Monday, April 29, 2013

The mourning over J.S.Verma reminds us of the need for conscience keepers

What made Justice J.S.Verma exceptional? He was Chief Justice of India for less than a year and no epoch-making cases came up during those months. Yet his death last week saw the whole country mourning. Among those who gathered to say farewell to him at the Lodhi crematorium were L.K.Advani and Sonia Gandhi, Fali Nariman and Ram Jethmalani, social activists and public figures, heads of news channels and senior editors and of course brother judges and lawyers.

Clearly Justice Verma had made an impact that extended beyond the offices he held. The independence he displayed and the ideas he projected won him across-the-board respect. This was all the more remarkable because he became a judge, in the Madhya Pradesh High Court, only in June 1973. Some of the most important cases in the country's history had already been concluded by then; in the Golaknath case (1967), a 6:5 judgment of the Supreme Court had ruled that the fundamental rights provided by the Constitution could not be amended by Parliament, while the Keshavananda Bharati case (1973) had seen a 7:6 judgment reversing the earlier ruling but saying that although Parliament could amend any part of the Constitution, the "basic features of the Constitution" could never be abrogated. These landmark judgments and the subversions of the Court during the Emergency were all part of history when Justice Verma was elevated to the Supreme Court in 1989.

Among his best-known judgments was the so-called Visakha case, filed by women's organisations in Rajasthan to get justice for a Dalit rape victim who had been hounded by caste groups and even by lower courts. The Verma judgment, known as the Visakha guideline, defined sexual harassment at the workplace and laid out a roadmap to deal with it. That was pioneering work because Parliament had dithered on the subject and passed a sexual harassment bill only 15 years after the Visakha judgment. Because of initiatives like this Justice Verma came to be regarded as the conscience-keeper of the judiciary.

The importance of conscience-keepers is paramount. We are a nation founded on four estates. The moral estate was the first to lose its relevance. Then Parliament lost its values. Then the media lost is credibility. The judiciary, despite the corruption that has seeped into it, is the only estate that still plays a nation-building role. The Keshavananda Bharati case prevented a majoritarian party from taking autocratic control of the country as Indira Gandhi indeed tried to do through a series of constitutional amendments. We remain a democracy because of the judicial conscience of the 1970s.

In the subsequent period Justice Verma made judicial activism constructive and patriotic. It was his character that made the difference. He was always accessible, always identifying himself with the problems of the people. His legal scholarship was the envy of his peers. His integrity was the despair of politicians. His last activity was a kind of crowning glory. The Verma Committee's report after the Delhi gangrape case set a speed record and also became noted for the comprehensiveness of the remedial steps it proposed. That the Government proved too incompetent to benefit from it was the nation's loss.

Some day perhaps we will have informed studies that assess members of the judiciary and their contributions. Fali Nariman's autobiography (Before Memory Fades, 2010) has a chapter on "Some Judges of the Supreme Court". He identified three types -- judges with a political agenda, judges with a social agenda and judges without an agenda. The first (like Justice Subba Rao) and the second (like Justice V.R.Krishna Iyer) helped change the habits of mind of judges and influenced creative judicial thinking; the third, more numerous, were "significant for the development of the law in the country".

There were also judges with elastic consciences. Forget the money-crazy ones, but what about those who made a farce of judicial principles to curry favour with Indira Gandhi during the Emergency. We need new books assessing the contributions of A.N.Ray and M.H. Beg as well as H.R. Khanna and J.S.Verma. Understanding the nature of badness is as much a learning experience as admiring the quality of goodness.