Sunday, 3 February 2013

‘I personally believe that every court should be a fast-track court... But you have to bring in balance’ Justice Verma

‘I personally believe that every court should be a fast-track court... But you have to bring in balance’ Justice Verma
Clean Media Correspondent

New Delhi, Feb 03 (CMC) Justice (retd) JS Verma speaks about the making of the report of the committee he headed for amendment in criminal law after the Delhi gang rape and the need for social remedies and a moral stance. The session was moderated by Senior Assistant Editor of Indian Express Maneesh Chhibber

Maneesh Chhibber: Could you give us a background to how the government approached you to head this committee?

Justice (retd) JS Verma: On the afternoon of December 23, I got a call from Mr Chidambaram and he persuaded me to chair this committee. Not being the home minister, he must have been asked by the Prime Minister to get in touch with me. Since he has been a lawyer appearing before me, they might have thought that he would be more persuasive. I agreed and asked about the composition of the committee. He asked me what I thought and we decided on Justice Leila Seth...I said there ought to be a lady. I also suggested a comparatively young person in active practice, a lawyer, and Gopal Subramaniam who had worked with me as my counsel 21 years ago when I did the Rajiv Gandhi commission, and a very fine lawyer, so I suggested his name. It was late night when I was told that a notification was being issued. Next morning, one of the officers came, a public notice was published immediately and then the work started.

Dilip Bobb: The Juvenile Justice Board has ruled on the sixth accused in the Delhi gang rape case being a juvenile. He will be getting off with a very light sentence. What is your view on that?

Justice (retd) JS Verma: I am not commenting on any matter which is sub judice. In our report, we have addressed mainly the larger issue. Hard cases make bad laws, so you do not make a law based on any particular case.

Vandita Mishra: Fast-track courts have been set up. Does it worry you that balance may be tilting towards speed at the cost of deliberation or justice going through its proper paces?

Justice (retd) JS Verma: I personally believe every court should be a fast-track court. If Article 21 has been interpreted to include the right to speedy justice within the right to life with dignity, then there is no reason why there should be any court which should not act speedily. But you have to bring in a balance and in that speed you have not to abandon due process. The principle of natural justice must be kept in mind. In my experience of almost 26 years at the highest level, I never thought I needed to be designated as a fast-track court to do my job.

Shubham Aggarwal (Rukmini Devi Public School, Delhi): Death penalty and life imprisonment are curative measures and can be taken up only after the crime has been committed. What preventive measures have you suggested?

Justice (retd) JS Verma: The first thing I said after I undertook the task was that once an offence has been committed, then catching the culprit and prosecuting is fine but why not take adequate measures to prevent the crime? The focus must be to shift from the patriarchal mindset. We have founded our report mainly on the constitutional guarantee of equality for gender justice. We have said most often an offence of rape is not entirely a sexual activity. It is a power game to show the male is more powerful. They think they are superior and that is a negation of the constitutional right to equality.

Maneesh Chhibber: You were the author of the Vishakha judgment which dealt with sexual harassment. Even 16 years later that has not been turned into a law. So how do you now expect this government to act despite the clamour?

Justice (retd) JS Verma: Well, I will preface my answer by saying this: I am an incurable optimist, so I don't give up. Secondly, with the current mood of the youth which has risen as one in protest, anyone in power who chooses to ignore this will do so at his or her own peril. I do not think the youth will accept it, and they should not. But they must not resort to undemocratic methods. What is necessary is that public anger should be properly channelised.

Shalini Langer: Various parties made representations before your panel. Which representations most impressed you?

Justice (retd) JS Verma: Let me not compare or contrast one party with another. There were a huge number of responses, and I can assure you each one was read. The representations were classified, the suggestions were not too many. There were a few important areas, for example, on the death penalty, castration, the age for a juvenile, that got many suggestions, and then people came with individual grievances which, of course, was not within our scope.

Seema Chishti: The 19th century saw landmark judgments in India: the banning of sati, widow remarriage, etc. It is not as if the majority opinion at any given point of time is very progressive. So how does the law connect with this?

Justice (retd) JS Verma: I don't think the majority opinion is what they (politicians) reflect. A lot of them are not true representatives of the people. I have an abiding faith in this: that the majority of the people in our country are positive. They want the right things to happen, but they have a Hobson's choice. That is one of the reasons we have spoken about persons with dubious antecedents being eliminated so that proper persons can come in. A lot depends on the kind of environment in which you grow up. For example, when I was a lawyer, and that was more than 40 years ago, one of my juniors in the chamber was distributing sweets and I heard a very odd remark which I found quite jarring. Someone asked my junior, "Ladka hai ki ladki hai?" He was quite offended and replied, "Dekhte nahi ye laddoo hai". I didn't quite comprehend his remark. I asked him to explain it. Very sheepishly he explained that if it's a boy you distribute laddoos, if it's a girl you distribute pedas. At that very time, one of the seniormost lawyers at the Allahabad High Court had a grandchild and sweets were being distributed at the Bar, and someone again asked the same silly question—boy or girl? He was so angry, he said, "What do you mean, a child is always grand." The question is that if you have a mindset of laddoos and pedas, how are you going to help in the enactment of laws which are gender friendly?

Seema Chishti: Could you tell us about the bill of rights which seems to be a very bold and a very big nugget of your report?

Justice (retd) JS Verma: On the bill of rights, we thought that if someone does not have the time or the interest to read the whole report, why not create a document which has the gist of it, like the Magna Carta? It is a bill of rights for women, and it is all encapsulating. We have tried to make it as comprehensive as possible.

Prawesh Lama: A juvenile in conflict with law is sent to a correction home, but is there any mechanism or any committee to ensure that this juvenile is reformed and, if so, should the committee not be made accountable to ensure that the juvenile is reformed once he comes out of the correction home?

Justice (retd) JS Verma: That is an area we have dealt with at length (in the report). For instance, trafficking in children. Trafficking in women and children is a major problem, and children who are trafficked are sexually abused and used for all kinds of crimes including beggary and stealing. When you are dealing with a juvenile delinquent, it is important to bear in mind the background from which the juvenile comes, and therefore society has a role. What we have tried to emphasise in our report is that it is not merely the government, but every citizen and civil society has a role to play. When I was in NHRC, I learnt more about the way these juvenile homes and other correctional homes are run. They are actually dens of corruption. Very often, the protection homes which are supposed to protect the female child are the ones involved in (malpractices).

NP Singh: Recently, in two judgments, the Supreme Court has overturned the death penalty granted by the trial courts and supported by high courts. The SC has speculated on the state of mind of the accused. In one case, they said the accused may have been drunk, in the other that he was driven by revenge. What is your opinion of this, and doesn't it reduce the deterrence of death penalty?

Justice (retd) JS Verma: Voluntary drunkenness is no excuse, that is basic law. So if that has been said, I am sorry to hear that has been said. That is why I am more in favour of a life sentence meaning the whole of the remaining life. About those judgments, the less said the better.

Monojit Majumdar: In your report, you have backed your refusal to reconsider the age of juvenility with judgments from the US Supreme Court and neurosciences research by Laurence Steinberg. Did you consider that in doing so, you might be extending the conclusions of university research done overseas to a real court case in India, besides foreclosing the possibility of the existence of specific circumstances that might be peculiar to individual cases?

Justice (retd) JS Verma: You don't make law for a single case. The law is for general application. We cannot focus attention only on the facts of the case which has brought about all this attention. It is not correct that we have based our opinion on something which happened in America. Our opinion is based mainly on the existing situation in India and the environment in which juveniles ultimately end up becoming juvenile delinquents in our country. It is taking into account the Indian conditions that we have set out our recommendations. And it is based on empirical data produced by people like Professor Ved Kumari, a distinguished professor and fairly well-known expert in this field. We reached the conclusion that the conditions in the juvenile homes, etc., is not something which you can ignore. And when you make a law, it is not for that Delhi gang rape alone, it is for all juveniles.

Vijaita Singh: There was a lack of interest shown by the Home Ministry and other senior government officials in sending suggestions to your committee. How far did it impact the findings?

Justice (retd) JS Verma: I don't think it would have made any difference because we thought a great deal about the issues, and if there was any deficiency we had suggestions from people. We interacted with more than 100 persons representing all the stakeholders and persons who had been working in the field for decades, so I don't think anything worthwhile could have been added. But certainly, they could have contributed better. At least, they could have been active to start their work as soon as the report was given.

Praveen (EXIMS) : There is a feeling that lawyers provided through the legal aid services are not competent. What can be done?

Justice (retd) JS Verma: I think one way to handle this problem is that the judge should see what kind of lawyer would be suitable to appear in the particular case. If he finds that the lawyer allotted is not equipped, he has to step in. In spite of the mercenary trend in the Bar which is very obvious, whenever they are called upon to perform a public duty, lawyers do it without grudging it. The public interest litigation would not have been possible but for the cooperation of the lawyers.

Seema Chishti: We have noticed that increasingly there is a clamour to not defend a lot of accused people, especially in terror cases.
Justice (retd) JS Verma: I am personally disturbed that there should be such a trend. It is wrong. In a civilised system, even the worst criminal, accused of the most heinous crime, is entitled to a fair hearing. That is what establishes the credibility of the judicial process. For example, with Raju Ramachandran appearing for Ajmal Kasab, who can say that he was not represented properly? There is a juristic principle involved: once the entire Bar refuses to appear, you condemn the man before the trial has commenced and that is not consistent with civilised jurisprudence. They should be defended, and they should be given the best legal advice so that ultimately, if they are convicted, no one can say that they didn't have proper legal advice.

Amulya Gopalakrishnan: Could you clarify why you have said in your report that MPs and MLAs should step down if they have criminal cases against them?

Justice (retd) JS Verma: In this country, you had a Lal Bahadur Shastri, who was once the railway minister. There was a railway accident, and he owned moral responsibility and resigned. Now, there is a stronger reason for politicians stepping down: when they took up office, they took an oath to abide by the Constitution and the laws. And every day they claim to be doing that. If that is their verbal commitment, then they should show it. There is something like institutional integrity. The Supreme Court in the PJ Thomas case has said it in as many words—not only individual integrity but institutional integrity is important. Hardly a day passes when people don't say Parliament has so many persons with criminal antecedents, state legislatures have so many persons with criminal antecedents. What is the credibility of these institutions? If you leave, you'll rise in the esteem of others and you will also help to restore the institutional credibility of the institution to which you belong. That's a call of morality and what is law? Law is institutionalised morality. I don't think I will be able to divorce morality from law.

Courtesy Indian Express


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