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In this exclusive interview with Bar & Bench, Law Minister Salman Khurshid talks about judicial reforms (pendency of cases, judicial vacancies etc), the collegium system, regulation of social media, Lokpal Bill, entry of foreign law firms and a host of other issues!
He also talks about his initial years, decision to join politics, his interest in theatre and his teaching experience at Oxford.
Bar & Bench: What made you choose law as a career?
Salman Khurshid: I think legal education combined various things that I was looking for. I enjoyed theater, literature, debating, and I enjoyed argumentation. I hope I am right in saying that I had an instinctive feel for what is fair and just. I had nobody in my family who had ever been a lawyer, but when I combine everything that I wanted to do including distant hope that I would get into politics, somehow, it seemed like law would be the best thing to do. I think the final call frankly was when I got into Oxford where I had applied to study law. I was a student of English literature, I could have applied either for English or I could have applied for something akin. But I think law was the best option that I could have applied for. When I got in, I think that just ensured that I would stick to that subject and I remained in there.
Bar & Bench: Your decision to enter politics.
Salman Khurshid: As I said, I had a distant hope that I would get into politics one day, I was not sure how. I did not do any student politics, except for one failed attempt at contesting the St. Stephen’s college students’ union election, but I was not involved in the student movement per se, and then of course I was trying to work up my way to Oxford. In Oxford, spending most of my time trying to do well in my studies, I didn’t have time for student politics. In any case Oxford does not have much by way of student politics, it has a lot of other things happening. That was it. So, I didn’t come in through student politics, but I had a distant desire and I admired lot of top politicians across the globe and our own country politicians, like Pandit Nehru and Mrs. Indira Gandhi, with whom I finally worked briefly. I had a sense of theatre and history. I read a lot of autobiographies, so that kind of made me feel that there is something you can do for humanity by being a politician, which is much wider than what you can achieve as a doctor or as a banker or as a social worker or as a teacher. Each of these professions are extremely, extremely important but your impact is much larger if you are in public life and successfully so.
Bar & Bench: With specific reference to the justice delivery system, there is a huge pendency of cases. How can this be solved? What are the initiatives being taken?
Salman Khurshid: Obviously pendency is a very major issue. How do I describe it? I think it’s the same kind of issue such as chaos on the roads in different parts of India. You know that’s not how it should be, but you also know that’s how it is. You know that the world over, there are models by which it can be resolved and it should be. Time to time, things are done like introduction of traffic lights, introduction of new scientific traffic control methods, hidden cameras, speed controls etc. But you still know that it’s a battle that you have to fight; it is not something that you can transform overnight. Same thing applies to the judicial system and the legal system – there are experiments and there are management methods that are being used. It also requires training and money but ultimately it is also a matter of attitudinal change. So whatever we do about this, ultimately when the attitudes about a legal system change, we will be successful. Without this change any amount of money, infrastructure, methodology, and management techniques will have just a little impact. So we are combining all these in the National Mission for Justice Delivery and Legal Reforms. This is a mission that was started a couple of years ago and we have now moved forward. We are working very closely with the Supreme Court.
Essentially, three or four things are required. First, we need better infrastructure including information technology for better management of the cases. Two, we need much better training for judges and lawyers. We need many more well trained judges and lawyers for which judicial academies are now getting very active, like the National Judicial Academy in Bhopal. Third, we are making sure that we suggest changes and provide such inputs into the legislation that will cut down litigation. Take the example of the governments’ own litigation policy, where we don’t encourage unwanted appeals being filed just for the sake of filing. And of course incentives have to be built in. We are building in incentives for people who do well like a measure of reward both by way of recognition and by way of providing better share of resources that we can give.
Ultimately we need to do two major things, one is the All India Judicial Service, so that we organize judicial services better and the second one of course is the Judicial Appointments Commission so that we can speed up the number and the manner in which the judges are appointed in the higher courts and also ensure that there is greater transparency plus better quality.
Bar & Bench: What about the huge number of judicial vacancies?
Salman Khurshid: There are two kinds of vacancies. One is vacancy at the lower courts, for which the high courts are responsible and we are doing the best that we can to encourage the High Courts to push through. Sometime there are litigation issues etc. that makes it all the more difficult. We have also collaborated with the High Courts on ensuring that the fast track court system is either institutionalized permanently or 10% extra judges be provided which is what the Supreme Court has desired. So, we are working on that.
Then there is the problem of High Court vacancies. Frankly, I think we need the Judicial Appointments Commission, so that we can have a permanent standing structure for ensuring that timely appointments are made and resolving the problem of the collegium system by way of the time it takes. I am not talking about any other aspect on which people can have different points of view. The time the collegium system takes, because of the very nature of the collegium system today, cannot be altered but hopefully if you get an acceptable better structure in place, we would be able to cut down on the time.
Bar & Bench: What are your thoughts on All India Judicial services and how soon do you think that can be implemented?
Salman Khurshid: It is with the Committee of Secretaries. They had some queries that we have answered. Once they have taken a final view, we will be ready with the Cabinet note. Half the work has been done but there has to be a resolution in the Upper House before the legislation can be passed. We have reasonable support from the high courts and from state governments, but there are some people in some places who still have some reservations. This is something, which really requires near consensus if not consensus to push through. We hope that we will be able to get the consensus by the end of the year and then the mechanics of pushing through the legislation will take its own time.
Bar & Bench: Going back to the collegium system, do you think the collegium system should be removed and instead a National Judicial Commission be set up for appointment of judges, considering there is no transparency for proceedings of collegium? Your thoughts.
Salman Khurshid: Well, I think the sense that I get is that not many judges are entirely satisfied with the collegium system. It was put in place by judges and obviously with great expectations from those who were responsible for it. For instance former Chief Justice Verma has been talking about ways and means of improving upon the collegium system. We have taken inputs from them and, we had stake holder consultations all around. We have consulted with people like Chief Justice Venkatachaliah, Justice Verma as I said, Chief Justice A.P. Shah etc. We talked to some academics, and I hope that we will be able to put together adequate consensus. I am sure that there is, in some quarters, doubts as to whether this will impinge upon the independence of the judiciary and I am very clear that there is nothing to fear, absolutely no way that we would countenance the independence of the judiciary being compromised or diluted even in the remotest way. So therefore, I think its important to step forward very carefully so that everyone understands what’s happening, everyone is able to examine each and every angle to be sure that the independence in judiciary will be enhanced and not in any way compromised.
Bar & Bench: So, basically you are saying that there should be improvement in the existing system?
Salman Khurshid: Well, it is very difficult to improve the collegium system, beyond what can happen by way of the group that’s involved at any given time, 3 judges or 5 judges etc. It has to be left to them and how well they are able to handle the system. But to have an alternative institutionalized system in which more or less the top judiciary will remain equally important, but the inputs that come at different points will all be put in at the same time, which is what the Judicial Appointments Commission will be able to do. And of course it would be more transparent and more cost effective, time effective, so it has to be accepted. I will not bet on it right now. Let the final shape come in front of the public and stakeholders and see their responses.
Bar & Bench: What is your opinion on the Judicial Standards & Accountability Bill?
Salman Khurshid: I am doing it, so I obviously have a very high opinion of it! I found that there were some doubts about some aspects of it. There are two extremes. The parliamentary standing committee wanted to go much further in imposing a regime that is a lot tougher while judges feel that there is enough internal accountability, and the Bill just needs a little fine tuning. So, I think between those two positions, we need to find an agreeable common ground and that’s what we are working on. But I think it is important and useful to have some form of judicial standards accountability legislation passed and to overcome the difficulties that the impeachment procedure in the past has experienced and I think we will be able to do that.
Bar & Bench: Do you think that the Supreme Court is encroaching upon the fields of legislation?
Salman Khurshid: I won’t disagree with the former CJI SH Kapadia in several of his recent speeches where he has talked about how the three arms of the government have to both co-exist and to ensure that they don’t overstep their own mandates. He mentioned specifically in this context, that ‘the courts must not over-reach’.
I think that this is a very complex subject and has no easy answers. World over there have been debates and discussions as to what is the relative degree of the self constraints that must be shown by the judiciary, the legislature and the executive where the executive is accountable to the people and to parliament, and parliament is accountable to the people and while the judges don’t have to get their sanction and accountability from the people. Yet the judges are trained, they have a job to do and that job cannot be restricted by the prevailing majority view in the country, but it can’t completely ignore it either. So, what is the right balance between the three and what is the right balance between interpretation and enforcement of law and creativity to the extent of legislating new law?
I think this is being debated for many decades all over the world and from time to time this arises in our country as well. I can see those cases where the courts have gone beyond the reach of ordinary judicial decision making and done enormous good to our society, added some things and done some things that both the legislature and executive, for political reasons or otherwise are unable to do. The courts have stepped in and done a remarkable job particularly in the public interest litigation field. But on the other hand, there are some very severe constraints that are imposed on the functioning of democracy as I said ultimately, that you are accountable to people and I think its best to let things evolve and new adjustments and new boundaries can be done as we move forward. There will be times when parliament will reverse something that courts have done, sometimes courts will reverse what parliament has done something and that’s what the constitutional debate is all about.
Bar & Bench: Your thoughts on the entry of foreign law firms in India. Can we expect the legal market to open up in the term of this government?
Salman Khurshid: This is a very sensitive and controversial issue. I have only said to the Bar Associations and the Bar Council, “Ultimately, it is your call”. My advice is that something that is inevitable in the world is not worth resisting beyond a point. See, we had walls of protection in our country, we wouldn’t import products from outside and if they had to be imported, they were on a very high import duty. So you have tariff and non-tariff barriers.
One can say similar things about the service sector and other professions and you know that in WTO, there are time lines and there is a also direction. Ultimately one day all of us have to open up, but open up when we have the sense that further protection is not necessary.
I think it’s been felt that professions need some protection in our country and therefore it has been argued that we should not rush into this. There are two ways of looking at it: one is a challenge and the other is an opportunity. One is having to give up something to share and one is about taking something in order to share. I think this is something which needs to be debated widely in the bar council and the bar associations and ultimately the lawyers must take a call. I think some movement is taking place, some windows are looking like lights coming in from those windows, but it is too early to give real sense of direction. But I think cooperation and collaboration between lawyers in different jurisdictions including India-Australia and India– U.S seems to be going well. There are some issues on Europe and India, which I hope will also move in the same direction.
Bar & Bench: There is a lot been talked by the Government regarding regulation of social media. Do you think there is a need to regulate social media?
Salman Khurshid: I know my colleague Mr. Kapil Sibal has tried to talk about it, but somehow the social media and a lot of people who support social media believe that it is wrong to even have an opinion on social media other than their own. That’s not democratic. I can understand that they are touchy about freedom of expression and they think that social media somehow is the last word in freedom of expression in our times. Freedom of expression by their own admission has to allow the other persons to have other points of view as well including a point of view that you are over stepping your brief and you are making illegitimate use of your freedom. This is an argument and nobody is imposing a ban or a restriction but at least to say that shall we talk about the damage this can do.
And, I am surprised that sometimes people say that this is all an attempt to gag the media, but what caused large scale panic in places like Bengaluru cannot be justified on grounds of free speech. Free speech is not absolute. Free speech is relative and subject to a lot of reasonable restrictions even in the Constitution. I can’t accept that social media has rights that go beyond the Constitution. We should not misuse the reasonable restriction. I accept that somebody has to decide what are reasonable restrictions and that ultimately in our system the courts have to decide. Someone to question the rights of a person to go to court to say this is not reasonable, I think that in itself is unreasonable.
Bar & Bench: Recently, the Union government had blocked several Twitter accounts including accounts of journalists etc. What do you have to say on this?
Salman Khurshid: I don’t know. They may have been or they may not have been. If they have, nobody is gagging them. If something is done which they think is wrong, they have so much of the media available in the country to complain about it. You can’t insist, I will say things only in one place in one manner, you can say them elsewhere as long as your voice is heard somewhere in some manner, I think you can’t really complain. Banning of one kind of platform for free speech that has led to imminent danger to a lot of people in the country is not like saying you will not be able to speak anything anywhere. So I think those who are protesting about this are exceeding their right to protest as well. But frankly this is what democracy is about.
Bar & Bench: A lot has been talked about the Lokpal Bill, do you think the Lokpal Bill is an effective way to combat corruption in our country?
Salman Khurshid: You want to ask me honestly, my answer is ‘No’. But I am not saying that it shouldn’t be done. I think there is a psychological and substantive value that the Lokpal institution can add to fight against corruption. But for anyone to think that this is a magic formula that will solve all corruption, I don’t agree. My worry is that there could be corruption in the Lokpal itself but let us hope for the best. Let us try something that seems to be a value addition to our present system for fighting corruption and hopefully getting people to have more faith in institutions that will fight corruption. So, there is no harm trying but it will be living in fools paradise to think that everything will resolved by the lokpal alone. There are other legislations that are coming like Public Procurement Act, the Whistle Blowers Act, Citizens Charter, Anti Bribery Act etc. and if they are all honestly implemented I am sure that will have a major impact. Ultimately it’s the broader issue of governance. If you have transparency, accountability, the right attitude, the right kind of democracy etc., then corruption will disappear. But corruption is not something unheard or unknown in the best-governed societies of the world. Is there no corruption in the U.S, is there no corruption in the U.K? Is there no corruption in France, Germany or China or Russia? Are we the only ones who have corruption and are we the only ones who have lokpal? You think if Lokpal could resolve the problems of America, China, Russia, they wouldn’t have instituted lokpal. So, everybody should use their own genius and the special cultural ambience in which they live as a society to find the best institutions to resolve their problems.
We agree corruption is a problem. I think this is not a subject on which you can give straight and easy answers immediately. You have to think a little bit about it, experiment a little bit about it and for any one to say that, the moment you say experiment, think, work carefully, that means you want to protect corruption that’s going on, I think that’s a very-very unfair comment.
Bar & Bench: What are your thoughts on the All India Bar examination?
Salman Khurshid: I don’t see why there shouldn’t be a bar examination. It’s a brilliant initiative. It’s a very cursory examination. If you look at how tough the bar examination is in England for instance then you would know that we are doing nothing yet. And yet even in introducing this examination there have been lot of complaints. I think we have to take a broader and wider look at legal education in our country. The bar exam which is under the aegis of the Bar Council of India must be a really tough exam and only those who want to actually practice should be going to the bar exam, others should do law as any other subject as a value addition to their ability to handle management, to handle jobs which involve some idea of the law and only very determined people who want to become lawyers should go and give the bar exam.
But I know there are difficulties for people, there are different levels of institutions that provide legal education and it will take some time before a level playing field is provided to students. It’s a good beginning and I think it should be strengthened.
Bar & Bench: What are your thoughts on the tussle between the BCI and HRD ministry over the regulation of legal education?
Salman Khurshid: I think the issue between the Bar Council of India and Ministry of Human Resource Development has been resolved and I hope to satisfaction of both sides and when the Higher Education and Research Development Bill finally comes in its amended form, I hope there that will be no reason for anybody to doubt the intentions of the government. We have very clearly been able to establish that the practicing degree, the professional degree that allows you to practice law, which is LLB or any other equivalent degree, will remain entirely with the BCI under the Advocates Act.
The BCI will remain responsible for it, for accreditation, for standardization, for recognition and for everything that has to be done and provide the Sanads for the right to practice. And any other form like LLM, PhD or combined courses, those can be under the HRD’s scheme of things. I think there was some ambiguity about this clear distinction and HRD Minister has now made that clear. We are very grateful to him. I say this on behalf of the Bar. The Bar has expressed their gratitude but there are still some doubts that this should be properly translated into the right wording. I am absolutely confident it will. So, we will wait till the amended Bill comes out.
Bar & Bench: What are your thoughts on the current system of legal education especially in reference to the national law schools?
Salman Khurshid: I think we have got very good law schools. I think our law universities are outstanding. For the first time, I can say that we can compete with the best in the world. Some of them are absolutely outstanding but the sad thing is there is a big gap between these law universities and the standard law colleges found in districts and states all over the country. We need to bring the other law colleges also up to this level. There will always remain the top and the very iconic and exclusive institution. That is in any field but there must be a base level where everybody should be brought up to in terms of resources, also in terms of infrastructure, faculty etc. There is dearth and shortage of faculty across the country and we have to find some way to ensure that the faculty issue is resolved and we get good faculty. Also, I hope that lot of these outstanding students of these law universities don’t end up in board rooms but they also come to the court rooms and add to the value and the quality of lawyers because that’s where we will find our future judges and we will finally get the right kind of judges.
Bar & Bench: Any specific initiative by law ministry that you would like to tell us?
Salman Khurshid: We are doing some interesting things. I am ramping up the Rajiv Gandhi Adhivakta Prashikshan Yojana (Rajiv Gandhi Advocate’s Training Scheme). The main object of the scheme is to give motivation and encouragement to young lawyers who are practicing in District Courts, by providing proper professional training for a period of two months. So, we are bringing in district level young lawyers to train and keeping them in law universities for several weeks there giving them training, upgrading their skills and then putting them on a stipend and then placing them with outstanding senior lawyers etc. This is a major effort that we are putting in. We hope that some of these people and others coming out of law universities can also be absorbed into National Legal Services Authority (NALSA) and State Legal Services Authority (SALSA), the legal aid programs.
We also want to involve young lawyers in the process of preparing a nationwide judicial statistics grid. I think it is very important that the first three years of mentoring and hand holding for bright young lawyers should be done especially for those not coming from legal families because they have difficult times in the first three years.
We have now computerized 9000-10,000 courts and we hope to complete all the 15000-18,000 courts in the next 2 years. So on the press of a button all the statistics of the case law will be available. Today, we have to physically collect statistics. We will have a standardized filing system throughout the country and because the filing will be computerized we will be able to get it automatically and wherever the filling is not computerized at district courts for a while, there we will have to pick up statistics and do data entries and for this these young people will be required.
I think we need lot of welfare measures for lawyers and I am looking on how we can improve the insurance schemes and other facilities.
Bar & Bench: You have been writing and actively involved in plays while you were at Delhi University and at Oxford. Tell us more about it.
Salman Khurshid: As I told you, I was interested in theater right from childhood. I remained a theatre buff in school and college. At one stage I may have thought of taking up acting as a career but that must have been just in passing. At Oxford, I associated with theater but I didn’t do theatre by myself. I came back and I continued my interest in theater. I was very moved by the theme of integration of cultures which took place with the coming of the Mughals to our country, the Islamic influence on ancient India and the medieval India then became this mix of pot of confluence of cultures. I was very interested in that theme and when I was in Uttar Pradesh as a President of UP Congress, I started working on this in my mind and jotted down a few notes.
Later, the anniversary of 1857 revolt was coming up so lots of books were being re-printed and a lot of literature was coming out on the 1857 revolt. I read up everything and refreshed my memory on history classes I had done in school and ended up writing a play ‘Sons of Babur’, which fortunately Tom Alter liked and he took the lead role in it. They have now done over 30 or so performances both in Hindustani and English and he plays Bahadur Shah Zafar, the main protagonist of the play and does a brilliant job. We have had readings of the play in several parts of India and we have had performances in several parts of India. We had a reading in England. This year we hope to have a performance in England as well.
Bar & Bench: So, do you still write?
Salman Khurshid: I don’t get to write a lot but I do attempt. Of course I do write for newspapers and journals from time to time. I would want to do some more serious writing, both by way of fiction and professional stuff, but unfortunately in my present job and looking after constituency, I don’t have time and leisure for research and so on. So, it doesn’t get done that much.
Bar & Bench: How was your teaching experience at Trinity College?
Salman Khurshid: I absolutely loved it! I regret having left it. I enjoyed it enormously. Some of the best years of my life have been as a teacher and that too at Oxford. It’s a dream opportunity for anyone who is interested in teaching.
I taught for 3 years. Three years is a too short time, it’s like breezing through but nevertheless, very-very valuable and rewarding for me.
Bar & Bench: Who has been your mentor?
Salman Khurshid: I didn’t really have a mentor. I wish I had but I can think of many people who played a very critical role in my life who I have admired sometimes from a distance and sometimes have come close to them.
Bar & Bench: How do you unwind?
Salman Khurshid: I really don’t get time to unwind. I have a lot of pets in my house. I listen to music and I watch films. If I can get away, I do a bit of wildlife watching and travel to Indian sanctuaries.