Whose amicus is Harish Salve?

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Can the renowned lawyer do justice to the 2002 Gujarat riot victims while referring business deals to the Narendra Modi government? Ashish Khetan has the evidence of impropriety and conflict of interest

 Harish Salve
Legal eagle Harish Salve has a an enviable clutch of corporate clients
Photo: India Today Group/Getty Images

THE SPECIAL Investigation Team that was formed by the Supreme Court to reinvestigate the Godhra riot cases has long since failed its mandate. It has been unsuccessful in nailing the senior functionaries of the Gujarat government while being content with the cosmetic arraigning of a few inspectors and VHP members with the sole exception of the arrest of BJP MLA Mayaben Kodnani.

It has been left to Zakia Jafri, the 72-year old widow of former Congress MP Ehsan Jafri — who was butchered by a riotous Hindu mob — and a few human rights activists to doggedly pursue the riot cases in the Supreme Court.

Senior Supreme Court lawyer Harish Salve has been the amicus curiae — in simple words, friend of the court — in the petition which resulted in the re-investigation of nine major Gujarat riot cases including the massacres of Naroda Goan, Naroda Patiya and Gulberg Society in Ahmedabad where more than 200 Muslim men, women and children were hacked and burnt to death.

In India, while handling cases of extreme public interest, the courts have often appointed senior advocates with impeccable integrity as amicus curiae. The job of an amicus is to assist the court with objective and impartial analysis so that justice is served and public interest prevails.

In his capacity as an amicus for the past eight years, Salve has been assisting the court in finding the truth of the Gujarat riots. It was Salve who, along with the counsel of the Gujarat government, finalised the names of the police officers who were appointed SIT members.

After the SIT was formed in March 2008, Salve has supposedly been scrutinising the SIT investigation and advising it on how to proceed further and nail all the culprits. At the same time, Salve he has been guiding the court on the question of the fairness of the SIT probe and the further investigation required.

Over the past two years, the victims have been petitioning the court that the SIT had failed to book senior state government functionaries on whose watch the riots had taken place. In the case of the Gulberg Society massacre, for instance, the SIT held an inspector responsible for the deliberate failure of the entire police machinery, while recommending mere departmental action against senior police officers of the rank of joint commissioner and deputy commissioner.

The complainants told the court that the SIT had failed the cause of justice and thus should be disbanded and a new investigation team should be formed. In fact, the apex court has become the repository of all the hopes of the riot victims, and if they lose faith in the amicus curiae, justice might not be seen to be done.

Citizens for Justice and Peace (CJP), a Mumbai-based advocacy group and one of the main petitioners before the Supreme Court, had complained that Salve had not heeded their complaints of shoddy investigation being carried out by the SIT.

On 9 February 2010, senior Supreme Court lawyer Kamini Jaiswal, appearing on behalf of the riot victims, told the Supreme Court that she had no faith in Salve as an amicus. She pointed out that Salve, besides being an amicus in the riot cases where the Gujarat government is a suspect, had been appearing for the Narendra Modi government in the Ishrat Jahan encounter case (in which a teenage girl from Mumbai was gunned down by Gujarat policemen under suspicious circumstances) defending the tainted policemen before the apex court.

If the victims of the riots lose faith in the apex court’s amicus curiae, justice will not be seen to be done

Jaiswal said it was a clear case of conflict of interest as all these cases were interconnected as they were all related to the persecution of Muslims at the hands of a communal government and the absence of a constitutional rule for minorities in Gujarat.

But the court overruled Jaiswal. The three-judge bench of Justice DK Jain, Sathashivam and Aftab Alam said, “It’s not your faith which matters. We have full faith in Salve’s impartiality.”

As a result, Salve has continued to be the amicus. Interestingly, before the same bench, the Gujarat government had objected to senior civil liberties lawyer Prashant Bhushan holding the post of amicus in the case of Ehsan Jafri’s wife Zakia’s complaint against Modi.

If the victims of the riots lose faith in the apex court’s amicus curiae, justice will not be seen to be done

The government had pointed out that in the past, Bhushan had criticised the chief minister for his failure to control riots in newspaper columns and thus as an amicus he could not be impartial and objective in the probe against Modi. Bhushan had subsequently recused himself.

TEHELKA has dug out a string of emails between Salve and senior officials of the Modi government that show Salve had routed an ambitious business proposal of a major company to Modi’s office.

On 27 April 2010, Salve received an email about a business proposal of setting up two 50 MW solar power plants in Gujarat from Eros Energy, a company promoted by London-based billionaire Kishore Lulla, whose family fortune was pegged at £206 million by the Sunday Times Rich list.

The proposal attached with the email shows that Lulla wanted 200 hectares of government land to set up the power plants. The project report was attached with a personal letter written by Lulla and addressed to Modi. It read: “Dear Shri Modi. Eros Energy, part of Eros Group, has been established to develop and operate solar power stations in India. The company is particularly keen to develop such projects in Gujarat because of the favourable investment climate.” he concluded the letter by saying, “We respectfully urge you to consider this application and allot government land as requested.”

On 28 April, Salve forwarded the letter and the project report to Gujarat government’s Additional Advocate General Tushar Mehta. Mehta in turn forwarded Salve’s email to Girish Chandra Murmu, the additional principal secretary to Modi and Sanjay Bhavsar, the officer on special duty to the chief minister.

Salve said he had not made any money on the deal and he wrote the mails in his personal capacity

ON 29 APRIL, Mehta wrote back to Salve, providing him the cellphone numbers of Murmu and K Kailashnathan, principal secretary to the chief minister, as requested by Salve. If one logically infers from the email trail it would appear that Salve must have spoken to Murmu or Kailashnathan about the project. There could be no other reason for asking the cell phone numbers of Modi’s key aides.

Both Murmu and Bhavsar figure as accused in Zakia Jafri’s criminal complaint for their alleged complicity in the subversion of justice. It is alleged that Modi had used Bhavsar’s cell phone number during the riots. Former Additional Director General of Police RB Sreekumar had alleged that Murmu had tried to threaten him into giving a false testimony on Modi’s failure in controlling the riots before the Justice Nanavati Commission.

What is intriguing is the fact that the same project report mentions that Eros Energy officials had already had a few rounds of meetings with senior bureaucrats of the Gujarat government with regard to this project. Still, to push their project further, Lulla chose to route his expression of interest and his letter to Modi through Salve.

The email exchanges clearly show that the Modi administration identified the project with Salve. While forwarding the Eros project proposal to Modi’s top officials, Mehta in his emails emphasised upon the fact that the project report had been forwarded by Salve.

No support Retired Justice PB Sawant says Salve’s actions amount to corporate lobbying
Photo: Shailendra Pandey

One could argue that Salve was lobbying with Modi’s office for a corporate company and the government would have been only too pleased to oblige Salve who holds the important office of amicus curiae in the riot cases where the Modi government stands accused.

Eros Energy finally got the clearance and the required land to set up a 25 MW power project. Speaking to TEHELKA on the phone from London, Lulla said, “We have got the land to set up a 25 MWpower project in Gujarat. I don’t have all the details. I will ask my CEO to call you and provide you the full information.” however, the CEO never called.

In his defence, Salve told TEHELKA that he had not made any money from the Eros deal and the mails he wrote were in his personal capacity as a friend of Lulla.

He said that one should not make too much out of his email exchanges with Modi’s top officials as he had routinely advised his friends from the corporate world to invest in Gujarat. Salve asserted that Mehta had asked him to recommend foreign investors interested in setting up solar power projects in Gujarat and that’s the reason why he referred Lulla to Mehta.

But Salve’s claims are belied by the fact that Lulla’s project report itself mentions that his company had already had a few meetings with Energy Secretary DJ Pandian and Gujarat Energy Development Agency CMD VH Buch on the subject, before Lulla chose to route his request to Modi for land allotment through Salve.

Several profound questions on the subject of legal ethics and propriety arise from this.

Why did Eros Energy have to route their letter to Modi and the project report through Salve when they were already in touch with the Gujarat government?

Does this act of Salve not amount to corporate lobbying?

Should Salve, who is an amicus in one of India’s most critical cases, which involves the struggle for justice of thousands of riot victims against a powerful chief minister and his entire government machinery, send business proposals to the same chief minister who stands accused?

Could Salve have been fair, impartial and objective in his analysis of the SIT investigation into the Gujarat riots while recommending corporate deals to the Modi government?

Doesn’t this cast a cloud of suspicion on Salve’s submissions to the Supreme Court on the SIT investigation?

Doesn’t this revelation give credence to the riot victims’ allegations that Salve had condoned the shoddy SIT investigation and had gone soft on the Modi government?

A few legal luminaries, speaking to TEHELKA have strongly condemned Harish Salve’s conduct.

Retired Supreme Court Judge PB Sawant said that it would be highly unethical and untenable for Salve to continue as an amicus after this exposé. “If the email exchanges cited by you are true then in my view it amounts to corporate lobbying,” he says. “The court had appointed Salve to assist the judges. But corporate lobbying will make people doubt his impartiality and objectivity. He must resign and I’m sure he will do that.”

Noted civil liberty lawyer Shanti Bhushan said, “The email exchanges show that if this corporate entity had not gone through Salve, their business proposal would not have got the preferential treatment from the Gujarat government. Salve should have realised his delicate status of an amicus in a case involving a profound cause of justice. His conduct is clearly not in the keeping with the high traditions of amicus curiae.”

Many other senior lawyers contacted by TEHELKA refused to be drawn into the controversy, citing their acquaintance with Salve.

Arun Jaitley, leader of the Opposition in the Rajya Sabha and a distinguished lawyer himself, said, “Since I don’t know the merits of the case, I would not be in a position to comment. But I can say that during my tenure as law minister, Salve was solicitor general and I always found him professionally independent and apolitical in his functioning as a law officer.”

Given the political context, the issue is poised to generate a heated debate in legal circles in the coming days.

For the past two years, NGOs representing the riot victims have been severely critical of his role as amicus

THIS IS how the Eros Energy deal played out. On 27 April 2010, Daniel Coyle, a senior official of Eros Energy, wrote to Harish Salve on his email id [email protected]: “Dear Harish. Please find attached a letter from Eros Energy to Shri Narendra Modi with an expression of interest document outlining our plans for Gujarat. Best Regards. Daniel.” The mail was copied to Kishore Lulla and Eros Energy Group CEO Sean Hanafin.

On 28 April, Salve forwarded Lulla’s project report and his letter to Modi to the Gujarat government’s Additional Advocate General Tushar Mehta on his email id [email protected] He wrote: “Dear Tushar. Attached is a note on the solar project. Best wishes.”

On 29 April, Mehta forwarded Salve’s email along with Lulla’s project report and letter to Girishchandra Murmu, the additional principal secretary to the chief minister, on his email id [email protected] He wrote: “Dear Shri Murmu. Please find enclosed herewith a letter sent to me by Shri Harish Salve along with the project report of Eros Energy. Regards. Tushar Mehta.” Mehta wrote this mail at 10.02 pm.

Within four minutes, at 10.06 pm, Mehta emailed back to Salve: “Dear Shri Salve. As discussed, please find the mobile phone numbers of the following: 1. Shri K Kailashnathan, IAS, principal secretary to the chief minister, 9978406003. 2. Shri Girish Chandra Murmu, IAS, additional principal secretary to the chief minister, 9978406119. With Regards. Tushar Mehta.”

Further to this email correspondence, on 4 May 2010, Mehta forwarded Salve’s email along with Lulla’s project report and letter to Sanjay Bhavsar, officer on special duty to the CM, on Bhavsar’s email id [email protected] He wrote: “Dear Shri Sanjaybhai. Kindly find herewith the mail received from Shri Harish Salve. Please do the needful.”

The same day, bhavsar wrote back to Mehta: “Dear Sir. Received your mail. I will reply you shortly (sic). Thanks.”

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