Less than 24 hours after he demitted office, Justice J.S. Verma moved out of his 3, Janpath residence to his apartment in Ghaziabad. ``I have certain principles and I have lived by them all my life,'' he says. ``Even when I was transferred to Indore from Jabalpur, I worked till Friday evening. On Monday, I was at the Indore court at 10.30 a.m. with the truck still carrying my luggage, as I had no house.'' As former Chief Justice of the country's highest court, Justice Verma could have stayed for one more month at his official residence -- it's routine. He chose not to. At one level, it's easy to explain this as honesty -- cynics may call it quaint, even old-fashioned. At another, however, this uncompromising commitment to his principles, more importantly, the belief that what's as important as doing the right thing is to be seen as doing the right thing, is what lies at the core of Justice Verma's judicial philosophy.Then there is the belief that the law is the greatest leveller. ``I am a
commoner,'' Justice Verma says, many of his predecessors were ``blue-blooded.'' This is a testimony, he says, to the ``true functioning of democracy in India'': a commoner can also make it to the top. Clearly, it's this conviction that influences the way he looks at the role of the Supreme Court. For, judicial activism to him is just a fancy label for something as simple as this: the law has to come to the commoner's help. At the end of a distinguished judicial career -- 25 years, four months, one week -- Justice Verma is facing the ``problems of commoners''. At his apartment, there are frequent power-cuts. ``The day we came, there was no electricity and I don't mind climbing the stairs but it was hard on my wife. The only saving grace is that I don't have to go to the court at 10 o'clock.''Excerpts from an exclusive interview to The Indian Express, his first after he demitted office:
Do you miss the Supreme Court?
After ages, I am finally relaxing. I don't know when I thought about myself
and my family for the last time. I am taking, I hope, a well-deserved rest.
When you look back on your tenure, what stands out?
I have no reason to be dissatisfied, rather I can look back with a degree of satisfaction. I did not lose touch with the common man, by temperament. Being a commoner myself, I retained it. If I could innovate, as many people say I did, it was because I believed in a few basic things. One: that the rule of law means that there has to be a solution within the framework of law for every problem. It is this quest for a solution that leads to what is termed as judicial creativity.
For instance, I combined both trial and execution within the framework of law. That is, I told them: you perform your duty but I am watching you. I will monitor till you complete the task. This is innovation. Therefore, if the legislature fails to enact a law and the executive fails to implement then what is Article 142 ( which states: The Supreme Court in the exercise of its jurisdiction may pass
such decree or make such order as is necessary for doing complete justice in any case or matter pending before it. ) for? To make orders for a just cause. This is what made me step into the area of sexual harassment of working women, which is a facet of gender equality.
So the implication is some kind of temporary judicial activism till such time as the executive performs?
Judicial activism is required only when there is inertia in others. Proper judicial activism is that which ensures proper functioning of all other organs and the best kind of judicial activism is that which brings about results with the least judicial intervention. If everyone else is working, we don't have to step in.
What about judicial orders that cannot be implemented? Take the Jain hawala case, it's falling through, chargesheets didn't stand up to trial scrutiny. You see this as a failure of judicial activism?
I can't talk about individual cases but, ultimately, you can only take the horse to the pond; you can't
make it drink.
You said judicial activism is finding a solution within the framework of law. But isn't justice a solution in itself? Why do you see the role of the Supreme Court as providing solutions?
The primary role of the Supreme Court is to see that justice is done to everyone in the country. The day I or anyone else thinks that there is no solution, he ceases to be a judge.
If this comes into conflict with the executive?
I see no conflict. If the judiciary thinks it is my power, legislature thinks it is their power and the executive thinks that it is more important, then naturally there is a clash of egos. You are then thinking of what you are and not what you are meant for.
So it's a conflict between individuals, not institutions?
What are institutions but a conglomeration of individuals? Earlier, there were people equal to the task everywhere and therefore they understood each other's role better. The three wings are for serving a common purpose.But the executive
says that ultimately, it's answerable to the people and that the judiciary is exercising power in areas where it has no responsibility.
Why assume that the judiciary asks for something that ought not to be done? We are in an area where the judiciary is trying to do that which is in the public interest, which needs to be done and everyone agrees must be done.
Who defines what's in the public interest?
I thought that public interest is something which is incapable of any precise definition but something which everyone understands. No one has tried to define it. I did and did it several times.
One argument is judicial activism led to erosion of political authority.
Judicial activism only activates those who are inactive. Judicial activism has different shades depending upon the needs of the time. Judicial activism is also about educating people. It is to help in future decision-making. This is the preventive aspect of activism.
There is no lasting solution in the courts but in
society. A lot needs to be done. It can't be changed overnight. A beginning has to be made and I don't think anyone has any doubt that not only a beginning (has been made) but a long stride has been taken. It was the people's perception -- which cannot be called unreasonable -- that there was inaction on the part of the executive and the legislature. It's a a perception shared by the judiciary.
But responding to people's perception can also mean the judiciary playing to the gallery. Where do you draw the line?
I personally feel that all this academic. For all those sceptics who say this, my advice is: start doing your job. No one will need to come to the court. Who is happy coming to the court?
For example, politicians complain that judicial activism hurts them most. It's easy for a businessman to bounce back after the court clears him. But for a politician, who has spent years cultivating his support base, a chargesheet can mean ruin. How should the court handle political cases?
There
is no classification of the offenders on the basis of their vocation. As to the stigma sticking, all I have to say is that all holders of public office hold office in public interest. And any deviation on their part is a serious breach of trust. And by public men, I mean judges included. A case reaches trial only when there is suspicion and the fact that a chargesheet is filed means that there is material for that suspicion. If a chargesheet is filed without satisfying this test, then the fault lies with the investigation. And if that is so, then with due respect to the politicians, they should be the last ones to complain as the agencies work under them.
If fingers are pointed at a judge, shouldn't that judge step down?
That depends upon several factors such as the individual judge or the charges made. Things can be said about the most honest of persons. A lot depends on what is said and on what basis.
Do you still think that the Chief Justice should have the final say in the appointment andtransfer of judges?
I think that there's a lot of misconception about the judgment. In the case of new appointments, it is a consensual approach. There can be a difference of opinion but not a conflict of purpose. There has to be a sharing of the entire information about the appointee. The question of primacy does not arise. On the appointment of the Chief Justice of India, the senior most puisine judge of the SC, if fit, ought to be appointed. 'Fit' is the word you can't define. Now when the CJ makes a recommendation, he follows the ordinary rule unless the exception is proved. Unless you have sufficient material to certify that the person is unfit, the presumption is that anyone who continues as a judge is fit. There is no mechanism for investigation or holding an inquiry. It is different from initial appointment where if you have even a shade of doubt, then it is safer not to appoint. But a man who is already a judge, if the material is not adequate to certify unfitness then what do you do?
Who
decides that the material is adequate or inadequate?
If you are supposed to make the recommendation that a person is fit, then you are the one who is also supposed to say he is unfit. This test is different from impeachment or initial appointment. There is no machinery and that is where judicial accountability comes in.
What about contempt? Isn't it used by the judiciary as a stick to dissuade people from writing or talking about them?
This is not so. I have never sentenced anyone for contempt. I have scolded but never sentenced. I have said openly that respect should be earned and not by the exertion of power of contempt.
What do you think is the Verma legacy? What institutional changes did you bring about?
I believe that no individual is big enough to matter to the institution. The only thing is that some people who are able to inspire others to move in a particular direction. Maybe that is what may have happened. But everything which I have done, I have not personalised those
things.
Do you see judicial activism ebbing after you demitted office?
I would be very happy if it decreases as it will prove that others are working. I don't think people of this country will tolerate inertia on the part of the authorities. Especially now. The biggest transformation that has occurred is that activism has ushered in hope. I think that itself is a good enough achievement.
What have you left unfinished?
Till the last day, I made orders. But what I tried to do for others, I now realise might not be happening. For instance, I passed an order for security for officials in the Mirzapur district because of the nature of their work. And after demitting office, I realise that despite being in the Z-category, I did not get security for 24 hours till the Home Secretary intervened. Not that I am bothered about myself. If this happens in my case, what must be happening to many others? There are a lot of people to bother about me but what about others? I was bothered about them and
that is the unfinished task that has to be carried on. The class for which I was bothered about, I am sure my colleagues will bothered about them.
Any post-retirement plans?
For the time being I only want to relax. I have thought about what not to do. Something that is forbidden directly, not to do it indirectly also. Such as practice, re-election to the bar. Except a situation where service is required for the nation.
Politics?
I won't touch it with a bargepole.
Copyright © 1998 Indian Express Newspapers (Bombay) Ltd.
