A CHAMPION OF THE UNDERDOG

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By S.H. Kapadia, the new Chief Justice of India, has a long and illustrious record of handing out scrupulous interpretations of the law, finds V. Kumara Swamy
  • Published 19.05.10
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When there was little work to be done in the office of well known Mumbai advocate Feroze D. Damania, and newly recruited law graduates wanted to go for a movie or hit a bar in the neighbourhood, one person always refused to join the group. Sarosh Homi Kapadia would rather spend the free time with his head buried in a law book.

“We used to sit across the same table in Damania’s office and the first thing that comes to my mind when I think of those days is Justice Kapadia’s single-minded focus on whatever he was doing. He was determined to become a judge one day and he worked towards that,” recalls Jamshed P. Cama, senior advocate, Bombay High Court and a former colleague of Justice S.H. Kapadia, who was recently appointed the 38th Chief Justice of India (CJI).

Good natured, soft spoken, sincere, helpful and efficient are some of the words that one gets to hear when friends and colleagues talk about Justice Kapadia. Born on September 29, 1947, in a lower middle class Parsi family in Mumbai, Kapadia cut his legal teeth under the legendary labour lawyer Feroze D. Damania. It was probably because he saw his boss arguing cases on behalf of labour unions that Kapadia developed a soft corner for the underdog. In fact, as an advocate in the Bombay High Court, he too fought several cases on behalf of labour unions.

“Since he comes from a very humble background himself, he understands the problems faced by people who look upon the courts as the ultimate saviour,” says V. Narayanan, a Bombay High Court advocate who argued several cases in Justice Kapadia’s court.

“Junior counsels never felt uncomfortable in Justice Kapadia’s court. He would often guide them on laws and ask them to read a particular judgement to understand the nuances of the case,” recalls Narayanan.

Others remember how focused Justice Kapadia used to be even as a lawyer. According to Justice M.F. Saldanha, a former colleague at the Bar and at the Bombay High Court as a judge, though he was a very successful lawyer, he was never one to take on too many cases. “Sarosh had a very unhurried look about him. He took a limited number of cases, and he prepared for them very well. His briefs were master class,” says Saldanha.

In his long career as a lawyer, Justice Kapadia represented the Bombay Municipal Corporation, the income tax department and several public sector undertakings.

One “unusual feature” about Justice Kapadia was that he was almost always the first to arrive in the court. He used to make it to the high court even before the library opened. “That was where one found him when he was not in court. Even as a judge, he was the first to reach the high court,” says Justice Saldanha.

Appointed additional judge of the Bombay High Court on October 8, 1991, Justice Kapadia became a permanent judge two years later. Owing to his expertise in economic matters, he was appointed judge of the special court (under the Trial of Offences Relating to Transaction in Securities Act, 1992) on October 15, 1999.

As a judge of the special court, Justice Kapadia’s rulings had a significant impact on the functioning of financial institutions and the securities market. His report to the joint parliamentary committee and the Reserve Bank of India in the aftermath of the 1999 stock market scam also resulted in several changes to the rules governing the capital markets.

Justice Kapadia’s rise through the upper echelons of the Indian judiciary has been nothing short of meteoric. He was appointed the Chief Justice of the Uttarakhand High Court on August 5, 2003. And barely four months later, he was elevated as a judge of the Supreme Court. Though he was there for only a short while, his associates in Uttarakhand High Court remember him as an able administrator. According to B.D. Kandpal, senior advocate and former president, Uttarakhand High Court Bar Association, Nainital, Justice Kapadia was made the chief justice of Uttarakhand at a time when most of the high court judges were there on a temporary basis and the hearings were very irregular. “But once Justice Kapadia took over, he set the court timings that continue to this day. He also made it a point to fast-track pending cases,” says Kandmal.

Justice Kapadia made his mark as a Supreme Court judge as well. In 2007 he was one of five judges to rule that the Ninth Schedule of the Constitution was open to judicial review. This means that the Supreme Court has the power to strike down any law if it violates the basic features of the Constitution.

Of course, he has his detractors as well. Some allege that as a member of the collegium that appoints judges to the Supreme Court, he was instrumental in blocking former chief justice of Delhi High Court, Justice A.N. Shah, from being elevated to the apex court.

“His determination to do things his way is more than evident from the way he allegedly blocked Justice Shah. But that’s about the only negative I can think of about the new CJI. But then again, we don’t really know the truth of the matter,” says a senior advocate of the Supreme Court.

Others say that Justice Kapadia may not quite measure up to his predecessors. “He may not be in the same class as former CJIs B.N. Kirpal and Y.K. Sabharwal when it comes to writing interesting judgements, but he makes up with his integrity and knowledge of the law,” says a Mumbai-based lawyer.

However, most agree that Justice Kapadia, who is married with two sons and will be on the job till September 2012, will make a fine CJI. He is largely seen as a consensus builder and most of his judgements also reflect that. “There are only a handful of cases where he has given a dissent ruling. These are mostly related to his area of expertise, that is, matters related to tax laws,” says Justice Saldanha. For instance, though he was on the Supreme Court bench that decided the income tax case against Rashtriya Janata Dal chief Lalu Prasad in favour of the defendant, Justice Kapadia did not go with the majority view, and felt that the income tax department had been lenient towards Lalu Prasad.

“He will make an excellent chief justice,” asserts Sudhir Talsania, senior advocate, Bombay High Court, and a former colleague and friend of the CJI. “He will be very judicious, but I don’t expect him to be a very liberal judge. More often than not, he will go by the book.”

In a reply to former Supreme Court judge V.R. Krishna Iyer’s congratulatory letter after he became the CJI, Justice Kapadia wrote “I come from a poor family... and the only asset I possess is integrity. Even as a judge of the Supreme Court, I have used my knowledge of accounts and economics for the welfare of the downtrodden, including tribals and workmen. I hope to fulfil my obligation to the Constitution in the matter of achieving the goal of inclusive growth.”

That is one thing everybody will look forward to.