Interview with Justice Srikrishna: The Constitution and the Secular
Duration: 00:44:11; Aspect Ratio: 1.333:1; Hue: 19.059; Saturation: 0.337; Lightness: 0.214; Volume: 0.100; Cuts per Minute: 0.045; Words per Minute: 155.197
Summary: Interview of Justice Srikrishna, who headed the famous Srikrishna commission that enquired into the anti Muslim communal riots of 1992-93 in Bombay. As part of chronicling the contemporary Bombay this interview was taken fifteen years after the riots took place. Meanwhile the report got published and hailed as a legendary document to uphold the spirit of the Indian democracy. Unfortunately the government is yet to act upon the report and punish the Hindu bigots. When the commission was formed by the government in 1993, Justice Srikrishna, the head of the commission became the centre of controversy. The civil society who had lost all faith in the political will of the government to uphold the rights of the minority publicly expressed their distrust about the commission. Justice Srikrishna’s public display of his faith in Hindu religion also made some people suspicious about his credibility to enquire into the large scale violence perpetuated by the Hindu bigots. Ironically, the Hindu right wing forces such as BJP and Shivsena too opposed his candidature on the ground that he was not a ‘son of the soil’. Through various ups and downs the commissioned worked for 5 years and brought out an extensive report underlining the menace of communal violence and state inertia.
For more detail see Shrikrishna Commission Report –
www.hvk.org/specialrepo/skc/skcch1.html.
Interviewer Flavia Agnes and Madhusree Dutta. Shot by Rrivu Laha.
Flavia Agnes (FA): So today you are known as the icon of human rights and secularism in the country. What does it feel to be known like that?
Justice Srikrishna (JS): I didn't even know that I was known like…..as the icon of all this……I don't know. People give me all kinds of labels, this is one more label. They say, if the cap fits, you wear it.
FA: What do you personally feel about it?
JS: Well, if it's really a label given to me by people who understand things about human rights and secularism, I'm happy that they consider that I'm qualified to wear that label.
FA: Now 10 years are over since the Srikrishna Report. Looking back, what do you feel about the report itself and the years that you spent on the Commission?
JS: Five years of my life I spent, on doing the work of the Commission
i.e. from '93 February to '98 January, I created the report.
I have no regrets. 5 years of my life, I would consider it an education for me. Apart from the fact that it was some kind of catharsis for the society itself. The whole purpose was to hold a mirror to the society and say- hey look, what you people are doing is wrong and why it is wrong.
That it was not politically acceptable to the powers-that is an unfortunate thing and I feel sort of justified when I look back at what had been said in the report about the genesis of terrorism; why terrorism is bred. Because when people in society get a feeling that the state is not going to look after them and the state is not going to help them in troubled time, give security, naturally they will look outside. If you examine the history of the country also, you will see the same thing, the same pattern repeating again and again and again. And, people outside the country are waiting…..to come in and provide arms, and provide muscle power and provide all kinds of dangerous implements for them to disrupt the fabric of the society.
It is unfortunate that people don't learn from history. History doesn't excuse people who don't learn lessons from it.
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Home of Justice Srikrishna, Matunga
FA: Ok, when you got chosen to head the Commission, what is today known by the name Sri Krishna Commission, what was the feeling at that point of time?
JS: Oh, I…..I thought sure, what it was…a feeling was I was getting into something that I didn't know about. I had a little bit of hesitation. I went back to the Chief Justice at that time who asked me to do this and said – Chief, do you think I'll be able to do this successfully because my credentials are not known and everybody knows that I am a practicing Hindu and I virtually wear my religion on my…forehead, not on my sleeve.
So…but, Chief Justice had an interesting remark to make. She said; that was Mrs. Justice Manohar who was the Chief Justice; actually she was the acting Chief Justice because the Chief Justice Manoj Mukherji had gone away for his son's wedding or something. She said, Sri Krishna, one thing is sure. Once you don the robes, you are neither a Hindu, nor a Muslim nor a Christian. You are a judge. If you have that confidence that you will be able to act as a judge, there is absolutely no problem whether you are a Hindu at home or whatever you are. And, with that confidence in me I started working. I didn't know what the work was. I started feeling my way about; step by step, interacting with the lawyers, inside the Commission, outside the Commission and the rest is history.
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FA: When you were chosen, you were a rather junior judge. Why is it that you were selected?
JS: I don't know, it one of those unexplained mysteries of history, I suppose.
You are right.
I joined the Judiciary in 1990 July… exactly on 30th of July 1990.
The riots took place 1992 December. And the Commission was instituted on the 5th of January, if I remember rightly.
I had just a year and odd, to my credit and probably my number was third from the bottom or fourth from the bottom, or something like that. But later on I learnt that a number of senior judges were unwilling to do it, I don't know. Why they were unwilling to do it, because of the political nature of it, because of the magnitude of the task or whatever.
And after all the saying is, fools rush in where angels fear to tread.
I was a fool.
FA: You feel so today?
JS: No, now I feel happy that fools also have a role in history.
FA: Do you regret it to the extent that as a judge you're supposed to give judgments, you're supposed to give orders which are executable, which are enforceable. And for 5 years of your life, you did something that you did not have the power, as a Commission to enforce or to feel or what you've seen.
So do you have regret about that part, that I did something; I gave this time, away from my judicial duty in the Commission duty and it was something with the hope that it would be subsequently enforced /acted upon.
So 10 yrs later, do you have regret on that point?
JS: No, I don't have any regrets as such.
You're right, had I continued as a judge for 5 years, probably I might have disposed of 10000 to 15000 cases easily. That was the going rate. But, I suppose the work which I had done, somebody had to do it. If nothing else; I have always repeatedly used this word; catharsis. It's a question of giving vent to the feelings of the human beings, at least particular section of human beings which feels that it is oppressed. And then it finds that there is no other avenue of escape, and then its energies will be directed towards the destruction of the fabric of society.
Instead, it gave them a forum to ventilate. Of course, they ventilated it through their witnesses, through their depositions, thought their lawyers; what they wanted to say.
At least they got a firm feeling in their mind, that there is someone who is prepared to listen to us whereas they had a total sense of despair before.
I think that was necessary that is why after that you have not had a second round of communal riots in Bombay, at least of that magnitude.
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FA: Bombay bomb blasts were the last major, of course we had recently the train bomb blasts, but not a communal riot…
JS: Riots as such, yes that is correct…..
FA: Ok, I….today when I started this interview saying that you are the icon of secular or human rights (people), but when you started the Commission, you were not so. I think one of the major challenges to the commission came from the human rights activists, secular groups, as well as your former colleagues.
Would you like to comment something on that... in fact you also should notice…
JS: No, you see at the point, it was a question of each not knowing the credibility of the others. The people's tribunal and my former colleagues who formed the people's tribunal perhaps justifiably assumed that all official Commissions are intended to do a white-washing job. So they thought that the real truth would never come out in a Commission. The Commission would just tow the state's line and bury the whole thing. And I was not sure of their credibility because I thought-and more than the credibility was what worried me was the people kept complaining that how many people are going to ask us the same question. I was afraid that the witnesses might vanish away. They would not bother to again come and depose which meant that there would be loss of avenues of truth. So initially there was some sort of friction because of that. But later on, I had a lot of interaction with all persons concerned, with all sections of society, and I was convinced that they were doing their job or they had already done their job and I should do whatever I could.
I did whatever I could.
FA: Actually, you're right. I think the same thing happened to us because we had witnesses from Behrampada which we took before other commissions and again to say - come to the High Court and depose again- it becomes really a difficult task.
I agree with you.
FA: you also had certain negative comments from Amnesty International; that the Commission is taking too long, leading a long rope, they put something in their report about that.
JS: Yes, I suppose one of the common complaints made about the judiciary is that it takes too long to arrive at the truth. But this system is such, that there are a lot …you know you are part of the…at least if not even part of the Commission, at least you are watching it from outside.
Now numbers of witnesses to be examined were about 550 or something like that.
About 10000 or 15000 documents to be closely scrutinized. And most of them in badly hand-written Marathi. That is not an easy task. I mean it's alright for Amnesty international to say it, it's not that Amnesty International might like to sit, and then say-what do you want to say, what do you want to say(snaps fingers),and then decide the matter. If I had done that, I could have probably finished in 15 days. But then, would there have been credibility?
The idea is, even if you take time; produce something that people will accept.
I'm not talking of the state that the people will accept. Now, judge from the past experiences. Have people accepted it or not?
People have accepted it. Notwithstanding the fact that the government at the stage rubbished it. Otherwise, I don't think any other Commission has produced this kind of a public reaction which has been sustained for the last 10 years and odd. Other Commissions give their reports, criticism; newspapers sensationalize it and third day everybody forgets about it. But even today, public memory keeps on repeating it, thanks to activists like you.
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FA: If I remember rightly, you even voluntarily resigned from the Commission after this report came out saying that I don't agree with this back-seat driving and of people interfering with processes which in fact defeat the very purpose. This is something you stated at that time. Busybodies interfering with the judicial processes…
JS: Yes, I still feel that I would have done that seriously. Because I had no interest in doing the Commission work. I had sort of volunteered for it. And if people were doing something in my perception tended to muddy the water and create eddies all around. I thought, ok, let me step back and you do it. Whoever wants to do the best job, let that person do the job, why should I again create a concentric circle where all kinds of people have problems.
But again, all my lawyer friends, all my judges friends, they came around and they told me- hey don't take it in this fashion. You plod in your own direction, maybe some day you will reach the goal. 5 years down the line I did reach the goal.
FA: Yes that's what… when I say icon, when I started by saying an icon of secular and human rights, it was not easy. You had to wade your way through a lot of challenges within secularism itself.
Now I want to ask about the Commission itself. Sitting there, what were the challenges you faced; from lawyers, from litigants, some of the things you've already mentioned - bad Marathi writing, people are not using the evidence etc, but the legal community, human rights activists, from which source you got strength and support and what were the obstacles?
JS: yes, the state and the police were obviously interested in hiding things. So they played the first trump card, and said all proceedings should be in Marathi which is the local language. Perhaps they didn't know that I know Marathi better than all those guys put together. Because as I say, they picked up Marathi and I studied Marathi. So I had no problem reading any document. In fact when translations were being made, I used to fault them and tell them that your translation is wrong and the correct translation should be this. Then they tried the second trick of not permitting documents to be summoned. They claimed privilege. Every document they would say, state privilege.
That was easy to deal with. Then I would say what privilege, I said c'mon give all the matter of all the privilege. I gave a long judgment and said this doesn't give you any privilege. In any case, you can't withhold a document from a judge on the ground of privilege. It is for the judge to read the document and decide. Therefore, you put the document on the table, I will decide what is really privileged document and privilege can be only on limited grounds like state security and things like that.
So, when that was done, then the state virtually had no other ground for resistance. Then they fell in line and whatever I wanted to they produced and whatever….even the military records were produced. If you remember, I had summoned the military authorities. They also put up a big fight. Then ultimately they turned around and said alright, to this extent…
Rest of the thing I said, ok…I don't want to make any public disclosure because it involved defense secrets, keep them away. So, I did not have much resistance after that.
And one good thing is though initially the credibility was not known, but once people had some… after let's say after a couple of months, people had some kind of confidence that here is a judge; maybe he's taking too long, but at least he's doing honest efforts to try it, let's give him a hand.
That was the sense in that everybody cooperated, even the state counsel, the police, the various organizations; I had no problem.
FA: So you got a lot of support from at least a section of the legal community…
JS: I did….
FA: …to High court bar,
JS: yes, the Bar association was there… Apart from that, there was tremendous amount of support in the media. All kinds of media, the electronic media, the newsprint media, everywhere, every step that I took was being openly discussed. And I found that the reports were encouraging.
FA: you'd read the reports and then go to the Commission.
JS: yes, everyday my secretariat would produce the copies of the reports for me to take a look at….
FA: …Before you'd go to the court….
JS: Yes…quickly glance through it…better to know what's happening because others can tell you where you falter.
FA: Yes,
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FA: And then finally, producing the report itself from the entire evidence, how long did that take and was it a very tedious task?
JS: Take a guess!
FA: I can guess the amount of documents you would have to wade through!
JS: Ok, let me tell you.
The report was produced in this very room. I had two very competent, very efficient secretaries without whom I would have not been able to do it.
15 days flat I produced the report. And I used to work non-stop. Continuously, day and night. My method of working was, I would read some of the documents, and then dictate to a secretary, for a couple of hours, then he would take time off and go and type it. Those were the days when I was probably the only one using computers,
very fast. Then the next chap would take down. And I would alternate them so they wouldn't get tired. And my…during the night, I used to do it.
Then I would feel sleepy, then I would say ok boys, now you take rest or do what you like. I'll go snooze for a couple of hours, come back.
They would go for a round, a walk round Don Bosco- my wife would ply them with innumerable cups of coffee to keep them awake. But within 15 days we had the final draft ready for signature and submitting.
FA: Did you feel insecure; did you feel that there was a threat to your life?
JS: actually, this is a question that has been asked to me by everybody.
I never felt any insecurity.
In fact the very first day, the then Police Commissioner came to me.
He sought an appointment, I said why. He said I have to talk about security issues, I said come.
Then he said, we want to provide armed security for you, how many people do you want.
I said why do I need security? Where do I see any threat, I don't see any threat.
I told him, that I believe if the good lord wants me to go, he will make me go even with the best of security because you see what happens in America, what happens in Sri Lanka what happens in Sweden, you don't have better security than them
If the Good Lord wants me to stay, despite all that, I'll still be alive. He laughed and said that is alright sir that is philosophy, but let me do my job.
I said ok, do your job. I said I don't know, you assess. You are the policeman; you tell me how many people are required to protect me.
Then they provided a black (maria?) with about 15 policeman, armed guards. They used to be around t his building at all times during the 5 years. And two plainclothes armed body guards around the clock.
The flip side of the story is, despite all this, I had a theft in my house, and the VCR was stolen, during daytime, at 2 'o' clock in the afternoon on a Saturday!
So that is the security for you.
But I never had any feeling of insecurity as such.
FA: So that is the level of security that the state actually provides.
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FA: Sir, despite being a believer, Hindu believer, you've also been labeled as a Hindu traitor
JS: traitor?
FA: Hmm(nods)
JS: What way have I….oh you mean, the label that Shivsena gave me?
FA: Yes…
JS: Oh, no it was not traitor, it was Hindu Dveshi. Traitor is something different.
FA: Hater…
JS: Hater, yes. Well, it depends on your standpoint of what is Hinduism. In fact I told Manohar Joshi once, when he was in the box, that I am a Hindu fundamentalist.
So he was a little taken aback. He said why do you call yourself a fundamentalist? It's because I believe in the fundamentals of Hinduism unlike you chaps. I also told him that I practice Hinduism because I believe that I can achieve my salvation through Hinduism, my religion whereas you practice Hinduism because you want to achieve political power in Delhi. He said yes sir that is correct.
FA: I think one remarkable thing about this Commission is that you were able to get every single authority, whether it is police authority, state authority, Chief Minister, MLA, whoever was involved, who you felt had to come and depose. I think that is one of the strengths of this Commission. How did you manage to do that?
JS: I don't know….i mean, probably my credibility was good. They thought, that ya, this is a judge who will hear us and then decide what he wants to. Though for political purposes they kept on saying Hindu Dveshi (enemy) and all that---and they also said, even. Either Bal Thackeray or Manohar Joshi had given a statement to the newspapers soon after the report was published. He was asked, and what do you think about the report?-The report is biased against us. Have you read the report?
No, I have not read the report, but I know the report is biased against us.
FA: that is usually the politicians' stand. They always know before they read.
There is this quote- I don't know whether you said it or whether it is said about you.
"Thou shalt honour Judicial Probes"
JS: "Thou shalt honour Judicial Probes"…hmm.Yes, I suppose that again depends on who the judge is, what is credibility, what his method of probing is and what does he intend to achieve by the probe. If all of them are above ( ), I agree-Thou shalt honour…
In fact I have always felt, in fact I have voiced it so many times that the Commission of Enquiry Act needs to be re-engineered and brought on par with the Truth Commission Act in South Africa where the finding of the Truth Commission is binding on this Government. Of course, for some reason, our governments have never accepted it. They keep playing this as some kind of a tool…convenient. If the report is convenient, they will accept it. If not, they will rubbish it. O f course, let's see what happens.
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FA; When we say Sri Krishna Commission or when we say Sri Krishna's Commission Report, and thereby an iconic image of yourself; in recent times, or for along time I should say, the Commissions reports in fact have been subservient or subordinate to the political will of the ruling party.
JS; See that is because what the politicians do is, basically under the act, a Commission is established when an issue of definite public importance has arisen.
When that arises, the government is answerable to it. So the questions are asked in legislature. The best way to shut up the questions being asked in the legislature is to say; oh we have asked a judicial enquiry to be heard.
Then they use the phrase subjudice very liberally without understanding what is the meaning of the word sub judice. Fine, then the Commission takes its own time depending on the amount of work to be done. Maybe a year or 5 years or like the Babri Masjid Commission, it's still going on and on and on and still further extensions are being asked for.
During that period no questions will be asked in the legislature, because the moment question is asked, they will say, no no… matter is before the Commission.
After the Commission gives the report, if it is convenient, the politicians are very happy because the Commission has played into their hands. If the report is inconvenient, they'll rubbish the report and say that the Commission's report is not binding on us legally and we don't call this as correct and of course they can always call the judge a Hindu Dveshi (enenmy) or something of that sort and get away with it. They have always played with it as a tool. It's time that people really looked at it and gave some teeth to the Commission of Enquiry Act.
FA: There has been a …sometimes, we feel there has been a political pressure on the Commission…Nanavati Commission, Shah & Mehta Commission-various Commissions. At certain points, the Commission turns and gives a different kind of report where you cannot understand the thinking that went on. Did you ever feel that kind of pressure?
JS: No, I never felt…..nobody ever dared to put any pressure on me.
FA: Never felt….
JS: Maybe people think that I am one of those mad judges who is not likely to succumb to pressure. But honestly, no one tried to meddle with my work.
FA: My last question to you is you, as a believer of Hindu religion, as a scholar of Hindu religion, and you as a judge- with the Constitution, the written Constitution, with certain principles.
How do you reconcile both these systems? A system of belief with a system of rule of law or justice.
JS: As a judge, I had taken an oath to abide by the Constitution. So irrespective of what my personal beliefs were, I had to subordinate my beliefs to the Constitutional Oath. Now, if you ask me…..first of all let me correct you. I would like you to amend that word scholar and say the word student. That's enough. I am not a scholar; I am a student, yes. All lifelong I'll be a student of Hinduism; there is no doubt about that. As an ardent student of the Hindu religion, and a believing practitioner of the Hindu religion, I have certain faiths. I follow them, but maybe it's my legal background, maybe it's my constitutional indoctrination where my religious beliefs clash with my constitutional beliefs, I allow the constitutional beliefs to override them.
Of course, if you ask me with regards to certain beliefs, you know like theological beliefs, they will never clash with the constitutional beliefs. So I have no such problem at all. But some sociological practices, if there is a conflict, I will obey the law. Whatever the law is, whatever the constitutional provisions are, I go by them. So I never had any problem. Fortunately, because of that, the result is, the orthodox people accept me as a confirmed believer in Hinduism, the legal circles accept me as a confirmed believer in constitutional doctrines. So far I have not had a serious conflict. The day it comes, I'll sort it out.
FA: I'm very happy you've not had it so far because now you don't have to have an official duty…
JS: Now I don't…I don't…
FA: So I think you've sailed through this….
JS: No, but even if I don't have an official duty, I do believe in the Constitution.
FA: Yes…
JS: it's not that, just because I cease to be a …..My oath has ceased, because I have ceased to be a judge.
FA: yes.
JS; But I do believe the fundamental principles in our constitution are required to be followed by every citizen.
FA: Absolutely
JS: And all our legal systems, I might criticize the legal system, I may criticize the constitution, but I shall abide by it as long as it stays.
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FA: I am sorry, that was not my last question, I have one last question.
You have written an article.
'Skinning a cat.'
JS: Yes
FA: About Judicial activism.
JS: Yes
FA: I would like your comments on that.
And you've been very scathing.
JS: Yes, that was an article which I wrote and believe me I wrote that article when I was sitting as a judge- people have a good escape...as long as they're in the system, they're happy with the system, the day they step out of the system, they criticize the system. I wanted to go against that.
And I therefore wrote it while I was still a sitting judge in the Supreme Court. I do believe that the theory of Constitution, separation of constitutional power still holds good. Maybe occasional forays into each others turf are justified, but there's a limit to which it can be taken. If you read the article carefully, I've said, yes, it is necessary, and I've given an example of judicial activism which saved the country and that is the theory of the basic features of the Constitution.
There is no such theory in the Constitution; if you open a book you will not find the theory anywhere. That is a pre invention of legal thinking. That is a kind of activism which is necessary.
But under the name of judicial activism, all kinds of things are being done today. The whole mechanism of public litigation has been hijacked by people who are not fit for it. If you remember, the Supreme Court invented the system of PIL, to help the inarticulate, ignorant masses. Now how many PIL's are filed on behalf of ignorant masses or illiterate masses? Most of them are done by rivals firing on each other's shoulders and some lawyer….
In fact I asked one lawyer-hey, which poor man in this country can afford to engage you people paying you so many lakhs per day. So tell me honestly who is paying your salary? Who is paying your fees?
So he said I'm doing charity work. So I said oh yeah, since when have you started doing charity. I let it go at that.
That's my take on skinning the cat. As I've said, in fact it was not, the expression skinning the cat was not mine, I borrowed it from Justice Hidayatullah that there are two methods of skinning the cat, one- the silent way, the other is the ostentatious painful way. I believe in doing it the silent way. And that is how I have done my judicial work.
FA: But among human rights activist and those secular groups etc, there is a lament over- we had an era of judicial activism, now the judicial activism is dying. There was an era of public interest litigation, now public interest litigation is dying.
And you don't subscribe to that.
JS: Subscribe to what, the lament….?
FA: The thinking…yes, the lament.
JS: See that lament is because history always comes in cycles. Whether it is the economic boom or the economic depression. There is always a boom, there is always a depression. If you look at the history of the Indian Supreme Court, the first twenty years was extremely conservative judiciary. 1950-1970.
Then came the 1980's where the judges went all out. Particularly the post emergency period. The very same judges who contributed to the emergency by buckling down during the emergency suddenly became fulsome praisers of the democratic spirit. So it was maybe some kind of expiation on their part, to lean backwards. All this shows that I personally believe that a judge has to have some centre of gravity rooted in thinking on the constitutional principle. Now yes, you have to have the narrow path, tread the narrow path, occasionally you pick up a flower from the meadows. But if you deviate from the path, you are not in charge. Then you're a politician.
That's my thinking on that. And so, whatever can be done, let me give you another example, it will be very interesting.
Because I have cited this so often.
You have a four lane highway or a 6 lane highway. There are lanes marked.
It's possible for you to shift from one lane to another. From the slowest lane to the fastest lane. but if you try to shift over the median, you crash. That's precisely what should not be done.
FA: ok sir,
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Madhusree Dutta (MD): What you would have become if you were not a legal practitioner?
JS: You really want to ask that question??
(laughs) Ok….
MD: Since you had so many options…
JS: I wanted to become a teacher, I think. A teacher of languages, I think. I'm very fond of languages.
Any language. I love reading, analyzing the language, understanding its cultural roots.
MD: You just now said that if my mother was the Prime Minister, then I would have been a Prime Minister. Have you become a lawyer because your father was a…
JS: No! No, there is a big story behind that.
Ok… My father did not want anyone, except the first born, nobody else to be in the profession. And my elder brother steadfastly refused to become a lawyer.
He became an engineer.
The next one is a very silent type, my father didn't persuade him to go into law, and he became a chemical engineer. Sorry, a metallurgist.
I am the third. My father thought, and till his last days, that the only intelligent people in this country are the IAS officers. So he was saying, you're too intelligent for all these, study for IAS. Somehow I had an aversion for IAS because I thought IAS was a pen-pushing job. You have to sit at one place and keep on fiddling around with files. So I said no. Then I went into physics. I majored in Physics and Mathematics. And of course in those days, it was the Bhabha (Homie Bhaba who pioneered atomic energy research in India) era. And atomic energy things were being floated about. So I finished my Bsc. -applied for MSc. and the college was about to start in July or so, it was during the month of May- vacation, we were sitting at some family dinner, discussions and all that. I don't know what, but my father made a statement-Oh it requires some kind of a special intelligence to be a lawyer. The bad thing about me is, I can never turn down a challenge.
That's why you saw the Sudoku thing there.
So I said, oh! If you can be a lawyer, I can be a better lawyer. He said Son, it's easy to talk, but very difficult to show it in practice.
I said ok. Next morning I went and joined the Law College, paid the fees, came back.
My professor from Indian Institute of Science, not Indian Institute, Royal Institute of Science kept on telephoning and saying why have you not paid the fees. Why have you not paid the fees? Then I went and told him, I have decided to change, switch my line. He was very angry with me. Poor man, he later on became the Director of the NPL. He became the Vice-Chancellor of Pune University also, at one time. So that is how I….
MD: Dr Karnik?
JS: No, Dr. Bhide….
MD: Dr Bhide….
JS: He was my professor when I was in the Institute of Science.
And... that is how I became a lawyer, not because he was a lawyer. In fact I didn't want to become a lawyer.
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Cape Town
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MD: So in all this where language has gone?
JS: Yea….
MD: The love of languages…
JS: I know but I've kept it up, you know even now I'm doing a little smattering of Japanese, a smattering of Spanish. Whenever I have time. I've downloaded a whole lot of self teaching courses on this and I keep reading them. Not that I …I don't have too much time right now, someday I hope to.
MD: So you obviously have an interest beyond boundaries, boundary of discipline, boundary of….
JS: Sure, sure…
MD: You are also a part of International Refugee Law on…
JS: yes, that came about somewhat surprisingly because at that time Justice Venkatachaliah was Chief Justice of India. And the UNHCR was organizing a seminar in Delhi and they probably, they didn't know any judges so they must have requested him and said, suggest some judges who are interested in this area. He must have suggested my name because I got a call from the UNHCR people saying that we are organizing this seminar. Please come to Delhi. And I went to Delhi, we had a long session. I think it was something about the enforceability of the economic and socio-cultural rights.
Then sometime later I got a letter from them saying that we are organizing this 7 day training course for judges in refugee laws in Geneva
Would you be interested? I said, why not? Let's go and do it.
----I have kept in touch, there is a conference coming up in end of January in Cape town. So I've decided that I'm going to attend it.
MD: So Sir, this I am asking more sociologically, because I'm not a lawyer.
So is it possible to evolve an international system of justice? And what are the logistic issues of that?
JS: the biggest problem in an international system of justice is that they have always recognized the sovereignty of each state.
Now, unless you're willing to surrender your sovereignty and subordinate to a common system, it is not possible.
See for example, in Europe, they have made it because each one of them is a member of the European Common Market and the European Commission. So all laws are subject to final appeal in the European Court. And there is a European Human Rights Court, European Human Rights Commission.
MD: Even the domestic affairs…?
JS: Yes, all laws.
Because if they touch upon human rights, they're always appealable there. Now unless you have such a system all over the world, it is not possible.
For example, all International court of Justice, the first question that is always raised is jurisdictional. Saying that you have no jurisdiction in the matter. Unless you surrender jurisdiction, you voluntarily submit your jurisdiction, they cannot do anything.
MD: And especially in terms of refugee. People's rights of movement and people's rights of sovereignty, the border issue. So here the strong state and the weak state….
JS: You know something…..you know something…India has steadfastly refused to sign and subscribe to the Refugee Convention.
The United Nations, there is a…You are aware, that whenever United Nations passes a particular resolution, treaty has to be entered into between the various parties and the various states have to subscribe to, agree to it.
Our country has not….
Very interesting.
MD: What is your comment on that?
JS: In fact I wrote a paper in one of their sessions and I said- of course I defended my country; being a loyal subject of India, I said what you chaps are doing with the help of the convention we are even otherwise doing by exercising our constitutional rights. That is a published paper.
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MD: But was one of the worry from Indian side is that it will be bulldozed by stronger states or it is….
JS: No, the worry is not that… The worry is that India may not be able to afford it. Because it requires a massive amount of funding and that too probably in hard currency. At the point of time when these issues arose, again the basic issue is how much of your sovereignty are you willing to surrender. Because the moment you sign a convention, convention means I am submitting to your jurisdiction. That, who knows, down the line they might…
For example, for a long time even the CEDAW, India hadn't subscribed to. If you remember, Vishakha Judgement, even at that time, there were so many clauses on which India had reservations. They had signed it but they had reservation on that and that is why the Supreme Court had to ram it down the throats of the legal government.
MD: So these days it is happening more and more. It was always there. That one sector's right is clashing with another sector's right. I mean it is often happening.
With the globalization, with every economic change… say copyright, this whole digital and internet has brought so much complication.
So how does a Constitutional and legal system cope with these things when one sector of the subject is clashing with another sector of the subject?
JS: Look as a sociologist and a student of sociological evolution, conflict resolution has always been a major issue in all societies. You go back to the cavemen days.
One woman was wanted by two men, what would they do? Beat one, take away the woman. That was one method of conflict resolution. And then we decided, we can't be cavemen, let us argue it out in a better manner. So better councils were there. Then you had these local councils, these local elders sitting together and solving it out. Then the local panchayats. Somewhere along the history, the British came to this country and we found that their legal system was forced on us for a period of three hundred years or so. So now we 've become accustomed to it. Now, there is always a method of conflict resolution. One thing is sure- I can stretch my arm or swing my arm only to such an extent that I don't punch your nose. That is the principle. So where to draw the line is a matter for society at any given time.
Maybe it will give me a longer arm; maybe it will give you a shorter nose. But it will resolve the conflict. It's a matter of adjusting conflicting interests.
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MD: Yeah, I'm just saying as a practitioner, because you've also practiced - do you feel that the situation is changing too fast because the market is changing too fast. So the _____ of rights ____ of property is becoming fluid and so the system- the judicial system is finding it really difficult to cope
JS: Yes, quite right because what has happened is, things have changed. For example, internet has totally destroyed the concept of borders and jurisdictions. Now I can sit here and my agent sitting in Africa can sign an agreement with somebody in Netherlands. Now is the contract signed in Bombay, do the Bombay courts have jurisdiction…, or my agent sitting in South Africa, do his courts have jurisdiction or the person in the Dutch courts have jurisdiction? These have all become very difficult to solve now. And I'm sure over a period of time, our legal system will also have to adapt to it - otherwise it becomes impossible.
That's possible, only thing is we are slow to adapt. We are very conservative. The more conservative we are, the more pain it is for us because when you find the change is inevitable, we change. By that time the water has already risen above your…
MD: Another change is due.
MD: Have you ever been at the receiving end of the legal system?
JS: Receiving end means?
MD: Have you ever been on the other side?
JS: No…no…
I have a simple rule.
If it is me or my family or my friends, don't go to court. Sort it outside court. Simple rule.
MD: You believe in that. Which most of the people actually believe.
JS: Yes. I've been a successful professional, I know how much of time it involves, how much of money it involves. So I always advice them, if you can sort it out, sort it out.
MD: Ok, that's it.
Thank you very much, sir.
JS: You're welcome.
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