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Benefit of hindsight: Court Witness on SH Kapadia’s baton

Kapadia: Out of character
Kapadia: Out of character
At precisely 10.30am on 28 September 2012, a packed courtroom rose in the Supreme Court of India’s Chief Justice’s Court, as chief-justice-designate Altamas Kabir and former chief justice of India (CJI) Sarosh Homi Kapadia – a little behind him - walked in to preside together in this court for the first and the last time.

Kabir, true to form, walked in with a benign, almost beatific, expression on his face – his gaze fixed on his seat. Kapadia, true to form, arrived looking at his feet, his forehead furrowed in thought. As he looked up to see a courtroom packed tight - with a vast crowd in black and white - he broke into an impish smile.

The proceedings lasted less than five minutes.

Kabir began by reading out the judgment to be delivered that day – in his usual slow, measured and deliberate manner. Kapadia waited (with immense patience, by his standards) until Kabir was done and began the proceedings for the day. Eight matters were listed before him, all income tax Special Leave Petitions (SLPs).

They were disposed of in less than a minute.

Government law officers in the room could barely squeeze away from the crowd in time for Additional Solicitor General (ASG) AS Chandhiok’s short-and-sweet tribute, followed by an even shorter address by ASG Rakesh Khanna on behalf of the SCBA.

Usually it would be left at that, but Kapadia chose to add a few words of his own, thanking all the lawyers who appeared before him for the learning experience they afforded him.

With that it was all over.

Question of time

Kapadia’s twenty-eight months at the helm were probably long enough to leave behind a “legacy” in Supreme Court terms. The average length of a CJI’s term has been barely eighteen months since 1950. Kapadia’s longer-than-average term was one which also, arguably, counts among the most tumultuous in the history of the Supreme Court.

Where does one begin? The 2G cases that saw a sitting cabinet minister jailed and 122 telecom licenses cancelled? The outright ban on all mining activity in Karnataka to curb rampant illegality and environmental destruction? The biggest tax case in Indian, or maybe global, history?

An attempt to make sense of the judicial legacy of justice Kapadia will require a tome of considerable heft. Any easy reading of the term “pro-corporate” on the basis of the Balco case and Vodafone will have to contend with the RTE judgment and the Mining Ban orders. Hasty interpretations of “anti-government” on the basis of the CVC judgment will need to account for the opinion in the “to auction or not to auction” Presidential Reference. Even though Kapadia did not author all of the major Constitution Bench judgments delivered in his time, the judgments bear the unmistakeable stamp of his thinking and his ideas.

His jurisprudential legacy, in my reading of his judgements and his public addresses (unlike many other judges, his speeches were not the work of a law clerk or a bored intern) was based on upholding the rule of law, no matter what the cost. It is not an approach free from criticism.

Taken to its extreme end in judgments such as the sun control film banning, it looks absurd. The mining ban may have jeopardised livelihoods and caused immeasurable suffering among workers. The fact that the RTE Act is poorly designed and difficult to implement did not dissuade him from upholding it to the extent of its constitutional validity. The Vodafone judgment caused the government to overreact and essentially cut off its nose to spite its face with retrospective taxation amendments.

Administrator supreme?

In assessing Kapadia’s term as Chief Justice, however, one must look beyond his judicial work, and examine his administrative skills and, to apply a jurisprudential concept of his creation, see whether he upheld the institutional integrity of the Supreme Court of India - was he good for the institution?

As I’ve said before, assessing whether Kapadia is good for the institution or not requires us to understand the state of the institution when he took it over from KG Balakrishnan. Though delays are still a problem (almost intractably so), the Supreme Court continues to dispose of more cases than ever per year, irrespective of bench strength. The last few appointments have all been excellent additions to the roster, achieving near-universal approval of the bar. The registry functions more smoothly and in a systematic manner, though greater computerisation would remove the last few problems. By most parameters, there was improvement.

Institutionalism – not a team sport?

However, some blots manage to mar Kapadia’s record. Kapadia did not always apply his own standard of avoiding over-reach - the river linking judgment and the sun-film order being two such instances, the former more potentially hazardous. If Kapadia deserves praise for Balco and the presidential reference, his concurrence with Swatanter Kumar in both of those attracts equal discontent.

His controversial appointment of Kumar to head the all-important National Green Tribunal (NGT), is unfortunately also associated with contempt proceedings against the Indian Express and the Pioneer newspapers. The main point of controversy, strangely enough, had nothing to do with Kumar’s arguable suitability for the post but with Kapadia’s propriety in recommending the appointment in haste. It was a decision within incoming CJI Kabir’s domain.

It is no secret that Kumar owes much of his ascendance in ranks to his loyalty to Kapadia. A near permanent fixture on Kapadia’s Bench, most see him as a “Kapadia man”.

This brings me to another failing in Kapadia’s tenure – the ostensible rift between judges of the Supreme Court.

On many previous occasions, for reasons good and bad, the Supreme Court has been a house divided upon itself. Where ideology divided it in the 1970s, the personality of the two giants of the Court, YV Chandrachud and PN Bhagwati caused a split in the 1980s. As bench strength increased, factions and feuds grew as they are wont to among groups of men and women with large egos and constitutional authority. Like a typical Indian joint family, a picture of unity is presented to the outside world. Behind closed doors, the knives are drawn. Kapadia’s term, far from bridging the rifts, widened them.

One, symptom and fallout of this was the limbo between June and December in Supreme Court appointments. But for lack of consensus, Madan Lokur would’ve replaced Dalveer Bhandari at the Delhi High Court according to his several months’ prior nomination. The absence of consensus among the collegium in appointment does not bode well for a court down one-fifth of its strength for the better part of the year (a year which also saw 30% vacancy in high courts across the country).

The rift was also obvious in the composition of constitution benches constituted by Kapadia over the last two years. As many chief justices have, Kapadia chose benches where he was sure to find agreement and little dissension in the judgement. It was his prerogative of course as the Chief Justice of India (and reflective of a larger trend pre-dating him), but one would’ve expected him to make his choices based on the institutional needs he so often stood for, instead of his personal comfort level with the judges.

A hermit with many enemies

While Kapadia’s personal motto of living like a hermit and working like a horse is no doubt admirable, at times it is hard to get over the extremity with which Kapadia took to “living like a hermit”.

It is possible to make a case that judges shouldn’t engage needlessly with the bar and thrust themselves into the public glare, but it is difficult to accept that absolutely cutting oneself off from the bar and even the media was for the betterment of any of the parties in question.

The Supreme Court’s accountability is maintained through the checks of an active bar and an active press. The bar is a useful feedback mechanism for judges in discharging their duties, and the press exposes the judiciary’s workings to public scrutiny. Anyone who seeks to improve the Supreme Court’s institutional functionality must engage with these two equally vital institutions.

Kapadia’s reticence has created two avoidable conflicts –a disgruntled media that chafes against what it sees as greater shackles on its court reportage, and a sullen bar that believes it has no stake in the reformed registry (perceivably difficult and overbearing to deal with).

While the judgment itself is fairly innocuous, the trial by media hearing became a trial “of the” media hearing, as Kapadia vented his frustration at being misreported and misinterpreted by the media. While his grouse had a grain of truth, his reclusiveness and mistrust of the media had also contributed to the problem.

A bar that is not on board, threatens the very sustainability of the process Kapadia left behind to reform the Supreme Court registry. Conflicts between the bar and the bench erupt across the country on a routine basis for various reasons but as chief justice, Kapadia’s steadfast refusal to engage meaningfully with the Supreme Court bar is a genuine source of grievance.

The legacy of hope

Perhaps in examining and understanding Kapadia’s legacy we shouldn’t strictly separate the man from the holder of the post. Holding public office, albeit one that involves no elections or “popularity”, didn’t cure Kapadia of his innate shyness. He could declaim from the podium or conduct proceedings from the bench, but it was always with the comfort of distance.

He admits he was difficult to get to know or to get along with (and those who’ve worked with him, either in the bar or on the bench have not disputed this). Without attempting amateur psychoanalysis from a distance one can venture to say, that the diffident teenager who began his legal career as a law clerk in Gagrat & Co’s law offices (where he has now returned, along with a post at the Bombay Stock Exchange (BSE)) assisting lawyers with their bags and briefs, never really disappeared even though he went on to become the holder of the highest judicial office in the country.

In a deeply cynical age perhaps this is Kapadia’s undeniable legacy. That in a land known less for upward mobility than the absence thereof, it is a small but undeniable ray of hope that someone from a humble abode can achieve the highest judicial office in the country through sheer hard work and personal integrity. That he can, not just wield judicial power but also give hope to those who see institutions around them crumbling from within as the cancer of corruption consumes them.

Unlike some of his esteemed colleagues, Kapadia is unlikely to return to public life to take a shot at settling his legacy once and for all. The plush, rent-free bungalows of Lutyens Delhi seem to hold no attraction for him (a rarity among Supreme Court judges these days) and he has gracefully left the task of re-building and strengthening the Supreme Court as an institution that the Indian citizen deserves to his successors on the bench.

A task that may yet prove beyond his successors.

Baton secured or dropped?

Already, one of Kapadia’s stellar achievements, the expeditious and stern disposal of Sahara’s attempt to avoid SEBI regulation has been diminished by what can only be called an inexplicable order by Kabir that, to me, is wrong on almost every level. Suffice it to say that the least of its effects has been to undermine the final order of his colleagues on the bench and has emboldened Sahara to act with impunity in defying the Supreme Court’s orders.

Those who were present at the proceedings when the order was passed were astounded that a judge of such stringency about form, brushed aside the objections of the counsel for SEBI and the investors, apparently as casually as Kabir did that day.

What prompted this sudden and dramatic change in Kabir in this case, nobody can say for sure, though the usual canteen and bar room gossips are, as always, happy to speculate, heavily relying on tautology and assumption.

Despair is easy, but there is place for hope. When the accused in the 2G scam attempted to bypass Justice Singhvi with a writ petition, Kabir stood firm and rightfully transferred the matter to Justice Singhvi’s Bench. Perhaps better sense has prevailed. Perhaps all is not lost yet.

Whether Kapadia’s tenure began a long and difficult reform process ending in an efficient and independent judiciary, or he was merely a voice in the wilderness, little heeded, are questions best answered by the deeds of his immediate successors. In a year’s time, we’ll probably know which of the two ways we are headed.

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

Court Witness’ previous Supreme Court postcards. For more on the judiciary, read these:

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