Two judicial legacies

TWO socially sensitive jurists passed away in April, leaving a void in the world of law and justice. Justice Onteddu Chinnappa Reddy died at the age of 90 in Hyderabad on April 13. Justice Jagdish Sharan Verma, who was active until a few days before his death, suffered multiple organ failure, which led to his demise, at the age of 80, on April 22. Both were Supreme Court judges for nearly a decade: Justice Chinnappa Reddy served from 1978-87 and Justice Verma from 1989-98. The latter served as the Chief Justice of India (CJI) from March 25, 1997, until his retirement. Their contributions both on and off the Bench continue to have a profound influence on individual and group rights, secularism, equality and judicial ethics and probity.

Chinnappa Reddy was the first self-described Marxist to serve on the Supreme Court, to borrow a phrase he himself used in an interview. Born into a lawyer family, Chinnappa Reddy dedicated himself to serving the poor and the underprivileged right from the beginning of his legal career. He used the fees he earned from wealthy clients to defend those who could not afford to pay.

In June 1960, he became the Public Prosecutor for Andhra Pradesh and continued to be so until 1967, when he became a judge in the Andhra Pradesh High Court. Chinnappa Reddy told an interviewer that as the Public Prosecutor he had learnt the tricks of the police and tended to be more pro-defendant than pro-prosecution. During the Emergency (1975-77), he earned the wrath of the then Central government for the pro-civil liberties stand he took in many of his judgments and was punitively transferred to the Punjab and Haryana High Court. After the lifting of the Emergency, he was briefly transferred back to the Andhra Pradesh High Court, before he joined the Supreme Court in July 1978.

Articulate intellectual According to George H. Gadbois, Jr, the author of Judges of the Supreme Court of India 1950-1989 , Chinnappa Reddy was a brilliant, well-read and articulate intellectual who wore his socialist ideology on his sleeve and, during his years in the Supreme Court, often expressed those beliefs in decisions and off-the-Bench speeches.

Upendra Baxi, a legal scholar and Chinnappa Reddy’s contemporary, had this to say in his foreword to the latter’s memoirs, The Court and the Constitution of India: Summits and Shallows : “Chinnappa [as Baxi called him affectionately] was quick to expose the radical deficiencies of bourgeois notions of justice; judicial power in his hands signified a determination to expose the class character of constitutional justicing and ways of fashioning apposite, even at times, radical interpretive techniques, pathways, and performances.”

Some of his landmark judgments amply bear this out. In McDowell & Company Ltd vs Commercial Tax Officers (1986), decided by a five-judge Constitution Bench, which included Chinnappa Reddy, he did away with the ingeniously crafted distinction between “tax planning” and “tax evasion” that unscrupulous companies took shelter under to avoid paying taxes. McDowell helped lift the veil from fraudulent mergers and takeovers that corporations carried out in order to avoid taxes.

Later, a two-judge Bench of the Supreme Court in Union of India vs Azadi Bachao Andolan (2003) disapproved of the McDowell judgment in strong words, describing it as a “hiccup”, something that could be ignored. Recently, a three-judge Bench of the Supreme Court relied on Azadi and ignored McDowell in the Vodafone case. Thanks to the judgment, Vodafone got relief from paying Rs.11,000 crore as tax.

Chinnappa Reddy questioned Azadi and observed in his memoirs: “Evasion of tax, avoidance of tax, tax planning, or call it what you will, was considered quite the fashionable and right thing to do in the days when taxes were no more than exactions of money from the subject by the state, when most of the countries all over the world were not welfare states as they are now. ...Law should not allow itself to be used as a wall of obstruction against the demands of a progressive society.... Law is not merely a defence mechanism to be used by individual citizens against the demands of the state but it is a mechanism of progress or advancement of society.”

Justice Verma too came out with a strong condemnation of the Vodafone judgment, calling it inconsistent with McDowell and, therefore, per incuriam (error in law and, therefore, not a precedent to be followed). According to Verma, McDowell says do not go by the form but the substance of a transaction to determine the tax liability. In Vodafone , the court went by the form and divested Vodafone of any tax liability, which Verma believed was incorrect. He told an interviewer: “You permit illegitimate tax avoidance in this manner that increases tax burden on the honest taxpayer. Above all, does it fit into the constitutional philosophy of distributive justice under Articles 38 and 39 of the Constitution?”

Chinnappa Reddy was a non-believer; yet his personal beliefs did not come in the way of his defence of the rights of believers in a secular society. He delivered a judgment quashing the expulsion from school of two children who did not join in the singing of the national anthem as their faith, Jehovah’s Witnesses, forbade them from any ritual of singing except in praise of God. As a Supreme Court judge, he held in that case that the test of democracy in any country was the ability of even an insignificant minority to find its identity.

Chinnappa Reddy served in the Supreme Court at a time when it was seeking to make amends for its dubious role during the Emergency, when it refused to rule against the suspension of fundamental rights, despite nine High Courts showing the courage to do so. This introspective phase of the court turned into one of activism when the court remarkably expanded fundamental rights, including the right to life, to include many rights that were unenunciated earlier. As Baxi notes, Chinnappa Reddy was able to contribute to the renaissance of judicial power and process, in the luminous companionship of Justices P.N. Bhagwati, V.R. Krishna Iyer and D.A. Desai, who crafted the notions of high judicial power as a constitutionally ordained sacred public trust.

After retirement from the Supreme Court, Chinnappa Reddy headed the Third Backward Classes Commission in Karnataka. He recommended eliminating the benefits of reservation for the more affluent and powerful segments of Karnataka’s backward classes. In 1991, he was part of the three-judge committee that investigated and found substance in the allegations against a sitting Supreme Court judge, V. Ramaswami, who, however, was able to avoid impeachment in Parliament when members of the ruling party abstained from the vote on the issue.

Unlike Chinnappa Reddy, Justice Verma hailed from a non-lawyer family and was attracted to the legal profession at the age of 22. He became a judge of the Madhya Pradesh High Court at 39 though the normal age one gets appointed to a High Court is 45. Initially reluctant to join the Bench, Verma accepted the challenge as he found that nothing could compare with the satisfaction one got from contributing to the development of law and justice to the best of one’s capability.

Verma set high standards for himself. As a lawyer, if Verma thought a judge had made a mistake, he would not hesitate to tell the judge so. Similarly, he expected lawyers to correct him when he was on the Bench. “Judges are not infallible,” he would say. Post-retirement, he again set an example for other retired judges by refusing any assignment, including arbitration work, that involved a monetary reward. Verma was the first of a few High Court judges to recognise that the rights of citizens had to be secure even during the Emergency. When a large number of people were detained without trial, Verma, who was on the Indore Bench when the Emergency was imposed in June 1975, released them after entertaining their habeas corpus petitions. Within two months, however, the court’s roster was changed, and he was divested of habeas corpus cases.

As a Supreme Court judge, Verma decided several landmark cases. In the Second Judges case, his judgment paved the way for the primacy of the Supreme Court’s collegium in the appointment of the judges to the higher judiciary. As the role of the collegium came under criticism for the selection of judges with dubious backgrounds, Justice Verma clarified that he only envisaged effective consultation between the executive and the judiciary. In his judgment, he said that checking the antecedents and deciding on the suitability of candidates lay with the executive, and if the executive did not do this, the judiciary could not be blamed. Although he did not mention it in his judgment, he said that for the purpose of appointing deserving judges he was in favour of wider consultation by the CJI, even with members of the Bar and judges outside the select coterie of five judges who constituted the collegium.

Justice Verma is the author of the landmark Visakha vs State of Rajasthan judgment, delivered in 1997, which laid down several guidelines to prevent sexual harassment of women at workplaces. Verma’s court also directed the constitution of committees in every office and industrial establishment to consider and take appropriate action in the matter of all allegations of sexual harassment. Justice Verma’s intervention continues to engage legal academics, who are still debating whether he was correct in entering into what is essentially the legislative and executive domain. The Sexual Harassment of Women at Workplace Bill was passed by Parliament only recently, on February 26.

Although Justice Verma’s secular credentials were never in doubt, the judgment in which he interpreted Hindutva as a way of life gave rise to misgivings. The Bharatiya Janata Party, which uses Hindutva as a political platform, used his judgment to gain political mileage. The case Manohar Joshi vs Nitin Bhaurao Patil arose in 1996 out of election disputes in which it was alleged that candidates had resorted to the corrupt practice of appealing to voters on the basis of religion. Justice Verma’s court (three-judge Bench) held that the word Hindutva was used and understood as a synonym for Indianism, that is, development of Hindutva culture by obliterating the differences between all the cultures coexisting in the country. Therefore, the court held that any reference to Hindutva or Hinduism in a speech did not make it a speech based on the Hindu religion in opposition to other religions or that the use of the words Hindutva or Hinduism per se did not depict an attitude hostile to all persons practising any religion other than the Hindu religion.

As Chinnappa Reddy observed in his memoirs, Verma’s court failed to realise that the word Hindutva was used in the context of appeals to the voters in an election campaign in support of candidates belonging to political parties inspired by the writings of M.S. Golwalkar and V.D. Savarkar, who had expounded the politics and ideology of the Hindu Rashtra and Hindutva—one language, one religion and one nation.

Another intervention by Justice Verma—to monitor the investigation of the Jain hawala case, in which certain diary entries pointed to bribery of prominent personalities across the political spectrum—raised the question whether his kind of judicial activism had any relevance. The case collapsed as the Central Bureau of Investigation failed to corroborate the diary entries, which on their own could not constitute evidence before the courts. In his later years, Justice Verma was conscious of the limits of judicial activism when it turns into judicial overreach.

Justice Verma perhaps realised the folly of his Hindutva judgment by the time he became the Chairman of the National Human Rights Commission, after retirement in 1999. The NHRC, under his leadership, effectively intervened in the aftermath of the Gujarat carnage in 2002 and found the Narendra Modi government complicit in it. He also used the NHRC forum to oppose the Prevention of Terrorism Ordinance and then the enactment of the Prevention of Terrorism Act by the then National Democratic Alliance government at the Centre, as they went against the fundamental rights guaranteed by the Constitution.

Two pre-eminent causes Justice Verma will forever be remembered for his contribution to two pre-eminent causes. The first is the Restatement of Values of Judicial Life, a set of professional guidelines to be voluntarily followed by every judge of the higher judiciary to restore the people’s confidence in the judiciary. He got this resolution unanimously passed by all the judges of the Supreme Court and High Courts towards the end of his tenure as the CJI. The second is the recent recommendations of the three-member panel he headed to reform penal laws to effectively counter the rising sexual crimes against women. When the committee submitted its report to the Home Ministry within a month of its constitution, despite constraints of manpower and resources, it surprised many. Perhaps, he knew that time was running out for him.