Sunday, March 10, 2013

As Justice Kapadia leaves & Justice Kabir takes over as CJI, the court stays in business

As Justice Kapadia leaves & Justice Kabir takes over as CJI, the court stays in business

ET Bureau Sep 23, 2012, 03.58AM IST

Very few judges can count economics, public finance, theoretical physics and Hindu and Buddhist philosophies as their areas of interest. Fewer still can quantify that an 8% GDP growth will translate into 12 million new jobs and 5.5% growth will create 8.5 million jobs or say that courts should lay off economic policy. Outgoing Chief Justice SH Kapadia can do all this.
Kapadia, an economics graduate from Mumbai, is also the rare judge who can speak openly for the government's reform policies, quotes Bibek Debroy (consulting editor, ET) and discount all recent scams with: "Loss is a matter of fact. Profit or gain is a matter of opinion."
His biggest strength, his understanding of finance and economy, his emphasis on investment to propel growth and the Indian success story, has unfortunately been seen as his biggest weakness. His daily board overflowed with IT, commercial and corporate matters over his over two year stint in office.
On an average, he heard 20 such matters a day, sometimes disposing of 50 cases in a span of few hours, apart from addressing himself to several other not-too-happy matters he was saddled with as CJI such as inaugurating judicial functions, gracing farewells and delivering lectures.
Pendency dipped in the initial few months when this statistics-obsessed CJI took over but peaked again to touch an estimated 58,519 cases by 2011 end. The complaints' list kept piling up.
Those with socialist leanings felt he was much too lenient in corporate matters. In the world of specialisation, surely it helped that the CJI was focusing on commerce and economy; detractors said it didn't, and cited his controversial Vodafone judgement as an instance. His policy continuity and investor confidence arguments did not go down well, given the sheer volume of taxes ($2 billion) that was lost, unfairly so.
His sentiments in the Right to Education Act (RTE) ruling were glossed over. He made inroads into the private sector's right to run educational institutions in the case, to declare that they would have to participate in the government venture to educate everybody. Education is charity, not commerce, he said upholding the RTE Act, which said all institutions must set aside 25% seats for the local socially and educationally backward from Class I to X. Also ignored was his other crucial judgement, making foreign arbitration awards immune from interim stays in Indian courts, a huge crib with foreign investors.
His stint in office, however, was marred by a controversy over an attempt to tackle the unthinkable — drawing a lakshman rekha for the media. Despite obvious misgivings by the doyen of the bar Fali S Nariman, who spoke against his client's interest to stand up for a free media, Justice Kapadia heard the case for over two weeks. Nariman's client Sahara argued that its corporate interests were hurt after the media reported an offer made to Sebi to cover investors. He eventually ruled no norms could be laid down and that any corporate or accused could seek protection against prejudicial reporting, but the damage was done.
Propelled to the hot seat after CJI KG Balakrishnan stepped down, Kapadia had the burden of carrying too much of expectations. He delivered partially; shooting down the government's choice for the post of the country's top anti-corruption watchdog citing "institutional integrity" in the PJ Thomas case.

The judgements that followed brought the government down to its knees, added a bit of shine to the court's image, but were a huge let down for India Inc. Corporates and foreign investors weren't too happy with the 2G judgement and the government with an order to investigate the black money phenomena.
Justice Kapadia also failed to wield the broom successfully in cleaning the Augean stables. High courts and lower courts were still clogged with cases, at last count 42,76,123 and 2,73,71,727 cases respectively, judicial vacancies also piled up. Towards the end of his tenure, Justice Kapadia was left grappling with the 2G judgement fall-out. The government made a presidential reference to him on the auction-only rule laid down in that judgement. He will rule on it in his last week as CJI ending September 28, 2012.
CJI designate Altamas Kabir inherits these complicated economic issues from him. Kabir, known for his nuanced, practical views on economy and governance, will also rule on a government plea to rescind the black money probe order as "impractical" as also the contentious issue of entry tax levied by states. Justice Kabir will have to review another judgement of PCI chairman Justice Markandey Katju with grave connotations for both human rights and state security.

Katju had ruled that mere membership of a terror outfit was not a crime unless there was active involvement in violence. The government, bogged down in its fight against naxals and terrorism, wants a second look at this. How Justice Kabir balances these twin concerns will be worth watching. He will also decide whether Indian courts can deal with Italian marines who shot dead Indian fishermen they believed were pirates. Rome claims they can only be tried as per international law, Kerala claims domestic laws will apply.
Ensuring faster disposal of cases and instilling public confidence in the justice delivery mechanism would also be top priority for the new CJI, lest economic democracy fails to keep pace with political democracy, a fear echoed by both the outgoing chief and the prime minister.

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