Obituary: The Illustrious Career of Late Chief Justice SH Kapadia

Former Chief Justice of India, Sarosh Homi Kapadia, passed away in the early hours of 5 January 2015 in Mumbai. He was well known for his unshakeable honesty and integrity as a judge, apart from his leading judgements in taxation law and constitutional law.

Justice Kapadia had a long and illustrious career, first as a judge of the Bombay High Court in 1991, then Chief Justice of the Uttaranchal High Court (as it was known then), before being elevated as a judge of the Supreme Court of India in 2003. In 2012, he was designated as Chief Justice of India.

While at the Bombay High Court, he was designated as the judge presiding over the Special Court hearing cases, arising from the Harshad Mehta Scam that rocked the Bombay Stock Exchange in the 1990s.

A Modest Beginning

Justice Kapadia did not come from a well-established legal background, or even from a well-to-do family.

Born into a lower middle class Parsi family, which faced penury as a result of his father’s death, Justice Kapadia had to put his studies on hold to earn a living. Working as a clerk in the Mumbai law firm of Gagrat & Co, he went on to complete a law degree later. Eventually, he worked as a lawyer in Bombay, specialising in labour law and thereafter in tax matters when he was appointed counsel for the income tax department.

At eight years and nine months, Justice Kapadia had a longer term than most judges in the first two decades of the 21st century, and at 30 months, the third longest tenure as a Chief Justice in this century.

Path-Breaking Judgements

His time as the Chief Justice of India in the Supreme Court was one which faced great controversy as, among other things, the Court found itself having to deal with the controversial appointment of the tainted bureaucrat, PJ Thomas as Chief Vigilance Commissioner, along with the fallout of the 2G spectrum Scam.

Justice Kapadia delivered the judgement that struck down the appointment of PJ Thomas as CVC. He also presided over the Constitution Bench that clarified the implication of the Supreme Court’s order on the 2G licenses in the context of auctioning of natural resources.

Justice Kapadia will also be remembered for two path-breaking judgements which will continue to have great ramifications on the corporate and commercial world for many years to come.

In his judgement in the Vodafone case, Justice Kapadia set aside what was possibly the largest tax demand in Indian history, on the ground that Vodafone’s income was not taxable in India, applying the “look at” doctrine to the transaction.

In the Bharat Aluminium Company Ltd case, he led the Constitution Bench that overturned the controversial judgement of the Supreme Court in the Bhatia International case. This limited the power of Indian courts to interfere in foreign arbitration and attempted to make India more hospitable for international commercial arbitration.

Justice Kapadia enjoyed not just a good reputation as an honest judge, but also tried hard to reform the functioning of the Supreme Court Registry, getting rid of the touts and corrupt practices that had crept into the system over the years.

He streamlined processes and tried to ensure that the Registry functioned transparently. He took great pains to ensure that the listing of cases for hearing followed proper procedures and lawyers and litigants did not take “shortcuts” to get favourable benches and orders from the court.

Following his retirement, Justice Kapadia didn’t take up any post offered to him by the Government in any capacity – a move that has, in retrospect, only re-affirmed his credentials for honesty and independence as a judge.

(The writer is a Senior Resident Fellow at the Vidhi Centre for Legal Policy.)