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SH Kapadia mid-term appraisal: Crying Room Hercules cleans SC stables after dirty decades, only half-done

Justice 'Stable Hercules' Kapadia
Justice 'Stable Hercules' Kapadia
Supreme Court Postcard: Chief Justice SH Kapadia does not preside over the Chief Justice’s Court so much as dominate its vaulting, almost cavernous interiors with his presence.

In part his impact is a product of his voice, a booming thunder somewhere between tenor and baritone, which is what you’d expect to hear from the Grand Inquisitor as you are confronted with heresies you have allegedly committed.

But if Kapadia is to have a place of pride in Indian judicial history – and everything so far signifies that he might - it will be for his administrative role as the Chief Justice of India even more than for his purely judicial output. Like Hercules before him Kapadia is in the midst of cleaning the Augean Stables that the Supreme Court of India has become under his predecessors but only part of the task is done.

Eras long woebegone

Not everything Prashant Bhushan said in an infamous interview with Tehelka Magazine is necessarily true, even if repeated in a sworn affidavit, but Bhushan was probably not far off the mark when he said that half of the last sixteen Chief Justices of India since the 90s have been corrupt. (It is a different matter that he chose his words unwisely when he spoke of Kapadia in the same breath - something that he’s since admitted, the contempt proceedings notwithstanding). The allegations make for some disillusioning reading, but if even half are not true it would explain much of the rot that has set in at the Supreme Court over the last two decades.

A full length thesis might not be enough to explain why the 1990s and the 2000s were the dark decades of the Supreme Court (I’ll just mention the almost-impeachment of Justice V Ramaswami and the PV Narasimha Rao judgment as illustrative examples) but the nadir was definitely reached in the last year or so of KG Balakrishnan’s rein as the Chief Justice of India.

Right off the bat the Registry was allowed to wither away in Balakrishnan’s time. Morale and efficiency dipped as he started off by putting on hold all disciplinary action and did nothing to improve the working conditions of the Supreme Court registry staff.

Even worse was the preponderance of touts at the registry whose sole function was to “fix” matters for hearing.

Wanted a particular judge to hear the matter? No problem. Wanted your matter to be listed for final disposal on such and such date? Done. Wanted your matter to be taken up out of turn beforehand? Easy. Amounts varied depending on the size of the matter and the job required and it was an open secret that many registry staff and Advocates on Record were in on the take. Few, if any, steps were taken to curb the menace.

A question of morals

Apart from the damage done to the Registry, Balakrishnan’s term also saw the higher judiciary’s morale sink lower than ever before in the manner in which he handled the elevation of tainted judge Dinakaran’s and the clumsy attempts at intimidating Justice R Reghupathy.

Where he came out in defence of Dinakaran until the weight of the material indicting him became too heavy, with Justice Reghupathy he seemed to flatly disbelieve the latter’s version of events.

Dinakaran has finally resigned as the allegations became to damning and Reghupathy’s stand was backed up by the then Chief Justice of the Madras High Court, HR Gokhale who now sits in the Supreme Court.

Balakrishnan made matters worse for himself with his propensity to put out ill-thought statements to the press on important issues. His constantly shifting stance on the applicability of the Right to Information Act to the office of the Chief Justice of India, and the flip-flop over the public declaration of assets by Supreme Court judges further damaged what little credibility he had.

But it wasn’t just Balakrishnan’s personal credibility at stake. After three years at the helm the Supreme Court faced a large number of problems, some his doing or aggravated by him and others the result of his neglect.

The crying room

It is said that when one is appointed Pope there is a chamber in the Vatican where the appointee is ushered in to shed tears over the enormity of the task he has just been entrusted with, nominally speaking for one billion Catholics. The enormity of Kapadia’s task can not have escaped him either when he took oath on 12 May 2010; Rashtrapathi Bhavan should consider introducing a crying room for incoming CJIs. .

Like the opening batsman of a team chasing 434 runs in 50 overs, he needed to get off to a flying start.

And boy did he get off to a flying start. On his first day, in what was possibly a record for the Supreme Court, he was finished with his Board for that day in record time: 39 matters in less than twenty minutes. He also put an end to the practice of out of turn mentioning where one could, without notice to the other side and irrespective of the Bench before which the matter is actually listed, get ex parte interim orders from the Court. Although he relented later and allowed mentioning in urgent cases, he ensured that the matter was listed only before the appropriate Bench according to the roster and that the emergency be explained by way of affidavit.

Next, unlike previous CJIs, he cancelled his summer vacations and stayed put in Delhi to inspect and analyse the functioning of the registry. Needless to say the touts were ousted.

Mentionings have been streamlined and there is much greater transparency about the listing of matters. It is rumoured that he even goes through the causelist every single day to ensure that matters are listed correctly and in accordance with the rules.

Within months of taking charge he’d taken a strong line on corruption and fast-tracked cases relating to the Prevention of Corruption Act. The strong line taken by the Supreme Court on the PJ Thomas case (by Kapadia himself) and the Dinakaran enquiry (by Justices Singhvi and Ganguly) reflect that approach.

Judge of small things

To the untrained observer, this may seem like mere tinkering, as batsmen seem to do with their equipment, techniques, and footwork when in bad form, but professionals know that it is the small things that make the big difference.

And it has made a difference.

In a little over one year, the Supreme Court has come out more assertive than ever of its role as the guardian of the Constitution and has brooked no nonsense from the Government. It is not just the efforts of the odd judge here or there; Bhandari, Bedi, Singhvi, Reddy and of course Kapadia himself, have refused to toe the Government line in important cases concerning Constitutional freedoms and the nature of India’s polity.

The Government has understandably not taken kindly to this and more surprisingly neither have certain sections of the media and civil society but by and large the Supreme Court’s credibility has soared in the last year.

Yet Kapadia’s task remains half-done.

Unfinished business

Two perennial problems press for attention in the remaining months of his term: delays and appointments.

When he took over Kapadia promised action on the delay front but there seems to be a lack of significant progress to tackle the problem. And even the reasonably regular issues of Court News keeping us up to date seem to be getting delayed these days.

The monthly statement of pendency seems to suggest that a small dent was briefly made in reducing the number of pending cases but the most recent figures released yesterday again showed a big spike.

The problem of delays in the Indian judicial system is about a hundred years old and no one expects Kapadia to make it go away in a mere two years. Still there’s much that can be done to mitigate it and one hopes that significant headway will be made in the next few months.

But the issue of appointments is where Kapadia can leave the most significant legacy behind, both on the procedural front and in terms of the actual substantive choices made for the Bench.

Names out of hats?

Crucially at least nine vacancies will be created during the final thirteen months of Kapadia’s tenure.

As of now, no one knows how the Supreme Court collegium makes its choice of judges elevated to the Supreme Court or appointed to the High Courts. Virtually nothing is known about what factors and to what extent they play a role in determining appointments. In the absence of adequate transparency it is not unthinkable that another Dinakaran-like situation may arise. Indeed, it was only the strenuous campaigning of eminent lawyers from Chennai and later in Delhi, that led to Dinakaran’s misdeeds being exposed and his elevation stayed in the face of a massive public outcry. Who knows how many Dinakarans may have actually slipped past scrutiny?

If Kapadia really wishes to take his crusade against corruption to its logical conclusion he must start by making sure that the Supreme Court appointments process is as participative and transparent as possible. It may not be feasible to expect minutes of collegium deliberations to be made public but we would love to know what objective factors are taken into account while determining appointments and elevations.

On what basis were senior judges bypassed for elevation to Chief Justice of a High Court or to the Supreme Court or perhaps why there are so few judges in the Supreme Court who have come up through the ranks of the state judicial services.

The coming months give him and the other members of the present collegium a great opportunity to shape the Supreme Court over the next decade through a careful selection of judges.

With the right choices Kapadia could ensure that the Supreme Court can have a great decade ahead as an institution that Indian citizens will continue to place their hopes in.

The wrong choices could ensure that the stables will continue to remain caked in dirt.

Court Witness is an advocate of the Supreme Court of India.

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