Yeah ideas of India good morning everyone as radika said that the previous session gave us a lot to think about and this will give us a lot to debate about not just debate on stage but I think often you ask yourself many of these questions and wonder which
Side of that debate you are on so let’s start with perhaps uh what’s on our mind when it comes to the country’s courts are we a country of progressive laws with poor execution or are we a country of a lot of laws still finding their feet I’ll start with you
Gopal um I think it’s very difficult to say whether the laws are progressive or not what we do know is that we do try to regulate almost every Arena Of Human Action and we this allows politicians of different Hues to be selective in what they regulate they regulate what they
Wish to regulate they choose choose not to regulate what they don’t want to regulate and allow it to be ad hoc so I feel especially if I’m looking at say the last 15 20 years there has been a change from what I believe are welfare legislations like the right to education
The right to information the rehabilitation resettlement law which repealed the land acquisition act uh many environmental legislations I’ve seen that not being uh something that’s been carried for forward I would have hoped administrations would carry that forward and I’ve seen possibly a a harsher Hue with reference to CI civil
Liberties personal Liberty particularly um the enforcement directorate and its powers under the prevention of money laundering act uh many amendments that have been made since then I haven’t if you had to ask me would I find a welfare legislation I wouldn’t find one in the last 10 years but I would find perhaps
Things like this uniform civil code in chattis gar uh pmla and how it’s been operated uh elsewhere in the country I’d find many of those uh which takes care of small little uh you know contingents of people and their interests but if something is available to the entire
Country I don’t really find that with reference to health and education and things like that right so s what’s new about law being interpreted the way people would like politics using the law to soit their interests unpack this for me based on what gopal said well look I think law
And politics are in intimately connected they have to be right law is really about how Society should be regulated and politics is a way to bring that about so that Synergy that exists between law and politics is inevitable in fact necessary that’s why we have politics that’s why we have law uh they
Don’t inde independently exist with a truth of their own law has no inner morality to itself other than we can discuss that but generally no it’s just how does how should a society be organized and reflected so that of course is is is a fact that there will always be
A correlation between politics and law and if the law follows the politics of the majority at a particular time time then the politics of the minority will always think the law is a tool for oppression so there is then a tension between law and politics not innately otherwise which exists but because a
Certain person believes are those the times we’re living in well we’ve always lived in those times because politics will always differ we live in a country of 1.4 billion people we can’t all think the same neither should we right consensus and all is well and good but we don’t
Want want uniformity either so as long as differences exist it’s inevitable that law will favor one or the other side the way we see in court every day there are decisions taken one way or the other there will be winners there will be losers and that’s how law politics
Intertwines the question is are there certain and I and I now contradict Myself by saying that law in itself has no inner morality maybe that is as a social tool probably correct but as a society we have certain morals I think which are encapsulated in our constitution there I say politics and
Law have to work together to fulfill those ideas which are mentioned in our fundamental rights chapters in our ideas of socialism secularism Etc now there politics and law must work together to fulfill ideas which are otherwise unwavering and should be fixed so you know you did mention that laws don’t
Have an inherent morality but if one looks at the last few years the courts have taken decisions um or come up with rulings uh that have possibly reflected more of the public sentiment uh and sort of broken into this notion that yeah the courts are watching and there are times that the
Judiciary has seen um you know seemed to have come across as more Progressive than even public discourse now unpack that with some examples for us uh and also talk to us why do you think that is the sign of our times where it looks like courts are very powerful at the
Moment look I think to say that in the recent years the courts have been interventionist when they haven’t in the past if you leave the history of India from 1950 to about 70 aside I think from the 70s there was an interventionist era in Indian Judiciary and they’ve been
Interventionist ever since and as long as interventions have carried out there has been criticism multiple people whoever have suffered typically governments decisions of the courts have called out the government the the legis the Judiciary for being excessively interventionist so I don’t think it’s true in the last few years the courts
Have been interventionist I would say it’s the reverse if anything in the last few years the courts have been a little less interventionist than they have been in the past uh to the extent that when there are a few notable exceptions then they make headlines because uh there are notable exceptions
Uh now that could be because those judgments needed to be given I’m not necessarily making a comment but I think there is a general tendency to believe and and and I’ll call out one particular judgment the way uh gopal also mentioned the pmla and we can talk about the pmla
How that was upheld by the courts now that’s hardly an interventionist action on the part of the Judiciary the role of the Judiciary ultimately has to be to protect the fundamental rights of its citizens it’s not to do politics it’s not to make other decisions for for the
Country the role of the court is ultimately to safeguard every individual citizen of the country and when it does so it’s not being interventionist it’s only doing its job which is to do that I know in part you read out the book to us but I want gopal to poke this a little
Bit because you talked about timing and you talked about you know the many times that the courts U you know are doing their job we’re talking about a time when the last 15 days we’ve had UCC make headlines we’ve had electoral bonds make headlines can we really say that courts
And timing is not a matter of uh coincidence see as as a lawyer practicing in the courts I think we are much closer to what’s actually happening in the courts so to reduce it to a question of oh the court is playing ball with the government or the court is
Interventionist I think is meant for Twitter and social media it’s meant for people who are not getting nuanced in get getting close to it let me tell you the factors that play a role in any case and I let me tell you the Quantum of the workload as well in the Supreme Court
For example we have 16 courtrooms functioning on any given day we have on Mondays and Fridays close to a thousand cases being heard a thousand right heard and disposed of on Mondays and Fridays which are ourl now nobody is discussing those thousand cases they’re discussing the three or four cases which the media
Decides to highlight so electoral bonds is decided on the same day as say 30 other cases electoral bonds grabs the headlines because of what it deals with but the other 29 cases don’t have a political Hue attached to it or media flavor so you don’t talk about it now in
A particular litigation strategy of lawyers is important I was on the Kashmir case for example arguing against the manner of imposition of 370 right I know that as petitioners our strategy was terrible we had councils who had not prepared who addressed the court we know that when questions were put by the
Judges uninformed unread councils were giving answers which were stupid as far as our strategy were concerned judges make up their minds based on that now the person just give me a minute so the person reading the newspaper the next day when the judgement comes out says oh
This is bound to happen it’s a right versus left thing it’s a Modi government versus an anti-modi government thing it’s not that it’s actually a a suture going wrong in a surgery can mean the difference between life and death that’s what it is so the art of advocacy and
The role it plays with how well prepared you are how well you present your case how you strategize is very important so electoral bonds could have easily gone the other way if the strategy was bad if the arguing was bad if The Advocates were not up to it yeah so when you
Reduce it just to AA they’re playing ball with the government or they’re not playing ball with the government I think you make it a very basic kind of debate which it’s not it’s actually very very for public goes by perception yes and uh perhaps one would say in the last couple
Of years um you know where democracy might have left people unsatiated courts have risen to the occasion with timely news headlines like this one no yeah but let’s take an example of of of those who are for example Omar Khaled uh his bail application for three years the petition
Was pending before The Supreme Court and every 3 weeks people would talk about the fact oh look at this poor guy he’s he’s stuck in jail and nobody’s doing anything about it his lawyers allowed this matter to drag on for 3 years bail bail slps normally are disposed off in
The Supreme Court very soon 2 three months but you keep taking adjournments for 3 years and then what happens two weeks ago you withdraw the petition now then don’t blame the courts I’m saying the courts do deserve blame I’m not a huge advocate for everything that the
Courts do they make as many mistakes as everybody else does right but don’t keep on attacking the courts when as a a an arm of the government dispensing Justice arm of the state dispensing Justice what the courts do is that in 95% of the cases they’re dealing with cases which
Are under the radar but it’s some poor man’s pension it’s somebody’s land dispute somebody’s consumer issue which they’re sorting out they’re doing all that on these occasions yes obviously I mean in many of these cases we would have expected the courts to be tougher but the judges of the Supreme Court are
A reflection of the people of this country right every time you see a car accident happen and somebody lying on the street you’ll find 95 Indians standing around taking videos of it one guy will be trying to help that chap that’s the ratio of people in the
Judiciary as much as it is in Parliament or anywhere else okay I’m going to just shorten this and ask you very directly on a scale of 1 to 10 where are you on the Electoral bonds decision I think it’s a eight and a half okay so well since no one’s going to challenge
Me in this if I say nine does that matter the question is it’s a good judgment yeah right numbers don’t make a difference I suppose the Nuance for numbers between 9 and 8 and a half will make a difference to constitutional lawyers like gopal and uh because a lot
Of what a judgment decides is also speaking to the Future right so the reasoning and the rationale of the judgment is why we will give numbers it makes little difference to an average person on the street other the fact that the they feel that the court today has
Said that an average citizen has the right to know yeah where there is an interplay between politics finance and corporates the fact that corporates and politicians are in bed with each other I think doesn’t come as a surprise to anybody that’s always been the case not
Just in India across the world in fact it is inevitably so right the the problem is if there is a quick qu which there will be at least the public has the right to know about it people may say that the average person on the street doesn’t really care about the
This knowledge why are we so hung up upon it a I think that’s to undermine the intell intelligence and the intellect of the person on the street they know very well as to who is in bed with whom second as I said you speaking to the Future uh the future Generations will
Find this information it’ll be digested by by the media which a lot of you here are and will then be presented to the public and therefore the right to know that has been espoused in the Electoral bonds case is what would make it a a
Nine uh it would have been n and a half I suppose if it had come two years earlier uh I would in so so you’re saying timing does matter of course it does and so does that have a does it pay a price for transparency I mean you know
I know this primery this is a transparency effort but has it come too late it’s only partly if I me it’s only partly a transparency effort why I said 8 and a half and why I didn’t say 10 is because of this once the Supreme Court of India says something is illegal right
What you normally do is set aside the illegality that’s not been done all You’ have said is this electoral bonds is bad put up the details of all the money you took now if it was completely illegal you should direct each of these political parties to return the money
That’s why you take it all the way to 10 but you didn’t do that you stopped short so for me it’s a three quarter measure and we’re very relieved that it’s a three quarter measure but eventually you’re allowing each of these parties particularly the BJP who admittedly The
Lion Share of this to get its 10,000 20,000 100,000 crores and spend it now if it’s illegal make them return it look you were talking about timing Shelly and let me just take an example of something that deep ly concerns the Media Matters of defamation and what is called the
Musling of the press by all political parties we have multiple judgments by our courts upholding the right of free free speech the right to press is one of our most fundamental rights but that matters little when you get arrested in a small town in up Bihar Maharashtra uh and you were in custody
For a long long time months you know we think a month is not a long time even a few hours of custody for any of you or even one day’s custody will mean a lot yeah and the court will ultimately give a judgment saying that oh this is a
Violation of free speech this should never have happened but in the meanwhile you’ve been in jail for a month you are going to remember that and next time when you’re speaking out we’ll keep a bit more muted not only you but all your colleagues at in the media will say well
This guy or this woman went to jail for a month maybe it’s my turn next so as long as as the media is is not protected immediately by the courts and that’s what timing matters uh it ceases to have meaning we know we often say in law that
Operation successful patient Deb so you have a great lengthy judgment coming out uh but if there’s no substantive relief which is given immediately it renders a judgment often meaningless okay let’s just talk about the the other news uh you know piece that will remain uh around for debate as more and more
States look at the uniform civil code uh we always debate this and I think this is not new but it’s very relevant today that whether social change comes before the law or the law comes before social change my question to you is slightly different should law be involved in
Social change in the way it is in the uniform civil court the example of utarak where we are you know we’re coming down to details of how living Partners should declare uh to whatever is the nearest um you know system of registration and you know the kind of details that just question adult
Behavior and choice look there are two separate facets to what you have just said what is the connection between law and social change and then the content of the law right I think we should keep these two questions separate law as I said is nothing other than Society so to say what business
Does law have to interfere in society is is uh misconceived with the greatest respect because after all uh the idea of marriage which is a societal construct is regulated by law so law permits marriage unless you are gay uh but if you are straight then it it regulates uh
Uh marriage law regulates every aspect of society from where you drive you asked earlier about are we over legislating and under regulating well look at Indian Road for that uh answer is yes um but to come back to the question about whether law and Society are interrelated obviously right law is
A way to enforce rules that Society has decided need to be adopted law is nothing but that system of rules so obviously law and how societies govern are are connected that doesn’t mean we can’t comment on the content of that law or the decision Society has
Taken uh you gave the example of the utak civil code I personally believe and I know probably gopal does as well that it is necessary for the country some 75 years after its existence to have a uniform civil code it’s imperative we cannot have differences or difference
Laws because it typically end up being gender unjust yes but there is a lot to be said about how you bring about the law right it’s not just the end that matter matters it’s a journey so I think there’s a lot to be said about how the
UCC in utarak has been drafted and has been now brought in rather than by consensus bringing people together from a top down approach there the problem I think which also then engenders feelings of mistrust we live in polarized times already why not try to bring everybody together I mean there was a consultative
Process but it was really not very consultative but you identified the one weakness in the UCC uh of utarak is this living relationship uh concept now I cannot for the life of me understand what was going on in the mind of the drafts persons as you said it’s not law yet
What were they thinking of when they decided that this Livin relationship should be mandatorily registered without defining what a Livin relationship is yeah so you know uh we all uh think about laws and codes as our safety nets and I’m beginning to wonder keep going back to this point around morality that
Sor of talked about a little while ago isn’t this in a way throwing a bait around the idea what morality is and the qutes are Center and front with it on the UCC for example well unfortunately morality is used in the Constitution as a control it’s used in Article 19 it’s used in
Article 25 with reference to religious institutions and freedom of religion Etc just hold the mic closer yeah as as a ground to restrict the operation of any of these rights now I think the problem with that and that’s what we saw in the 377 judgment uh is that you have to show
On what basis you are uh making a law for a particular purpose the UCC for example in utak and elsewhere and this debate has always been posited as a debate effectively as far as the public is concerned that look you had a Hindu code which came in uh in the ‘ 50s and
You did nothing to ensure that Muslims Christians Etc would be on par I mean we have the Christian Marriage Act but with reference to Muslims particularly you’ve allowed them to run Riot with having four marriages Etc there’s a broad idea behind the debate on UCC but if you are
A lawmaker making the UN uniform civil code you must realize that the divisions in our community are not only gender sexual orientation for example if you have a uniform civil code just ensure that any kind of Alliance regardless of sexual orientation is also covered by the UCC the the utak uh civil court
Deals with marriages and deals with living relationships the definition of both is man and woman man and woman but not man and man not man and so for me that’s a problem you you’ve had this issue coming up again and again you’ve said that the lgbtq community should not
Be treated as criminals the next logical step is to to allow them the rights that the constitution affords them uh I believe the Supreme Court bucked the opportunity and passed the buck to the uh Parliament when this issue came up Sor argued also before that bench this was the perfect opportunity
For you to take care of that issue as well take care of it regardless of community regardless of gender regardless of so social orientation sexual orientation regardless of cast all those issues should have been covered so I think morality is something which is undefined able because each
Political group at that point of time in Parliament having the numbers will claim that what we are saying is moral the courts will interpret that and decide at some point of time that it is or it is not it took us from 1860 till 2019 for us to finally have this
Judgment come with struck 377 D in fact in in the uh present penal Court as well as the proposed new penal codes that they are bringing in there is a provision a shocking one in the penal quotes which exist even today which says that if a man entices a woman I don’t
Know how you entice women but you entice a woman out of a marriage um then that man is guilty of an offense the man is guilty the woman is just an object to be moved from point A to point B how do we have these Provisions in law even today
How is it that when you have a standing committee and Parliament says yes to this what are these guys doing they’ve taken an oath to uphold the Constitution 543 of them are voting on this and all of them say Okay champ let’s go this is a good law you had this opportunity now
I mean do these guys even read the Constitution it shocks me that you pass laws like this continuing to treat women as chattle after all these years you see just again to come back to this Old Chestnut between morality and the law uh when the Frank Sinatra song about love
And marriage which go together like a horse and carriage uh morality and and the law is is something similar really because at one point the moral the morality of the society must be reflected in its laws otherwise people will simply not follow the law if there
Is a whole series of immoral laws as we saw in Nazi Germany of course they followed it there but generally the idea is your laws should be conformed to the morality of a society for ensuring its observance at the same time you need to protect people from morality because
That same morality of society can in instances become oppressive so a a morality of a majority when it dictates to a minority that you must eat this you must dress this way you must live in a particular manner this is whom you can or cannot love that is when morality
Starts becoming oppressive and you need protection of the courts from that morality yes and yet the Constitution talks of that morality that uh uh gopal talked about which is what the courts have said that the morality we talk about is what is called constitutional as opposed to popular morality the idea
Of the values of the Constitution the idea of dignity the idea of freedom the idea that people are able to love and live the way they want to that is the morality that the courts should intervene that doesn’t mean that he so much disappointment in your voice as you
Say that because you are clearly feeling that the courts could make take that stance but they are not well uh I’m a lawyer I’m always disappointed but also optimistic uh disappointed because I saw most recently the Judgment of the marriage equality case that that was delivered that gopal referred to um the
Judges did not mely Buck the trend I think they actively hid under a rock and uh said sorry this is not for us let someone else do it yes we see the violation of fundamental rights yes we have taken a constitutional oath of office to uphold preserve and protect
People but uh we will not do anything about it uh thank you very much best of luck for the future that’s what the court said uh optimistic because they have been these five judges three of whom who ducked the uh the issue I see today hope in the young of this country
Uh I see hope in the high court judges that one goes around and interacts with and argues before across the country that they will be more receptive to the positive change that this country is seeing and needs so a mix of both I’m going to again pick a statement you said
Disappointed but optimistic is this how you feel about waiting for your appointment to come through I would remove the optimism in that part gopal I would I would can I use realistic on his behalf um well look I have a different view about uh about about Judges and their appointments Etc I personally
Would never accept what I think is an unforgiving job uh for sorab as a friend I hope it doesn’t come through for sorab as an excellent lawyer and I believe who would be an excellent judge it’s better for the institution if it does come through touching upon that disappointment that he mentioned sorab
Is not sharing the fact that the disappointment apart from being an uh Advocate is deeply personal for him right he’s got a same sex spouse he’s uh been waiting years for the recognition in this country uh he’s worn it bravely and he’s withstood years and years of criticism and gossip and everything for
What he’s done and I find find it awful that my country and my institution the Judiciary that I serve wasn’t able to take care of sorab and and his skin and I hope that someday uh it’s all very well to say Fraternity in the Preamble of our constitution but my problem
Especially with politics today and the media today is that we try to divide everything down the middle it’s this or that it’s Modi not Modi it’s Supreme Court not Supreme Court we don’t try to find the common ground where we can like take care of everybody and just try and
Look for common ground on everything I just hope one day the court will take care of the interest of sorb and his skin yeah our obsession with binaries yep okay um s just to come back to a couple of other important uh subjects like the ones that we’ve so far
Discussed is of course the whole question of whether we should re think the words in our constitution Dr Swami’s plea um the words secular and social where are you on that and please uh feel free to sort of display cander in your answer well if you see speak of nuance
That straight away distinguish the Socialist and the secular uh the insertion of the word secular in our constitution was at the same time meaningless because it is already a secular Constitution yet yet at the same time a matter of great importance because it reminds people that we are a secular Constitution uh
Words matter words mean things when you use a word it conveys an idea it’s all well and good to say that we don’t need the word secular and the Constitution because it is secular we all agree it is but when the Preamble of the Constitution the basic text the first
Few words you read of the Constitution tells you you are a secular Constitution it puts a bomb on the minorities of the country saying yes we live in a place that respects us that values our existence so I think the retention of the word secular in our Preamble uh is
Imperative socialism on the other hand is something that I have my uh differences with partly because our constitution is not a socialist document we have the right to do business and have our free trade and profession we have a truncated form of a right to property we live in a country which has
After 1990s shed the path of socialism we require political parties to make an oath of officing that I will affirm to the values of our Constitution and yet that party may be ourly capitalist and it should be that’s part of free speech right so to dictate a particular form of economic philosophy
Which the Constitution itself does not necessarily mandate there I have a problem with but I don’t think it’s for the court to stri down these words that were Ed added I have a slightly different view on this initially in 1950 our Preamble didn’t have the words secular and socialist it doesn’t mean
That we were not a secular country until the ‘ 70s when this amendment was brought into the Constitution the issue on which the Supreme Court has entertained Swami’s ple is a very narrow one it’s only that look can you insert something in the Preamble with a back
Date can you say that the Preamble when all the constituent assembly members sat together founding fathers and said this is our Preamble can you now expose Factor after many of them are dead and gone attribute to them two words which they didn’t put in the constitution in my view secular is Superfluous because
It’s there in the Constitution whether your Preamble said it or not it’s a secular Constitution I don’t think there’s a doubt about it socialism in fact should never have been inserted in the Constitution either pre or past and I’ll tell you why because under the representation of people act where
Parties are registered section 29a requires that you say as a political party that I am going to be socialist secular etc etc if you don’t say that you’re going to be socialist you’re not allowed to be registered as a political party in this country and that’s bizarre if a capitalist political party
Interested only in profit once to register itself you can’t participate in this democracy so for me I believe that yes let’s not meddle with the Preamble I don’t think you should ever have made amendments to it in the future because think of what could happen now suppose
Next year they amend the Constitution to bring in three four words which are unpalatable to you you’ve already set the trend saying yeah we can do it we can do it fair okay are you saying this one last time are you saying political parties are not capitalist good point okay I know that
Lawyers are not people of few words but I’m going to force the two of you to literally take one phrase um you know sort of test on this one uh one law that should be done away with in India the pmla okay you income tax income tax oh
My God look at that the CEOs all woke up just now all right uh the one law that um should be there in India a generic anti-discrimination law which protects rights of minorities women scheduled cast sexual minorities everybody okay in in the same vein a a Civil
Rights Act which takes care of all communities the Supreme Court Judge Anton Scalia of the US came in criticized India for not having that law after the March on Washington the fact that we never got one and we still don’t have one so at a private space you can
Discriminate on cast and stuff and nobody can do anything about it yeah okay and this is the hardest question keep it short what is your idea of India well I’ll keep it short rather like myself the idea of India to me is already embodied in our constitution the
Idea that I can be different yet feel Indian the idea that I can express myself in whichever way I want without someone else calling me out and saying hey you because you live in that way you are not Indian the right to my dignity the right to my freedom the right to my
Choice belongs with me and me alone yeah goodby fraternity include Brotherhood and Sisterhood since I’m here thank you very much both of you ideas of India ideas of India AB networks ideas of India
source
