Second VM Tarkunde Memorial Lecture by J S Verma in 2006
Former Chief Justice of India and Former Chairperson, National Human Rights Commission
Institution of an annual lecture in the memory of VM Tarkunde is a fitting tribute by the PUCL, of which he was a founder. It is a great privilege and an honour for me to be invited to deliver the lecture this year. I am grateful for this opportunity to join in paying homage to a leading member of the legal fraternity who actively, for long served the cause of preserving civil liberties in the country through the rule of law. May his tribe increase!
I came to know VM Tarkunde only on coming to the Supreme Court, and then too only from across the Bar since we had different, though analogous, roles in the Court covering the task of protection and enforcement of civil liberties. On demitting office, I came to live in Noida where he too lived, and I looked forward to closer interaction with him, but that was not to be because of his sad demise soon thereafter. My acquaintance with him has remained distant, but our interaction in the Court gave me enough opportunity to observe his humanism and commitment to the cause of protecting civil liberties. In one word I would describe VM Tarkunde as a great Humanist. He had transcended from the level of an individual to that of an institution in his lifetime. The choice I have made of the theme for this lecture in his memory is occasioned by Tarkunde’s humanism, which was the motivation for his participation in the crusade for civil liberties, during and after the phoney Emergency. One incident alone is enough to describe Tarkunde’s stature. Some years back at a dinner hosted by Soli Sorabjee, Arun Jaitly and I were discussing the role of lawyers in promoting human rights, particularly the young. Arun named one of them (I will not name him) and described him as the Tarkunde of our generation. Indeed, it is high praise for that young lawyer and a fitting tribute to the legend as the benchmark for judging a human rights activist. Tarkunde is a role model for the youth and a gift to our inclusive democracy. I call our democracy inclusive because of the creed of secularism ingrained in it, of which Tarkunde was an active proponent. Humanism is defined to mean: any system which puts human interests and the mind of man paramount; non-religious philosophy based on liberal values; tendency to civilise; and compassion. Tarkunde satisfies that test and was true to this meaning. I recall the fervor with which Tarkunde addressed the Court espousing the cause of the minority in the Ayodhya case, and generally, in other matters, of the have-nots for promoting the egalitarian ethos and distributive justice promised in our Constitution. His role during the Emergency as an ally of Jayaprakash Narayan and thereafter in contributing to civilize the exercise of public power is well known. His association with the PUCL was life-long.
The basic concept of civil liberties is the upholding of the dignity and worth of the individual, which is the essence of human rights. Man is born free and there is constant struggle to break the shackles, when in bondage. This perception led to renaming the Indian Mutiny of 1857 as the First War of Indian Independence. The Civil War of America was a similar response. Civil liberties in South Asia present a mixed picture. It is dismal where democracy is either not real, or is in the nascent stage, even if not absent in form. The aftermath of 9/11 with the frenzy of war against terrorism has global impact. It is greater where the civil liberties were already not sacrosanct and the institutional protection was weak. Strength of the polity to overcome the impact determines the current state of civil liberties. Democracy is the best form of polity for protection of civil liberties; human rights are at the core of constitutional governance. India has the lead in this venture, thanks to the large number of human rights activists in all spheres, and the country ethos. Tarkunde and his ilk have made a large contribution. Civil liberties are a potent tool for empowerment of the people through human development. India with its vast human resources has a great potential. It is already emerging as a super power threatening even the lead status of USA, because of the intellectual capital and its vast resource of knowledge makers in this century of knowledge. The linkage between human rights and human development is recognized, as they share a common vision and serve a common purpose. They in turn depend on the quality of governance, that is, democracy. Synthesis of all three concepts in the polity is essential to achieve the aim. The struggle for civil liberties has been long and arduous. Its perseverance requires eternal vigilance. Activists have, therefore, continuing significance for awakening the people to this reality. The French Constitution (1789) in its Preamble declared: men are born and remain free and equal in rights; the Magna Carta and the American Constitution also emphasized this concept. The Virginia Bill of Rights (1776) proclaimed: all men are by nature equally free and independent and have certain rights namely the enjoyment of life and liberty. During the freedom struggle in India, a demand for Poorna Swaraj was made in 1929 and the fundamental rights of individuals were spelled out in 1931. The UN Charter (1945) reaffirmed faith in the dignity and worth of the human person, in the equal rights of men and women, and of the nations. The UDHR (1948) elaborated human rights. It recognized the inherent dignity and equal rights of all members of the human family as the foundation of freedom, justice, and peace in the world. The duty of states for protection of human rights by the rule of law was also recognized. The two Covenants ICCPR and ICESCR honour the obligation of the States under the UN Charter. The inherent rights of life, against torture, to a free and speedy trial, protection against retroactive penal laws are specified in the ICCPR, and the economic, social and cultural rights needed for full human dignity are in the ICESCR. The basic rights are non-derogable even during national emergency. The Vienna Declaration (1993) recognized the universality, indivisibility, and interdependence of human rights, and the linkage between human rights, human development, and democracy. The universal character of civil liberties is inherent in human existence. The common theme of different philosophies about individual rights is: that a minimum absolute or core postulate of any just or universal system of rights must include some recognition of the value of individual freedom and autonomy. It appears that liberty is a basic right, universally recognized along with equality for every individual. The status of a person cannot justify a differential treatment. This aspect impelled Mahatma Gandhi to say: It has always been a mystery to me how men can feel honoured by the humiliation of their fellow beings.
The Indian ethos is of commitment to civil liberties. The professed aim of Poorna Swaraj with enumeration of fundamental rights during the freedom struggle is reflected in the Constitution of India framed after the Independence. The provisions of the contemporaneous UDHR and the later two Covenants find place in our Constitution. Civil liberties are guaranteed with the provision of constitutional remedies for their enforcement in Articles 32 and 226 of the Constitution. The unique feature of unity in diversity with the creed of secularism in our plural society is woven through the constitutional fabric. It guarantees inclusive democracy. The core values of dignity of the individual and unity and integrity of the nation in the Preamble to the Constitution strike a clear balance between human dignity and national security. The basic rights in Articles 20 and 21 are made non-derogable by Article 359 to correspond with Article 4 of the ICCPR to this effect. A proper appreciation of civil liberties in India requires reading together the fundamental rights, directive principles and fundamental duties, which are complementary and correlative. The decision in Keshavananda Bharti, AIR 1973 SC 1461 holds that the basic structure of the Constitution is indestructible and beyond the amending power of the Parliament under Article 368. Basic features of the Constitution forming its basic structure include democracy, secularism, rule of law, judicial review, free and fair elections, and the essence of separation of powers, etc. Thus, civil liberties are firmly constitutionalised and judicialised in the Indian polity. The constitutional remedy in Article 32 for the enforcement of fundamental rights is itself a fundamental right. Ambedkar treated it as the soul of the Constitution; and Chief Justice Patanjali Sastri labeled the Supreme Court as the sentinel on the qui vive because of this jurisdiction. The National Human Rights Commission in the context of Gujarat communal violence of 2002 spelled out the State responsibility for protection of human rights, thus: It is the primary and inescapable responsibility of the State to protect the right to life, liberty, equality and dignity of all of those who constitute it. It is also the responsibility of the State to ensure that such rights are not violated either through overt acts, or through abetment or negligence. It is a clear and emerging principle of human rights jurisprudence that the State is responsible not only for the acts of its own agents, but also for the acts of non-state players acting within its jurisdiction. The State is, in addition, responsible for any inaction that may cause or facilitate the violation of human rights. This is the status of civil liberties in India.
It is a fallacy to think that there is any conflict between human rights and national security. The coexistence of human dignity and national security in the Preamble to the Constitution of India is sufficient to dispel this impression. It is only in the event of a possible conflict that there has to be priority, and then too the non-derogable rights remain sacrosanct while the other rights become subservient only to the extent necessary in the larger interests. Even after 9/11, in the UN Security Council Resolution 1373 of 28 September 2001, the States were called upon inter alia to take appropriate measures for combating terrorism in conformity with relevant provisions of national and international law, including standards of human rights. In the same context, Mary Robinson, the UN Commissioner for Human Rights said: There should be three guiding principles for the world community: the need to eliminate discrimination and build a just and tolerant world; the cooperation by all States against terrorism, without using such cooperation as a pretext to infringe human rights; and a strengthened commitment to the rule of law, and also, What must never be forgotten is that human rights are no hindrance to the promotion of peace and security. Rather they are essential element of any strategy to defeat terrorism. The UN General Assembly emphasized in this context, that States must adopt measures in accordance with the UN Charter and the relevant provisions of the international law, including international standards of human rights. Gandhiji had this in mind when he said: Peace does not come out of a clash of arms, but out of justice lived and done.
The right to freedom of speech and expression guaranteed in Article 19(1)(a) is a potent tool in our representative form of government to facilitate the people’s participatory role in governance. The right to know is implicit in it. A citizen has, therefore, a right to know about the functioning of the State, its instrumentalities, and all those exercising public power. Freedom of speech is founded on the right to know. It is subject only to reasonable restrictions imposed by law under the heads specified in Article 19 (2) in the larger public and national interests. Reasonableness of the restriction is subject to judicial review. The recent Right to Information Act, 2005 is merely to provide for the operationalisation of that right. It must be construed to maximize disclosure and minimize confidentiality. Freedom of Press is not expressly provided in the Constitution, but it has been derived from the people’s right to know. As judicially construed, it includes not merely the freedom to write and publish what one considers proper (subject to the reasonable restrictions), but also the freedom to carry on the business to disseminate information. It is in the exercise of this right that the voters have a right to know the antecedents of all contesting candidates at an election, so that they can make an informed choice of their representative based on suitability: PUCL v. UQI, AIR 2003 SC 2363. Thus, the prevailing freedom of press in our country, so essential for democracy is logical. It has been judicially recognised that even a defamatory incorrect news item about a public figure relating to his public conduct is not actionable, unless it results from malice or reckless disregard for truth. I am pleasantly surprised that in a neighbouring country having democracy only in form, there is considerable freedom of press. A few items published in the Dawn of Pakistan castigating the high and mighty wielding power are to be seen to be believed. The space for absorbing the scathing criticism of the authorities by Asma Jahangir and Imran Khan is refreshing to reveal that the germ of democracy has not atrophied even there. Similarly, the global support for the Nobel Peace Laureate Aung San Suu Kyi confined in Myanmar is hope for ultimate triumph of democracy and civil liberties.
International Humanitarian Law is the branch of international law that deals with human rights in situations of armed conflicts. Despite the different historical origins of IHL and human rights law, there is a growing convergence between the two. They complement and supplement each other. The prime aim of both is to protect the right to life and dignity. The basic premise of both is non-discrimination. The fundamental concepts of these laws are based on balance between military necessity and humanitarian considerations. The rule of proportionality and humane approach are recognized in the IHL. The problem is of ensuring compliance of IHL and enforcing accountability. The obligation to honour humanitarian laws flows from Article 1, common to the four Geneva Conventions, which reads: The High Contracting parties undertake to respect and to ensure respect for the present Convention in all circumstances. The words in all circumstances are significant to exclude any exception. The obligation to respect legal protection to civilians and combatants under the Martens Clause in Article 1, Para 2 of the Additional Protocol 1 of 1977, is: In cases not covered by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from principles of humanity and from dictates of public conscience. This is in conformity with the common law rule that in the absence of legislation, the courts are to decide in accordance with the principles of justice, equity, and good conscience. Thus, humanism is the guiding principle of the rule of law, both national and international. Humanitarian principles govern also the remedy for human rights violations. According to Prof. Van Boven principles, the only appropriate response to victims of gross violations of human rights is one of reparation, which encompasses access to justice, and reparation for harm suffered. The four main forms of reparation are: restitution, compensation, rehabilitation, and guarantee of non-repetition. Duty to prosecute perpetrators is included in reparation. Impunity is in conflict with this principle. The NHRC applied this principle in recommending the obligatory State response to the victims of the Gujarat carnage in the year 2002. A lot remains to be done in that behalf.
Humanism practiced as the universal creed is the assurance for lasting world peace. The mosaic of pluralism with the shade of secularism is a unique feature of the Indian ethos. Indian secularism is the commitment to equal respect for all religions with the State neutrality. The current slogan of world is one family, humanity is one race, and all human rights for all is no different from the Indian concept of Vasudhaiv Kutumbakam and Sarve Bhavantu Sukhinah. HH the Dalai Lama believes that we need different religious traditions, because a single tradition cannot satisfy the needs and mental dispositions of the great variety of human beings. He adds, what they have in common is an emphasis on the importance of enhancing such basic values as compassion, love, forgiveness, and contentment, therefore we can describe each religion as a unique way to help people become better human beings. At the World Parliament of Religions in Chicago (1893), Swami Vivekananda described the diversity of religions as the same light coming through different colours; and a lawyer Charles Bonney hoped that, henceforth the religions of the world will make war, not on each other, but on the giant evils that affect mankind. However, that hope has been belied in the last century, and true secularism is yet to become all-pervasive. The current need is of an all-pervading spirit of humanism, which requires each one of us to be a good human being. In a plural society, the greater responsibility is on those practicing the majority faith to reduce the tensions and to create a conducive environment for practice of humanism as the core of all religious faiths. The hearing in the Ayodhya Reference, AIR 1995 SC 605 was a mixed experience. In the majority opinion which I wrote, I said at the beginning quoting Jonathan Swift, we have just enough religion to make us hate, but not enough to make us love one another; and then I proceeded to say, genesis of this dispute is traceable to erosion of some fundamental values of the plural commitments of our polity. However, the pleasant experience was the sight of lawyers belonging to other communities advocating the cause of the minority community. Exhilarated by the silver lining in the dark cloud, concluding my opinion, I said: It was particularly heartening to find that the cause of the Muslim community was forcefully advocated essentially by the members of the Bar belonging to the other communities. Their commitment to the cause is evident from the fact that Shri Abdul Mannan who appeared for the Sunni Central Wakf Board endorsed the arguments on behalf of the Muslim community. The reciprocal gesture of Shri Mannan was equally heartening and indicative of mutual trust. The congenial atmosphere in which the entire hearing took place was a true manifestation of secularism in practice. The hearing left us wondering why the dispute cannot be resolved in the same manner and in the same spirit in which it was argued. VM Tarkunde was the senior most lawyer amongst those who contributed to that experience. If the tension of the dispute survives, though diffused to some extent, it is because of the lack of the spirit of tolerance and appreciation of the other view among the principal actors, which is needed in an inclusive democracy. More Tarkundes are needed so that such disputes do not arise, and if they do, they are resolved amicably and humanely. It is regrettable that in the land of Mahatma Gandhi, whom we call Father of the Nation, reminder of his precept and practice requires a cinema film called Lage Raho Munnabhai. The hero of that film says that his life has been influenced by that role. Let us hope it has a similar positive influence on all of us.
There was an assembly of the Nobel Peace Laureates in the University of Virginia in 1998, where an extra-ordinary dialogue took place between them for two days. Helena Cobben depicts the shared vision of the global future drawn from their dialogue in a book The Moral Architecture of World Peace. Their vision centers on personal strength and public activism, not the economic trends. They discussed: How can people from different cultural groups, faiths, world views or traditions, try to get along? Some significant parts of their discussion are educative. H.H. The Dalai Lama indicated the benefits of transcending the narrow personal interests and becoming more caring and compassionate to others. Archbishop Desmond Tutu explained the system of transitional justice practiced in South Africa for dealing with crimes committed during the apartheid, which is restorative instead of retributive. The broad architecture for world peace that emerged from the meet, is a world without militarism, where differences are resolved and plans made through dialogue, not coercion and where all human beings are offered equal opportunities to live meaningful, safe and successful lives. The problem of achieving this result when, as Oscar Arias noted, in an age of cynicism you are mocked for insisting that we can be more humane, was answered by Betty Williams, saying The insanity of what going on militarily in the world has got to be challenged not by me, or Jody Williams, or His Holiness, or anybody else who supposed to have a famous name. The insanity of that has got to be challenged by every single one of you, every one of you Thus, each one of us is a part of the solution. Tarkunde subscribed to this philosophy of life and led by his own example.
The essence of civil liberties is humanism, which must be the lodestar in all related issues. The Supreme Court of India was guided by it in its exercise to humanize the stringent anti-terrorism laws e.g. TADA and Armed Forces (Special Powers) Act, etc. in developing the doctrine of Constitutional tort in Nilabati Behera, AIR 1993 SC 1960, and in giving benefit of Articles 14 and 21 even to non-citizens. PUCL has contributed a lot to the protection of civil liberties in the country, more so in difficult times. The several landmark judicial decisions in its name bear ample testimony to this impression. Much of the credit for this must go to VM Tarkunde, who was not only involved in founding PUCL, but also in steering it on a steady course through troubled waters. Having become a living legend as a crusader for civil liberties, Tarkunde will live forever through the activities of PUCL.I am happy and greatly honoured to join the PUCL and all the admirers of VM Tarkunde in paying my humble tribute to a great son of the soil. Thank you. – November 23 2006
[Justice JS Verma was born on 18 January 1933. He obtained the degrees of B.Sc. and LL. B from the Allahabad University and then joined the Bar in 1955; he became a Judge of the Madhya Pradesh High Court in 1972 and its Chief Justice in 1985. He became the Chief Justice of Rajasthan in 1986. He came to the Supreme Court of India in 1989 and was the Chief Justice of India from 25 March 1997 to 18 January 1998. He was also the Acting Governor of Rajasthan, twice between 1987 and 1989. He headed the Commission to inquire into the security lapses leading to Rajiv Gandhi’s assassination (1991-1992) and the Committee to suggest operationalisation of the Fundamental Duties (1998- 1999). He was the Chairperson of the National Human Rights Commission from 4 November 1999 to 18 January 2003. Justice Verma is known for judicial creativity in the field of gender and social justice, probity in public life, judicial accountability, sustainable development, and human rights. Some of his landmark pronouncements are: Vishaka-AIR1997 SC 3011; Nilabati Behra-AIR1993 SC 1960; Srilekha Vidyarthi-AIR1991 SC 537; Ayodhya-AIR1995 SC 605, Hawala-AIR1998 SC 889; Entry of Dalits in the Nathdwara Temple-AIR 1989 Rajasthan 99, and TNGodavarman-AIR1997 SC 1228 relating to environment. These pronouncements are innovative interpretations of the Constitution. As Chairperson of the NHRC, Justice Verma widened the horizon of human rights, giving special thrust to economic, social and cultural rights along with group rights of the marginalised and minorities. He focused on public health and social security as human rights issues to cover HIV/AIDS, and other critical issues, including the right to food or the right to be free from hunger, and abolition of child and bonded labour. Interventions by NHRC under his leadership to enforce accountability of governments for starvation deaths in Orissa and elsewhere, after Orissa supe-rcyclone (1999), Gujarat Earthquake (2001) and Gujarat communal disturbances (2002) were based on the new horizon of human rights. Similar was the stand taken on the issue of Dalits at the World Conference on Racism at Durban (2001), and in opposing the stringent provisions of the Prevention of Terrorism law, in assertion of human rights. Among the several honours conferred on him, are the Honoris Causa degrees of LL.D. by the Banaras Hindu University and the Universities of Allahabadand Jabalpur; the Honoris Causa degree of Vakpati (D.Litt.)by the Central Institute of Higher Tibetan Studies, Sarnath, Varanasi; and the Honoris Causa degree of D.Sc. by the G B Pant University of Agriculture & Technology, Pantnagar. Some of his speeches and Articles have been published in two Miscellanies titled the New Dimensions of Justice and The New Universe of Human Rights. After demitting office of the Chairperson of the National Human Rights Commission, Justice Verma continues to engage himself in pursuing matters of national and public concerns, and advocating measures for amelioration of the polity.]
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