The virtuous on the ramparts

At a time when democracy is seen to be beyond repair,Justice Verma taught us that change happens when good people work within the limits of institutions

Written by Vinay Sitapati | Published: April 25, 2013 12:08 am

At a time when democracy is seen to be beyond repair,Justice Verma taught us that change happens when good people work within the limits of institutions

Jagdish Sharan Verma’s career in the law stretched from a pleader in a small town in Madhya Pradesh to eventually becoming the judiciary’s conscience keeper. And through that long journey,he never forgot the distinction between an active constitution and an activist judiciary.

To understand this distinction,one must grasp the journey of judicial power in India. The 1970s saw a sustained assault on the Supreme Court by then Prime Minister Indira Gandhi. The judicial pushback in later years was led by non-Congress politicians wanting a powerful court to protect them,as well as judges who felt the need to block executive excess. Politicians such as the Janata Party law minister Shanti Bhushan responded with constitutional amendments guaranteeing judicial independence; judges such as P.N. Bhagwati and Y.V. Chandrachud responded by expanding the kinds of people who could make demands on the court (the emergence of public interest litigation) as well as the varied rights they could access. To this court activism,Justice Verma added two pillars. In his 1993 judgment,he began a process by which Supreme Court appointments were made by judges only,not by politicians. And in his 1997 judgment on the Jain Hawala scam,he invented the “continuing mandamus” — constant court monitoring of police and CBI investigations that has made,for instance,such a difference to the 2G investigation. Thus was born the world’s most powerful court.

Verma himself was uneasy with such power. He avoided judgments designed to grab headlines,and respected elected representatives. He aimed to prevent the brazen meddling of the Indira Gandhi era,yet involve democratic leaders in judicial functioning. He was also critical of his own. As chief justice,he pushed senior judges to make their asset details public. Verma’s scrutiny of judges extended to himself. He later questioned his own judgments,on the validity of the Armed Forces Special Powers Act and on judicial appointments. Can you imagine other public figures being so open about their own failings? And in retirement,this most self-effacing of men lived in an unremarkable rented house on the outskirts of Delhi.

The persistent criticism of Verma has been on his ruling in the Hindutva cases. Election law bans politicians from canvassing on the basis of religion. In the 1987 Maharashtra assembly elections,Shiv Sena candidates asked for votes on the basis of Hinduism. When the case eventually ended up in the Supreme Court,one of the many legal questions was whether asking for votes on the basis of “Hindutva” was,of itself,a communal appeal that disbarred the candidate. Verma said no,holding that the word “Hindutva”,of itself,could just mean “a way of life”. Verma was not certifying BJP politics; he was simply creating a high bar for disqualifying an elected representative. The BJP trumpeted his judgment as an endorsement,while others bought their lie,savaging Verma for being communal. These criticisms were especially harsh for a man who,post retirement,breathed life into the National Human Rights Commission. His unrelenting pursuit of justice for Muslim victims of the 2002 Gujarat riots echoed in the Supreme Court. In the NHRC vs State of Gujarat set of cases,the Supreme Court responded by getting more than 1,600 cases re-examined,appointing investigators,prosecutors and transferring trials. It was doubtless the heft and integrity of Verma as NHRC chief that prompted the court to go after the Modi government.

The public’s enduring image of Verma will likely be the eponymous report he worked on,along with others,in the aftermath of the 2012 Delhi gangrape. Verma’s commitment to battling for women’s rights was seen in 1997 itself when,as chief justice,he imported foreign law into India to combat sexual harassment in the workplace. The 2013 Verma Committee report avoided comforting clichés (“castration for rapists”),suggesting instead systemic changes to tackle the culture of violence against women. In 630 magisterial pages,the committee moved beyond the Victorian presumptions embedded in our laws to the sexual assault and harassment that women actually face — on the street,in the workplace and within bedrooms. The report also focused on violence against women in conflict zones such as Kashmir and the Northeast,shone a light on how the justice system further humiliates the victim and suggested a host of judicial and police reforms. All of these reflected the enduring constitutional vision of rights and dignity that Verma championed. Not bad for 29 days of work! Like all good reports (The Srikrishna Commission report on the 1993 Bombay riots comes to mind) the government ignored it,cherry-picking cosmetic changes to produce a hash of a law. But the public have formed their own conclusions. In an age where committees and commissions are seen as burial sites for the truth,the swiftly produced report is widely viewed as a model.

Verma’s work ethic won him admirers from those he worked with. Mrinal Satish,a professor at National Law University,Delhi,was part of the research team that worked on the Verma Committee report. He told me that on January 18 this year,they were hard at work with Verma ploughing through reams of documents. Midway,the team realised that it was the ageing judge’s 80th birthday. “We asked him why he wasn’t taking time off to celebrate,” Satish said. Verma simply shrugged,pointed to the work ahead,and continued reading.

In this age of Kejriwal,our democracy is seen as beyond repair and the worst is expected of those in power. From Verma,we learnt something else: change happens when good people work within the limits of institutional democracy. As a judge,he pushed for judicial independence and individual rights,yet made other judges accountable. At the NHRC,he went after the Gujarat government for failing its constitutional role. And as head of the Verma committee,he helped produce a report that was quick,consultative and thorough. He taught us that our democracy can be saved by manning its ramparts with the virtuous,not by bypassing it altogether.

The writer is a PhD candidate at Princeton University and visiting scholar at Centre for Policy Research,Delhi

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