Justice J.S. Verma: Problem is with the persons who are meant to protect human rights

Justice J.S. Verma, Former Chief Justice of India and Former Chairman of the National Human Rights Commission, stresses the obligatory duty of the State towards its citizens in an interview with Publishing Director Chaitanya Kalbag that also reflects on the constitutional aspects of human rights. Verma reiterates his view that “human dignity is the quintessence of human rights”. He advocates an “iron hand” approach to the polarisation in our society but says that our quasi-federal Constitution confers enough powers on the Centre and the States to tackle law and order without resorting to more legislation. Excerpts:

Halsbury’s Law Monthly (HLM): Do you think our constitutional provisions on individual liberty and human rights are good and sufficient?

Justice J. S. Verma: Personally I have had this view, and I’m more and more convinced as time passes, that there is no dearth of laws in our country. Our constitution’s provisions are, I think, some of the best that one could have. And they have become even more meaningful, as a result of judicial interpretation, over these years. And if therefore, there is a right person protecting human rights, with the aid of these provisions, there won’t be any problem because everything that needs to be done can be done within it.

I’ll give you an example. The Supreme Court has interpreted long back that the right to life in Article 21 means the right to life with dignity. Now the next question arises, what is dignity because that is a nebulous phrase. When I joined the NHRC (National Human Rights Commission) as its Chair, very soon after my joining some people asked me how did I understand and appreciate human rights because there are so many definitions in various Acts etc. Normally, the understanding should be in simple language, which can be easily understood by the common man, who is not well versed in the technicalities of law. And it came to me naturally, that ‘human dignity is the quintessence of human rights’. That in very few words summarises the content of human rights. But then the next question arises: it is all right to say that but how does one apply it practically? And I think our constitutional provisions, Article 21 basically, read particularly with Article 14, cover every aspect. That is how, we could in the Vishakha case, spell out the meaning of sexual harassment, and what needs to be done, and we placed the rights apart from the International Covenants etc. on Article 14 Right to Equality, Article 19 Right to Work and Article 21 Right to Life and Personal Liberty. So I don’t think there is any dearth of any laws. If there is anything wanting that is in those people who are required to protect human rights; they are either not fully appreciating the content of human rights or the full extent of their duty of what they need to do.

HLM: Our Constitution also envisages that even an ordinary citizen can appeal for justice.

Justice Verma: If you are directly involved then it is not public interest, then it is your own interest. Public interest litigation (PIL) has been able to, in a very big way, put an end to the sufferings of so many, particularly the weaker sections, who cannot speak for themselves.

HLM: Do you believe that access to justice has got better?

Justice Verma: No doubt about it. Access to justice is available now even to people who don’t know their rights. There are so many PILs that have benefited those people who don’t even know their rights. For example, people in prisons and protection homes, child labour, bonded labour, what not. And that is something which the Supreme Court is doing in a very big way. Ever since the NHRC came up, it has been carrying out the implementation of Supreme Court orders and monitoring them etc.

HLM: In the years after the Emergency there was quite a spurt in citizens’ groups and bodies that were all dedicated to democratic rights and citizen’s rights, but they are all becoming more and more inactive.

Justice Verma: No, I’ll put it this way…social activists and such organisations were there before Emergency also. During Emergency, they remained active.

The High Courts were protecting human rights, and I was involved in that process, since I was in the High Court at that time.  In that infamous Supreme Court judgment, ADM Jabalpur vs Shiv Kant Shukla, which reversed the view of the Madhya Pradesh High Court, I was incidentally in the Madhya Pradesh High Court. The first batch of petitions came before a Bench which I was presiding over at the Indore High Court Bench. We rejected this argument which found favour with the Supreme Court later on. And we entertained Habeas Corpus petitions. It was that view in Shiv Kant Shukla’s case, the Madhya Pradesh High Court at Jabalpur, Justice A. P. Sen, followed to entertain the petition, and which judgment was ultimately reversed. So in a way, I was involved in it right from the beginning.

So, at that time also, there were people fighting for civil liberties. There were some lawyers standing up: Soli Sorabjee; Jethmalani; Nariman was a law officer, he resigned; Anil Dewan; Ashok Desai and the High Court judges.

But we were let down at that time by the majority judgment by the Supreme Court, in which unfortunately…the balance was tilted by Bhagwati and Chandrachud, who later became post-Emergency great exponents of human rights. So to some extent, the immediate post-Emergency response of the Supreme Court was to wipe out that Emergency record. And they did a good job…Bhagalpur blinding etc…and that has continued.

HLM: Was that a case of taking too doctrinaire a view in ADM Jabalpur?

Justice Verma: Both of them were outstanding judges, highly intellectual. Something which was so wrong, which they said in their judgments, I am not inclined to believe that they didn’t know that what they were saying was wrong. I think that was something which was knowingly done because of the prevailing fear psychosis. I know what kind of a fear was generated for us. I would not like to dilate on that because I have lived through it.

HLM: If you take a broad overview of our judiciary, not just the Supreme Court level but across the nation, do you feel that there is enough of an awareness of civil liberties in smaller courts? There could be a lot of decisions that never even make it to an appeal at the lower courts.

Justice Verma: I think there is a general awareness at every level and what the Supreme Court does helps, not only binds, every court in the country, but that does increase the awareness of judges in the lower tiers as well. My own feeling is that now the access to justice is certainly so much that anyone with a genuine problem or a genuine grievance and needing protection or enforcement of his human rights, is not denied that because even if the concerned person does not have the wherewithal or the awareness, if the case is known to anyone else it is brought to the court. And with the liberalisation of locus standi, for quite some time there is a feeling…even when I was in the court, we were stricter in scritinising…there was an attempt at the misuse of PIL for vested interests. So we had also to be careful to see that the process was not misused by vested interests, or for ulterior motive and personal profit. Some also try to use it as a tool for trying to blackmail other people, so that’s where the courts have to be careful…It is, in fact, merely an extension of a process which was available even under the Code of Civil Procedure, which was there pre-Constitution. The Code of Civil Procedure permitted a person having some semblance of an interest with a public cause to bring an action that was done by the way of a civil suit. PIL is only an extension of that principle, so the principles that apply should be the same.

HLM: Extending my first question on the Constitution, what about Executive excesses, and what if State or Central Governments behave in ways that are inimical to certain ethnic or religious groups?

Justice Verma:  One recent example about which I can talk from personal experience is Gujarat 2002. As the Chairperson of the NHRC, when I visited the Shah Alam camp in Ahmedabad, I learnt that apart from the Collector of Ahmedabad, no other bureaucrat of a significant level, much less any politician of any shade—MLA, MP, Minister or Chief Minister—had visited the camp. And the NHRC order and inspection report of 31st May 2002 is about what I saw over there, included all facts and reports. The report facilitated the Supreme Court later on, when the matter was brought to the Supreme Court, to pursue those matters. We gave a clear finding of the failure of the State Government and its agencies and we indicted the police force for its inaction.

HLM: As a civilised society, such violations are surprising not just in Gujarat, but also recently in Maharashtra.

Justice Verma: I have grown up in Bombay and to me it has come as such a great shock. Polarisation of society is the biggest danger and threat to national security and unity. I have always believed and continue to believe that Bombay was the most cosmopolitan society. I think the only way to deal with this situation is with an iron hand, and the Government, any Government, which fails to do that is failing in the discharge of its constitutional duty.

But being an optimist…that is what I told Mary Robinson in Geneva after Gujarat…the good thing is that fortunately in our country… the safeguards and the promise for secularism always to survive here is that whenever there is any atrocity on the minorities, the loudest protest has come from the people belonging to the majority, and it is only when the majority does not tolerate it, that is the surest safeguard. That you’ll find it happened in Gujarat, and is happening everywhere else. So I am hopeful, and for this reason.

HLM: Law and order is a State subject in India. Do you think that has been a reason for a lot of the problems we have because when there is a breakdown of law and order at the State level, that also forces aberrations like the army being sent in to perform peacekeeping duty, where it should not be, and so on and so forth? Do you feel that there should have been a better thought given to this by the Constitution?

Justice Verma: Let us see things as they are. True, law and order is a State subject, but there is Article 355 in the Constitution, which precedes Article 356 in the Constitution. It is the duty of the Union Government, the Centre, to see that the Constitutional provisions are observed by every State Government and if there is a failure of the working of the Constitution in any State, that’s a ground for imposing President’s Rule, and we have had more President’s Rules than could be justified. Once again referring to Gujarat because we tried to do so much there…we gave notice to the Union Government, asking why they were not acting under Article 355 to tell the Gujarat Government to perform its function…The Union Government kept replying that were studying it, as if it required too much of study. If those whose duty it was to study, needed so much time, then I think they were not fit to hold those offices. But anyway, they kept on studying and did not respond till I left the NHRC, but in the meantime the Rajya Sabha took up this issue and passed a resolution, which no one opposed…obviously who could oppose such an obviously reasonable thing. So a resolution was passed, but it stayed there.

Our Constitution is quasi-federal with a unitary bias, so I don’t think the Centre can throw up its hands and say they can’t do anything.  Law and Order being a State subject, the Centre cannot keep on interfering repeatedly and needlessly, and cannot be given the authority to run down its political rivals, but that does mean that it can’t do anything except sit sucking or twiddling its thumbs. So the political will should be there and the eyes should not just be on retaining power or the vote bank.   

Justice J. S. Verma is a former Chief Justice of India (1997-1998), and former Chairperson of the National Human Rights Commission (1999-2003). He has also been judge, and Chief Justice of the Madhya Pradesh High Court in 1985, Chief Justice of the Rajasthan High Court in 1986 and Acting Governor of Rajasthan, twice between 1987 and 1989 for a period of about six months. He headed the Commission to inquire into the security lapses leading to Rajiv Gandhi’s assassination (1991-1992), and also the Committee to suggest operationalisation of the Fundamental Duties (1998- 1999). Some of the landmark pronouncements by him include: Vishaka-AIR1997 SC 3011; Nilabati Behra-AIR1993 SC 1960; Ayodhya case-AIR1995 SC 605; Hawala case-AIR1998 SC 889; Nathdwara Temple case-AIR1989 Rajasthan 99; Hindutva case-AIR 1996 SC 1113. As the Chief Justice of India, he had the Supreme Court adopt unanimously a code of conduct for the Supreme Court and High Court Judges called the “Restatement of Values of Judicial Life’, a resolution for each to declare his/her assets, making a beginning with his own declaration. He has been conferred with the Honoris Causa degrees of LL.D. by the Banaras Hindu University and the Universities of Allahabad and Jabalpur; the Honoris Causa degree of Vakpati (D.Litt.) by the Central Institute of Higher Tibetan Studies, Varanasi; and the Honoris Causa degree of D.Sc. by the G.B. Pant University of Agriculture & Technology.