Into the Darkness

Just over 9 months ago, I had penned my views in these columns on the tenure of Justice Kapadia as Chief Justice of India. Having held office for almost 2 ½ years, there was much material to review his stint. One might have thought that the modest period of Justice Kabir’s spell would have lent little to gleaning a legacy.

Unfortunately, that is not the case.

There is really no polite way of putting this. The Kabir court has seen a return to the questionable practices prevalent in the Balakrishnan era – oral mentionings of matters pending before other Benches, unexplained moving of cases from one set of judges to another, the return of the dalals to the registry and an overall erosion of the credibility of the Apex Court. There may be no hand of Kabir in any of this, but it is precisely this apathy that has undone much of the good that was inherited from his predecessor.

The role of the Chief Justice in any of the superior courts is not limited to being the occupant of Court No.1. He (or she) is also the administrative head of the Court, and in that capacity has the final word in everything from allotment of chambers to supervising the roster. These are tasks that require a substantial amount of time and discipline. However, with the kind of haphazard routine followed by Kabir, there was clearly very little attention paid to the shenanigans downstairs.

To be fair to Kabir, his demeanour as a judge saw very little change when he came to occupy this high office. He continued to be a complex man – tardy with sittings, patient with the junior bar, arbitrary with listings, and for the large part, good-humoured. However, in leaving several matters only partly heard and having no reasonable measure of the time available to him while cramming multiple cases into a single afternoon, Kabir has done a great disservice to precious judicial time. Many hours have been spent in carefully querying – “Has Respondent 13 been served?” (five years after the case was first listed) and in painstakingly taking down the names of all lawyers appearing in a batch of nearly a 100 petitions (a task usually fulfilled by the appearance slips). This lack of discipline continued to be evident when he failed to check Justice Gyan Sudha Mishra’s almost daily propensity to sit half an hour late even though the Supreme Court commences functioning at 10:30 am.[1] The simple solution (if he were bold enough), was to withdraw all judicial work from her until she observed the discipline that thousands of lawyers and the other 29 judges found no difficulty in abiding by. As for the continuing disinclination of our Chief Justices to remotely venture towards their final hearing list, I have almost given up hope. See this[2] and this[3].

All of the above may have been forgiven, were it not for the almost defiant manner in which Kabir failed to follow the basic norms of judicial functioning in a series of cases. Most prominent of these was that of SEBI v. Sahara, where after a Bench of Justices Radhakrishnan and Khehar had ordered a refund by Sahara of Rs.24,000 crore by 30.11.2012, the company approached Kabir via mentioning to finally obtain a two month extension of time in December 2012. What was doubly egregious was his obdurate rejection to record the SEBI objection to another Bench altering the earlier order, as voiced by its counsel, Mr.Arvind Datar.[4] The matter did not end there, with Sahara once again approaching the same Bench by way of the same device to seek another extension in February 2013. This brought the President of the Supreme Court Bar Association to the court in protest, alluding specifically to the fact that “there are a lot of rumours” attending the manner in which the hearing of such a sensitive case was being conducted.[5] Kabir demurred, and the Sahara application was dismissed, but not before stirring a hornet’s nest.

Again, when Sunil Bharti Mittal approached the Supreme Court challenging a cognizance order in the 2-G scam case specifically on the ground that the monitoring Bench of Justices Singhvi and Radhakrishnan had not recommended action against him, the CBI took a preliminary objection that the matter ought to be heard by the same bench that were admittedly familiar with the facts of the case. When this objection was raised, first Justice Sen, and at the subsequent hearing, Justice Dave recused themselves from proceeding with the matter.[6] It was only when Justice Nijjar eventually joined Kabir that the objection was heard and tentatively overruled before a stay was granted to the Petitioner. [DISCLOSURE: I appear on behalf of the CBI in this case]

Last week, Chief Justice Bhattacharya of Gujarat[7] leveled some hard-hitting criticism at Kabir for having superseded him because he objected to the latter’s sister being appointed to the Calcutta High Court merely a few months before she turned 60. Kabir’s rancour at this was evident when he took the unprecedented step of writing to the Government stating that Bhattacharya and two others had been overlooked by the collegium “because their elevation as such would prove to be counter-productive and not conducive to administration of justice”.[8] That this was probably far from the truth is evident from the overwhelming vote of confidence given to Bhattacharya by the Advocates Association of Gujarat who condemned the system which had overlooked their Chief Justice.[9]

There is a very thin line that divides what is dubbed as “corridor gossip” and to paraphrase Sherlock Holmes, the “improbable truth”. It would have been impossible for anyone to have suggested anything questionable about the conduct of Justices Ruma Pal, Sinha, Thakker, Kapadia or a hundred others. A mischievous rumour-monger would have been nipped in the bud with the contempt he deserved right at the outset, simply because these eminences had carefully built spotless reputations over decades. With Kabir, the opposition to such a story is not so fervent.

In a little while, on his last day in office, the Chief Justice’s court will deliver the much awaited judgment concerning the validity of the national medical entrance test to be conducted by the Medical Council of India. For the better part of the last week, senior counsel and junior advocates alike have without compunction shared a story that the appeals by the private colleges will be allowed with a declaration that the MCI has no jurisdiction, and that Justice Dave will dissent from this view. The judgment, it is confidently touted, runs into more than 190 pages and in excess of 300 paragraphs. It is my fervent hope that this tale is false – a figment of some perverse and destructive mind. In a few hours, we will know the truth.

In either event, the tragedy remains – that doubt has taken root. It is a long trudge uphill from here.

(Gopal Sankaranarayanan is a practicing Advocate in the Supreme Court of India. The views and opinions expressed in this article are those of the author and do not reflect the opinions or position of Bar & Bench)