From Harish Salve's trailblazing 2020, 10 unforgettable moments inside and outside court

That 2020 has been a year like no other is indisputable. The Covid pandemic has affected nearly all walks of human life, and this is true across geographies and across domains. In India, education, manufacturing, transport and many other ongoing and age-old activities were forced to ground to a halt, rethink and reset. The same is true of the judiciary as well, and reset it did! Not long after lockdown was declared, India's courts system went virtual, and has continued to fulfill its duty of dispensing justice unabated. Enabled by the switch, India has witnessed some truly landmark occurrences in courts, and central to a lot of them has been senior advocate Harish Salve.

The former Solicitor General of India and top legal eagle has had a stand-out year, being named Queen's Counsel for the courts of England and Wales, battling successfully for the rights of the media in India, arguing the most important cases involving some of India's mightiest corporates, coming to the aid of persons-in-need (pro-bono at times!), even as effects of his efforts from previous years continue to be felt, notably his deeply significant win for India at the International Court of Justice in the case of Kulbhushan Jadhav which has by all estimates thrown a large spanner in Pakistan's devious designs, and much more.

...not to mention his wedding with artist Caroline Brossard on October 29, 2020.

Here we look back at 10 key developments involving Harish Salve and some of the blazing arguments he made that may very well echo through time.

1. The Kulbhushan Jadhav Case

In the Kulbhushan Jadhav case, Pakistan continues to tie itself in knots in trying to circumvent the enormous victory Harish Salve secured for India at the International Court of Justice (ICJ) which had set aside Pak's kangaroo military court's death sentence awarded to Jadhav in 2017. In the most recent case hearing, the Islamabad High Court made it clear that it was its own responsibility to ensure Jadhav gets a fair trial. The three-judge bench assured the counsel for the Indian High Commission that the ICJ's verdict directing Pakistan to provide effective review and reconsideration of the conviction and sentence would be implemented. 

"Jadhav has become a pawn and a convenient tool for Pakistan to try to unsuccessfully divert the attention of the world from its own conduct which is well documented in public domain. These include state sponsorship of terrorism by including and allowing its territory to be used to train arms and finance and launch terrorist attacks on its neighbours," Salve had argued in the ICJ on February 21, 2019, just a week after the Pulwama terror attack, pulling no punches in exposing Pakistan for what it has become.

What was just as interesting to note about the hearing was the circumstances of the two counsels - Pakistan's Khawar Qureshi had under the Manmohan Singh administration represented India at the ICJ and lost in the Dabhol case brought by the Enron corporation, somehow replacing Harish Salve who was initially supposed to appear. In the Jadhav hearing as well, Qureshi had attempted a pot-shot at Salve's case, comparing it to Humpty Dumpty and 'a flimsy wall of lies'. Not only did the ICJ eventually disagree, but Salve also ensured Pakistan and Qureshi weren't allowed to get away with their jibes. "Humpty-Dumpty has no place in this court," Salve said, adding "when you are strong on law you hammer the law, when you are strong on facts you hammer the facts and when you are strong on neither you hammer the table. Pakistan has hammered the proverbial table. India has hammered facts." 

“The language echoed in this court... perhaps this court may lay down some red lines. The transcript is peppered with words such as shameless, nonsense, disgraceful, arrogant... India takes exception to being addressed in this fashion in an international court. Indian culture prevents me from using similar language," Salve had said at the Peace Palace in The Hague.

2. The Pro-Bono Offer

It has often emerged after Harish Salve's successful battles in courts for personal liberty that the Senior Advocate took on a particular client on pro-bono. He had charged Re 1 as fee for representing India in the Kulbhushan Jadhav case, late former External Affairs Minister Sushma Swaraj had memorably revealed. While representing Arnab Goswami in October-November 2020, Salve didn't even charge that much.

Similarly, on November 24, the wife of a retired Army officer had appeared before the Supreme Court as a petitioner and pleaded for the appointment of an Amicus curiae citing that she didn't have money for a lawyer. She requested specifically for Harish Salve, and in response, Salve agreed to appear for the petitioner not as an Amicus but as a lawyer. When the Chief Justice of India asked Harish Salve about it, he responded by saying, "I will appear as the lawyer. Not amicus..don't worry about the fee. It's pro bono"

When he had been asked about not charging his fee for appearing in the Kulbhushan Jadhav case, Salve had given a glimpse into his reasoning, stating simply, "When you believe in the case you do it pro bono and this was such a case. Government of India sought advice from me at the initial stage after which I researched the case and gave my advice."

3. Batting for Indian Banks against defaulting borrowers

That Indian banks and the larger economy has been imperilled by being saddled by NPAs is well known. This issue had threatened to spiral completely when the Covid pandemic necessitated an overwhelming lockdown. In response, among a raft of measures at various levels, the RBI announced loan repayment moratoriums for a specified period - which at the very outset is a double-edged sword as it aids those who cannot manage the cash-flow and repayments but hits banks very hard. Sometime later, when resulting matters reached the top court, Harish Salve represented the Indian Banks Association and urged the bench to vacate its stay on declaring assets of defaulting companies as NPA.

"Restraining order on banks qua classifying accounts as NPA should be vacated. Banks are rendered helpless against defaulting borrowers," Salve argued. The matter is now being heard at a more granular level, with specific reliefs.

4. Representing Prime Minister Narendra Modi

On November 24, 2020, the Supreme Court rejected the plea of dismissed BSF Constable Tej Bahadur against Prime Minister Narendra Modi's election from the Varanasi Lok Sabha constituency. Arguing for PM Modi in the Supreme Court had been none other than Harish Salve.

Tej Bahadur had approached the Supreme Court challenging the Allahabad High Court throwing out his petition against the Election Commission rejecting his nomination papers.

Harish Salve summed up the sequence of events: "This gentleman files two nomination papers in which in one he said that he was dismissed and in other he says he was not dismissed. He did not ask for time. The law says that if he asks for time, he should have been given time not exceeding two days." Salve reiterated, however, that Taj Bahadur had not asked for time, and hence, the returning officer had rejected his nomination papers for failing to provide a certificate issued by the EC that he had not been dismissed for corruption or disloyalty to the state.

5. The Amazon-East India Company Comparison in the Future Retail-Reliance Deal

In a matter concerning some of the biggest entities in global and Indian retail and companies run by two of the wealthiest people in the world, Harish Salve represented Future Retail Group in the Delhi High Court heard its plea seeking to injunct Amazon from interfering in its Rs 24,713 crore deal with Reliance Retail. Amazon, which is an investor in an investor in Future Retail, had managed to get a Singapore arbitrator to stay the deal, and Harish Salve argued against both Amazon's say in the matter as well as the emergency international arbitrator's decision.

"I am subject to Indian courts. If a gentleman sitting in Singapore says something, I can bin that order. It is not to show any disrespect. I’m saying that as a matter of law…," Salve argued. He also argued that the Reliance-Future Retail deal was necessary to rescue the latter from bankruptcy. 

"Amazon has no voting rights or Board position, but says that you dare not take a decision without me on saving yourself…In today’s day and age, to say that I will kill a 25k crore company…God knows if Amazon still thinks that it’s living during the time of the East India Company!"

The CCI has cleared the deal, while the Delhi High Court's order has been reserved.

6. On Representing Reliance Jio and Reliance Communications in the AGR case

In a highly-complex matter that had wide ramifications for the flourishing but debt-ridden Indian telecom industry, Harish Salve had appeared for both Reliance Jio and Reliance Communication (owned by Mukesh and Anil Ambani respectively) as the Supreme Court heard the legal battle over the payment of spectrum dues of almost Rs 1.5 lakh crore by a total of 15 entities including two other industry behemoths Bharti Airtel and Vodafone Idea to the government of India.

The case of Reliance Jio and R-Com was a subset of the larger matter, though a pretty hefty one as the court examined whether dues owed by R-Com should be extracted from Reliance Jio which had acquired the insolvent former company's assets. Salve argued that R-Com's AGR dues could not be attached to Jio; rather that he would consult with SBI which heads R-Com's committee of creditors under the IBC resolution process and resolve a conflict of opinion between the bankers involved and the Department of Telecom (DoT) to whom the AGR dues were owed. While the Supreme Court has since given the telecom companies a 10-year timeline to complete the AGR dues payments, the matter of Reliance Jio and R-Com is in the NCLAT.

"I am appearing for Jio today," Salve had told the court days after appearing on behalf of R-Com's creditors in the previous hearing. The three-judge bench was hardly surprised, with Justice Arun Mishra taking it in his stride, saying, "Oh! You are appearing for Jio today. All right"

7. On recommending Reliance Jio's Optical Fibre network to the Supreme Court

In lighter but no less significant vein, Harish Salve's representation of Reliance Jio had also come up in the Apex Court's hearing on the system of virtual hearings to be adopted by the courts. The SC was mulling the tech infrastructure that was required to conduct virtual hearings, with CJI Bobde recounting advice against adopting satellite connectivity and instead batting for optical fibre networks. 

With Attorney General KK Venugopal suggesting a meeting between the Law Ministry and the National Informatics Centre (NIC) and the CJI acquiescing, Harish Salve suggested a Jio as a solution. "We have the best fibre optics network," Salve pitched, to which CJI Bobde asked him to make a formal suggestion with the Apex Court's e-Committee which is presided over by Justice Chandrachud.

8. For Facebook against the Delhi Assembly and its Peace and Harmony Committee

Harish Salve had won global social media and Internet giant Facebook interim relief from the Supreme Court in the case of the summons issued to it by the Delhi Assembly in connection with the North-east Delhi riots of early 2020.

The Delhi Assembly's Peace and Harmony Committee had summoned Facebook India heads to explain its position over allegations regarding its role in the rioting, to which Harish Salve contended in the Apex court, "I am not willing to go before them (the Peace and Harmony committee) Facebook only provides a platform. It does not write anything."

When the matter came up for hearing once again on December 2, the Peace and Harmony committee sought to be made a party to the proceedings, to which the bench sought a response from Facebook's India chief via Harish Salve within three weeks. Salve had argued that 'the very constitution of the committee of peace and harmony was unconstitutional', and responding to the fresh development, said that the panel says it has an independent existence and is a juridical entity. It needs to be seen where it fits."

9. Tata Sons Vs Cyrus Mistry

Harish Salve has also played a key role in one of the most high-profile legal battles in Indian business, concerning the country's largest business house Tata Sons and its erstwhile Chairman and key shareholder Cyrus Mistry and the Shapoorji-Pallonji Group. What's more, the long-running saga is likely to reach a conclusion of sorts with Tata Sons purportedly ready to buy out SP Group's interests, though, given the complicated nature of things, it may yet be far from over. Harish Salve will open arguments when the Supreme Court hears the matter on December 8 - the only matter to be listed that day. Earlier in 2020, the Apex Court had stayed the NCLAT's order by which Mistry was restored as the Tata Group's Executive Chairman after having been removed from the position over three years earlier.

10. For Arnab Goswami, challenging the Bombay HC's refusal of bail

The months of October and November had witnessed a brazen attack on media freedom in India as Republic Media Network had been subjected to a spiraling and unmitigated witch-hunt that reached a shocking nadir as Editor-in-Chief Arnab Goswami was assaulted and arrested in a long-shut abetment to suicide case that had been re-opened in violation of the set procedure. Harish Salve represented Arnab, arguing against the Bombay High Court refusing to grant bail. 'Jail is an exception, not a rule,' Salve argued, taking the Apex court through the pattern of vendetta against Arnab. He focused on several aspects such as how no case of abetment to suicide was made out, closure report, the illegality of the reinvestigation, malice on part of the state and the Chief Judicial Magistrate's observations along similar lines. 

Salve informed the SC that an offence of abetment to suicide is not attracted in the present case. He said, “The person was in financial difficulty and, thereafter, committed suicide but how can it be abetment to suicide? For abetment there must be direct and indirect act of the commission of the offence. If tomorrow, a person commits suicide in Maharashtra and blames Government, then will the Chief Minister be arrested?”

Not only did the top court grant interim bail, but when the full order was pronounced, it emerged as a landmark verdict upholding personal liberty and insisting that High Courts be alive to the misuse of criminal law.

"Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions," the order read.