Justice J.S. Verma's Advice On Issue Of Marital Rape Relevant More Than Ever: Dr Y.S.R Murthy

Justice J.S. Verma would often quote Benjamin Franklin who said:

“If you would not be forgotten, as soon as you are dead and rotten,

either write things worth reading, or do things worth writing.”

Justice Verma did both. His landmark Judgements, orders passed in National Human Rights Commission (NHRC) and Committee Reports are still highly relevant. In addition, he did great things worth writing about. 

I have known Mr. Justice J.S. Verma for a little over two decades. I have seen him from close quarters while working in the capacity of his Private Secretary-cum-OSD (Research) while he was the Chairman of NHRC between 1999 and 2002. I have had the good fortune of accompanying him on several fact-finding missions. 

He was an outstanding Judge, a man of extraordinary courage and conviction. He acted as the nation’s conscience keeper by speaking out loudly against instances of injustice, whenever needed. 

Soon after relinquishing his office as Chairman, NHRC on attaining age of superannuation, he moved to a rented premise in Noida. He did not approve of Judges practising in the same court after retirement or taking up arbitration work. He and Mr. Justice M.N. Venkatachaliah were unique in this respect. 

His moral courage was so high that some officials used to shudder to appear before him whether it was in the Supreme Court or while at NHRC.  His words and recommendations are highly relevant to many of our contemporary challenges. 

In the wake of gruesome Nirbhaya rape incident, the three Member Committee headed by him was set up to suggest amendments to laws relating to crimes against women. It produced a wonderful report in a record time. It led to amendment of Criminal Law and introduction of new offences like voyeurism, stalking and imposition of stricter penalties for sexual offences. 

Justice Verma Committee has recommended review of the continuance of the Armed Forces (Special Powers) Act in the context of extending legal protection to women in conflict areas. It recommended that personnel guilty of sexual offences in conflict areas should be tried under ordinary criminal law. His far-reaching recommendations go a long way in addressing issues relating to peace, justice and conflict resolution. In the context for calls for removal of AFSPA by the civil society, it is important to bear in mind this recommendation. 

Today, there is a matter currently before the Delhi High Court with regard to marital rape. The Court has appointed Senior Advocate, Ms. Rebecca John as Amicus Curiae and proceedings are continuing. About ten years back, the Summary of Justice Verma Committee  Report noted  as follows in this regard: 

“The IPC differentiates between rape within marriage and outside marriage. Under the IPC sexual intercourse without consent is prohibited.  However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife.  The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts.  Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.” 

In a way, he dealt with an intractable issue and gave his sound advice on this matter.

Justice Verma will be remembered as being part of the Bench which delivered the Vishakha Judgement. The Apex Court not only defined sexual harassment but also laid down guidelines which required all organisations to establish complaint redressal committee to address sexual harassment. Eventually, it led to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Still, there is a long way to traverse with regard to elimination of sexual harassment and gender discrimination. 

As a Judge, he exercised great restraint and never used to speak in public about his own judgements. He was of the view that Judgements must speak for themselves. In the light of popular misconceptions and selective misinterpretations of his Hindutva judgement, he was constrained to break his own rule and set the record straight during the course of 1st Arch Bishop Alan De Lastic Memorial Lecture, where he asserted that `Humanism is the new creed’. His stress on humanism is highly relevant for all times. 

Justice Verma stood for transparency and accountability in governance. He was a strong votary of a citizen’s right to corruption free governance. In the Vineet Narain’s matter popularly known as Jain Hawala case, he employed judicial creativity to develop the new concept of ‘continuing mandamus’ to compel the CBI to investigate the criminal charges leveled against some high dignitaries because of its inaction for years. It also triggered the process for systemic improvement in the quality of governance by giving autonomy to the CBI in the performance of its statutory function. A great deal still remains to be done in this regard. 

Under his stewardship, the Supreme Court adopted a “Restatement of Values in Judicial Life” at a Full Court meeting on 7 May 1997 and Justice Verma voluntarily declared his assets and encouraged other Judges to follow suit. He advocated judicial accountability throughout his life. 

Justice J.S. Verma was appointed as the Chairman of a Committee on the Operationalisation of Fundamental Duties, which gave a comprehensive report. He would often quote Mahatma Gandhi’s letter to Aldous Huxley on the correlation between rights and duties. Today, there is a selective emphasis by certain people about duties over rights. It is pertinent to recall that Justice Verma interpreted citizen’s duties to include the duty to prevent communal activity and eschew communalism. In this context, he said: “The fundamental duties of every citizen are enumerated in article 51A. These duties indicate that the society must be actively engaged in preserving the secular fabric, unity and integrity of the Nation. The duties specified in clauses (c), (e), (h) and (i) are of particular significance. They require every citizen to uphold and protect the unity and integrity of India; to promote harmony and the spirit of common brotherhood transcending all diversities; to renounce practices derogatory to the dignity of women; to develop humanism; and to abjure violence. Every citizen duly performing the constitutional duties would not merely eschew communalism, but would also prevent any communal activity in the society.”

The jurisprudence evolved by Justice Verma in Nilabati Behera case laid the basis for elaboration of detailed guidelines in the case of D.K. Basu Vs State of West Bengal on custodial violence and torture. 

Soon after taking over as Chairperson of NHRC, Justice Verma recognised the importance of economic, social and cultural rights. He established a Core Group on Right to Health with Prof. K. Srinath Reddy and many other eminent persons as a part of that group. He held National Consultations on maternal anaemia, rights of persons infected or affected by HIV/AIDS and access to health care. Had the recommendations made during his tenure on right to health been implemented in letter and spirit, iron deficiency and malnutrition levels would not have remained at current alarming levels. Recent NFHS data showed serious gaps in this regard. COVID-19 pandemic has also highlighted glaring gaps in our health infrastructure. 

His pro-active intervention and systematic monitoring of the starvation deaths in KBK Districts and NHRC orders on Right to Food have contributed in a big way to ameliorating the ground situation. 

Under Justice J.S. Verma’s leadership, NHRC took a bold and independent on the issue of caste discrimination at the Durban World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in 2001.

In his public speeches, Justice Verma  would often cite the Seven Principles of ‘Standards in Public Life’ outlined by Lord Nolan Committee in U.K., namely, Selflessness; Integrity; Objectivity; Accountability; Openness; Honesty, and Leadership. He also personally practised these values with utmost sincerity. 

Work of extraordinary men and women lasts much beyond their life time. Justice J.S. Verma’s message is highly relevant now. We miss his sane voice in current challenging times.