‘We’ve trusted people to give the trigger of a nuclear weapon in the hands of a person they’ve elected but can’t trust them about the Lokpal Bill?’

In a good democracy,there should be a little bit of tension?

Yes,well,just as people say that inflation is good for a growing economy. Similarly,tension is good because thesis and anti-thesis is what helps you arrive at a synthesis and that,I believe,is the essence of dialogue and the essence of democracy. The other challenges are—how do we deliver affordable justice and justice within a reasonable time…pending of 15 years or 20 years is unacceptable in a democracy of our kind. My predecessor Mr Moily had put a target of three years. And he had said in the next five years,we’re going to reach a three-year target of pendency. And I think that’s extremely important. But just rushing cases through and letting quality of cases suffer would be equally unacceptable. So,quality of justice,affordable justice and the time limit within which justice should be provided are major challenges.

If the Supreme Court of India asks the director of RAW to report to them in a case that can go on forever…this is the mother of all crises.

I don’t put it at a level of a crisis. This is a matter of urgent attention. And I must put a prelude and say that the Supreme Court and those judges of the Supreme Court who have done what might seem unprecedented have obviously very good reasons to do this. The point really is—what does the wisdom of the Supreme Court over the years and over the generations say how to draw the line between judicial activism,which essentially is not a bad thing,and the separation of powers that is we all believe necessary and Constitutionally and supported by the Supreme Court itself. So it’s not a question of our saying to the Supreme Court that we can’t understand what you’re doing,but I think it’s for the Supreme Court itself to reflect on what it has done in its wisdom over the centuries,over the years. And then for us to point out,as a government,as lawyers,as law officers,that this is what we believe you have said and we believe you would want to do. And if there’s a departure,then the court itself must reflect upon it rather than for the government to continue screaming and shouting about it.

You have gone and appealed in any case.

We’ve moved the court to say that are some dimensions and aspects of this that we would urge you to reconsider.

But you understand what’s getting the courts so frustrated?

Well,yes I do. And I think it’s not courts alone. I think Parliament is concerned,I think government is concerned,I think civil society is concerned. So much is happening in our country,there are paradigm shifts taking place in how we work our economy,how we look at our institutions,of governance,greater transparency,greater accountability,democracy is maturing…so a whole lot of things are happening.

If you see,say five of these prominent judgments,besides the ongoing trial of the 2G case: there is now a note of admonition about the executive…court utterances and judgments. Second,there seems to be widespread,popular endorsement of that note of admonition. Oh finally,at least somebody is calling these guys to account.

This is sometimes because the media picks up a straight comment or even,for that matter,something that is obiter dicta,which means it’s not a binding part of the judgment. But picked up by the electronic media,presented to the country as something that is startling,remarkable,dramatic. There are many judgments that have gone extremely far in the past that have not had the same kind of attention.

I am talking specifically of the tone of admonition towards the government. ‘We are fed up,we are tired. You are not serious about fighting black money…’ You know,at least two of the judgments are revolutionary literature.

There are articulations of something that we have heard in our own party. Of course,this is somewhat more of an expert articulation because judges and lawyers are good at articulating what they want to say,but in our own political party we’ve had disagreements between people who’ve said this is a law and order problem and people who’ve said no,this is a problem about ordering our economy,that we have lost sight of those nodal points of our economy that need attention. So we’ve had this tension within our party.

It’s one thing to have debate in the party and it’s one thing for the court to lay it down like an agenda and a judgment.

I agree and that’s the reason why I’ve often said that we have this special problem in India. This doesn’t happen in the US,it doesn’t happen in Canada,it doesn’t happen in the House of Lords of the UK that what we get is ultimately one bench of the Supreme Court…

Two judges?

Two,three,perhaps…sometimes even five. But the judge,the judgment,is coming from a part of the court. The court itself is 31 judges. We never really get to know that the collective Supreme Court has changed its view or is now articulating something different. Of course,the internal discipline of the court requires that if two judges have said something,the other two will continue to follow it,unless of course the Chief Justice has been persuaded that a larger bench should reconsider it. And that happens all the time. Five judges reconsidered by seven,seven reconsidered by 11. Now we had the minority educational judgment that was given by 11 judges. And that was a unanimous judgment. But within months,you had another five interpreting it and then another seven interpreting what the five had done. You see,these are the dynamics of the Supreme Court that we have to understand.

Do you need to change it or reform it?

The trouble is that the clock has travelled too far for us to put it back. Now,which is the way in which this can be done—I think you need a very intense dialogue with the Supreme Court itself. And we have to talk about amongst ourselves. Should we have a court of appeal? And a Constitutional court? Should we have a larger court looking at some cases? The SLP,the Special Leave Petition…each judge or each bench having to handle 70 of those every Monday morning and every Friday morning I think is cruel. It’s cruel to the litigant,it’s cruel to the system and I think it’s cruel to the judges. We’ve just got to give them quality judgments to give on quality issues.

Now that corruption is the flavour of the fortnight,corruption of the judiciary…we know that you’ve spared them from the ravages of the Lokpal Bill. But corruption in judiciary? Is that something you don’t talk about?

See,there is a problem in the judiciary and we’ve heard some very senior judges talk about it. Retired judges,serving judges have talked about it. And obviously it’s a matter of concern. But you know,you don’t know throw the baby out with the bathwater. If one judge makes a mistake,you can’t condemn the judiciary. And all we therefore urge is that if one of us makes a mistake,don’t condemn the entire political class.

If you look at the 2G case,even those who are not accused of Prevention of Corruption Act offences are being denied bail.

As far as the 2G cases are concerned,they are sub-judice. We will have a chance to articulate our position,we will have a chance to analyse it. The matter is still very hot. Chargesheets are being filed,charges are being argued.

Some of the media trial business also happens because the judicial process is so slow. So a feeling has grown that if you’re rich and if you have the connections,you can delay judgment for so long that it’s over.

Now,there may be another feeling. There’s a feeling that if you’re rich,you could be punished even if you’re not in the wrong. It’s this cry for blood,let’s have blood is something that has to be held back by the judiciary. Because ultimately,in a matter of rule of law and in a matter of constitutional democracy,it has to be the judiciary that is the final safeguard.

You know,Salman,it’s the same frustration,seeing crooks get away with everything,seeing the scale of scandals becoming larger and larger,that’s got the middle-classes so angry. They’ve become the lynch mob that descended with Jantar Mantar with candles a few months ago. Genuinely angry.

Yes,I take that point. They were genuinely angry,genuinely concerned. But I’m not willing to accept that they were very well-informed. I think that we need a more transparent debate in this country. What did the kids who opposed the Vietnam War in America do? And where are they now? You changed the United States of America and its politics because of the agitation against the Vietnam War. But they went back to their fundamentals and said we believe in our fundamentals. My own worry is that if this discourse takes us to questioning the fundamentals of Indian democracy and our Constitution,then it’s worrying. And this is the reason why the government has taken what I believe is an extremely principled and pragmatic position: Which is that we want to clean up,we are willing to be transparent ourselves. To make ourselves accountable. But you know,to throw everything into the purview of one particular organisation or one particular institution,because if that institution went wrong,it has no history,it’d been newly created and if that went wrong,then everything is gone.

If I read your thoughts correctly,your basic disagreement with the civil society’s Lokpal Bill was that it was creating an institution with overriding powers over every other institution. A Mr India?

But this was not civil society. This was one section of civil society. We’ve had some very responsible civil society people come to us and say we disagree with what they are doing. We don’t necessarily agree with everything you are doing,but we do agree with some of your basic principles. Why don’t we debate this more openly? Why are we threatening each other? Ultimately,we also have public support.

Is there anything in this draft or anything in the fact that the Bill is there for which you will give credit to Anna Hazare and his team?

The irony is that I am saying repeatedly that ‘had we not talked to you,perhaps the quality of our Bill would have been nowhere near what it is today’. So I’m saying take credit and they say we will not take credit.

How will you handle Anna Hazare and his protest now?

I would say to him that he has a distinguished career. The bottomline is that he has made a contribution. I believe that the steps that we are taking,he should judge those steps with a sense of dispassionate belief that the government elected by the people of this country is not going to go out of its way to fool the people. I think it’s unfair when I hear them say we are trying to fool the people of this country.

Mera neta chor hai?

Are the people of this country so naive? Can we not trust them? If we’ve trusted them for democracy,we’ve trusted them to give the trigger of a nuclear weapon in the hands of a person that they’ve elected,we can’t trust them about the Lokpal Bill? How can we run them down and yet claim on their behalf advocacy for change in this country? Ultimately,you can’t do something that will damage the basic structure of the political governance in this country. You can try to reform it,you can try to change it,you can try to modify it,you can try to develop it. That’s what democracy is about,that’s what every election is about,but you can’t question fundamentals.

What’s your impression of Anna Hazare?

My impression of Anna Hazare is that he’s a good man caught in a vortex,a vortex of situations that are far more complex for the straightforward life that he’s led. Very,very difficult situations in which some very clever people are trying to push an agenda that Anna Hazare probably doesn’t understand. And certainly his vast experience of simplicity doesn’t allow him to absorb the challenge of this complicated agenda. This is my feeling. And I really wish that Anna Hazare would rise on the 15th of August and say this flag tells me we have come so far. We have to go further. I will give this government a chance,I will trust this government but I will be vigilant and I will watch. I think that’s the spirit that I appeal to him for.

Are you saying some very clever people have gotten hold of Anna Hazare,who is a bit naive?

I mean there are not five people on hunger strike,are there? There’s one man on hunger strike. So isn’t there a reason to worry as to why one poor man is asked to be on hunger strike all the time? I think that poor Anna Hazare has a lot to give to this country and my appeal to him is: Please,you will give,if you trust.

How would you describe the others in his team who joined you at the negotiations? Would the same description fit some of them?

I’m sorry not. I’m afraid they are very,very,very smart people. I think they are very clever people,they are very accomplished people. They possibly believe in their cause. But just because somebody truthfully and honestly believes in a cause,you can’t accept everything they are saying. Because their assumption that their cause is just and our cause is not,is not fair. I think their assumption that the fact that we’ve got elected disqualifies us is not fair.

Two descriptions: Firm and committed,rude and arrogant. Which one fits them?

Firm and committed with a question mark at the end. But this is our face-to-face contact. But the kind of things I hear on television. The kind of things I hear from press conferences,I’m sorry,I find them distressing. The sort of things that were done to run down the five ministers and the kind of things that were written,I can’t even repeat them. I feel a sense of tragedy that someone claims that they are trying to set right things in this country and they are willing to turn a blind eye to that kind of campaign.

For some reason,you’ve escaped the kind of attention that say your colleague Kapil Sibal has got from them. They seemed to have the knives out specially for him. What did you do to charm them?

Frankly,I don’t know. I said nothing to charm them. I’m only saying to them that I care and I respect what you want to do. I have a problem with the way you want to do it. But I am saying again and again,you’ve helped us see the light,why don’t you take credit for it? They don’t want to. Kapil is the one who was initially the contact point that they had. Kapil is the one to whose home they came. Kapil is the one who created the channels of communication. So why they have a disappointment with him I don’t know. Kapil has his own style. Kapil is very determined when he takes a position. And I think they should respect him for this. You can’t push people and expect them to be soft and malleable.

Transcribed by Rajkrishnan Menon