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Salman Khurshid is the former Union Cabinet Minister of External Affairs, Union Cabinet Minister of Law and Justice and Union Cabinet Minister of Minority Affairs, an eminent and respectable politician and a senior advocate of the Supreme Court of India. Recently Legal Bites got an opportunity to interview the gentleman. We were obliged by his presence and it was a delight to host him.
Here are the moments from our interview:
Legal Bites: Sir, your education ranges from Delhi University to Oxford University. What kind of differences did you find between both the education systems?
Salman Khurshid: Aah, Gosh! Vast. See DU is a huge university, Oxford is a very small and compact university. In DU, it’s not just one campus in the university alone, several campuses form the university. But, when I joined Delhi University, I was in the North campus and there was just an assemblage of a south campus beginning somewhere in the South Extension. They had a very good library; you could sometimes go and access books there, which otherwise was in great demand in the university.
Most of my time was spent in St. Stephens College, particularly the undergraduate years, because that college has a very close-knit internal community.
But, for my post-graduate, I went to the Oxford University English Faculty. It’s kind of more personalized and more intimate at Oxford. One thing, of course, is inevitable that you’re all living in, you’re all hostellers. It’s called being in residence there. So except for one year when they are short of accommodation, you have to spend outside, but otherwise, you’re within the college all the time. So, it’s much more like a sense of family, the close-knit togetherness that is there.
The other thing, of course, is that being one of the best universities in the world like Oxford or Cambridge, I’ve never been to all but some I’ve been to, the interaction is with minds of the highest level. So, when I first went to Oxford, it was almost like I was being pounded with intellect, in the sense of inadequacy that one felt every day – that will I ever be able to match this kind of mental calibre. Your growth process in the university is intense and very rapid.
Delhi, at least in my experience, was a little bit laid back. You had to put in a personal effort to get to the top. But, the atmosphere in Oxford was such that you have to make a personal effort to stay at the bottom, otherwise, the gravitational pull of performance is so intense that inevitably one who has got into Oxford would end up doing quite well and get high in self-esteem as well.
Legal Bites: Sir, our country has witnessed incidents like the issues of JNU and DU, is it right to say that Right to Free Speech and Expression is in danger? In addition to this issue, will it be a good idea to impose restrictions on party-based student politics in colleges and universities?
Salman Khurshid: See I am personally not for restrictions. I think we don’t live in an age in which restrictions are very helpful. If you are very apart from open society and open politics, it’s difficult to say, that you do this here but don’t do this here, etc. But, I can see the point of not being too hard-driven in party politics as far as university atmosphere is concerned and I wish that party’s themselves impose a little more self-restraint in not converting what is essentially university atmosphere into a party political atmosphere. Ideologies of parties can be reflected, but then of course, the problem is that ideologies are now becoming so divided and so extreme – one from the other – that that is inevitably going to rub off on any units in the university. So, I’m against restrictions because I think that restrictions lead to other problems but some kind of moderation, some kind of guidance, some kind of limited regulation is certainly called for.
As far as freedom of speech is concerned, I do believe that the most extensive freedom should be available if anywhere that’s possible and that’s desirable – I think it’s at the universities. Attempts by the establishment to impede the freedom of expression in the universities, I think, is detrimental to our society.
Legal Bites: When there is a conflict between your individual moral values and professionalism – how do you tackle such differences?
Salman Khurshid: It’s not difficult. I mean one must adhere to one’s own moral values, to begin with. That’s absolutely essential. But, your own moral values can’t necessarily be deviant values. I think there are standard tests for what is morality and you can’t have a morality that is completely out of sync and out of tune with the morality of the society that you live in. It can be superior to the morality of your society but it cannot be in contradiction with the morality of your society. And, if frankly, yours is just a superior version of the morality of society, then there is no reason why there should be any conflict between professional morality and personal morality.
I think you should look very seriously and carefully if you prima facie think that there is a conflict, you should try to get deeper and discover why there is a semblance of conflict because I can’t believe that ultimately if you are only adhering to a refined form of social philosophy and social morality of your society, there should be any conflict between professional morality and personal morality.
Legal Bites: Sir, there are many arguments in favour of and against the collegium system. Do you think the current method of appointment of judges is appropriate or are changes required?
Salman Khurshid: I think there is no perfection here. It’s a competition between two imperfect systems. My own view is that the system as it exists today is possibly much better than the system that we as politicians attempted to replace it with. That would have had its own problems. That is not to say that there is a standard model available anywhere in the world and in the United Kingdom, for instance, there are non-judges whose voice is quite dominant in the appointment of judges. In the American system, for instance, the executive has a fairly dominant role in the appointment of their judges. There is a sense of disquiet there as well, but it works for them. I have to sadly admit that for our society the present system is the best. But, it requires tweaking, it requires improvement.
I think that the improvement will come if the right leadership emerges in the judiciary. And there, I am afraid of the fact that the Chief Justice has a short tenure of fewer than two years is the bigger problem than any of the other problem that people describe. You need a leader at the top. I mean, you have a lot of academics, a lot of Generals here. If a General was to lead his army only for six months, what kind of a General would he be? A General has to lead the army for 2 years, 3 years, and 4 years coming in from being number 3 to number 2 to number 1. And, then that General can lead the army to the front, but, if you tell a General – 6 months – and that’s it, then you don’t really get a good leader. And I’m afraid that that is happening in the highest judiciary in our land that the leader is not there long enough to be able to give a sense of direction and purpose. You barely finish the welcome parties that you begin with your farewell parties.
(*On being asked whether getting out of the seniority thing is required*)
Yes. But subject to my worry that if we get out of the seniority thing then we end up becoming unreasonable and picking and choosing people that are convenient to us.
Legal Bites: What changes have you seen in the Indian legal system, with legal experience spanning over decades?
Salman Khurshid: Well, I think our system is remarkably innovative. I think we’ve explored more areas of law, particularly Public Law than most countries have.
I think the Indian version of Public Interest Litigation is a remarkable instrument – a lot parallel anywhere in the world, but it also is something that causes a great deal of unnecessary load on the system and distraction from the purpose of the legal system in addressing those conflicts that the normal institutions can’t solve. It also brings judges into much greater exposure of political role that judges should try to avoid because it makes them more partisan or suspect of more partisan activity.
I think that our system has made a great contribution to Common Law. The only thing that is lacking in our system is that we just take too long to get a decision to come to a final conclusion. That’s an unacceptable element in our system.
Legal Bites: You have emphasized in public that you are strongly against death punishment. What can be the ways to reform the prisoners so they can be fit to live in society rather than removing them from society?
Salman Khurshid: Yes. Absolutely against it! Reform is a different thing from eliminating a prisoner. First, you have to accept the philosophical and moral argument that the death penalty is bad. And going beyond the law commission, I say that the death penalty is bad per se. You can’t make exceptions. You start making exceptions then there is no end. Even today the Supreme Court’s view is that the death penalty is bad. That it should be given only in rarest of rare cases. So what is the Supreme Court doing? Supreme Court is making an exception and the law commission is also saying that there should be an exception for terrorism and for x, y and z. That’s the same thing as the Supreme Court has said in different words.
I think that that’s not going to work. If the death penalty has to go, then it has to go completely. Once that is accepted, then what do you do to make a prisoner’s life salvageable? That you can save a prisoner from the negativity that causes him or her to become a prisoner. That again is a difficult psychological thing and we need to work on but that work is going on already on prison reforms and prisoner reforms, etc. I think then that work just needs to be taken further.
Legal Bites: In the light of recent developments, what can be seen as the biggest threat to Indian democracy?
Salman Khurshid: The biggest threat to Indian democracy is Indian democracy. If you don’t understand what democracy is, you kill it! I’m afraid that there is very little understanding of democracy. Democracy is not ruled by the majority. Democracy is rolled by the majority according to certain principles that are accepted by an overall majority. The Constitution is the majority extending over time. But, the government is the majority of that given time.
The Constitution includes the majority of those people who wrote the Constitution and those people who relied on the Constitution and who adhered to the Constitution and who cherished and valued the Constitution for ages, and will continue to do so, in times to come. But, the majority in a democracy is only five years, ten years, and fifteen years of the present people as against generations. And if this is not understood, essentially if you don’t understand the constraints of a Constitution and the opportunities of a Constitution, then Democracy is a meaningless word. Then it’s just mob rule. And there has to be a difference between mob rule and democracy. Democracy is the philosophical expression of the best possible solution in society.
Mob rule is the worst situation in the society. And I think we must learn to make this distinction.
Legal Bites: Sir, how would you define the relationship between religion and law considering the issues of Uniform Civil Code and the case of Ram Mandir?
Salman Khurshid: I don’t think religion should have a role in law beyond the extent to which the Constitution recognizes the role of religion. The role of religion is essentially the same as the role of any freedom of an individual. The State must not and cannot have a religion. And if a State does not have a religion and individuals have religion then the individual’s religion is like the individual’s right to speech, right to organization, right to do whatever the person feels like doing.
Religion is part of the personality of the individual, and therefore, there isn’t very much that the law has to do with religion, except protect it. Except protect it as the law would protect my freedom of speech, my personality, my body, my property, similarly it will protect religion as part of my personality. Nothing more. I don’t think the law has anything to do with the religion of any nature or any kind.
Legal Bites: In which way could the judicial practice be made more transparent? Time and again there are murmurs about corrupt judges doing the rounds in every part of the country. How can this problem be resolved?
Salman Khurshid: I think we just need better training of the material that becomes judges. And that’s happening in the country. Some finest law schools have come up in the last 20 years. You yourself are in one such law faculty. The quality of people coming into practice and to the bar today is far superior to the quality of people coming when I was a young student when I first came to the bar. And I think that this will incrementally and by the process, this will change the quality of judges.
Having said that, there are ways and means by which transparency can be introduced to the system. One important thing is that I believe, it should be easier for an ordinary citizen to access what is happening in courts. And for that purpose, I think that making court proceedings available to the citizens through CCTV is something that is long overdue in this country. It will happen one day. Today you see how we function in parliament because, after great debate, parliament agreed to televise its proceedings, I think, courts in India also, similarly, have to agree to televise their proceedings. You can sit on television or on your laptop and see what is happening in the British courts. You can see arguments taking place in the highest courts you can land in the UK. Why that can’t be done in our country?
Legal Bites: Sir, how and when did you decide the law as a subject?
Salman Khurshid: I don’t know the point at when it happened but somehow it seemed a natural thing to do. Against huge amount of pressure to do other things and become a civil servant in the government, to become an engineer or to become a doctor, it was just natural. I think it is part of my DNA to be a lawyer. So, for as long as I can remember I knew that I would be a lawyer. Yeah, from school and college I knew that I want to be a lawyer.
Legal Bites: And lastly, please say a few words of advice to the budding lawyers of this country.
Salman Khurshid: Just enjoy yourselves, these are the years that are never coming back. Enjoy yourselves in such a way that you do not lose out on the opportunity of learning the law. Learn the law. It’s one of the finest things you can do in human civilization because it’s the combination of the best way you think about yourself and the society and to see yourself as an active participant in what is happening around you rather than just being a spectator. So this is the best way you learn a job. You learn it well but enjoy yourselves as well because these years will never come back.