The glowing tributes paid and the media coverage accorded to Bombay High Court (BHC) Justice Shahrukh Kathawalla on his retirement this March was rare for a judge of this august institution. But there was nothing usual about the man who regularly burned the midnight oil in the courtroom, hearing cases and ensuring justice was meted out to the deserving. As the Bombay Bar Association vice president Dr Birendra Saraf noted at the March 22 farewell event, "There will never be another Justice Kathawalla in the BHC" (see "Kathawalla’s benchmark," pg 19).
For anyone who has spent long hours over many years sitting on wooden benches in courtrooms waiting for their case to be called out and wondering if concerned lawyers and parties will appear for the hearing, Kathawalla’s courtroom was a treat. He was fair, honest, familiar with the legal system and knew the antics employed by lawyers and clients to delay their cases interminably and/or to obtain favorable orders.
The community was exposed to Kathawalla’s style of functioning at the recently concluded Bombay Parsi Punchayet (BPP) trusteeship election amendment petition. The three majority trustees and their mentor had successfully delayed the election for 14 months, resorting to one ruse or the other to ensure their continued hold on power. But the wily and legally savvy mentor was reined in by Kathawalla. In hearing after lengthy hearing the judge not only countered their dilatory tactics but also publicly chided all four for wanting to hold on to power in violation of the existing election scheme. The community breathed a sigh of relief once a date for the thrice delayed elections was set for this May 29, perhaps a parting gift from the judge.
Kathawalla was familiar with the main characters and the background of the case. He had heard one of the postponement petitions earlier. That, coupled with his knowledge of the law and insight into the community (he resides in Malcolm Baug and once worked in the office of the BPP and appeared in matters for them), enabled him to separate fact from fiction, pretense from reality. He proved a blessing for the community he so deeply cares about.
There have been several judges who have served the community well. Justice A. M. Khanwilkar of the BHC had sanctioned universal adult franchise in 2007 for election of BPP trustees. Justice Dr Dhananjaya Chandrachud ruled that the BPP trust deed did not empower the trustees to interfere in religious matters. The trust in 2009 had barred two priests from performing religious ceremonies at Doongerwadi because they performed funerary rites for Parsis who opted for cremation. Khanwilkar and Chandrachud now serve in the Supreme Court (SC).
In the Goolrookh Gupta case before a three-member bench of the Gujarat High Court (GHC), two of the justices ruled that all women married under the Special Marriage Act took on the religion of their husbands! Gupta, who is married to a non-Parsi, was challenging a resolution of the Valsad Parsi Anjuman barring Parsi women married to non-Parsis the right of entry to the local fire temple and doongerwadi. The only justice to dissent was Akil Kureshi, who should have gone on to become the Chief Justice of the GHC and later be elevated to the SC. But he ran afoul of the ruling right wing, pro Hindutva, Bharatiya Janata Party (BJP) under the then chief minister (and now Prime Minister) Narendra Modi. Kureshi had set aside a trial court order and granted the Central Bureau of Investigation two-day custody of Gujarat home minister and now union home minister, Amit Shah for his alleged involvement in the Sohrabuddin Sheikh encounter case. Then SC Justice Rohinton Nariman had spoken up for Kureshi’s appointment to the SC. But a week after Nariman’s retirement, Kureshi was bypassed. Like Kathawalla, Kureshi and Nariman, many other justices also believe in upholding the law, regardless of the considerable consequences of doing so. Gupta’s case is now before the SC.
Maoist sympathizer Kobad Ghandy languished for nine years as an undertrial, many of which were in Delhi’s Tihar Jail. An eminent lawyer like Fali Nariman appeared for him without charge in the SC but found the judge unsympathetic. Cases of this nature were often directed to a particular judge who appeared to toe the government’s line in such matters. On retirement, the judge was rewarded with a government appointment. Fortunately other judges in lower courts were sympathetic and considerate to Ghandy. As former union finance minister P. Chidambaram had stated in The Indian Express of February 28, 2021: "Once in every month or two, the prisoner will have a date in court. Invariably, one of the following will happen: the investigating officer will be absent or the prosecutor will be absent or the prosecution witness will not turn up or the medical report will not be ready or the judge did not have time or the judge will be on leave. The prisoner will return to jail with another ‘date’ and fading hope."
Prime Minister Indira Gandhi was barred from office by Allahabad High Court Justice Jagmohanlal Sinha on June 12, 1975 for misuse of government machinery for her election campaign. Justice V. R. Krishna Iyer of the SC upheld Sinha’s judgment on June 24 but allowed her to continue as prime minister. Eminent lawyer Nani Palkhivala felt she had a good case and accepted her brief. But when she declared the Emergency, he withdrew. A furious Gandhi vented much of her wrath and vindictiveness against the house of Tatas with which Palkhivala was closely connected.
SC Justice Dinshaw Madon, then a BHC judge, ruled in favor of a petition by statesman and editor of Freedom First, Minoo Masani challenging certain orders passed by the censors during the notorious Emergency. Former attorney general Soli Sorabjee, then a lawyer practicing in the BHC, took up the case pro bono. In an article reprinted in this issue of Parsiana (see "Erudition and eccentricity," pg 27) Sorabjee cited a line from Madon’s judgment outlining the parameters within which the censor must function: "The censor is appointed the nursemaid of democracy and not its grave digger."
In the Sabarimala Temple case, Rohinton Nariman ruled along with four other judges that there could be no bar against women between the ages of 10 to 50 entering the Kerala temple (one judge disagreed). The decision proved controversial amongst those who view menstruating women as ritually unclean. The BJP opposed the implementation of the ruling. The Court then permitted an appeal before a larger bench which is pending. Justice, even when decreed, may still be denied.
In legal cases one can never be certain of the outcome. When Gupta’s case was awaiting a verdict in the GHC, a reporter had asked Gupta’s counsel Percy Kavina, who was fighting the case pro bono, what he felt the outcome would be. He replied that he never second guessed a verdict. Perhaps if the justices were of the caliber mentioned above, one might be more sanguine of the outcome.