By Gyanant Singh
Former Chief Justice of India (CJI) S H Kapadia passed away on Monday night. We need to mourn his death but celebrate his life. At 68, he may have departed a bit too early but not before living a life worth emulating.
The first CJI born in independent India, Justice Kapadia, set high standards of judicial conduct. He made an arduous journey in life from a humble beginning as a clerk in a law firm to the highest office in the Indian judiciary. And his tireless zeal for doing something good in life did not end with this.
He continued to set examples as a judge and then, as CJI by working tirelessly without any leave for about 22 years. The old school judge did not give interviews to the media and consciously avoided social interactions. However, a lot can be written about his personal life, his character and his philosophy by looking at his approach towards life and work, the manner in which he conducted proceedings in court, his judgments, his administrative decisions and the views expressed by him from public platforms. He gave priority to work, set goals for himself, did not mind dismantling systems which could breed corruption, detested indiscipline and frowned upon unnecessary expenditure and corruption in any government department.
Justice Kapadia, who succeeded Justice K G Balakrishan as CJI in 2010 when judiciary was under severe attack for failing to check corruption and pendency, did commendable work on the judicial and administrative side to improve the image of the judiciary and streamline work in the court registry.
With the issue of corruption in the judiciary becoming the subject matter of debates even in Parliament, CJI Kapadia, while delivering his Law Day speech in 2011, took umbrage to people painting the entire judiciary as corrupt instead of throwing light on specific cases. ‘’We do not mind a studied fair criticism. If you know a judge is corrupt, take a position and tell the CJI. Do not bring the entire judiciary into disrepute…Please don’t dismantle an institution without telling how to build a better one.’’
Justice Kapadia, on his part, strived to leave behind a better judiciary before he passed on the baton. Taking over as CJI on 12 May, 2010 just three-four days before the summer vacation, he made it a point to work during vacations to improve the working of the court registry and this he did by providing a better office environment to employees who so far risked their health by sharing cramped dingy rooms. He also streamlined the system of listing cases to do away with scope for corruption.
On the very first day as CJI, he refused to oblige lawyers by making it clear that no relief could be sought by mentioning matters which were not listed. This put an end to a practice which left scope for bench hunting for relief.
On the judicial side, he left behind a number of judgments for people to judge him. Some judgments by Justice Kapadia before he was elevated as CJI show that he detested corruption and did not mind writing a dissent if his colleagues differed with him on the issue.
On 21 August, 2006, Justice Kapadia, the junior-most among the three judges on the bench which heard a PIL questioning the alleged appointment of a favourable judge for hearing the fodder scam case against RJD chief Lalu Prasad, read aloud his dissent while lifting his head every now then making eye contact with those present in Court number 2.
While the two senior judges held that the appointment could not be questioned in a PIL, Justice Kapadia decided to interfere holding that the appointment was made in violation of the procedure. “PIL is not maintainable to probe or enquire into the returns of another taxpayer except in special circumstances… However, when scams take place, accusation of disproportionate assets are required to be looked into,” he noted.
"In the end it may be stated that the true value of a decision lies in its propriety and not in the decision being right or wrong," Justice Kapadia said in the judgment recording his dissent.
A few months later, he again recorded his views on importance of integrity when he scripted another order in a corruption case. “In the matters after matters, we find that the efficacy and ethics of the governmental authorities are progressively coming under challenge before this Court by way of PIL for failure to perform their statutory duties. If this continues, a day might come when the rule of law will stand reduced to a rope of sand,” he wrote in a 27 November, 2006 order in the Taj Corridor case.
Though he clearly favoured an unhindered business environment, he never gave precedence to business when it came to conflict with rights of people at large. ‘’When it comes to enforcement of the right to life under Article 21 (which includes right to clean environment), we have to go by rights and profit comes later… Production comes after environmental concerns,’’ he observed while banning mining in Karnataka.
Justice Kapadia’s judgment in the Vodafone case might have cost the government dear, but it did not stop him from enforcing the rights of a foreign investor. ‘’Even if the foreign investor has no fundamental right, let them know, that the rule of law prevails in this country,’’ he noted in the Vodafone judgment, which attracted more critics than admirers.
One aspect which made Justice Kapadia stand out was that he never transgressed his powers as a judge and was never tempted by PILs which gave an opportunity to take over the task entrusted to the executive. He made every effort to honour the separation of powers but did not hesitate from intervening if it was necessary for preserving the purity of institutions. In this regard, he set an enviable precedent in the PJ Thomas case.
He propounded the principle of "institutional integrity" to quash the appointment of Thomas who, otherwise, seemed to fulfill the eligibility for being appointed the CVC. The ruling in the case will be a precedent for all times to come and will help courts quash an appointment without going into the merits of the charges against a person.
Justice Kapadia, who kept memories of his struggles buried deep in his heart, shared them with the legal fraternity at the time of his retirement. He said he was earning and learning at the same time. He used to work after attending college from 7 AM to 10 AM and at times used to go hungry because he did not have time. I got the first job on the condition that I would get “only” my college fees as salary, he said.
He said even when he was not a lawyer, he used to go to the Bombay High Court and hear arguments by the likes of Fali Nariman, Soli Sorabjee, Anil Dewan and other stalwarts when he was free.
On his wife -- who was present during his farewell -- being with him in difficult times, he said: “She agreed to marry me at a time when I had just Rs 2,000 in my bank account.”
Known for his integrity, Justice Kapadia said he inherited honesty and integrity from his father who was an electrician in the army. “One of my father’s friend Major Contractor, who is no more, told me that my father used to refuse even toffees and cheese offered to him after he did some work.”
But it was not just integrity, but his dedication to work made him climb up the ladder.
The message that one can draw from his life is summed up in his own statement in response to praises heaped on him at the time of his retirement -- ‘I have done my duty and have done no more.’
Justice Kapadia summed up in one word -- duty -- all the commendable work listed as his achievements during his farewell function in 2012. Sharing with judges a mantra for wriggling out of difficult situations, he said if there is any trouble, do what you are obligated to do. He practiced what he preached.
He did not take leave even for a day in his about 22-year-long career as a judge. He recalled having once suffered a fracture as a Bombay High Court judge but he was in court next day with plaster. “Some lawyers probably thought I was mad,” he said.
Justice Kapadia said he could work relentlessly without fail because of support from his brother and wife. “My father is 92 and mother 88 but it is because of my brother (who takes care of parents) that I was able to work without any leave,” he said in his farewell speech on 28 September, 2012.
Many of my relatives died during the past 22 years but I worked while my wife went for funerals, he said.
He went for work even on the last day of his life. He, along with Justice (Retd) A K Patnaik and another, went for hearing an arbitration matter in Mumbai. Justice Patnaik, who was in Delhi on Tuesday, found it hard to believe he was dead.