This Article is From Jan 30, 2013

Your Call with Justice (Retd) JS Verma: Full transcript

Your Call with Justice (Retd) JS Verma: Full transcript
New Delhi: Justice JS Verma submitted a 600 page report on how to make laws against sexual violence a bigger deterrent and review the existing laws for sexual crimes. After submitting the report, he spoke to NDTV's Sonia Singh about the mammoth task assigned to him and how he was able to complete it within a month.


Sonia: Joining me on a very special episode of Your Call now is JS Verma, former Chief Justice of India, also the man who headed the Justice Verma Committee which looked on how India can be a safer place for women after what happened on December 16. Justice Verma, thank you for joining me. Congratulations and thank you on behalf of the nation for the work you and your committee have done. Did you manage to get a full night sleep since you got this job?

Justice Verma: Thank you, yes, it is my duty to say that those who assisted me in this work, they worked much harder than I did.

Sonia: 29 days for a body of this magnitude, for a work of this magnitude, because you went much beyond what I think some may have seen is your brief. You have never limited yourself to a brief given to you?

Justice Verma: Everything which we thought was important for the dignity of women, and to ensure the Constitutional guarantee of right to ensure equality, which it appears to most of us and certainly to me and my colleagues which has been denied for long; well we thought this was an occasion where it was our duty to ensure that the full dignity of every woman was restored.
You squarely placed good governance and good policing at the heart of this. And by completing your task within 29 days you have set a moral deadline for the government and politician to respond. The clock is ticking but have you seen the kind of urgency you would expect?
Justice Verma:
Well from everyone else around the world except for those who are supposed to act on it. Yesterday, a friend of mine from Washington told me that the Washington Post, on the front page, has only this news. I'm also told that the Senators in the US have started talking about it. My older daughter, who is a doctor, a consultant in England, she says that's the top news there. A gentleman from Reuters, he talked to me for half an hour, saying that Australia, European countries, and so far our own country is concerned I haven't heard anything negative from the people who really matter. It's the only thing that those who are supposed to carry forward the torch, what are they doing? Well I don't know what's their state.

Sonia: But you are going to be watching that carefully. The Law Minister spoke to us yesterday and some initial reactions he gave were interesting. Well of course you have talked about good governance and the quality of legislator. Just yesterday there was swearing in of a Congress MLA who's been suspended. He was accused of murder charges, murder of Dalit girl. He is in jail, he was allowed by court to come from jail to be sworn in and then go back to jail.

Justice Verma: Well my response is only this if the politician and others don't see the writing on the wall. To me the greatest hope and the reassurance of faith in the future generation is what I saw as a result of this horrendous incident, which really triggered this entire response even of the government. And the spontaneous response of the youth and the peaceful protest with no one knowing who the other person is sitting by his side; all of them coming on their own and to watch their protest in a peaceful manner and not reacting even when there was provocation. Well, reminded me I said, Gandhiji's soul must be resting in peace now seeing this is the India which he thought of. And that according to me is a hope. That also should be taken as a warning by those who are not so minded, that if they don't rise to the occasion, I think the people of this country, particularly the youth, will not forgive them. So they better do it for their own sake.

Sonia: In fact the irony is that it might be easy to pass a law, which will raise the punishment to life etc. It's much more difficult or these politicians will find much more difficult to pass a law against themselves, which will say for instance de-bar those who are even charged with heinous crimes like murder or rape from contesting. The Law Minister already said that personally he feels, as a lawyer, that at least the conviction from one court should be there before somebody can be debarred from fighting election. Why do you disagree?

Justice Verma: You see the usual argument is that political rivals will first falsify the case. Now when it crosses the stage of the political rival's action only, well court is an independent entity so once court has taken cognizance of an offence, which means there is a prima facie case for the accused to answer. Now once that stage is reached do we have dearth of desirable people, and much better people who can replace a person with dubious antecedents and when there are two conflicting interests? One is the personal or individual interest, and the other is the public interest. Naturally the public interest must outweigh way and, therefore, unless you exclude from the electoral foray persons with doubtful antecedents how will the desirable people come? And that is how the electoral laws are also relevant in this contest; it's like this, if such persons come in the Parliament or the Legislature then what kind of better laws can you expect? Now if there is a murder or a rapist. Do you think he is going to support a law which is going to curb murder or rape; therefore, you need people of right kind. The incident, which you mentioned happened yesterday. All that goes to show the affront to the dignity of people of India and I don't think it can last. What disturbs me more is that when people get frustrated, then you see the kind of reaction is something, which is disturbing, and I hope people are not led to the street to protest because then you can't control the anger. That would be undemocratic.
Sonia: You took up this task because the Prime Minister in a sense wanted you to take up this task. Are you looking up beyond what various ministers say and what various bureaucrats say? Are you now looking for the Prime Minister to take personal interest to make sure that your recommendations are implemented?

Justice Verma: It was Mr Chidambaram who actually approached me and it was very obviously because of the Prime Minister. Because Chidambaram is no longer the Home Minister now, so when he approached me he was not even in Delhi. He was in his constituency in Madras. So obviously it must have been on the behest of the Prime Minister. I have every reason to believe that. If that is so, well the PM's urgency and the interest is obvious. And if that is so, well Prime Ministerial authority certainly must outweigh what any individual minister, individual thinks and, therefore, if any individual minister thinks otherwise, well he is not obeying the discipline of the Parliamentary democracy, where Prime Minister is one who really calls the shots.

Sonia: Because of course the electoral reforms we know are pending since 2000 and former Election Commissioners have made this point again and again. Do you hope, when you say it happens in the Budget Session, do you think electoral reforms can happen by the Budget Session?

Justice Verma: I look at it this way, the time, which it has been spoken for, that I can say. Soon after my retirement I wrote an article, which was published in Indian Express on 10th of March 1998. The title was Democracy without Choice. Then I had given a lecture in the same year or '99 in Hanumanta Memorial. Not only I, so many others have been talking, so it's nothing new and I have no reason to doubt that enough thought has already has gone into it. And just one thing, if we, without any infrastructure or might of the government, which it has, in 29 days, after being taken by surprise on 23rd December afternoon, getting a call from Chidambaram, if we could gear up a bunch of youngsters to help us and perform this exercise in 29 days, the government, with all its might and infrastructure, if it can't do that, I think it would be something. It would be exposing itself to the criticism of lack of capacity to govern
Sonia: Interestingly AFSPA and you headed a 9-member bench, which upheld the Constitutional validity of AFSPA, but you pointed out that sexual crime can't come under this. The Law Minister said that this will be very difficult.

Justice Verma: In the first place I will answer the end part first. For anyone to think that sexual assault could in any way be associated with the performance of any official task, well needs to think again. That's the mildest I can say. Because no part of official duty of anyone invested with any public power can be in any way even remotely connected with sexual assault on women; and therefore, the question of Army personnel, paramilitary personnel or any other functionary saying that this could be part of his official duty, well there is something radically wrong with that thinking. I would not like to say more than that and, therefore, what we have said is only this that in a case like this, there should be no need for a prior sanction of the court to take cognizance, number one. And you mentioned, so let me say the 9-bench judgment in 1997, which upheld the Constitutional validity of this Armed Forces Special Power Act, I presided over that, true. We were concerned with the Constitutional validity, not the wisdom or un-wisdom of the law. So judgment in the first place was confined to that and there also, before we upheld it, we insisted on the Attorney General having confined to that; and there also, before we upheld it, we insisted on the Attorney General having an affidavit filed by a senior Secretary, as the Government of India. Accepting that in the interpretation of those provisions certain safeguards, which we thought were necessary to ensure that there were no human rights violation, including the dos and don'ts issued by Chief of Army Staff would be read as part of those provisions, and we upheld the Constitutional validity, the un-wisdom or wisdom apart. Now the question is of propriety. 15 years or more have passed and we have seen, when I was in the NHRC, I saw more complaints. They are growing by number in the oral interaction, which we had for 2 days before we gave the report. Those persons who had come, the women, who have come from North East and Kashmir etc, you just have to hear them. That is not something for the people to decide, whether a person who is accused of having committed rape and sexual assault in other forms, you don't need a sanction for that.

Sonia: Your remarks that you are disillusioned by the fact the response which came from state DGPs, the response that came even from the very government which appointed you, where I think the suggestions arrived hours before the deadline. Why do you think that is? Do you think they not interested, do you think they are not awake to what's happening around them?

Justice Verma: As a matter of fact there is another message, which more often gets overlooked. If the DGPs didn't respond and they thought they were insulting me and my committee, well they are living in a make-believe world. Then that goes to show their apathy towards their duty, towards the women folk and the issue of gender justice, which is a constitutional right of every woman in the country. Anyone who is insensitive to this extent then you can ignore this issue. What sensitivity you can expect from him in the performance of his duty towards the women folk? Therefore, if rapes continue to happen the way they do, it's a wonder then. That's why we said, if there are such insensitive people to this important cause holding the highest office, a serious, prompt review of each of them is required. Can you believe it, one of the senior police officers, a day or two before we had to give the report, rings up to find out the Circular of January 2012, issued by the Ministry of Home Affairs on the subject, which appears to have been done mechanically; now he rings up one of the boys who was working with us to find out what is this circular. Then when he said what it is, he said 'can you give me its copy?' The boy said 'you can get it from the website'. He said 'what is the website?' And he is a senior Police officer. Now if we have that kind of Police force then what do you expect? Now is not Police reforms starting with Dharamvir Commission Report and even in the Vineet judgment also, I have written about these police reforms. Then the Prakash Singh case, the Supreme Court directions are there and what I said there was in the Supreme Court, as a Chief Justice. With all that if this is the attitude, well can it be said that talking about police reforms and what you said earlier about the elections, is it not related to gender issue? So anyone who says we have exceeded the brief well must be having a narrow vision. I'm sorry to say he needs to improve his vision and comprehension.

Sonia: But sadly that's why the disillusionment actually sets in really, because the report has been applauded and it's completely revolutionary. But will it take space or occupy the cupboards or the files, often the filing cabinets of Ministries?

Justice Verma: Before I answer that let me tell you about the regulation of buses. 1997, I didn't want to say it because that's my own order. In the Supreme Court, as Chief Justice of India, when that school bus fell near Wazirabad, that very day I called the Chief Commissioner, Police Commissioner, Transport Commissioner, let them sit for two days. Appointed Harish Salve as amicus curiae. We gave a detailed order of what is required to be done to check these buses and the public transport so much so that speed limit does not exceed within the city by 40 or something. Every time when road accidents happen media refers to 1997 directions. If those were followed the bus, which was involved in the Delhi gang rape on December 16, would it have been there? Would such a driver have been there? So now if this is the situation, then first part, which you say is my worry, if the powers that continue to evade the issue or ignore it, then God forbid. The youth have shown its anger and its ability to take on the issue peacefully in a constitutional manner, democratic manner and if that has to happen it would be a sad day for the country. I only hope and wish it doesn't' happen.

Sonia: You have said that laws cannot be made on the streets, that you have to think rationally and what's very interesting is because I saw many of the protests, we saw the posters up 'hang the rapists' at India Gate, castrate them chemically. Yet the Commission has kept a level head and both not recommended the death penalty and have also not recommended chemical castration either. How did you manage to keep yourselves completely above from the mood of the movement, because it was an angry time also?

Justice Verma: You are right for me and Leila Seth it would not be that difficult, we have been judges, to have had that balance. But then Gopal Subramanium and the younger lawyers also thought likewise. Why? Because you don't make laws for a particular incident, it's for general application. And let me tell you, you are giving credit to us, but I want to give credit to people who appeared before us. It was a very humbling experience to find that all the heads of the women's groups who came and with whom we interacted, not only in the written responses but also in what they said, including three women, distinguished women known in the society as leaders, Naina Kapoor, Ranjana Kumari, all three of them and they didn't say that, but when we asked was there anyone amongst you who was there in the protests, then only they came forward. When we asked their experience we learnt that they were also persons who were hit by lathi and these women, all of them from women's groups, unanimously said no death penalty, no castration. And the most forceful representation for not reducing the age of juvenile also came, apart from others, from Prof Ved Kumari, who is an expert in this field, giving reasons with statistics etc .So we were assisted in this task and I told my colleagues and mind you, they were not at all elderly women, but also young women also said no death penalty. In the first place statistics and study show that death penalty does not reduce crime. Secondly, in the current trend, abolition of death penalty for all offences, to create a new offence with death penalty, was something against the tide. What we have done is we have aggravated form of sexual assault in those cases, which need not be detailed, said life imprisonment, which means whole of the remaining life with no benefit there under, which is probably more strict and is not irreversible as a death penalty is. Now where castration is concerned, I saw a mother in everyone who spoke, whether young or old, so what better data could we have had than the views of women who certainly are the vulnerable section in this path.

Sonia: Given the argument that you can't make law for specific incidents, but the question would be in this case the juvenile has been set to be a participant in the crime, brutal participant in the crime, yet he is likely to walk after 3 years. Would that be seen as justice?

Justice Verma: As I said one can't focus on a single case. You make law for general application and whatever laws you may make there have to be some exceptions, where you will say that probably something else would have been better, but then law of general application can't be focused only on a particular incident.

Sonia: But say if 17 year old commits a crime even in the future, don't we need a law in a case like this?

Justice Verma: So long as you need to have a cutoff date you will have someone falling on this side of the land and someone, for example, if there is a benefit than I will use the word lucky, to fall on that side of the land. The difference in the birth of two days may qualify you for admission and disqualify, the other person may have to wait for one year. Say if 17 years is the minimum age for admission to a technical course, someone who is 17 years and two days will get admission. You are two days short of 17 you have to wait, so you cannot do that. You have to have a cut off date.

Sonia: Because ironically, lowering the juvenile age is recently the only thing, which the DGP and the Chief Secretary agreed on. Recently, in the meeting they had with the Home Minister that was the only thing they had in consensus, was that we must lower the juvenile age

Justice Verma: No, that is because they only want a little more power. It would give a little more power to them, that's all. Was this the only issue in which the police should be concerned about improving the general environment? We are focused not only on identifying and punishing the criminals after the crime is committed, we have to focus more on prevention so that such situation does not arrive, and therefore, for example, if someone gets fever it is systematic treatment to give him medicine for the fever, but what is the cause of the fever unless you eradicate the malady from the root cause. So we have tried to eradicate or provide suggestions for the eradication of the root cause for the malady. So I am not surprised if you lower it to 16 they will have more power. What are they doing to people above the age of 18?
When we focus on how rape cases are treated once they reach court, endless hearings, and in some states the fast track courts are being set up. We had a gang rape victim in Ahmedabad court swallowing poison, saying, 'I'm tired of these hearings.' And bail given to rape accused, often people in powerful positions, politicians in Uttar Pradesh and an Uttar Pradesh Minister appears in court, who gets bail, and then he is out again. What is the role of judiciary in how they deal with rape accused?

Justice Verma: Personally I feel and that's what I have said, there is no institutional bias on our part, I have made it very clear. I have said every court, I don't believe in having few fast track courts, every court should be a fast track court, because what happens in my experience, is whenever there are law delays, then there is tendency for frivolous cases to rise and also in case of criminal cases, crime to rise, because then that danger of being caught and punished is not there. The risk is far less. We have suggested practical means and this has been personally my view for more than a decade. The method, which I have advocated is this; in the first place I don't believe in the requirement of a different age for retirement of Supreme Court judges and High Court judges, while I am not in favour of increasing the age of retirement of Supreme Court judges, because after 65 there are other things you can do. With growing population let younger people come in, but not only Supreme Court judges but High Court judges, instead of 62 should be 65, District judges instead of 60 why not 65? So those who don't perform can go. So you will have so many people continuing for these extra years, which benefit you don't have now. They are already trained judges at the peak of their career. You have a trend you have to do nothing. So they will fill the substantial part of the remaining, according to them, one year pendency and mind you, we were in the High Court and we did that, and that what we were able to achieve, not I alone, but everyone and with the bar cooperating. Sitting judges should deal with only one case and ensure that the pendency doesn't increase. All cases prior to them, there are powers to also adopt adult judges, allot these cases to them and increase the age of retirement of the Court class, including the chaprasi, and every one, so all that infrastructure is available to you. The other thing is remaining infrastructure. Now instead of locking up the court at 5 in the evening let it remain and work a double shift. If you have a case, for which in the normal course who will be given a date 1 year later, and you are given the option that either you have a date one year later or come at night to hear your case, you will readily agree. And say half the salary you pay as the pension and those retired judges, who after retirement where the government pays much more money, will pay much less.
As we come at the end of the interview, Justice Verma you started of course by paying tribute to all the young people who have worked with you, but can I just say that I think many in India will be impressed by the two, may I say over 80 year olds, both you and Justice Leila Seth

Justice Verma: She is 3 years older to me.

Sonia: You are not supposed to give a lady's age. I think you didn't take a day off. You all worked from early in the morning to midnight. Tell us what it was like for both of you?

Justice Verma: No it was very motivated because we thought our presence alone motivates these youngsters. When you say that, I otherwise don't have occasion to hide my age, I was 80 in the middle of this exercise and somehow the people came to know, and those gracious ladies in the concluding session, they mentioned it publicly. So I think if you are doing something, that extra energy, that adrenalin flow increases. If at all you feel tired after it is over, but not before that.

Sonia: You did this without any stenographer from the Government of India. Why was there no stenographer?

Justice Verma: Subramanium's office provided all. It's good to learn things.

Sonia: You typing with one finger. You were typing yourself?

Justice Verma: So what.

Sonia: They didn't expect you would produce this report in 30 days. They thought an extension will come or something of this sort
Justice Verma:
Most of the people don't know that I don't have any staff. From my pension I cannot afford to.

Sonia: Welcome back and also now joining us on Your Call is a surprise element. This is Justice Verma's granddaughter Preetika, who has graduated from the University of Oxford, and Preetika, you were part of that young team your grandfather talked about, who worked tirelessly for those 29 days. What is it like for you working with your grandfather and seeing him up close when he is at work?

Preetika: It was a great experience. I learned so much both from my grandfather and my teammates. Each individual in the team was exceptional. It was a great experience for me.

Sonia: Also hope for an optimist that this would lead to an actual change. So you all are watching and waiting also, that something will be done with what you have actually given your blood, sweat and tears for, for one month.

Preetika: Yes. Definitely. We are now very hopeful that this will result in direct action and I know my friends from the UK and around the world are also very hopeful and they have been following the progress of this Report. So they don't know the changes, which have been recommended and are waiting to see what happens.

Sonia: Justice Verma, your granddaughter, it must be a proud moment for you, a grandfather, to have her as part of this team? She was in India when something sad happened. Both of you have been very moved and this was a chance to work together on something like this

Justice Verma: Well that helped me to know her more and how much she has grown over the years and that was a bonus in a way. Not only she, but the entire team, and of course I believe she was the youngest of the lot. It was a great experience seeing their commitment, because sometimes I felt we are driving them too hard, but I found that every time, even when I had finished, they were continuing.
Sonia: In fact interestingly we talked, you marked you 80th birthday during this, but this has been a first, because also the progressive nature of this Report, the fact that for the first time transgender and homosexuals are also included in this. I mean that really is revolutionary in Indian jurisprudence that you put that out there so clearly. Why did you stress that was so important?

Justice Verma: Because that is a reality and it is not wise to turn a blind eye towards reality, unless you say they are not humans. If they are humans then how can you exclude any category of humans from the claim or right to equality? Our Constitution neither here, nor the international instruments, exclude them from the category of humans beings. Now, if nondiscrimination, according to the preamble of the human charter, also is the basic fundamental human right, and the entire human race is one family, and the world peace is linked with respect to the human rights, how can you ignore it? Just as you have ignored the women, you ignore half the population. If you ignore half the population, what is the progress you are talking about? Mehbub ul Haq, I'm very fond of quoting, he said 'human development, unless engendered, is fatally endangered.'

Sonia: We have so many questions also from the viewers Justice Verma. Let's go across to a question from Kolkata, where we have a woman asking that you have included marital rape, but how the issue of implementation? How easy will it be to prove marital rape?

Justice Verma: It is like this, that is why we have exclusively provided our recommendation that this will be taken cognisance of when a complaint is made by the woman concerned, because no third person comes in between. Of course here there is no question of there being an eyewitness or a third person etc, etc. So once it is not treated as an exception, the basic philosophy is, what we have said is, rape can be an offence committed against any woman irrespective of the relationship. All such acts have to be totally consensual, that's why we have defined consent in a very proactive manner. Mere silence is not consent. It's a willing act of both. Now the basic reason for it is, now the basic reason for it is merely because a woman gets married to a man doesn't mean that it is consent for this kind of act to be performed anytime, depending on the will of the man. Each act has to be with mutual consent, so there has to be consent, that way that is actually respecting the moral integrity and dignity of the woman as such, implementation as I said, obvious, and that's why the punishment also. I mean there is a difference in that, the standard of proof always depends on, you see even in ordinary cases of rape, well the courts have said the law is that conviction can be based only on the testimony of the victim or survivor herself, you don't need any, when you look for by medical evidence, this that etc. It is only for reassurance, but it could be as well, if you are satisfied on the testimony of the woman concerned, that's enough

Sonia: In the conclusion of your report you have written that the nation is accountable for the tears of millions of women, also the tears of one family who lost the young woman, who we all talk about, and I think the report is in tribute to her memory

Justice Verma: Yes that is what we said

Sonia: What would you like to say to her family and the families of thousands of others, who are looking at this report and its implementation with hopes, as we end?

Justice Verma: We ended the report by paying tribute to her and of course the others who have responded. What I would like to say is, well no one can put back the clock. She can't be brought back, but she has been immortalised by the aftermath, that her life has not got in vain, in the sense she has lost her life, but then most likely its going to protect the lives of so many other women, and that I think is one of the greatest achievements for anyone in your life, if you are able to make the lives of the others better. So I think that way she is the icon for this entire exercise and all the good that happens as a result of that, will be, as I said, the real tribute to her memory

Sonia: The torch is now being passed really figuratively to the Prime Minister and the government of India to make sure that this is done

Justice Verma: Yes, yes

Sonia: Justice Verma thank you again very much for joining me, thank you.