The Servai Legacy
Feroza H. Seervai The Seervai Legacy: Essays, Speeches, Tributes, and
Letters. Universal Publishing House, 2000; pp. 212 Rs. 350/-
While reviewing this book, perhaps two statements can be made without
any fear of contradiction. The first one is that hardly any community
in India has produced so many outstanding legal luminaries as the Parsi
community has done and, secondly no one has been taller in stature and
has had more impact on the profession of law, even public life, than H.M.
More than anything else, it was his book, The Constitutional Law of India
first published in 1967, which gave him this stature. Ever since its publication,
it has been held as a classic. In 1996, a posthumous edition of this book
was published. It was partly in recognition of this magisterial book on
the Indian Constitution that he received recognition both nationally and
internationally and partly because of the sterling role in legal affairs
that he came to play.
The first few years of his entry into the profession were difficult. It
may be conceded that he was inflexible in regard to certain matters. But
he always stood by his principles and never compromised even if it hurt
him personally. In this book of his miscellaneous, unpublished writings
brought out by his wife, she quotes two lines of Walter Scott which sum
up the man: "Without courage there cannot be truth; and without truth,
there can be no other virtue". No wonder he became a legend in his
own life time --something which is given to very few.
It was this commitment to truth, which led him to decline judgeship of
the Maharashtra High Court as also the Supreme Court and the office of
the Attorney General of India. Such offers were made to him on more than
one occasion Once he had established his reputation he knew what he wanted
to do and he had good reasons for rejecting these offers. That he remained
the Advocate General of Maharashtra for 17 long years is a testimony both
to his ability and his inequity. When he resigned, it was to protest against
those restrictions which were sought to be indirectly imposed upon him
and which were totally unacceptable to him from the point of view of his
professional integrity and proper judicial conduct.
While the book deals with a number of topics, what stands out more than
anything else are his views on the judiciary and judicial performance.
He was deeply concerned about the declining standards of the judiciary
and on occasions, too numerous to be counted, he criticised even the Supreme
Court on several occasions without pulling his punches.
In 1970 Long before the decline of the judiciary became visible to others,
while delivering the Chimanlal Seetalvad Memorial Lectures at the University
of Bombay), he had the courage to say that what was lacking was the desire
to appoint the best man for the job. Whether the government or the judiciary
did the appointment, the outcome would not be different as long as the
worse man was preferred to the better man. Since his criticism made more
than three decades ago, the situation has only worsened. Currently it
is being suggested that a judicial commission to deal with those matters
be set up. Should that come to pass, the ancestry of all those plans would
be traced back to him.
In a conference held in Edinburgh in 1977 on the Legal Profession and
the State, he observed, "Courts cannot do justice if the executive
fails to discharge its duty of enforcing the law. Every person who is
not prosecuted but ought to have been prosecuted; every prosecution, which
is improperly withdrawn; every appeal, which is not filed or is abandoned
because of extraneous considerations, marks the failure of evenhanded
justice. In effect the jurisdiction of the court is disarmed by improperly
withdrawing from these matters which is ought to be properly brought before
He spoke on this theme for a certain length of time and amongst other
things, discussed the issue of how committed or otherwise should the law
officers of the government be. When he resigned the office of the Advocate
General, that was in the context of the then Chief Minister of his State
A.R. Antulay, a Barrister-at-law by profession, who had put forward the
hypothesis that government lawyers should be committed-the phrase got
currency during the days of the Emergency-to the philosophy of the government.
He criticised it on three grounds: this was (a) unconstitutional (b) opposed
to the organisation of the Bar and (c) otherwise untenable.
The truth of the matter is that Seervai represented the philosophy of
liberalism at its purest. This philosophy worked for the first quarter
century or so after the British left. Since then, it has been in a state
of irreversible decline, if one may say so.