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As good as it gets? Court Witness’ CJI report card on Sathasivam the Safe, a remarkable Chief Justice

Sathasivam: Safety on (photo by Nikhil Kanekal)
Sathasivam: Safety on (photo by Nikhil Kanekal)
Court Witness does former Chief Justice of India (CJI) P Sathasivam and asks, was he great? Or merely safe?

Deep in the heart of Tamil Nadu, along the banks of the river Cauvery, somewhere in a non-descript village there was a boy who was different from the others. To be sure, he tilled the field in the morning and in the evening with his father, just like the others. He went to the Tamil medium school in the neighbouring village like some of the others. He liked being a farmer. But something in him told him that he was destined for more.

Whatever it was, it pushed him to become not just the brightest student in his class, not just the first graduate from his family, not just the first lawyer from his village, but the Chief Justice of India.

That remarkable journey finally ended on the lawns of the Supreme Court of India as CJI Sathasivam bid farewell to the assembled gathering and rode off, literally into the sunset.

Justice Sathasivam as Chief Justice of India was the first Madras High Court judge to have become CJI in sixty years. It seems somewhat incongruous that a High Court which has supplied the SC with 22 judges (including Sathasivam himself) should have seen only two of its rank rise to the post of CJI (and one only because of the premature death of his predecessor).

While Sathasivam’s term of nine months has been shorter than average in recent years, it's nevertheless been a memorable and action-packed term filled with much to talk about.

Minority report

Two major successes and two major failures stand out in J Sathasivam's handling of the administrative side of his duties as a Chief Justice.

The ease and efficiency with which appointments were carried out is testament to the deft handling of the SC collegium – otherwise a hive of interest bargaining and plain obduracy. In the absence of any real transparency, we can only judge a collegium by its results and the Sathasivam-led collegium has done well in ensuring that the Supreme Court was at its full strength of 31 judges for the first time in history and that the vacancy problem in the High Courts was not allowed to balloon in spite of a spate of retirements and elevations.

The efforts to ensure that the Supreme Court becomes a safe working environment for women, while initiated in the time of Kabir, was institutionalised and put to test under Justice Sathasivam.

In tackling sexual harassment, while the case of retired Justice Ganguly and advocate CS Nagesh were handled swiftly and fairly (though somewhat differently), Sathasivam seemed to have suffered a sudden loss of nerve when it came to handling the complaint against Swatanter Kumar. The gains made from the action against Ganguly were frittered in the face of indecisiveness against Swatanter Kumar, who moved the Delhi High Court with a battalion of senior counsel to clamp down on coverage of the sexual harassment complaint.

It remains to be seen what Lodha will do in the meantime.

Keeping up appearances

Undoubtedly Sathasivam's biggest failing was his inability to take any immediate action against Gyan Sudha Misra for her unpunctuality and controversial orders that hinted at forum shopping by the litigants.

Lawyers, litigants and fellow judges alike complained not just about Misra's tardiness, but also the plain lack of preparation, the ill thought-out orders and the unseemly haste in disposing of matters that marred her tenure as a presiding judge on the Supreme Court.

It's not easy to discipline a judge of the Supreme Court who believes that rules are everyone but oneself, but if anyone can do it, the Chief Justice of India can and should, and Sathasivam failed in that respect. A simple order directing that no matters be placed on her roster, pending internal enquiry would've sent a stern message across.

Likewise, the Supreme Court's refusal to act in the face of blatant provocation by High Court judge CS Karnan against the appointment of judges to the Madras High Court, seems to suggest that Sathasivam wasn't willing to go out on a limb for the institution in a way that Kapadia would probably have.

one sensed a hesitance to be firm; that somehow such matters could be quietly papered over without addressing the imminent threat to the structure

In the manner in which Sathasivam handled both the accusations of forum shopping against Gyan Sudha Misra and Karnan's rebellion, one sensed a hesitance to be firm; that somehow such matters could be quietly papered over without addressing the imminent threat to the structure. One could possibly also say that by ensuring appointments happened on time, Sathasivam adopted the same approach to the deeply flawed and hugely problematic collegium system, forestalling any debate on the merits of the proposed Judicial Appointments Commission (JAC).

Hyacinth Bucket would've no doubt approved of Sathasivam's “appearances first” approach.

Judge’ll fix it

Presiding over the Supreme Court in what will likely have been the dying months of a government, Sathasivam probably found more than his share of problems of governance being laid at the door of the Supreme Court. The Supreme Court found itself sorting out relief to riot victims, manual scavengers, Indian cricket, temple administration, road accidents safety and political ads by government, among many, many other areas.

While Justice Sathasivam delivered judgements in some of the most high profile criminal cases in his time as a judge in the Supreme Court (Abu Salem, Jessica Lal, Bombay Blasts, Mayawati, Jagan Mohan Reddy) he will be remembered for his judgements on electoral law and the death penalty.

The last two years have seen some major developments in the Supreme Court's jurisprudence on electoral law, namely disqualifications on conviction and arrest; trial of MPs and candidates; affidavit disclosures; voter verified paper audit trail and the None Of The Above (NOTA) option.

most lasting contribution perhaps was to reduce the scope of the death penalty in India further

Of these, Sathasivam's two most notable contributions remain the NOTA and the affidavit disclosure judgements. Consequentially, the impact of the NOTA judgment may yet be felt in another election cycle once the scale of its use becomes known, but the affidavit disclosure judgement having come out close to the Lok Sabha elections has had an immediate impact. It would be a bit of stretch perhaps to imagine that somehow Sathasivam had Narendra Modi's marital status in mind when he clarified the position of law, but nonetheless, his judgement has put an end to the dubious electoral practice of stating nothing on affidavits to avoid close examination by the electorate.

Life long legacy?

Sathasivam's most lasting contribution perhaps was to reduce the scope of the death penalty in India further and undo some of the damage done by the poorly reasoned judgement of Justice Singhvi in Bhullar's case. Not only did Sathasivam overturn the law laid down by Singhvi, holding that long delay in execution can result in commutation, but also ensured that Bhullar himself, who had been denied the relief by Singhvi, had his death sentence commuted on a curative petition filed by his wife, Navneet Kaur.

The latter gains more significance in light of the curative petition filed against Singhvi's judgment in Koushal which the Court has consented to hear in open court, especially in light of the judgment in NALSA case relating to transgenders. Whether the Court follows the path laid down in Navneet Kaur by Sathasivam to overrule Koushal remains to be seen, but the case of those arguing Koushal's wrongness have no doubt been strengthened by Navneet Kaur.

Some of the sheen of these achievements is lost when we see that Sathasivam, while calling for the remission of the sentences of convicts in the Rajiv Gandhi assassination case, stayed the Tamil Nadu Government’s remission order when challenged by the Central Government through a dubious writ petition. By referring the matter to a Constitution Bench, in effect passing the buck, Sathasivam seemed to back off from taking a firm stand on the issue which had become controversial between the Central and State Governments.

Delightful manners

When it comes down to his courtroom demeanour, Sathasivam was much more in the mould of his predecessor, (albeit more careful) and the very opposite of his immediate successors.

Where Kabir would hardly read the petitions or briefs beforehand, preferring to go by arguments advanced at the Bar, someone like HL Dattu, and to a lesser extent, the new CJI RM Lodha, prefer to read the brief and make up their minds, sometimes even before a word is said at the Bar.

Both approaches have their merits and demerits, though as young lawyers we tend to prefer the former rather than the latter. For a young man or woman finding his or her feet in the profession, being met by an obdurate and verbose judge hell-bent on showing you and the court how much more of the law she knows is quite dispiriting and discouraging. While we snicker quietly at the back when this happens to a senior counsel or two, we also know that their egos and practice prospects can absorb such blows that we can't.

If CJIs were to be handed out titles like English kings of old, we'd know him as “Sathasivam the Safe”.

Sathasivam was thus a delight to argue before, whether junior or senior. He listened carefully, his interventions were limited, and where he had a doubt, he often preferred to take his time to decide it rather than hastily dispose it to keep his roster clean. Like Kabir, his questions, irrespective of whom they were addressed to, were unfailingly polite (though in an accent about 6,000 miles away from Kabir's) and he was one of those judges who, whether you got the relief you asked for or not, left with the feeling that you'd been fully and thoroughly heard.

If CJIs were to be handed out titles like English kings of old, we'd know him as “Sathasivam the Safe”.

Sathasivam, who adopted the path of least resistance. Sathasivam, who ruffled the least feathers. Sathasivam, who was loved by all when he left the Supreme Court for the last time.

Where Kabir seemed to blunder into a controversy a day, Sathasivam's careful handling of the issues that faced the Supreme Court is a much needed relief. But careful handling is not the same as correct handling.

The very first graduate from the nondescript village of Kadapannallur deep in Erode district has turned out to be quite a remarkable man. Climbing to the top of tree in the judiciary, with no godfathers, relatives or long family pedigree in the law is nothing short of remarkable. The first judge from the Madras High Court in sixty years to become Chief Justice of India. An eventful term as Chief Justice of India, where has proved to be an efficient administrator and a skilful diplomat on the Bench carefully negotiating the turbulence that has come his way.

Sathasivam the Safe.

Yet, he leaves on the cusp of great change, within the court and without.

More than a third of the judges who were on the Bench at the beginning of the year would have retired by the end of the year.

A new government (most likely a different from the one we've had for the last the years) will soon be in office. Beneath the Supreme Court’s imposing façade (not the one in cream and red sandstone on Bhagwan Das Road) there lie many faults and weaknesses that threaten the institution. Sathasivam may have kept the façade going, and his successor, with the limited time on his hands, can hope to do no better.

But the cracks are widening, and for the sake of one of India’s most respected institution, someone needs to roll up their sleeves.

Court Witness is an advocate of the Supreme Court of India and tweets @courtwitness1

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