Harish Salve, 54, is the son of NKP Salve, the veteran Congress leader who was once Union power minister and also president of the BCCI. Based out of New Delhi, the younger Salve has a flourishing practice in constitutional, commercial and taxation law. He held the post of solicitor general from 1999 to 2002 when the National Democratic Alliance was in power — an office to which he had some exposure in 1980-86 under Soli Sorabjee. In this interview, he tells Ashish Khetan among other things, that as an amicus he did not have to listen to social activists. Edited excerpts:
On several occasions in the past, the Citizens for Justice and Peace (CJP) had openly expressed its lack of faith in you. Even Kamini Jaiswal stood up in court saying that because you were appearing for the Gujarat government in the Ishrat Jahan case, she didn’t have faith in you. How would you respond to that?
You must understand that I was the solicitor general who, for want of a better word, people say ‘saved’ Narendra Modi. In the Gujarat riot cases, the Presidential reference and all, I appeared. I quit in 2002 and I can say for your record that after I quit I’ve never spoken to or met Modi or any civil servant in his government or written a letter or done anything. So to suggest that I’ve promoted anybody’s interests in Gujarat is absurd. Just to remind the readers, the Gujarat government had once said that I’m mixed up with the CJP. So, I have got the flak from both sides.
Was it a public allegation?
Yes. Mr Mukul Rohtagi had said it in court that the amicus is mala fide.
On what grounds were you called mala fide?
Because I’m the one who got those trials stayed. And to my eternal regret, for three years they were stayed. People were given bail and actually the effect was quite negative. I mentioned it four or five times for hearing. Apart from that I used to tell Teesta (Setalvad) that you mention (to the chief justice) because as an amicus, I can’t push it beyond a point. When I pointed out towards appointment of public prosecutors (who were RSS members) in Gujarat, I was branded as being mixed up. I’ll tell you where differences of perception came. CJP was very keen that these cases go to the CBI. While I felt that the CBI probe will only politicise the issue. Even if they did a marvellous job, Modi would say that the Centre is trying to influence the investigation. I told the court that let’s try a Special Investigation Team. But the CJP said, “You are not listening to us.” I said I am the amicus and I don’t have to listen to you. That’s where the differences started.
Do you see a conflict of interest when you represent the Gujarat government in a case where the government and its police stand accused of a false encounter, that is, Ishrat Jahan’s false encounter and at the same time continuing as an amicus in the riot cases where the Modi government is itself a suspect?
In so many big cases we appear for a client and the next day we appear against the client. The court respects our objectivity because we are able to delink from the situation and are able to deal with matters.
So the brief of the Ishrat Jahan case doesn’t hamper your impartiality or objectivity in Gujarat riot cases?
I would be happy because I don’t think that any human being should assert that he knows everything. If somebody points out where I’ve gone wrong, I will be happy to correct my ways. But if you say that I am being partial to Modi because of one brief in which I’m getting a fee that will be paid as and when the government pays its fee — I cannot lose my objectivity for that.
But isn’t all this interconnected? It all boils down to the core issue of the persecution of Muslims in Gujarat.
If I’m appearing for the Gujarat government I’ll make sure that if I feel at any point of time that the investigation is not right, as an officer of the court, I will tell the court that I’m not satisfied.
And you will quit?
I’d not only quit, I’d get the court to direct them.
But so far you are satisfied with the genuineness of the Ishrat Jahan encounter?
I appeared once or twice. I don’t know what happened after that. I think the case is over and has gone to the Gujarat High Court.
Also the CJP has time and again levelled the allegation that you have not paid heed to their grievances against shoddy investigation by the Special Investigation Team?
I’ve received all their emails. They made a lot of complaints about the SIT. I called the SIT officers and spoke to them. I spent hours with them despite being severely ill — I had a bad vertigo attack. You can ask (SIT chief RK) Raghavan that I spent 14-15 hours personally calling each officer and telling him that these are the allegations against you. Now tell me what you have to say. They gave their response but I said this is not good enough. Give me the record. There were still eight or nine objections that still remained. The Supreme Court appointed SIT member AK Malhotra. He investigated all those allegations and gave a report.
Are you finally satisfied with Malhotra’s report?
Let me tell you honestly, I don’t have the sense to say whether A is right or b is right. Can I go and investigate? I can’t. The CJP says this has happened. SIT says this has happened. You place both before the court.
But as an amicus what’s your view?
As an amicus I have to go by what the SIT tells me. Because I don’t have another way of finding out. Because there are sharp differences. But yes, I don’t agree with the CJP allegation against Raghavan. I think he’s a fair officer. I have trusted Raghavan and I have no reason to believe that he has betrayed the trust of the court or mine. But tomorrow it may arise that I’ve been taken for a ride.
‘The Gujarat government had once said that I’m mixed up with the CJP. So I’ve got flak from both sides’
But then questions arise about the efficiency and competency of the investigation. Are you satisfied on those counts?
What little I’ve seen — and I use the word a little deliberately — so what little I have seen, or what little I’ve interacted, I think they have done a pretty thorough job. Beyond that I can’t certify any police force in this country.
It’s the same SIT that investigated Naroda Patiya and Gulberg cases, and they did not find anything against IPS officers MK Tandon, PB Gondia or Gordhan Zadaphia. Now when the new inquiry officer Malhotra probes he finds that there was deliberate dereliction of duty on their part and they manufactured false FIRs at other places to justify their absence from Meghani Nagar and Naroda. So how do you reconcile those contradictions?
You are right. There were lapses in their investigations. Was their investigation perfect? No. That’s why I’m saying: what I’ve broadly seen is correct. Has every criminal been brought to book? I’m not willing to certify that and I’ve told this to the court.
‘Look at my level. My two biggest clients are Ambanis and Ruias who have huge interests in Gujarat’
As amicus, how did you push Raghavan and his men further?
We went through the SIT reports. I identified 10 or 12 points in a note that is not in the public domain and gave it to Malhotra, which he investigated. My big fear is that there is a nuance in criminal law. Beyond a point, if the Supreme Court makes any comment on the quality of the investigation, it will only result in acquittals. Because if the Supreme Court says the investigation is bad, the best argument of the defence is that the investigation is shoddy. So we have to walk the tightrope.
The investigation is shoddy to the effect that small fry have been caught, while big fish were let free.
I have sat with Raghavan more than once and said, “Raghavan, what is this going on?” I’ve told them (victims) please show me concrete material against anybody and I will make sure that they are punished. But unfortunately no concrete material has come so far.
There was concrete material against Tandon and Gondia but the SIT recommended only departmental action instead of criminal proceedings. Why?
I was the one who flagged the issue. Malhotra got into this issue after I gave a note. Action is being taken now.
An email trail shows that you wrote to Tushar Mehta forwarding business proposals of Kishore Lulla of Eros Energy to Modi’s office.
Kishore lulla is a friend. He was investing in something, he was invited by the Gujarat government. he asked me, do you know somebody? I thought it was a good proposal. I told Tushar these are good foreign investors. I have sent a lot of foreign investors to Gujarat but have never recommended anyone.
Tushar had once told me that they were looking for investors in solar projects. So if I remember correctly, Lulla was going to Rajasthan. He came to ask for my opinion. I sent him to Gujarat. beyond that I know nothing about it. I have not spoken to anybody. And I have not received a rupee in the whole process.
Look at my level. My two biggest clients are the Ambanis and the Ruias, who have billions of dollars of investments in Gujarat. If that is not going to sway me for Gujarat, then a small silly thing like this can’t sway me for Gujarat.
But isn’t there a conflict of interest? You are an amicus in a high-stake case where on the one hand, there are poor riot victims and on the other, the powerful CM?
If I have taken a rupee then you could say that I have a conflict of interest. Look, if I wanted to help lulla I would have forwarded the proposal to Arun Jaitley, who is a dear friend. I could have called the chief secretary of Gujarat and sent it to him. Why would I send to Tushar Mehta?
Do you see this as a case of impropriety?
If I was financially interested, yes. If I had gained from it, then yes.
But how will a common man know that you have not gained from the deal?
Because I’m telling you. I can see you are a fair person by putting this before me.
But that’s your word against someone else’s word?
I have never ever spoken to a civil servant or to the chief minister. Kishore Lulla is a friend and I am not on the board of his company, neither a director, nor my name is mentioned in the project. He just told me that he is investing in Gujarat besides four-five other states. I had just asked Tushar to help him out.
And Modi is not Gujarat. There is a state and there is a Modi. I am appearing against Modi and his government’s misdeeds. I’m not appearing against Gujarat. If a project is good for Gujarat I will again direct it to Gujarat. If you can show that I have received one rupee from this I will leave this profession and go.