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PUCL Bulletin, April 2006

H. M. Seervai - writings and recolletions

-- Book review by S. M. Daud

[ Evoking H.M. Seervai: Jurist and Authority on the Indian Constitution; viii, 354p., 25 cm. Edited by Feroza H. Seervai ]

Biographies may be easy to write, but difficult to appreciate for discerning reader. Either hagiographic in tenor or worse still discursive in content Mrs Seervai’s compilation is very different in that she has allowed Seervai to talk on a variety of themes not excluding his upbringing, training and feeling, but also permitted a host of people to record their impressions of the great Man. Her account of how the couple met, and lived makes for an engrossing tale- a remarkable life together despite the disparity in age. One only wishes every marriage was that successful!

Seervai is easily the most outstanding from the Galaxy of Titans that the Bombay Bar has produced Stalwarts not only in the Profession of law, it has contributed also to fields like art appreciation, politics and public causes like civil liberties and social work. Seervai's everlasting interest was in protection and advancement of human rights. To this end he not only joined but led the Bombay PUCL.

Evoking Seervai is a gripping account of the great man encompassing his life which was devoted equally to what his son describes as ‘family, friends law and literature’. This misses out his interest in public affairs and social work; but nonetheless will do for a review of the remarkable compilation.

He came from a modestly well-to-do family which had seen better days. His father’s untimely demise left him with the remarkable lady who was his Mother. The son and mother shared affection too rare. All his life Seervai’s respect for women was inspired by his Mother’s qualities. She appears to have brought him up in the true Zorastrian way embodied in the words ‘Humata, Hukhta, Hvarstha (good thoughts, good words and good deeds). Success at the Bar didn’t come easily, for he had no relations or contacts. He joined the chamber of the then leader-Sir Jamshedji Kanga. Mother, Senior and a favorite teacher Prof JCP d’ Andrade were the three Greats in his life-the last-named farmed photograph occupying a place of honour in his home. Prof ‘Andrade lectured in philosophy at Seervai’s alma mater-Elphinstone College of Mumbai. This inculcated a life-long association with the subject, teacher and college. Seervai’s delayed marriage was partly occasioned by his apprehension of a possible tussle between his mother and wife.

Not that delay in marrying denied him the life-long bliss that came with marriage to the compiler of the book under review. Seervai’s fondness for his children-indeed all children and grandchildren made him turn down honors which no lawyer could in the normal course have refused. Elevation to the apex court would have separated him from his family and he was not ready for that. For the same reason he turned down the office of Attorney- General of India. He was not a member of the social circuit. Dinners had to be at the family home and every member of the family had to be at the table. This put a damper to the children’s nights-out-so common a feature the life of the young. Seervai was not one to coerce his children. If they come late, he waited until they had reached home. Their protests as they wished but he could not give up a life-time’s habit of not going to bed until he knew that every member of the family was in the home.

Visits for reasons personal or professional were few and far between. To make up for this Seervai made extensive use of post. The P.V.M. Gymkhana Club an exception- that institution was almost an extended home. On many an occasion it was the venue for entertaining distinguished guests. The pictures that are a part of the book add luster to an even otherwise an absorbing book.

Several friends of his at the Bar, teachers, strangers, institutions and individuals have written about Seervai. Prof Ookerji found him to be ‘a simple person, unostentatious in dress and behavior’. Across the seas were we several Judges and scholars. One of them Lord Mackay of Clash fern informs us of Seervai view that Lord Reid was the greatest lawyer of Britain in the 20th century, though in the public eye and communication skills, Lord Denning rated higher. Glibness never appealed to Seervai as is clear from his great respect for the taciturn Lord Wavell and the corresponding contempt for tricky Dickie (Lord Mountbatten) Retired Judge S R Das had the great fortune to be the recipient of every book authored by Seervai, though he had retired from the Supreme Court. The learned Judge reciprocated Seervai’s fondness for him.

Seervai’s affection for the Joshi is-uncle and nephew GN Joshi and R Joshi is reflected in his addresses on references in Court after their passing away. The former had worked for long with MC Setalvad and was known as an expert in Tax Laws. Seervai discovered and made known GN’S wide acquaintance and knowledge of Constitutional law. RJ Joshi was his devil and partly on account of the ‘devil’s’ denigration in open Court, Seervai led an agitation against the powerful NR Bhagwati. The Judge was doing this to indirectly push work in the direction of his son-newly come to the Bar. The agitation led to N R Bhagwati being removed from the Original Side as long as he remained in the Bombay High Court.

Again, it was Seervai who made bold to see that N R Bhagwati was not given a farewell by the Bar on his elevation to the Supreme Court. This doesn’t appear to have affected the Bhagwatis professionally. Both went to the Supreme Court the son even ascending the top slot as Chief Justice of India. Professional advancement couldn’t wipe out the stigma brought about by the exposure of Seervai. Prof D’ Andrade with the passage of time became more of a friend than an Ex-teacher to Seervai. Coming to know of cancer having stricken the Professor Seervai and his lady made it a point to visit him as many times as they could. His tributes to Karl Khandalawala and several others indicate his discernment untouched by affection.

A digression into his personal traits will help a better understanding of the man’s greatness. Though not educated in a mission school he had all the attributes of a Victorian set of values. The writer Gillian Tindall got it right when she described him living by ‘the traditions of the kind of British education, a Latin-Greek way of thinking and speaking’. To his long-time ‘devil’ and later co-worker TR Andhyarujina, Seervai was a ‘Man of character, great conviction, courage and integrity’. This comes from no sycophant for the same person didn’t fail to disagree with his strong criticism of judges and judgments or compare unfavorably his performance in a case before the apex Court in comparison to Niren De, Andhyarujina says that Seervai saw no contradiction between success in life and adherence to moral principles. He wasn’t afraid to confront the high and mighty as is clear from the role played by him in getting N R Bhagwati black-listed.

In fact Sir Walter Scott’s words ‘there can be no truth without courage and without truth there can be no other virtue’ were what he modelled his life on. In the U P Assembly case much against the professional consensus; he spoke up in favour of legislative privileges when pitted against a court’s jurisdiction countermanding the former’s verdict. The same courage he showed when representing a humble individual against an institution headed by many eminent people. The latter’s star-witness could not stand the cross-examination by Seervai and the parties wisely accepted the judicial advise to settle the matter amicably. Seervai was a strong advocate of prohibition. Alcoholic beverages were an excuse to pander to basic instincts and nothing would justify indulgence in them. But he could see that others would disagree with this view.

The havoc caused by prohibition must have surely effected a change of mind - an idea one gets from his submission that the State’s power was on the increase and it needed to be whittled. Seervai was not dogmatic. Initially critical of the decision in Golaknath, excesses by the Executive led him to accept the correctness of the basic structure doctrine to check such excess. This postulated that the power to amend the Constitution could not be employed to erode the basic provisions of the instrument. T R Andhyarujina speaks of Seervai’s advocacy being benefit of court craft. It was direct, blunt and never obsequious. Never known to mislead the Courts, he had the rare courage to stand up and tell a judge how egregiously wrong he was. His wife speaks of Seervai’s immense moral authority for he never preached what he did not practice. And yet unlike modern-day bullies-whose numbers are increasing even at the Bar-‘he never shouted in Court, nor lost his temper in Court’. Earning money was not the be-all and end- all of life.

He could give up a sizeable part of his retainer as an Advocate-General and also refuse fees for periodicals using his works on matters of public importance. The latter were told that it was not his practice to accept remuneration for comments on matters of public importance. His fees were modest and that the client could afford to pay him more was irrelevant. Fees had to be regulated by the work to be done: not the client’s capacity to pay. He accepted and worked as Advocate-General of the State for the State for 17 long years, though the retainer was piffling, this was more because he wanted the State to get sound advice in difficult times rather than the glamour attached to his office. Alas for the State, petty men manipulated situation forcing him to resign. Contrast this with the virtual dismissal of one of the successors of Seervai who declined to accept the advice for resignation, though there had been a change of government. It was the threat of the Law Minister and Chief Minister to issue a well-published dismissal order which forced the incumbent to tender the incumbent to tender his resignation. Not for nothing has he been rated as the best Advocate-General the State has ever had.

F S Nariman rightly thinks Seervai deserving of the words from Milton’s Paradise Lost that Seervai used in an obituary reference to Sir Jamshedji Kanga: Unmoved, Unshaken, unseduced, unterrified, His loyalty he kept, his love, his zeal, Nor number, nor example with him wrought To swerve from truth nor change his constant mind.

Several members of the Bar have mentioned the aid they received from him in dealing with important problems and this because of Seervai’s interest in them or the subject. Seervai’s courage is further evident from a letter he addressed to the Governor of Maharashtra on 29-1-1993 when Mumbai was on fire being stoked by the likes of Bal Thackeray. He quoted from the interview published in Time and demanded that the demagogue be prosecuted and punished for his hate-speeches which were offences under the law. But the Governor’s advisers-the Council of Ministers-had different views. They had and would be repeatedly coming to the rescue of the incendiary that Seervai had the courage to write to the Governor and at a time when Bal Thackeray held absolute sway over the city is not the State, shows that difficult times brought out the best in him. Strangely enough, the tape on which the interview was recorded disappeared when it came to its production before the official Commission of Inquiry! Journalists and journals are not always the brave and unflinching they depict themselves to be.

Law to Seervai was something more than a means of livelihood. Seervai was lucky that his profession coincided with the pleasure he derived from it. According to a knowledgeable person, Seervai brought to law a gifted speech, a first class mind and an immense capacity for hard work. Despite his great affection for Chief Justice Chagla, I think he disapproved of Chagla approving certain passages from Tilak’s address in Court after being convicted for Sedition. This I deduce from the lead he took in getting published the book on the Bombay High Court by Vacha, when the High Court itself dithered because of the author’s critical comment on Chagla’s statement. New-fangled ideas of ‘felt necessities’ and social-economic concern did not justify intrusion into the task of adjudication.

The task was easy enough if Judges administering constitutional law paid heed to two questions (1) whether the legislative measure impugned was within the competence of the legislature that had passed it, and (2) whether it violated any of the fundamental rights? Directive Principles could not override other parameters and Judges had to be observant of the need for avoiding reading their preferences into law. Service to law required that a lawyer knew something about a variety of subjects. His study of physics to grasp the technical aspects in the Krishna river water Dispute came as a revelation to a top Engineer of the Maharashtra Govt. In Chamarbaugwala he had lost two rounds in the Bombay High Court. He recommended an appeal to the Supreme Court and there won, though pitted against stalwarts like MC Setalvad and Palkhivala.

Falling standards of the Bar and Bench troubled him. He knew that there were faults and shortcomings on both sides. A judicial inadequacy was largely on account of the disinclination of good lawyers to accept judgeships. This was mainly due to inadequate salaries and the possibility of transfers to other High Courts. As to the first his view was that India could not afford the luxury of an ill-paid judiciary. Against the transfer policy he got it partly invalidated when he appeared before the apex Court to argue on behalf of Justice Sheth. To establish the primacy of the judiciary in matters judicial he spent a great deal of time in the apex Court in the famous Judges Case. The Courts had to act fearlessly to put down the growing practice of allowing senior to take too many adjournments because of the initial mistake of theirs in taking up too many cases.

Adjournments on proper occasions had to be granted but they could not become a rule for discriminating between the busy and less busy lawyers. Government was a major culprit in prolongation of cases as it failed to give timely instructions to Govt. lawyers. In the course of a hearing before a Court, there were two impediments: Judge’s interruptions to the flow of a submission and judicial conferencing thus wasting public time. The first habit not only arrested the flow of the point being made, but was more often than not irrelevant and low to judicial confusion. As to the next, long silences on the part of the Bar to allow judges to speak amongst themselves greatly disturbed the solemnity of the occasion and left Counsel wondering what point it was that troubled their Lordships. Seervai was appreciative of quality in judges. According to him Justice Venkatrama Iyer was the greatest judge to adorn the apex Court-a view MC Setalvad has also essayed in his autobiography ‘My life: Law and other things’. Expediting work in Courts was necessary, but hustling could lead to serious flaws. With Chagla, Seervai agreed that a well-prepared junior lawyer could perform better than an ill-prepared senior lawyer.

That judicial appointments-rather appointments to the superior judiciary were not always what they should be was a cause of great disquiet to Seervai. He disapproved of by-passing talented people in making appointments to the Bombay City civil Court. The talk of superseding Judge Divan greatly irked him, so much so, that he wrote to the Chief Justice on the subject. The rumored posting of an Additional Chief Metropolitan Magistrate to the Bombay City Civil Court was opposed by him. A famous observation that fell from him on that subject was that will it was essay for one concerned mainly with civil work to pick up criminal work it was not easy for a person versed in criminal work to pick up civil work. This observation remains largely true even today when statues dealing with white collar crimes are fast effacing the dividing line between civil and criminal practice. Talk of a district judge from Pune being considered for elevation to the High Court when there were doubts about his integrity and competence led him to protest in writing to the law Minister as also the Chief Justice. The name of the person has been omitted from the book leaving scope for futile speculation.

Lawyers who refrained from giving voice to judicial errors were doing a disservice to themselves. If lawyers could not speak out, who would? True, Lawyers had no place in the selection of judges. But they were vitally concerned for if incompetents or the corrupt were to preside over Courts, the administration of justice would suffer and the biggest losers would be lawyers. Too great a gap between able judges and leading lawyers would widen the chasm that existed. Taking up of SLP admissions before the Supreme Court was like venturing into a lawyer’s paradise. The off-the-cuff rejections/ admissions by the apex Court has been questioned by several people, not excluding eminent lawyers. Justice lay in judicial verdicts conforming to results expected by those well-versed in appraisal of facts and law. Seervai’s contribution to academia is invaluable. Books written by him have almost all run into more than one edition. Some stray jottings are included in the book under review. The one on Justice is a well argued, though one-sided defense of the status-quo in matters economic.

Another piece titled 'nothing’ shows how style can overcome vacuity in substance. The piece written on the undesirable ness of allowing the State to increase its domain is scintillating. All those who have paid tributes to his memory record his readiness with quips, quotes and verses when required on different occasions. Imagine the feeling of an English guide and the tourists being escorted when Seervai completed the remaining lines of a poem by Scott-the few lines inscribed not being enough to bring out the beauty of the poem again a Vice Consul at the U.S. Consulate in Bombay must have been surprised when Seervai rattled off the Gettysburg address in addition to the Second Inaugural Address of Abraham Lincoln. He read widely-philosophy, poetry, politics, history and novels-nothing was beyond him. His favorites included the unabashed Imperialists Winston Churchill and Kipling. Few lovers of English Literature can find it their hearts to disagree with Seervai’s assessment of these two. Directly, there is no reference to Seervai’s political ideology. But read as a whole, one will agree that Seervai was what is across between an English Conservative and an American Progressive. But he respected substance and not mere bombast.

Last, one must mention a debt Indians will Lowe to Seervai for all times to come because of his magnum opus, ‘The Constitutional Law of India’. His death occurred just a day or two prior to the completion of the 4th Edition. He willed it that no one would revise his work. That book is the equal, if not the superior Dicey’s work on the Constitution of Great Britain and Beard’s commentary on the American Constitution. Indians into the yet to come decades will be grateful that Seervai criticized judges for criticism is a necessity to improve the law. If he were mistaken, so he stipulated, the probe to unravel the error would itself contribute to a better understanding of the law. Seervai many times likened the writing of the work as compensating for his foregoing the many offers made to him to adorn high offices, A truer word could not have been said. The work deserves to be widely read and certainly by those aspiring to a career in law, adjudication and more important teaching law as it should be taught and learnt. The completion of the work required many years and Seervai deserves to be honoured for that. In what shape the honour should come is for his many admirers to decide.

One must not omit Seervai’s blind spots. he some how believed that the original Side of the Bombay High Court and the Bombay City Civil Court were the peaks of those aspiring to make a name in law. No one disputes that the Bars of the two Courts have produced many greats. But so have the appellate side and many other Bars all over the country, the mofussil of Maharashtra not excluded. Seervai took a number of people at their face value. He believed in the sincerity of Arun Shourie and that is why wrote a long letter pointing out to him that Jinnah was not to be blamed for the partition of India. This shows a remarkable failure to understand Shourie that his neutral pretension was an out right communalist. Next Jinnah wasn’t to be blamed for the partition of India. This shows a remarkable failure to understand that Shourie for all his neutral pretensions was an outright communalist. Next Jinnah wasn’t all that secular. In fact his error in persisting in getting Pakistan proved most grievous for the community he sought to champion. But these are shortcomings of an environment from which few can stay aloof. All in all, Seervai was a Great in the regal tradition of Greatness. The following lines from Scott well commemorate hid death-: Now is the stately column broke The beacon light is quench’d in smoke” The trumpet’s silver voice is still The warden silent on the hill.

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014