Justice Kapadia: right man, right time, right place

Source: http://www.livemint.com/Specials/hDId0qCPi3BqfJnlN2Mc1H/Right-man-right-time-right-place.html

At 871 days, chief justice Kapadia has enjoyed one of the longest tenures in recent history as India’s judicial chief. Photo: HT

There will be good judges after him, just as there were before him, but few can claim the enviable legacy that Chief Justice Sarosh Homi Kapadia will when he retires on Friday after 28 months in office.

In part this is because of the timing and circumstances through which Kapadia steered the apex court. He took charge at a time when serious questions were being posed about India’s ability to make the transition from a regime defined around the government’s discretion to one that was transparent and rules-based—akin to that pursued (or sought to be pursued) in industrialized countries.

Not only did the Chief Justice serve as the moral anchor to a nation desperate for assurance, he also pronounced judgements that unequivocally emphasised the sanctity of law at a time when a wave of corruption scandals was threatening to trigger a cycle of cynicism.

“At a time when things were really getting bad, there was one man whose integrity could not be doubted at all,” commented one senior counsel, who did not wish to be identified.

This personal standing added to and complemented the ability of India’s apex court to uphold the law. In cases such as ones concerning the 2G scam, the tax on Vodafone Group Plc., and the spat between the Sahara group and stock market regulator Sebi, the Kapadia-era Supreme Court has arguably laid down the law for both the government and companies.

Similar clarity on the sanctity of law was provided in a ruling by the Supreme Court when it set aside its own previous rulings to remove the ambiguity that had crept into the interpretation of provisions of the Arbitration and Conciliation Act, 1996, which allowed interference by domestic courts in arbitration disputes with foreign owners.

In the Vodafone income tax judgment, Kapadia outlined the philosophy behind the court’s reasoning. “FDI (foreign direct investment) flows towards location with a strong governance infrastructure which includes enactment of laws and how well the legal system works. Certainty is integral to rule of law. Certainty and stability form the basic foundation of any fiscal system.”

Last Saturday, Kapadia said as much at a conference on economic growth and the business environment in the presence of his successor, chief justice designate Altamas Kabir, and Prime Minister Manmohan Singh.

The law, he said, as reported in The Hindu, was the “single largest” factor stimulating economic growth.

That was a rare public appearance by a chief justice notorious for keeping a low public profile outside the realms of the Supreme Court.

Born into a poor Parsi family just after India’s independence, he later worked as a peon-level employee in Bombay, lunched on roasted channa at Mumbai’s Flora Fountain near the Bombay high court. He began practising law in 1974 and in 1991 he became a judge in the Bombay high court.

While he was at his best in dealing with vexing issues involving economics and business, Kapadia will also be remembered for upholding the constitutional validity of the revolutionary Right to Education Act. Less favourably, perhaps, the constitution bench hearing into regulating media reporting of court cases attracted flak not just from media but also from several advocates for an ambiguous pronouncement.

That said, judging the law is only half the job of a Chief Justice of India, who is nominally entrusted with managing India’s sprawling court system that comes loaded with more than 30 million pending cases and the baggage of institutional and historical inefficiencies.

When he took office in April 2010 a total of 55,018 cases were pending in the Supreme Court. This increased by nearly 16% until August 2012, when 63,749 cases were pending, of which 42,583 have been on the books for more than one year. The numbers in the lower courts too, which, to be fair, are not directly under Kapadia’s control, have continued to rise.

What will make Kapadia’s legacy enduring is that his successors will not have his advantage of time on their side. At 871 days, Kapadia has enjoyed one of the longest tenures in recent history as India’s judicial chief—in 27 years, only three have served for longer.

Kapadia’s successors Kabir, and after him, Justice P. Sathasivam, are scheduled to head the country’s judiciary for only around nine months each.