve. They are arguing that this bill could pave the way for political misuse.
07:48Let's look at this report. In last 11 years, there have been at least 13 instances, sir, where
07:55sitting ministers have been detained, and most of them by the enforcement directorate and the CBI.
08:00Most of these sitting ministers ended up spending more than 30 days in jail. In this context, isn't the
08:08opposition justified in its concern? No. What we are… Personally speaking, what as a lawyer I'm
08:18concerned is where the Supreme Court has ended up with the law of bail. That needs to be fixed. But that
08:24is unrelated to netas, that is even for a common man who's arrested. Justice Krishna had coined the
08:32expression, bail not jail should be the rule, bail should be the exception, except where it is a very
08:37serious case of murder, you know, violent crime, where the law itself forever contemplates that the
08:45rule is custody. It's only the bail which will be an exception if you find no case. So, this is how
08:56the law has been forever. And the courts will take into account that somebody who is holding high office
09:03in 30 days will vacate office. So, the courts… Then it's a bail application. Bail applications are
09:09finished within 30 days. There's no big deal. And you want to make it 45 days, then it's gone to a joint
09:14committee, parliamentary committee. They can make it 45 days or make it 60 days. Or they can make
09:20an exception till the first bail application is pending or some such thing. Those are matters of
09:24minutiae. Those details can always be worked out. But in principle, what's wrong with this, that if
09:30prima facie you're guilty of commission of a serious crime, if you have not had the moral courage to resign,
09:38the law will remove you from office.
09:40Mr. Salve, you know, arrest in India, unlike many western jurisdictions, is purely an executive
09:50function. There is no outside assessment of evidence gathered. Is it fair then to hand over a loaded gun
09:57in many ways to the law enforcers of the state? There is. The initial arrest is by the agencies,
10:05everywhere in the world. But there is judicial oversight. Even in India, there are arrests in
10:11two ways. One is the court issues of warrant. The other is cases where the investigating agency,
10:15i.e. the police, has the right to arrest. So, that is available. Whether the arrest being made
10:22left, right and centre by the enforcement, directorate or right or wrong has nothing to do with netas.
10:27What about a businessman who's arrested? What about a guy, a person doing a job who's arrested?
10:34Everybody's trial is as sacred to our, everybody's freedom is as sacred to our constitution. So,
10:40I, that's a separate debate. But today, the notion that this is purely executive is wrong because it
10:48says if for 30 days you continue in custody, you can never continue in custody for 30 days without
10:54court intervention. Now, you feel 30 is too short a day, well, the joint parliamentary committee can
10:59make it 45 days. It's the principle. And in the principle, if a court finds prima facie, there is a
11:07case against you. Why should you not demit office? And if you don't demit office, why should you protest?
11:16And please notice somewhere along the way, from a duty and a trust, the office is now becoming a
11:26privilege and an entitlement. And it's this mindset which needs to be addressed.
11:31Sir, look at the conviction rates in cases of political nature. And yet, a person must quit
11:39his elected post without any court of law adjudicating guilt as per this constitution amendment?
11:48Maria, if a senior manager in your office is arrested and stays inside for 30 days,
11:55would he continue in his office or would you suspend him? A civil servant who's arrested and put in jail,
12:04what happens to him? He's suspended. So, has this electoral office become such a high-value
12:17entitlement that despite being in jail in custody, nobody can snatch this away from you?
12:23What mindset are we bringing to bear? Or is it that if somebody has been found by the highest court of
12:29the country to be prima facie involved in an offence, he must still continue to hold high office?
12:37Mr. Salvi, the 244th Law Commission report, which was, you know, in fact rejected proposals
12:44that disqualification of a legislator should take place at the stage of filing a charge sheet or when a
12:51court takes cognizance of an offence. It observed that disqualifying someone before the application
12:57of judicial mind would violate the principles of natural justice and effectively punish a person
13:02even before proceedings begin. Should the threshold then be set at the stage of filing of charge sheet?
13:09I'm sorry, you are not disqualified from office if you are in custody.
13:13You are only told that during the period you are in custody, you will not hold high office.
13:23This has always been the constitutional morality. Now we are making it the constitutional legality.
13:31Disqualification, what you are speaking about, is that you get elected, you lose. The moment a charge
13:42sheet is filed, you may be not in custody. The threshold for a charge sheet is very low, very low.
13:53At that stage where a charge sheet is filed, the only challenge you can bring is if you read the charges
13:58as they are. The charges are not made out. Framing of charges is the next stage.
14:05Where there is a prima facie case. There again it is prima facie. Now balancing a prima facie case
14:12as against a disqualification which is permanent is very different from saying during the period in
14:18which you are in custody, step aside. We will not have high offices being run from our jails.
14:25What is the messaging you are creating in a democracy?
14:30Okay. Sir, you know it better than the most, Mr. Salve, as a distinguished lawyer, that an arrest
14:37by itself proves nothing. How can that then become the crucible of guilt?
14:43Arrest is not the crucible. An arrest followed up by a refusal to obtain bail, where a court takes
14:53into account the consequences of not granting you bail is that you will vacate your office.
15:00So, it doesn't say the moment you are arrested you will lose your office. 30 days in custody. And I said
15:0730 is not a sacrosanct figure, I am sure. When you are in prolonged custody, post-arrest for a serious
15:15offense, should you be allowed to hold high office and discharge that sacred trust to the people? If you
15:24ask that question, you come to a different answer. If you say it's a hard-won entitlement,
15:32for which a lot of money and effort has been invested, and it's like a property right, don't take it away from me
15:39on mere arrest, you come to a different conclusion. So, it's a question of what do you think of public,
15:47of being in high public office? Is it a sacred duty, or is it an entitlement which you have won?
15:56But Mr. Salve, you know the question really is, and I am going to quote a part of this clause,
16:02that when detention is linked, any law for the time being in force, do you feel that the quantum of
16:09perhaps the requisite crime for the bill is too wide? Five years or more. Five years or more is by
16:16definition a serious offense. This is an established yardstick. And what would you tell those who are
16:23saying that this bill distorts parliamentary democracy, which is part of the basic structure?
16:29And of course, you know, as you said, that the JPC will perhaps- I don't know what distorts-
16:32Yes, go ahead, sir. What distorts parliamentary democracy more? Having ministers sitting in jail?
16:41And who courts refuse to give bail to? I don't know whether that distorts democracy or whether
16:49asking somebody who's a minister saying, please do not discharge the duty under the constitution.
16:54During such period as you are in custody of the state, whether that violates,
17:04I think we've got our ideas completely mixed up. We are looking like this is some privilege or
17:09entitlement. Once you become a minister, it's a privilege or entitlement. And how dare you ask me
17:14to go just because I'm in jail? And is that our new definition of democracy? Then I don't recognize
17:22this democracy. Maybe I'm too old.
17:25Mr. Salvi, the law envisages several aspects of it. When you have gone through the bill,
17:34you have read the copy of this bill. What do you think really makes this bill? And can it really
17:41stand the test of judicial scrutiny? Well, I have some little experience of constitutional law.
17:49I do not see on what principle of law this should be struck down. How does it violate? I don't know
17:54whether a minister in jail violates the basic structure or the basic morality of the constitution
18:00or whether a law which says if you do not get bail, sorry, you will not hold high office. You continue
18:04to be an MP. You continue to be an MLA. You will continue wherever you are. But for that period during
18:10which you are in custody, you will not hold high office. I don't know whether which of the two is
18:16more compatible with democracy. But sir, look at the sheer number of arrests on the other side of
18:23the fence while tragedy benches remains untouched. The fear of misuse of agencies then seems to be genuine.
18:29Now what are the courts doing? Who is in today, one of the primary functions of a court is to be a check
18:38and safeguard against abuse of power. One wrong person is jail. One wrong person in jail is one
18:45lot on the Supreme Court of India and the high courts of India. The most sacred in any democracy,
18:53the most secret thing is the liberty of not a neta, the liberty of a citizen.
18:59And that this debate, suddenly the neta's conscience is open to the draconian nature of the laws which
19:06they have all made. Only when they start losing office, I'm sorry, it is these people who have made
19:14these laws. And you have made these laws. If the laws are draconian, well, who voted for them? And our
19:21judges have upheld these laws. According to me, the PMLA judgment is horribly wrong. But
19:29it is a judgment of the Supreme Court. So, if what is, what is the source of the goo, the source of the
19:37ganty, it is good for the average citizenry of it. Hey, your heart doesn't bleed. Your heart
19:42bleeds when a neta is affected. We have suddenly drifted from a public duty to an entitlement.
19:51And that's a more fundamental breakdown of the basic structure of the constitution.
19:57Let me give you some examples here, Mr. Salve. You know, sitting ministers,
20:01chief ministers who have been arrested, chief ministers like Jailalita, Shibu Sorain,
20:05A. Raja, Jagannath Mishra, were eventually acquitted by the top court. How fair is it then to remove
20:11a setting minister even before, you know, even before the final order?
20:18Let's go one by one. Jailalita, I think, was ultimately convicted,
20:23if I remember correctly. In any case, Shashikala was convicted for connected offences. I think
20:30Jailalita died in office or something. Shibu Sorain was, I think, convicted.
20:40The other minister, Raja, was not arrested.
20:45Raja's case is a new genre of cases which we are now seeing, where the Supreme Court takes it upon
20:53itself to constitute an SIT, BIT, CIT, God knows what, and pursue as a magistrate criminal charges
21:00just because of some notion of breakdown of democracy because of some arbitrariness and
21:08crony capitalism. Ultimately, what happened? I have appeared in two of these cases, Mahe, for
21:15we only talk about Raja. Do you know what the Raja family lived through for the bogus case against
21:20them, all arising onto this 2G? Do you know what Mr. Sunil Mittal lived through for the bogus cases
21:26on him? Nobody talks about them. We only talk about Raja and the lady. So, this is what is happening.
21:33This is double standard. That whole 2G was such a big mistake by the Supreme Court. There are two
21:40occasions on which the Supreme Court has done this, and on both occasions, it's ended up with a big blank.
21:44Let's go back to the Jain Havala diaries, where the Supreme Court started this business about having
21:51a special investigation team, etc., etc. What has happened to that? And do you remember in the Jain
21:57Havala time, whichever minister's name came and he was arrested, he resigned. What has happened to that
22:05morality? And everybody said, this charge is bogus. But till I am cleared, Advani ji, I remember. Advani ji
22:12said, this charge has been brought against me. I will not take public office till this charge is
22:16clear. What has happened to that were those people acting against the constitution when they did that.
22:23So, and 2G was another misadventure of the Supreme Court. There have been two misadventures,
22:29Jain Havala diary and 2G. And I have noticed, and I make bold to say so on your channel, once the Supreme
22:36Court asks the agency to investigate, and you have people, activists acting as lawyers in court,
22:43screaming at the agencies. The agencies feel the safer court says, arrest and put inside. And if
22:49the Supreme Court, and then you show the Supreme Court, I have done this. Now when that goes to a
22:53magistrate, what is he going to do? He'll say, oh my God, Supreme Court is investigating, overseeing,
22:58Supreme Court has seen that he's been put in jail, how can I grant him? And then you have Supreme
23:03Court making all sorts of rules, saying you will not have the benefit of going to the high coast,
23:07you must come only to us in the coal scandal. This coal scandal is going to be another third major
23:12mega situation. So, those are aberrations on our democracy. I call them aberrations on our democracy.
23:21Okay, my last question to you. Mr. Salve, my last question, sir. The United Kingdom has a ministerial code,
23:27which essentially expects ministers to resign after reaching public trust. Do you think it's better to
23:35have a code of that nature, which will be more of a gentleman's understanding, rather than law?
23:41Didn't we have this all these years? Go back to 1991-92, when the Jaya and Hawala Diaries, I think it was
23:4892, 93, when the Jaya and Hawala Diaries story started. Please go back to there. 95, 96. And what did each
23:59public functionary say? Didn't he say that, all right, I agree, I will not continue in office.
24:07So, there was a code. It is now for the first time we see people say, oh, we have been elected to office
24:13and it is our subjective judgment. If we say this is a false case, we will not resign. Where does the
24:20law say I have to resign? Where did the constitution say I have to resign? So, the codes don't work now
24:25anymore. Because I go back to my starting point, Maria. This mindset has to change. This is a sacred
24:32duty. Today, you treat this as an entitlement. Then you say, show me the law under which my property is
24:37seized. So, it's like saying, show me the law under which my office is fulfilled.
24:42Mr. Salve, always a pleasure speaking to you, sir. Thank you for speaking to India today. And thank
24:47you for sharing your thoughts on these bills. Of course, there's a lot of political division that
24:52we are seeing on it. But thanks for putting this in context for our viewers as a top jurist of India.
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