Parsis: The Zoroastrians of India Pakistan and The World

Chief Justice of India: S H Kapadia: Newsmaker

s_h_kapadia Single-minded ambition took India’s new chief justice from genteel poverty to the country’s apex court.

Article by Aditi Phadnis / Business Week

Sarosh Homi Kapadia, Chief Justice of India, has few interests other than the law. One of them is going for walks. As a young man, Kapadia used to drag his younger brother (now a retired banker) all over Mumbai for walks that would, almost invariably, end at Narayan Dabholkar Road, the breezy avenue off Napean Sea Road where high court judges have their apartments. The two brothers would look at the buildings and young Sarosh would say: “One day, the name on that nameplate will be mine”.

His wish was granted in October 1991, when he was made a judge of the Bombay High Court. The story of how he reached there is nothing less than remarkable.

Kapadia belonged to a genteel lower middle-class Parsi family from the Khetwadi-Girgaum region of Bombay. His father was a clerk in a defence establishment, his mother a homemaker. There was enough to eat, but barely. Kapadia completed his BA and LLB and immediately began working. Higher education would have been a luxury.

He acknowledged his humble beginnings in a letter he wrote to Justice V R Krishna Iyer recently. “I come from a poor family. I started my career as a class IV employee and the only asset I possess is integrity…” he said. He joined Gagrat & Co, a law firm as a clerk and later, went to work for firebrand and highly respected labour lawyer Feroze Damania. Soon after, the family moved to Andheri. There, in the neighbouring building lived a young girl, Shahnaz, with whom Kapadia fell in love. She became Mrs Kapadia. They were to have two sons.

The young Sarosh may not have been rich but what he did possess was ambition and determination to become a judge. He became counsel for the income tax department in 1974, aged 27. He also appeared for the then Bombay Municipal Corporation in matters concerning rateable value and octroi. He represented the Maharashtra government and several public sector undertakings (PSUs) until he was appointed a high court judge. As a judge of the Bombay High Court, he decided matters ranging from environmental to banking, M&As, industrial disputes, tax and so on, but developed a reputation for his expertise on commercial and tax law.

The best thing that ever happened to him was the stock scam of 1999 involving broker Ketan Parekh. He was appointed judge of the special court established under the Trial of Offences Relating to Transaction in Securities Act in 1999. He played an important role in the proceedings of the Joint Parliamentary Committee constituted to investigate the stock scam.

On August 5, 2003, he was appointed Chief Justice of the Uttarakhand High Court and in December of that year, he was elevated to the Supreme Court, thus serving only a very short tenure as chief justice of a high court.

In the Supreme Court, Kapadia delivered some landmark judgements which included a decision relating to succession of property in April 30, 2005 in which he ruled out the possibility of conducting the DNA test.

He was part of the three-member Bench that decided income tax case of Rashtriya Janata Dal chief Lalu Prasad. The verdict went in favour of Prasad but Justice Kapadia gave a dissenting judgement saying the income tax department should have filed an appeal against the Income Tax Appellate Tribunal (ITAT) order.

There are some controversies that, however, are inexplicable. Justice A P Shah of the Delhi High Court (who was part of the bench that gave the judgment on homosexuals’ rights) was to have been elevated to the Supreme Court. Kapadia’s was the chief dissenting voice in the five-member collegium that decides who should or should not move up to the Supreme Court. Some say this was because of rivalry from the days when Shah and he were judges in the Bombay High Court. Others say Kapadia was disapproving of two judgments Shah had delivered as Chief Justice of the Madras High Court.

There were murmurs also when he recused himself from hearing a case involving London-based Vedanta Resources as he happened to be a shareholder in its sister company. But he continued to be part of the Special Forest Bench that had heard a petition challenging mining in the Niyamgiri hills in Orissa by Sterlite Industries though he had disclosed in the beginning he was a shareholder in a Vedanta group company.

Now, the biggest professional challenge for the man who has spent his entire life working towards becoming a judge is to decide who should scrutinise the Chief Justice of India and whether he should come under the purview of the Right to Information Act. This has far-reaching implications for both law and justice.

Kapadia is conscious that he has to uphold both equity and fairness. On the issue of honour killings, he has said justice by khaps (local communities) is a social not a legal matter. On the other hand, throughout his life, he has ruled in favour of tribals and the dispossessed.

India’s legal establishment is weighed down by work, and central issues like police reform have temporarily taken a back seat. Crusading judges have their drawbacks, but Kapadia has the advantage of being utterly focussed. Hopefully, the legal system will benefit from this.