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'I would feel very unhappy if it is enacted'

Print edition : Aug 05, 2000 T+T-

Interview with Justice J.S. Verma, NHRC Chairperson.

Justice Jagdish Sharan Verma, the Chairperson of the National Human Rights Commission (NHRC), started his career as a pleader in the Judicial Commissioner's Court of Vindhya Pradesh at Rewa (now in Madhya Pradesh) in January 1955. After serving in various capacities in the Madhya Pradesh and Rajasthan High Courts, he became a Judge in the Supreme Court in 1989. He was the Chief Justice of India between March 1997 and January 1998. Justice Verma has delivered some landmark judgments - for instance , in the Sanjay Dutt case (1994) and the Vishakha case (1997, relating to the sexual harassment of a woman in her workplace). He was instrumental in enlarging the content and scope of Article 21 (the right to life and personal liberty) of the Constitutio n. Justice Verma spoke to V. Venkatesan on the draft Prevention of Terrorism Bill that has been recommended to the Government by the Law Commission and on the hawala case. Excerpts:

At a seminar organised by the Law Commission in December 1999 on prevention of terrorism, you had said that a special law was necessary to fight terrorist activities in view of the worsening situation in parts of the country and that it should be a l aw with a human face (as carried in the Law Commission's 173rd report). The NHRC has, however, questioned the need for a special law.

What I said (while inaugurating the seminar) was that the inaugural session was meant to identify issues for a debate in the seminar. So the first question I posed was whether the Prevention of Terrorism Bill was necessary at all. If the answer was in th e affirmative, then what next? As far as I remember, and according to those who were present at the seminar, what I said was that it was a very important issue and that I would refrain from expressing any opinion. I said I would assume that a law was nec essary and comment on that. I don't know even now what ultimately is going to happen. But I had to express my opinion for consideration, assuming that such a law is required in the present context, where terrorism is not being tackled effectively. I said the law in that case should have a human face. So I spoke on what needs to be taken into account should such a law be enacted. But I did not say that such a law needed to be enacted. I never felt that way. Moreover, for a person inaugurating such a semi nar, it is not correct to express an opinion of that kind.

Secondly, it does not matter what was said. Judges should have an open mind, which we have been trained to have, throughout. So that even if you start with an impression and are not sure about it, and if you find on hearing arguments that the first impre ssion is wrong, you should be the first one to correct it. Even if I had said that, I would have no hesitation in saying this. But I could not have said that because I never really felt that way. How could I have commented on that day on the merits of a bill that was drafted later? Ultimately, it does not matter who said what. What we have to consider is the merits of the draft bill.

The Law Commission report has also quoted you as saying that the law cannot be dropped simply because of the apprehension that it could be abused.

The grounds for constitutional invalidity are different. They do not include the unwisdom of a law, or the need or desirability for enacting a law. But then these are relevant for being considered when you want to enact a law. In the court, you are conce rned with constitutional validity. That, of course, I would not comment on even now because if the need arises the court will do that. The desirability and the need to enact a law is something that needs to be addressed seriously. That is why we (the NHR C) have said in our opinion, released on July 14, that we need to consider the matter in the light of the experience with the Terrorist and Disruptive Activities (Prevention) Act (TADA) and, earlier, the Maintenance of Internal Security Act (MISA) of the Emergency days, the adequacies of the existing laws, and the provisions of international covenants to which India is a party. The absence of a need to enact such a law and its unwisdom are issues that are relevant for the performance of the functions of the Commission and of Parliament.

I was in the Supreme Court when I saw the implementation of TADA. I demitted office in the court after it was permitted to lapse. I was a Judge in 1972 when MISA was in operation. I had the privilege to see as a Judge the enforcement of MISA and the enti re period of TADA. My agony is that you don't have another machinery to implement it. It is the same machinery which had enforced MISA. As a Judge, I knew what kind of persons were detained, and that there was nothing to support their detention. You have the same machinery. I would feel very unhappy if it is enacted because any of these laws had not served the purpose or the avowed object for which it was enacted. TADA was misused. That is why my colleagues and I in the Commission thought we must voice our opinion. We expect that in a democracy, where the right to freedom of speech and expression is guaranteed, every individual - we are not excluded - is free to criticise, but I don't think anyone is free to say that the other man has no right to expre ss his opinion.

The Law Commission has proposed that Section 3(8) of the draft bill would place an obligation on a person receiving or is in possession of information regarding any terrorist activity to inform the police as soon as practicable. The NHRC has criticis ed the provision on the ground that it could gravely jeopardise the work of journalists. Do you think the existing laws are adequate to meet the objectives of this provision?

I don't want to go into the specifics beyond what the Commission has expressed in its opinion. But I am troubled about certain basics. The basic presumption that the accused remains innocent until he is found guilty is something of a statutory principle of criminal jurisprudence in any civilised legal system. Even a rebuttable presumption of innocence can be discharged by the accused by giving a plausible explanation. The burden is on the prosecution to prove beyond reasonable doubt the guilt of the acc used. Now, tinkering with this presumption is a serious matter. When I talk of a more stringent procedure, I talk of tinkering with this basic procedural safeguard.

Secondly, Section 25 of the Indian Evidence Act is there, and it continues to be good law. According to this section, a statement or a confession recorded by a police officer is not admissible. That continues to be the law for minor offences also. For a more stringent offence, you permit a policeman to record a confession and base a conviction on that - that, to me, appears to be wrong.

In the Sanjay Dutt judgment, which I wrote, we had a very limited scope, as the Supreme Court had upheld the constitutional validity of TADA in the Kartar Singh case earlier. If you read the Sanjay Dutt judgment, you could see the pains I have taken. Bec ause, there, a very great presumption against the accused arose on the basis of the fact of a mere possession of a firearm by him in a notified area. I said the police should prove "conscious possession" of the firearm by the accused.

How many people were convicted under TADA? Can anyone say that the detention of everyone under TADA was justified? In Gujarat, everyone admits that there was gross misuse of TADA. As a result of the Supreme Court judgment, a review committee of high offi cials had to be constituted. Those were our efforts to humanise the law. Enactment of a new law (on prevention of terrorism) is not in our hands. Our view is that it should not be made. In case such a law is made, humanise it, and prevent its misuse. If the old TADA had a less humane face, and could not contain terrorism, how could the new one with purportedly a more humane face achieve the purpose? This law or any other law of this kind will not enable you to get evidence that you want and cannot get u nder the ordinary law. If you feel a police officer's testimony is sufficient to convict an accused, then delete Section 25 of the Evidence Act.

Ram Jethmalani (then the Union Law Minister) met you after the Commission came out strongly against the proposed bill. Is the government concerned about the Commission's views?

Jethmalani had himself gone on record saying what he thought of the law. I have heard him argue all these TADA cases before me so many times. He was quoted or misquoted by the media as saying that it is not the NHRC's function to comment on the proposed bill. He was more concerned about my not misunderstanding him. The government is certainly bothered about what we say in the NHRC. I don't think that the government would share the impression that a person who is the former Chief Justice of India and ha s two former Judges of the Supreme Court and two other eminent persons as his colleagues (in the NHRC) has no right even to say what he thinks of this bill. You may or may not agree. You may or may not accept it. We never said that we are the only ones w ho are right.

The NHRC has said that it could express its opinion on the draft bill by virtue of Section 12(j) of the Protection of Human Rights Act, which enables it to perform "such other functions as it may consider necessary for the promotion of human rights."

The NHRC's functions include reviewing the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and suggesting measures for their effective implementation (Section 12-d of the Protecti on of Human Rights Act); and studying treaties and other international instruments on human rights and making recommendations for their effective implementation (Section12-f). Now, what someone has said is - I would not like to name the person - that its function is confined only to a law for the time being in force. So that if the law is enacted, we can comment, not before that. But that is not the correct conception, according to me.

Even if you take it in that limited form, the Commission is required to see the existing laws. Under Article 21 we need to read all international treaties, provisions of international conventions. In the Vishakha judgment (written by me), the Supreme Cou rt has clearly said that we are entitled to read the provisions of international conventions and treaties into the existing domestic laws, so long as they are not inconsistent with domestic laws. Under Article 21, you can read the provisions of the conve ntions against torture and the International Covenant on Civil and Political Rights (ICCPR).

Even on that narrow construction which is suggested, one can say, if it is the existing law, therefore recommend measures for its effective implementation. The measure is: do not enact any law which will dilute these provisions. What hurts me most is any one thinking that it is not our function. Whenever any law is enacted, it is widely circulated for eliciting opinion, before legislation. It is part of the democratic process and debate in Parliament. Opinions are solicited. In our case, we had to secure a copy of the Law Commission's report on the bill through a lawyer friend.

In giving the NHRC's opinion, you have talked about political interference in police investigations. How can this be curbed?

Read my judgment in the hawala case. This law will not certainly eliminate political interference, but permit more political interference. What is the safeguard in this law to check political interference?

The NHRC has recommended legislation to check financing of terrorism.

I have expressed my anguish in the hawala case.

The origin of the case was this: two terrorists were apprehended, from whom a lot of money was found, and this led to the entire trail in which top politicians, bureaucrats, and everyone from every walk of life were suspected. This shows that there has t o be some nexus. And what I was crying hoarse about throughout was this: Please investigate that. Because at some point there has to be a common mind which is controlling everything - terrorists, corruption in politics, politicisation of crime, criminali sation of politics, corrupt bureaucracy, corruption in every branch. I am not excluding anyone. Unless you control funding, there will be no real solution.

Does the fact that almost all the accused in the hawala case have been acquitted show that the existing law is inadequate to deal with the problem?

We need a will to do what we talk of. It was just because of the shoddy investigation and that is something which brought down the credibility of the Central Bureau of Investigation. The court could only take the horse to the pond, it couldn't make the h orse drink the water. This is what I said. They got rid of the court by saying that we have filed the charge-sheets. That was the only scope of the monitoring process. But what kind of investigation they did?... Not one case of disproportionate assets wa s investigated, so that substantive evidence that was available could be corroborated. Even a first-year law student knows that under Section 34 of the Evidence Act no one could be held guilty on the basis of a diary entry. Corroborative evidence means t here should be something to corroborate a substantive piece of evidence. That was not the defect of law; that was just an eyewash of an investigation.

Supposing there was no case against the accused, why did they file the charge-sheets? All we said was, take the investigation to its logical conclusion. If you file charge-sheets, an ordinary process will take care, and in the Supreme Court we will do no thing. We said if you feel you don't have a case, then come to us, we will see whether you have done your duty of investigation properly. That they did not want us to do, so they filed the charge-sheets.

Then we said 'hands off monitoring'. There is no lacuna in the system. It is a case of bad workmen quarrelling with the tools. Why ask for more sophisticated tools when you cannot use the existing tools efficiently?

What about political interference in the judiciary?

At least I can talk of myself. No one ever dared to reach me. Any number of men have tried. I was at the highest level of the judiciary for almost 26 years.

In the hawala case, you did speak of a gentleman who tried to approach the judges.

I said he tried. But no one could touch me. I found my colleagues being approached. It was my duty as the Chief Justice and as a presiding Judge of the Bench to protect my Judges. And the purpose was served. My purpose was that any one who was trying sho uld not try anymore. And thereafter that effort completely stopped. And my colleagues also said so. I said it only when I found both Justice S.C. Sen as well as Justice S.P. Bharucha bringing it to my notice. My immediate reason for saying it was that th ey tried to approach Justice Bharucha and he told me that. Following the stand taken by me, it stopped. No one tried to approach any of my colleagues after that. There was thus no need to waste my time on establishing the identity of this gentleman, who m I never met or spoke to.