“The Constitution as a document is static. But the Constitutionalism is a ‘living tree’. It is about morality.”[1]
– S.H. Kapadia, J.
Justice Sarosh Homi Kapadia, the 38th Chief Justice of India, was born a month after India gained independence from the British rule i.e. on 29th September 1947. Having completed his graduation from the Government Law College, Justice Kapadia began his career as a Grade IV employee where his main job was to deliver case briefs to lawyers.
Career Highlights
As a Counsel
Justice Kapadia enrolled as an Advocate on 10-09-1974. During his tenure as counsel, he practiced in the Bombay High Court, both on the Original Side and Appellate Side in Suits, Letters Patent Appeals, Writs, matters under Negotiable Instruments Act, Detention Matters, matters under Bombay Rent Act, matters under Bombay Municipal Corporation Act, matters under Maharashtra Land Revenue Code, Industrial Law and Service Matters. He appeared for Bharat Petroleum Corporation and Hindustan Petroleum Corporation in High Court and Supreme Court in connection with service matters including disputes concerning framing of Pension Rules.
As a Judge of Bombay and Uttaranchal HCs and Judge of the Special Court (1991-2003)
On 8-10-1991 Justice Kapadia was appointed as an Additional Judge of the Bombay High Court and later he was appointed as a Permanent Judge of the Bombay High Court on 23-03-1993. During this period Justice Kapadia is credited for deciding important matters under PIL pertaining to Coastal Regulation Zones; financial matters under RBI and Banking Regulation Act; matters concerning the Constitutional validity of the 74th Amendment Act of 1992 dealing with Municipalities; matters under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976; matters concerning Mergers and Acquisitions; matters under Payment of Bonus Act; matters under Industrial Disputes Act etc.
He was also appointed as a Judge of the Special Court (Trial of Offences Relating to Transaction in Securities) Act, 1992 on 15.10.1999 and dealt with matters concerning corroborative value to be given to the Report submitted by RBI and Joint Parliamentary Committee vis-à-vis Evidence Act. As a Judge of the Special Court, he also framed Investment Schemes, Schemes dealing with Valuation and Disposal of Shares of Notified Parties as also Distributions of asset of the Notified Parties. He was appointed as Chief Justice of the Uttaranchal High Court on 05.08.2003.
As Judge of the Supreme Court of India (2003-2010)
On 18.12.2003 he was elevated as Judge of the Supreme Court of India. In his tenure of 7 years of as a SC Judge, Justice Kapadia was a part of several path breaking decisions that carried forward the flame of judicial activism. Some of his landmark decisions were-
- IR Coelho v. State of TN, (2007) 2 SCC 1: Also known as the ‘Judicial Review Case’, the 9 Judge Bench of Y.K. Sabharwal, C.J., and Ashok Bhan, Dr. Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altmas Kabir and D.K. Jain, JJ., held that all amendments to the Constitution made on or after 24-04-1973 by which the Ninth Schedule of the Constitution is amended by inclusion of various laws therein, shall have to be tested on the touchstone of the Basic Structure or Essential Features of the Constitution.
- M. Nagaraj v. Union of India, (2006) 8 SCC 212: This landmark case raised the question of reservation in promotions for members of the SC/ST communities and the 5 Judge Bench of the Court comprising of Y.K. Sabharwal, C.J., and C.K. Thakker, P.K. Balasubramanyan, K.G. Balakrishnan and S.H. Kapadia, JJ., laid down the criteria regarding the same. Justice Kapadia also observed that, “Axioms like secularism, democracy, reasonableness, social justice, etc. are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and 21. These principles are beyond the amending power of Parliament”.
- B.P. Singhal v. Union of India, (2010) 6 SCC 331: The 5 Judge Bench of K.G. Balakrishnan C.J., and S.H. Kapadia, R.V. Raveendran, B. Sudershan Reddy and P. Sathasivam, JJ., held that a Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him.
- Rajiv Ranjan Singh ‘Lalan’ (VIII) v. Union of India, (2006) 6 SCC 613: Delivering the dissenting opinion in the ‘Fodder Scam Case’, wherein large-scale defalcation of public funds, fraudulent transactions and falsification of accounts, of around Rs 500 crores, came to light in the Animal Husbandry Department of the State of Bihar during the period from 1977 to 1996, Justice Kapadia observed that, “It is wrong in law for the court to judge the applicant’s interest without looking at the subject-matter of his complaint”. He also noted that, “It is important to bear in mind that in the matter of economic scams- be it security transactions or Fodder Scams or Taj Corridor, it is the economic interest of the country which is at stake. These cases are highly complicated in which complicated questions are involved and, therefore, posting of the Judge plays a vital role”.
- Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449: The core question involved in this case was whether a direction for DNA test to determine paternity can be given in a proceeding for issuance of succession certificate under the Indian Succession Act, 1925, the Bench of Dr. Arijit Pasayat and S.H. Kapadia, JJ., held that DNA test cannot be directed as a matter of routine and only in deserving cases such a direction can be given.
As Chief Justice of India (2010-2012)
He was appointed as the 38th Chief Justice of India on 12.05.2010 by the then President Pratibha Patil and retired on 28.09.2012. During this period he presided over many benches which gave directions on some very important public interest matters. Some of the important judgments were-
- Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613: In this high profile case, the 3 Judge Bench of S.H. Kapadia, CJ., KSP Radhakrishnan and Swatanter Kumar, JJ., by their decision addressed the uncertainties with respect to imposition of taxes and recognized the principle that if motive of the transaction is to avoid tax, it does not necessarily lead to assumption of evasion of taxes.
- Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1: The 5 Judge Bench of S.H. Kapadia, CJ., D.K. Jain, J.S. Kehar, Dipak Misra and Ranjan Gogoi, JJ., dealt with issues regarding fairness in Allocation/Alienation/Distribution of Natural resources and held that, “No part of the natural resource can be dissipated as a matter of largesse, charity, donation or endowment, for private exploitation. Each bit of natural resource expended must bring back a reciprocal consideration. The consideration may be in the nature of earning revenue or may be to “best sub serve the common good””.
- Centre for PIL v. Union of India, (2011) 4 SCC 1: This case dealt with the appointment of P.J. Thomas as the Central Vigilance Commissioner. The 3 Judge Bench of S.H. Kapadia, CJ., KSP Radhakrishnan and Swatanter Kumar, JJ., quashing the appointment emphatically held that while appointing the CVC, the paramount considerations should be unimpeachable institutional and personal integrity.
- Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1: The 3 Judge Bench of S.H. Kapadia, CJ., KSP Radhakrishnan and Swatanter Kumar, JJ., held that Article 21-A casts an obligation on the State to provide free and compulsory education to children of the age of 6 to 14 years and not on unaided non-minority and minority educational institutions. Furthermore unaided minority and non-minority institutions were excluded from the purview of RTE Act, 2009.
- Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552: In this landmark decision, the 5 Judge Bench of S.H. Kapadia, CJ., D.K. Jain, S.S. Nijjar, Ranjana P. Desai and J.S. Kehar, JJ., overruled Bhatia International v. Bulk Trading S.A., (2002) 4 SCC 105 and Venture Global Engg. v. Satyam Computer Services Ltd., (2008) 4 SCC 190 and held that Arbitration and Conciliation Act, 1996 (hereinafter Arbitration Act, 1996) has accepted the territoriality principle which was adopted in the Uncitral Model Law. It was further held that Part I of the Arbitration Act, 1996 would have no application to international commercial arbitration held outside India. Therefore, such awards would only be subject to the jurisdiction of the Indian courts when the same are sought to be enforced in India in accordance with the provisions contained in Part II of the Arbitration Act, 1996. The provisions contained in the Arbitration Act, 1996 make it crystal clear that there can be no overlapping or intermingling of the provisions contained in Part I with the provisions contained in Part II of the Arbitration Act, 1996.
- Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603: The 5 Judge Bench of S.H. Kapadia, CJ., D.K. Jain, S.S. Nijjar, Ranjana P. Desai and J.S. Kehar, JJ., observed that postponement of media trial can be considered fair and reasonable when there is a substantial risk of prejudice in the later or connected trials.
Did you Know?
- Justice Kapadia was the first Chief Justice born in independent India.
- Justice Kapadia had keen interest in Economics, Public Finance, Theoretical Physics and Hindu and Buddhist Philosophies.
The Legacy of Justice Kapadia
Justice SH Kapadia passed away on 04-01-2016 in Mumbai at the age of 68 years. His 21 year long career as a Judge (both as HC and SC Judge) was marked with numerous path breaking, well reasoned judgments; all of which has become a part of his rich judicial legacy and has left an indelible imprint on India’s judicial history.
† Editorial Assistant, EBC Publishing Pvt. Ltd.
