The Scales, Restored

Justice S.H. Kapadia, the outgoing Chief Justice of India, has put integrity back on track at the Supreme Court. During his tenure, he delivered some critical judgements involving corporate India—the Vodafone case, the Lefarge Mining case and also the Sahara verdict, asking the group to pay back investors Rs 1,700 crore and pushing the idea of corporate responsibility. While he will be noted for these cases, it will be more fitting to remember this Parsi idoliser of Swami Vivekananda as a champion of probity in the judiciary.

When Kapadia took charge in the summer of 2010, the courts were beset by a severe crisis of credibility, with several judges accused of wrongdoing or nurturing unhealthy associations. It seemed that another of the country’s vital institutions was on the decline. To Kapadia’s credit, when he retires on September 28, he leaves the reputation of the judiciary restored. Says Justice V.N. Khare, former CJI, who vetted Kapadia before his appointment as a Supreme Court judge, “I travelled to Mumbai to collect first-hand information on Justice Kapadia. I got very positive feedback. Everyone talked about his honesty. I discussed him with my colleague Justice Santosh Hegde—even from him, I received a good response, so I decided to appoint him to the apex court in 2003. Now that he’s retiring, I’m happy he’ll be remembered for his honesty and integrity.”

Kapadia was born in Mumbai a month after India attained independence. He rose from the ranks, working his way to the top after starting as a Class IV employee, unlike many who build upon generations of legal practice or their connections. “He has left his own legacy,” says additional solicitor general Indira Jaisingh. “From quashing the CVC’s appointment, in which he locked horns with the UPA government, to the Vodafone judgement—it’s his own unique legacy.”

A few days before he demits office, a constitution bench headed by Kapadia will examine the presidential reference in the 2G telecom case—it’s unlikely that he will walk into the sunset without leaving his mark on the case, also one involving alleged corruption at the highest level. It is not uncommon to hear senior advocates, including Kapadia’s critics, talking about how he has restored the dignity of the highest court of the land.

Advocate Prashant Bhushan, with his father Shanti Bhushan, was running a campaign against corruption in the higher judiciary when Kapadia took charge in 2010.  Prashant says he still is one of Kapadia’s critics, but concedes that “his basic honesty has restored the reputation of the SC and in some ways paved the way for verdicts on PILs that were hailed as very good”. Prashant hastens to add that Kapadia has been pro-corporate—but that’s an ideological difference. Senior advocate Rajeev Dhavan points to the judgement on the Right to Education: “Kapadia’s court delivered a landmark verdict, making education mandatory for the ages 6-14 years. People may quibble, but to my mind, it’s a great judgement.”

Another judgement bearing Kapadia’s stamp is in the Nagaraj case: he spelt out criteria for the uplift of SC/STs in promotions in government jobs and made it incumbent on governments to determine backwardness before taking a decision. It’s a verdict the government is trying to blunt with a bill in the Rajya Sabha. “I think Kapadia’s was the most balanced way of looking at the issue,” says Dhavan. “He was not taking on Parliament. He merely said the government should do due exercises before bringing in enabling provisions to remove backwardness.”

Judges speak through their judgements and its fine print is what they will be judged by. So how will Kapadia be remembered? In his case, there will be two completely different aspects  to address—the professional and the personal, which he strove to keep in watertight compartments. Kapadia was seen as aloof, even standoffish; even to his brother judges. He goes to great lengths to avoid those who might be interested parties. Stories abound of even senior judges not being entertained beyond his reception room when they came to invite him for personal or professional reasons.

Only a few days ago, when a senior judge flew down to meet and invite Kapadia for celebrating the 150th year anniversary of a high court, the judge had to return without meeting him. Quite clearly, Kapadia stood by what he said at public gatherings and memorial lectures about the importance of keeping distance. Outlook contacted him several times for an interview. Each time, his personal assistant H.K. Juneja turned us down politely: “I will place your request before him but, as you know, he does not speak to the media. However, you are always free to put in your request”.

Justice Kapadia’s former colleague at the SC, Justice Ashok Ganguly, says, “He doesn’t talk to the media—that is true. However, the image people have about him is that he is a serious man who never smiles. That is wrong. He is a very jovial person. A very observant personality. He tries to always go by Swami Vivekananda’s philosophy.”

Asked about the CJI’s love of music, Justice Ganguly had this observation: “I have never seen him singing but he cracks jokes with all of us. His sense of humour, his timing is very good. I always enjoyed working with him”.

Very sensitive to criticism, Kapadia possibly faced some tense moments in February this year when a PIL alleged that he had a conflict of interest in the Vodafone tax case. The PIL was not only dismissed but a penalty was imposed on those who filed it. Kapadia then went on to give the landmark  Vodafone judgement. Kapadia’s senior in the Bombay High Court, Justice Hosbet Suresh (retd), too vouches for his honesty and integrity.

But there are critics as well. Advocate Kamini Jaiswal says, “There is a perception that his acumen in tax laws made him focus entirely on corporates. As CJI, he is like a father of this huge court and I don’t think he was able to carry all the family members together.”

A practice that has come to a halt with Kapadia is the out-of-turn mentioning of matters, a departure from the previous practice of lawyers requesting judges to take up matters of interest. A senior lawyer recalls how, despite having sought prior permission of the judge to take up a matter in his court, the consent could not be given as the CJI had ruled that petitions for such requests had to be received a day in advance. Questions have been raised at the alacrity with which Kapadia framed guidelines for the media in matters relating to court reporting. Since this came at the time when the government was also trying to curb media, eyebrows were certainly raised. But the key thing he achieved was to restore the dignity to an institution that was also perceived to be sliding in an atmosphere of all-round decline. It isn’t an unworthy bequeathment.

By Anuradha Raman and Chandrani Bannerjee