00:00Joining me on the show now, Harish Salve, one of India's most eminent constitutional lawyers
00:05and former Solicitor General of India.
00:07And he joins us to decode the Supreme Court's latest intervention in the SIR controversy
00:12and the larger questions it raises about the Election Commission's powers and autonomy.
00:18Mr. Salve, unprecedented protests by Rahul Gandhi and opposition demanding resignation of the CEC.
00:24You know the developments which have happened in the last few days as well
00:27with regards to the Election Commission, the functioning of the body
00:30and also the developments in the Supreme Court.
00:33Let me begin by asking you, has Gyanesh Kumar's position become untenable?
00:41I am really baffled at what is going on in India.
00:45I mean, I understand political parties need to remain in the front, in the limelight, scream, shout
00:52and often in the political narrative all over the world, not just India.
00:58And increasingly truth becomes a serious casualty.
01:03It started with that Indian Express semi-article raising some questions
01:11and maybe some decisions were not unanimous.
01:14The three of them have sat together and said our decisions were unanimous.
01:18Now, either you are saying all three of them should be believed
01:22or you are saying all three of them should not be believed.
01:24It can't be that I do not believe Gyanesh Kumar when he says they were unanimous.
01:29The other two are very nice people.
01:31They are also saying it was unanimous.
01:33But I believe them, but I don't believe them.
01:35So, you know, this is, it's all become very political.
01:39Secondly, it's a very simple thing.
01:40The matter is in court, a reply affidavit will be filed.
01:49They will show all the records because unlike political parties who are not in any way answerable
01:56for wrong statements, the election commission, when it issues a press communique
02:06under the authority of the three commissioners, if it makes a wrong statement,
02:10that without more will be ground for removal of all three.
02:14So, for the present, why not, I believe them and I don't, and the political parties have
02:20their own reasons, their own aspirations.
02:22They are gathering people to scream and shout, which is fine, which is a part of democracy.
02:27At least shows one thing, that Indian democracy is alive and kicking.
02:31Mr. Salvi, I'm looking at what the CGI said, that any modified Form 6 has not been approved by us.
02:40The CGI has now said, any modified Form 6 has not been approved by us.
02:47The CGI has said nothing.
02:49The CGI will say whatever he has to say in a judgment.
02:54You know, this ridiculous principle of picking observations in the course of a dialogue between
03:02the judges and lawyers must stop.
03:06Somebody said, something has been approved.
03:09The CGI says, we have not, we will see because we have not approved anything modified.
03:14We will see, it will see, the papers will come before them.
03:19The election commission has made it clear, they are not saying anything is modified.
03:24What they are saying is that they were not limited to seeking additional information.
03:29So, you know, this is a legally complex situation.
03:32It is not a one-liner saying the CGI has said.
03:35Have you read his order?
03:36His order says, issue notice, returnable on, fixed for so-and-so hearing.
03:41That is what he has said.
03:42But Mr. Salvi, you know, since you are raising that, I just want a little more explanation on that,
03:49or clarity.
03:53But Mr. Salvi, you know...
03:55Observations in court, please.
03:57These are not political parties making speeches.
04:01These are judges.
04:03They are entitled to ask questions.
04:05They are entitled to make observations.
04:07Lawyers are entitled to tell them, no, sorry, you have a wrong impression.
04:10You have a right impression.
04:12Here are the papers.
04:13This is what you have done.
04:14This is not what you have done.
04:14What's the problem?
04:16Do we have something happening in the next week that we must set this narrative on fire
04:22and make so much noise?
04:23You can't wait for three weeks till the affidavit comes and the Supreme Court decides?
04:28See, we have to bring the rule of law back.
04:31It can't be the rule of the streets.
04:33And like some people are saying that we don't believe in rule of law, we believe in rule of streets.
04:37Then I am unable to deal with that vocabulary that others deal with.
04:44If you talk of rule of law, the rule of law is there is an allegation that a constitutional institution
04:50has functioned contrary to law.
04:51Who is going to decide that under our constitution?
04:54The courts.
04:55The highest court of India has taken cognizance.
04:57They are going to deal with it in two weeks, three weeks, four weeks.
05:00In the meanwhile, must we have this cacophony which permanently damages in public perception
05:05the impression of all institutions involved.
05:09Question which is being raised with regards to Form 6.
05:12Isn't it a legitimate one?
05:17The entire question around Form 6.
05:20There is no question.
05:22Can't you wait for four weeks till the Supreme Court sees the revised Form 6?
05:27There are legal nuances.
05:29The form has not been changed.
05:32Asking for additional information in order to supplement the information in the Form 6
05:39is not a change in Form 6 is the argument of the EC.
05:43There may be an answer.
05:44There may be right.
05:45There may be wrong.
05:46We will know shortly.
05:47In the meanwhile, must every anchor of every TV channel sit there like a Supreme Court judge
05:53and hear arguments on both sides and decide.
05:56Can I also quote what the Supreme Court said that we can always annul any decision?
06:05Does the Supreme Court have to say that?
06:06Don't we all know it?
06:08That's what I'm saying.
06:09Don't pick on observations.
06:11The Supreme Court...
06:12See, whenever you tell the Supreme Court, grant me an interim order.
06:16It happens in the smallest of cases.
06:18If somebody is being...
06:19If my house is under challenge and I file a suit saying protect my house,
06:24the court says, no, today I don't want to pass an injunction.
06:27If there is any transaction, I can always annul it.
06:30That's a standard dialogue in a court.
06:32When you are declining an interim injunction, you say, heaven won't fall.
06:36If there is something, we can always annul it.
06:39Don't attach so much political consequence to normal conversation which takes place,
06:45normal legal conversation which takes place in a courtroom.
06:49It happens all the time.
06:50You ask for an injunction.
06:51If tomorrow I say, stop Maria from running a particular show,
06:57and the judge says, well, in the show, the show is three weeks.
07:00Okay.
07:00If she says something wrong, we will correct it later.
07:03We can always annul what happens.
07:05So, that's a normal discussion in an interlocutory process.
07:10But Mr. Salve...
07:11Don't say Chief Justice said we can annul.
07:13Of course, you can annul.
07:14The Supreme Court can annul anything which is in the format of...
07:19in the legal format.
07:20Mr. Salve, today you are visibly angry with all the questions being asked
07:24with regards to the functioning of the ECI.
07:30You know, I am really worried.
07:34Let the politics go on.
07:36Let the vocabulary of politics go on.
07:38When you start destroying constitutional institutions,
07:42and with relentless attack on the integrity of constitutional institutions,
07:49without a scintillow.
07:51Today, there is an article by Indian Express which has nothing more.
07:55You have a denial by the election commission,
07:57and everybody is saying, we believe that rag,
08:00and we do not believe the three election commissioners.
08:04I think that's a sorry state of affairs.
08:06I feel strongly about it.
08:07So, sir, tell me, if the Supreme Court finds that decisions were taken without unanimity
08:12or majority in terms of the election commission,
08:16can it retrospectively invalidate those decisions?
08:22The Supreme Court's powers are untrammeled.
08:27It will do what is the right thing to be done under the Constitution.
08:31The Supreme Court is never powerless.
08:33There is no fait accompli, but it will do the right thing.
08:36But let me tell you,
08:37if the decisions were indeed not unanimous,
08:41it is a very strong indictment,
08:44not only of the chief election commissioner,
08:46but of the other two commissioners.
08:50Let's just go back a bit.
08:52Why were three...
08:53Why was it made a multi-member commission?
08:56Because there was one particular election commissioner,
08:59Mr. T. Session,
09:00who was very popular.
09:01Very popular.
09:03Because he ran roughshod over politicians.
09:06But two more members were added,
09:08and it was made clear by the Supreme Court,
09:10it's a three-member commission.
09:12If three of them are there,
09:14each of them has a responsibility to make sure
09:18that decisions are either unanimous or by majority.
09:22If they have sat by,
09:24allowing the chief election commissioner to do what he likes,
09:28he may be overbearing like Mr. Session,
09:31but they have been guilty of serious dereliction of duty.
09:34Now, I don't understand the argument
09:38that they are very nice people.
09:40He is the bad man.
09:41You got it upside down.
09:43Sir, tell me,
09:44the Supreme Court has so far refused to suspend the CEC
09:48and has sought the response
09:50of the Election Commission of India.
09:51Does that tell us
09:52the court is drawing a very deliberate line,
09:55it will scrutinize legality in the procedure,
09:57but will not remove or suspend
09:59a constitutional functionary merely on allegations?
10:05Steve, there is...
10:06The Supreme Court has shown
10:09that it is not affected
10:11by the noise and din of politics,
10:14and I am proud of my Supreme Court for that.
10:17Yes, since there is a matter of
10:19such serious allegations against the institutions,
10:23sometimes not because you doubt the institution,
10:26but you want to validate the institution
10:28that the court says,
10:29all right, we will have a look
10:30at these allegations,
10:32because ultimately,
10:33we do not want the way the politics of the...
10:36the way this noise has been generated,
10:38we do not want this institution
10:40to be under a cloud.
10:41Let us have a look.
10:42If we find they have done anything wrong,
10:44we will set aside their decisions,
10:46but if they have done nothing wrong,
10:47we will give a judgment
10:48saying that they have done nothing wrong.
10:50That's the right process in a rule of law.
10:53And that process is acting.
10:56Now, what's the use of...
10:58I mean, it's all right here.
10:59For politics,
10:59it is necessary to be seen on the front page
11:01and to hold the city of...
11:05and the traffic to ransom
11:07by blocking streets, etc.
11:09That's all right.
11:10That's a part of politics.
11:11I'm not a politician.
11:12I don't appreciate that,
11:13but politicians, I believe,
11:14have to do that for a living.
11:15So that I understand.
11:16But, honestly,
11:19can't we wait for four weeks?
11:21Must we debate this every day?
11:23Must we...
11:23What happens tomorrow, Maric?
11:25What happens to the reputation of these three
11:27if tomorrow the Supreme Court says
11:28these allegations are nonsense?
11:30That damage would have been done.
11:33My last question to you,
11:34and here's the difficult institutional balance.
11:37Mrs. Salvi, you have argued
11:39that constitutional institutions
11:41must not be judged by personal standards.
11:44But if the Supreme Court finds
11:46that the institution itself
11:48did not follow the law,
11:49does judicial intervention then
11:52become not an encroachment
11:54on ECI's autonomy,
11:56but the very mechanism
11:57that protects constitutional autonomy?
12:03Let's be very clear.
12:04The highest thing which can be done
12:07under a constitution
12:08is amending the constitution.
12:09Right?
12:10Then you have legislation.
12:12And then you have institutional functions.
12:15The legislature...
12:16These are co-equal institutions.
12:17The legislature,
12:18the elected executive,
12:20the judiciary,
12:21and the election commission.
12:23These are co-equal institutions.
12:25Each is supreme in their own sphere.
12:28The Supreme Court cannot second guess
12:30on how to run elections.
12:32But the job of the judiciary
12:34is to make sure
12:35all the other institutions
12:37act within legal bounds.
12:39Their policies are for them.
12:41Their legality is for the court.
12:43So if the Supreme Court finds
12:45there is anything illegal,
12:48illegal means not in a derogatory sense,
12:51anything which is not strictly
12:53in accordance with the law
12:54and the constitution,
12:55in the functioning,
12:56in any action of any institution,
12:59the Supreme Court will deal with it
13:02and will say so.
13:03And if tomorrow,
13:04I can understand,
13:05if the Supreme Court tomorrow says
13:07there have been a raft of decisions
13:09which are illegal,
13:11then that may be a good ground
13:13to say,
13:14well,
13:14if a body has been acting
13:16so irresponsibly
13:17or been acting
13:19in a particular manner
13:20and have been found
13:22to be acting
13:23in a particular manner,
13:24then are they,
13:26should the personnel
13:27be changed?
13:28So,
13:29but that is not
13:30for the Supreme Court.
13:31That under our constitution
13:32is for parliament to do.
13:34If you allow it to run.
13:37Mr. Salvi,
13:37always a pleasure
13:38listening to you, sir.
13:39Thank you for sharing your views
13:41and giving us clarity
13:43on the legalese
13:44and the constitutional view
13:45on the developments
13:46which have been happening.
13:47Appreciate your time.
13:48Thank you so much.
