On the eve of the IBA conference in New Delhi, John Malpas recalls an encounter with the unlikely people's champion of Indian law. IT WAS all rather bizarre.
One evening in early September – when any self-respecting member of the London legal establishment was still on holiday – The Hon Mr Justice J S Verma, the chief justice of India, sidled modestly into a rather shabby Bloomsbury lecture theatre at the Institute of Advanced Legal Studies.
He was there to discuss his role tackling corruption and upholding the constitution in the world's largest democracy.
As he methodically explained the philosophy underpinning the Indian Supreme Court's battle against corruption, it was hard to believe that this mild-mannered individual was the same man who had a few days earlier locked horns with the Indian prime minister in a fierce debate over whether the Indian judiciary was becoming too political.
It is, of course, a familiar debate. The last Tory government had countless scraps with the judges, and while in opposition Lord Irvine of Lairg famously warned against judicial supremacism.
But what England's judges have been getting up to is nothing compared to what has been going on in India.
“Seen from the perspective of an English judge, some of the judgments of the Indian Supreme Court appear rather frightening because they are so ambitious,” said an admiring Lord Woolf.
“They are beyond the scope of even our more radical judges,” the Master of the Rolls added, as he introduced his friend at the start of the lecture.
Speaking so quietly it was hard at times to hear him, Verma came across as a modest and unassuming man.
He spoke of the Supreme Court's drive to secure access to the courts for India's vast population by encouraging public interest litigation (PIL) which enables individuals or groups to raise public concerns directly to the courts.
In a country caught in the grip of corruption it has proved an invaluable tool – India's Election Commission has estimated that 40 members of parliament in Delhi and 700 members of state assemblies face charges or have been convicted of corruption-related offences.
And although the courts face a horrendous backlog of cases, the Supreme Court has shown a determination to fast-track important cases.
It has also used its powers to order the investigating authorities to act on allegations of corruption.
“We have heard of complaints of inactivity and inertia among the investigating agencies,” said Verma. “The Supreme Court has told them to investigate these allegations. If they had secured a case then there would be a trial, if not then the case could be closed.”
As well as taking on an executive role, Verma said the court had also acted in the legislative field – to fill a “vacuum” created by an absence of legislation.
One of the most recent examples of this is the Supreme Court's decision in August to use what one Indian newspaper described as its “extraordinary powers” to introduce strict new laws to protect women workers from sexual harassment.
In response to a series of PIL petitions, Verma invoked the Indian Constitution to rule that the existing Indian laws were inadequate. The bench said that its guidelines would be enforceable until suitable legislation was enacted.
There is an ongoing debate raging among India's lawyers over whether the Supreme Court is going too far in its attempts to compensate for the failings of the other two pillars of the country's constitution – the executive and the legislature.
According to Lalit Bhasin, general secretary of the Bar Association of India, opinion is evenly divided.
“There is tremendous respect for the Supreme Court because it is the only silver lining in the dark clouds which are surrounding us,” he said.
“But one should not get carried away, that is the danger.”
Despite his reservations, however, Bhasin is full of admiration for Verma, whom he credits with exerting a moderating influence.
During his lecture Verma talked about upholding the constitution, the separation of powers and the need for the rule of law.
But one suspects the real answer to the crucial question of why the Indian judiciary has been allowed to get away with such a high level of judicial activism is more simple.
And it was provided by the judge in his off-the-cuff response to a question at the end of his talk.
“What we have been doing is possible only because it is acceptable to the people – because they wanted it to happen.”
See IBA focus, pp15-21.