As Chief Justice Sarosh H Kapadia hangs up his robes at the end of today (28 September), he can look back on his 28-month tenure as the country’s highest judicial officer with a sense of quiet satisfaction.
His court truly made history. It handed down several path-breaking verdicts (Vodafone, 2G, Salwa Judum, Gujarat 2002, Sahara, et al) that put the fear of god in the high and mighty, but, at the same time, ensured that judges did not go overboard by stepping into the area of policy-making which is the executive’s domain.
In the process, he may also have cooled the ardour of India’s ever-growing tribe of public interest litigants (PIL). CJI Kapadia is no stranger to PILs, but the basic message of his tenure is that the PIL is not the answer to every social or economic ill.
It is thus fitting that the last major case handled by his court involved the Presidential Reference on whether auction was the only way to alienate natural resources, as suggested in an earlier verdict by Justices AK Ganguly and GS Singhvi in the 2G spectrum verdict of February 2012. The emphatic answer of a five-judge bench headed by Kapadia was “no”.
A strong advocate of the idea that judges must stick to interpreting the law rather than making it themselves, it is now clear in hindsight why Kapadia’s court chose to answer the Presidential Reference when he could easily have declined it: the Chief Justice probably wanted to answer it in order to send a strong message to his own brethren in black robes that their job stopped with guarding the constitution and the law. Nothing more, nothing less.
Many of the high-powered lawyers who argued before his bench – Soli Sorabjee, TR Andhyarujina and Prashant Bhushan among them - said that the court should not answer the Presidential Reference on the grounds that it was a covert attempt to subvert the judgment in the 2G case, which resulted in the cancellation of 122 telecom licences by A Raja. But Kapadia’s bench chose to rebut them, even though it had no obligation under section 143(1) to actually answer the questions raised in a Presidential Reference.
The opinion, delivered on 27 September, sends a strong signal on the need for judges to stay away from policy-making.
The CJI made his approach clear in August, when he explained the role of the judiciary at a Bombay High Court function: "When a question is posed before the court, the court must find out what is the content of the question. If the content is political and if the content is such where there is no legal standard available before the court to apply and decide the matter, then the doctrine of deference should be applied and it should be left to the executive or the legislature, as the case may be," Zee News reported.
In the Presidential Reference, Kapadia’s bench answered all the questions of law, but dumped all of Kapil Sibal’s politically-loaded questions – like whether the 2G verdict applied to licences issued during the NDA regime, etc.
A quick look at some of the major judgments delivered by Kapadia’s Supreme Court shows that even though there were instances in which judicial overreach was evident, including the 2G case where the judges nearly established auction as the only route to allocating natural resources, by and large his presence served to restrain excess activism.
On the other hand, despite the fact that the Supreme Court has entertained a large number of public interest litigations (PILs) filed by both NGOs and vested interests, under Kapadia the court has also made a conscious effort to quell excess adventurism on this score.
The Supreme Court is now more choosy about the kind of public interest litigation it entertains.
For example, in January this year it threw out Army Chief Gen VK Singh’s efforts to ask the court to decide his date of birth, even though he seemed to have a good case. Earlier, in a PIL filed by the Grenadiers Association (Rohtak), the Supreme Court said there was no public interest involved, since the matter involved a serving army chief seeking justice. CJI Kapadia dismissed the petition saying it was a pure “service matter.”
Later, the court threw out another PIL against Gen VK Singh’s anointed successor, Gen Bikram Singh.
On another occasion, the Supreme Court threw out a PIL against the appointment of the Sebi chief, UK Sinha, saying it raised no constitutional issue. (It has since entertained another petition, perhaps better argued, but one can’t presume it will finally be heard). As Firstpost reported at that time, the petitioners in this case claimed that previous Sebi chief CB Bhave had been unfairly denied an extension and that the independence of the current incumbent (Sinha) was under threat from the finance ministry. They used a letter sent by former Sebi member KM Abraham to the PMO, alleging that Sinha was being pressured by the finance ministry to favour groups like Reliance and Sahara (Read about it here).
But the court was not impressed. Chief Justice Kapadia called the PIL, filed by former air chief S Krishnaswamy, former IPS officer Julio Ribeiro, and several others, a “publicity-seeking” mission. He said: “I am sorry this petition is all for publicity. This court will strictly go by constitutional issues.”
While trying to turn the tide against ill-thought-out judicial interventions, Kapadia’s court also found itself adjudicating on some of the most contentious cases in Indian history. This is what will set it apart from any previous court.
Consider the roster of cases handled.
In the Vodafone tax case, the court handed over a stinging defeat to the government when it ruled that the existing Income Tax Act does not permit the government to tax Vodafone for its overseas purchase of Hutchison Essar’s Indian telecom operations. When the government sought a review, the court refused to be cowed down by executive authority and threw that out as well.
The court did not go soft on powerful corporate interests, too. On 31 August, the Supreme Court ordered two Sahara group companies which had attempted to bypass Sebi’s jurisdiction by seeking to raise Rs 40,000 crore from nearly three crore investors, to close down their schemes and hand the money back to investors.
The court also came down heavily against arbitrary executive decisions – like the appointment of Central Vigilance Commissioner PV Thomas. A bench, headed by the Chief Justice, struck his appointment down in March 2011.
In the verdict on Salwa Judum, the Chhattisgarh government got a rap on the knuckles for its unprincipled backing of a private armed force, but this was one judgment – delivered by a bench which did not include CJI Kapadia – that clearly strayed well outside the ambit of merely interpreting the law. It went into a long diatribe against “neo-liberal ideologies,” among other things.
As Ajai Sahni observed in a Firstpost article last year: “Sweeping considerations of ideology, rather than of law, fact, or objective conditions prevalent, inform much of the court’s arguments. A flawed, partisan, socio-economic theory, devoid of any reference to resources or capacities and capabilities of delivery, is read into the constitution, and becomes the basis for much of the court’s utopian rampage into matters of policy that lie squarely in the realm of the executive.”
Kapadia would surely have winced on reading this judgment, but the broad thrust of benches and judges in his court was against judicial excesses.
Another important constitutional principle upheld by the Kapadia court was that bail shall be the norm, not jail, for the accused. Despite the public mood against corruption following the 2G scam, the court started granting bail to the accused from November 2011. A bench comprising Justices GS Singhvi and HL Dattu held that “refusal of bail is a restriction on the personal liberty of the individual guaranteed under the Constitution.”
They added: “The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the state of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court. Right to bail is not to be denied merely because of the sentiments of the community against the accused.”
In short, Kapadia’s court made a conscious effort to avoid pandering to public sentiment.
To be sure, the Supreme Court did not always carry its logic through. For example, even while a bench headed by the Chief Justice upheld the applicability of the Right to Education Act to private institutions on the ground of “inclusivity” it chose to exclude some schools from its ambit.
The court said: “Right to live covers access to education. But unaffordability defeats that access. It defeats the state’s endeavour to provide free and compulsory education for all children of the specified age.”
However, the bench failed to make this universal by leaving unaided minority institutions out of the RTE’s ambit. A legislation for “inclusive education” ended up excluding a chunk of schools from its remit.
But, in other judgments, the Supreme Court continued on its path of secular neutrality. One of its notable judgments was the decree to abolish the Haj subsidy over 10 years.
Chief Justice Sarosh Kapadia will go down in history as an upright judge who pulled the Supreme Court back from excess activism and instead focus on its main job of delivering justice according to the spirit of legislated law. He tried to clamp down on judicial whims and fancies.
In the process, he may have saved the judiciary from slipping into the comfortable role of pandering to populism and serving as a handmaiden of politics.
His successor Altamas Kabir has a tough act to follow.