What do we seek in a Supreme Court judge? One who must exercise among the widest constitutional jurisdictions of any Supreme Court in the world: to pass any order that does “complete justice,” hear, however briefly, petitions against any order from any court and to decide direct cases on violations of fundamental rights?
The role requires complete probity, and spine; the courage and the wisdom to interpret rights in ways that adhere to the law, yet evolve in new directions to distinguish changing circumstance; and the ability to get things done.
Judicial innovations
Justice Verma’s leadership at the Supreme Court and beyond was based on this character. In his brief tenure as Chief Justice of India, he sought to institutionalise honesty: in 1997, the Supreme Court adopted the “Restatement of Values of Judicial Life.” A few months later, Justice Verma passed the Vishaka judgment, which made sexual harassment at the workplace illegal when Parliament failed to do so. It is less widely known how the bench did this.
Vishaka made clear that the courts could breathe life into fundamental rights where Parliament had failed to do its job - because of inattention to rights or regular adjournments — using international treaties India has signed. Parliament passed a Bill on sexual harassment 15 years later, with no discussion at all in the Lok Sabha, in large part because of the Vishaka judgment. During that time, working women were grateful for the recognition of their “right to work” with “human dignity,” far from odd patriarchal standards of “modesty” being “outraged.”
Justice Verma’s innovation of continuing mandamus is now an accepted judicial role, to compel governments to do what they are legally required but without taking over the function. In this he urged court restraint, so as not to blur the line between the two. Some of his decisions have been widely critiqued: the collegium system, for instance, by which senior Supreme Court judges decide the appointment of other judges. Also his references to Hindutva, which he later said were misinterpreted. But it’s a mistake to seek unblemished heroes. How otherwise would you see yourself reflected, learn to deal with lives and laws that are themselves imperfect?
Honesty and backbone can make you inconvenient, especially if you call a spade a spade when it’s being widely referred to as a pickaxe. Tributes from those in power are pouring forth now, but many did their best to ignore Justice Verma’s assured constitutional voice.
Under his chairmanship, the National Human Rights Commission was one of the first institutions to condemn the role of the State Government in the 2002 riots. He raised the issue not just of State inaction in the face of mass murder and rape, but also of the economic and social ghettoisation of communities. He hired me shortly after as Officer on Special Duty to the Commission, to help continue some of that work as he stepped down. I was 26.
Road map for rights
Eleven years later, when gusts of equality were blowing down Rajpath, young people stormed the barricades of a different government, facing beatings and water cannons, alienated by State inaction on sexual violence, Justice Verma placed the full weight of his eminence and judicial experience behind them.
The report he produced has given women and men a contemporary bill of rights, giving flesh to constitutional gender equality. The Justice Verma Committee also laid out a road map to achieve those rights. A few sections have found place in the new anti-rape laws, but the report has been largely ignored. Instead, a rash of death sentences threatens to make common a standard that was reserved for the “rarest of rare” crimes.
All evidence shows that this will not stop the violence — certain justice is a deterrent, extreme sentencing is not. Citizens were on the streets again this week, unwilling to accept the rape of another child being badly mishandled, seeing ad hoc reform and little change. This is an issue that will not blow over. What then can governments, Central and State, do to give effect to the Verma Committee’s Bill of rights? There is no magic bullet, but without a criminal justice system that works the very reason for governance falls open to question.
Implement the laws against sexual violence: relevant provisions in the Protection of Children from Sexual Offences Act, the Indian Penal Code and the Criminal Procedure Code should be converted to plans of action by each agency tasked to implement them, costed by those agencies and finance and other resources provided. Such exercises are considered basic in Brazil and South Africa to ensure laws don’t remain largely on paper.
Pass legal amendments: Representation of People Act, to disqualify from elections candidates against whom courts have taken cognisance of charges; Police Acts to enhance efficacy and accountability; Indian Penal Code, to criminalise sexual violence of men against men and transgenders; Armed Forces (Special Powers) Act, to allow rapes and sexual violence to be prosecuted in normal courts, outside boys’ club protections.
Carry out police reforms: set up security commissions for police in every State and National Security Commission at the Centre; most have not done this, in spite of a Supreme Court judgment seven years ago and two benches of Justice Singhvi and Chief Justice of India Justice Kabir asking States to respond. Fill existing vacancies and address the gender imbalance in the police forces; amend service and other rules to recruit, train, promote and penalise public servants based on attitudes and service records on sexual violence; facilitate FIRs against police officers who assault or sexually harass citizens, especially survivors of sexual violence,
Execute plans to increase the number of courts, judges, court infrastructure, prosecutors and strengthened legal aid need to be implemented.
Include guidelines and protocols for medical examination and collection of forensic evidence of sexual assault survivors in medical school curricula; also protocols for counsellors and psychologists in the relevant curricula; ,modules on gender in teacher training curricula and in school curricula.
Set up rape crisis cells and crisis intervention centres around the country staffed by medical professionals, police desk, counsellors and a legal desk. Equip public emergency response systems that work, create safe houses that women and children can go to escape violence.
Criminal justice may well be an election issue now. Rather than expressing outrage in Parliament, political parties at the State and Central levels can roll out plans on what they intend to do to reduce sexual violence where they are in power, and where they hope to run for government. But governments can’t and shouldn’t do everything. Families can end cycles of violence and misogyny passed down from parent to child. Proud male feminists are already stepping forward, masculinities groups with male members working on gender equality are being founded. Women are learning to use the law, also other ways of dealing with discrimination: with humour, with firmness, with an internalised sense of right and power.
An important leader has passed. His legacy of ideas has emboldened citizens, his last bequest equips government to overhaul institutions. Going by previous figures, more than 700 women and girls are likely to be raped in Delhi this year. That number could be much less. We have a choice.
(Karuna Nundy is an advocate in the Supreme Court of India.)
