Into the sunset

By Gopal Sankaranarayanan

A few hours ago, Sarosh Homi Kapadia heard his last case as Chief Justice of India. The moments preceding his rising from that august chair seemed to bring together all the elements of what has been a somewhat stormy and inconsistent reign. Breaking with tradition, neither the President of the Supreme Court Bar Association nor the Attorney General were present to murmur the customary homilies to the retiring Judge. Not surprising, considering that Kapadia had himself broken with tradition in rebuffing any attempts by members of the Bar or representatives of the Associations to air their grievances.

In addition, Justice Kapadia was flanked by his successor, Justice Altamas Kabir, a seemingly unflappable soul, but with whom he did not share anything more than a formal acquaintance. In attempting to rule the Court with an iron fist, Kapadia would not be remembered for taking his colleagues on the Bench along with him, barring a select few. The apocryphal tale of a brother judge who sought to personally invite him for a family nuptial being turned from his office as he did not have an appointment was just one in a series of such actions that have dented his popularity.

But Kapadia, much like Douglas Jardine in a different arena, did not come to the Supreme Court to win friends – he came to do his duty as a Judge, and in that, he was a change that the Court sorely needed after the debacle that has now come to steer the National Human Rights Commission. The predecessor’s regime had left several doubts hanging over the collective integrity of the apex court, and it was ripe that a man with only that declared asset should clean the stables. The officials of the Registry of the Supreme Court were pulled up and efforts were made to ensure that the dalals who promised orders and listings were weeded out. As master of the roster, Kapadia uncannily ensured that important cases of miscarriage were listed before benches who would rectify mistakes – Justices Singhvi and Ganguly for 2G, Justice Alam for the Gujarat riot cases, and Justices Raveendran and Lodha for the Padmanabhaswamy Temple treasures. He retained control over the Forest Bench, briefly bifurcating it for better court management before finally bestowing that task upon Justices Alam, Radhakrishnan and Kumar.

Constantly aware of the lurking ghoul that is the pending backlog of the Court, Kapadia sought to have an almost permanent bench of 5 judges to answer important Constitutional questions, which would ensure that several batches of cases would be consequently disposed off. With a few of them I believe he got it right – overruling Bhatia International (barring that now infamous concluding Paragraph), clarifying the scope of Article 300-A, and referring Atiabari Tea Co., for reconsideration. With others, like the apparent sidestepping of media guidelines and the reappraisal of the law of repugnancy in the context of Kerala chitties, he might have erred. But, the idea of having a permanent Constitution Bench is an important one and must be retained, especially for a Constitutional court that seems to have forgotten that task.

Apart from the independence of the Supreme Court displayed by the Thomas judgment (where a decision of the Prime Minister and the Home Minister was quashed), its firmness of action was evident in the mining bans imposed by the Kapadia-led forest bench in mid-2011. Deeply upset by the environmental devastation caused by unbridled mining and illegal exports, the Court’s order effectively broke the back of the mining mafia in the Andhra-Karnataka belt and brought CBI investigations in its wake. To a rapacious regional polity, the message was clear: the guilty would pay, no matter how powerful they were.

Kapadia was known to be extremely indulgent in his final hearings, with the arguments in both the Vodafone tax appeal and the challenge to the Right to Education Act taking almost half a court year between them. It is in this last aspect that Kapadia seems to have glaring similarities with Kabir. Cases of recent vintage and of apparent interest to the judge are heard on priority, while the regular appeals that have been languishing on the list remain untouched. I had discussed this malaise during the previous regime here, and Kapadia’s list has been no different. His last causelist of 20 regular matters in August 2012 included cases from 1992, 1995 and 1998. Still unresolved, the parties have probably lost hope, and the lawyers have probably misplaced their briefs.

In his conduct on the Bench, little could be found to fault Kapadia. While not of unusual brilliance, his experience, particularly with tax and commercial matters ensured that resolutions were swift and balanced. Although he was initially seen as a ‘revenue man’, he quickly dispelled that notion, not least with his verdict in Vodafone. His questions were simple and straightforward, and he grappled to understand aspects that were new to him. With no false modesty, he confessed his ignorance of various aspects of Constitutional law, and was diligent with his homework after every hearing – on many mornings, posing the counsel with fresh questions based on the reading he had done the night before. He was not mean or petty – common failings of judges who believe they have a point to prove to counsel arrayed before them.

Kapadia also did not seem to bear a grudge – the same Prashant Bhushan who had casually accused him of corruption (which has later been watered down by Mr.Bhushan to mean something entirely different) was patiently entertained through the course of lengthy arguments challenging the appointment of Mr.P.J.Thomas as the Central Vigilance Commissioner. No matter that Justice Kapadia’s eventual judgment rejected the arguments of both the Petitioner and the Respondent before enunciating the principle of ‘institutional integrity’ and hence, setting aside the appointment.

Even in the course of arguments, while Kapadia suffered from the same ‘senior complex’ that blights so many others of his ilk, a junior was always kept on his toes, and was forced to respond post-haste to a query from the Bench. To my knowledge, he was never rude, but always challenging. There was an abiding belief at the Bar that he had a weakness for lawyers from Bombay, and that may have been true, but it was probably born out of a familiarity that he had foreclosed to himself once he found himself on the Bench.

In his private life, little is known that has not already been catalogued – and that is the way Kapadia wanted to keep it. It is likely that in order to repel the notion that he was approachable, he chose to avoid social gatherings and public functions. Yet, in a seemingly endless array of inconsistencies, he declined to grace the functions celebrating 150 years of the Madras High Court much to the chagrin of the practitioners there, and yet was very much present for the identical function at the Bombay High Court. He refused to launch a book penned by a well-respected erstwhile Chief Justice of Punjab & Haryana as an apparent matter of principle, but did so for another distinguished colleague. While in the collegium of the Supreme Court, he opposed the elevation of an erudite colleague from Bombay, but backed several with doubtful reputations. In all of this, for one who knows Kapadia as a judge and as a man, it would be wrong to attribute malice. It is only ironic that misjudgment should have been a constant travelling companion for one who graced this high office.

An honest assessment of Chief Justice Kapadia will lead us to a man fraught with contradiction, who sought to steer his ship alone through choppy waters on a course only he knew, and with little attention to his fleet. He meant well, delivered a few strong verdicts and made a few changes, but his mark may not be indelible.

Gopal Sankaranarayanan is a practicing Advocate in the Supreme Court of India  

Photo Courtesy: The Hindu