Remembering H M Seervai

V.Sudhish Pai

26 Jan 2021 5:12 AM GMT

  • Remembering H M Seervai

    It is 25 years since the great and incomparable Homi Seervai passed away and it is appropriate that we remember and pay tribute to him on this occasion. It is given to very few to receive high honours while not compromising the highest standards of integrity and independence. Hormasji Maneckji Seervai is a shining example of that rare breed. He was born on December 5, 1906 at Bombay....

    It is 25 years since the great and incomparable Homi Seervai passed away and it is appropriate that we remember and pay tribute to him on this occasion. It is given to very few to receive high honours while not compromising the highest standards of integrity and independence. Hormasji Maneckji Seervai is a shining example of that rare breed.

    He was born on December 5, 1906 at Bombay. He lost his father and his childhood early at the age of 14 in 1920. He was educated at Bharda New High School and Elphinstone College, Bombay from where he passed out with M.A. in Philosophy. Thereafter he studied law in the Government Law College. He taught English Literature at the Elphinstone College for sometime.

    Seervai took the plunge and joined the Bar in 1929. He made no compromises and took no short cuts. To begin with he was a pupil in the chamber of M.L. Manecksha who guided him and directed him to Sir Jamshedji Kanga who had 'vast and varied practice and great legal capacity'. Thus in February 1933, Seervai joined the chambers of Sir Jamshedji who was then the Advocate General of Bombay and there began an association and a career so glittering and conspicuous in recent times. Kanga's chamber was a highly reputed and successful one and was the training ground for many eminent lawyers. Seervai attended to a large part of Kanga's opinion work, besides litigation. He acquired a reputation for thorough and meticulous preparation and absolute fairness. Combined with this was his powerful personality, his deep knowledge of law and mastery of the English language. He was also gifted with a phenomenal memory.

    Seervai had his long years of waiting before success came his way and he saw lesser men forge ahead and achieve success because of other considerations. But nothing deterred him, nothing made him 'to swerve from truth or change his constant mind'. He had his break in 1941 with the famous 'Telephone case'- a case filed against the Government Telephones Board where he was opposed by eminent counsel. It was argued before Justice Chagla and it brought recognition to Seervai and his arguments – about his persistent, fearless and unflinching stand. That was the precursor of his innumerable stellar performances.

    He was a man of integrity in every way in the best and noblest sense of the term. Transparent sincerity, total commitment to whatever he did, inflexible rectitude in life, strict adherence to the principles and values he believed in and the indomitable courage to stand up and fight for them were his hallmarks. He was of the view that a person without commitment is like a rudderless ship. Seervai was always fond of quoting and practised what Scott said: "Without courage there cannot be truth; And without truth, there can be no other virtue." He was a true Zoroastrian believing in and living up to its tenets of good thoughts, good words and good deeds. He was an exemplar in intellectual integrity- that rare quality which stands for the unity of one's thoughts, words and deeds.

    Early in his career he took on a judge who he believed was guilty of improper conduct and behaviour. He carried the matter to Chief Justice Chagla who changed that judge from the Original Side to the Appellate Side. Sir Jamshedji who venerated the office of judgeship was appalled by what Seervai did. Seervai unflinchingly told him that he would not compromise in this and if his action embarrassed or displeased Kanga, he would leave his chambers. The noble Kanga replied that Seervai was entitled to do what he thought to be right and there was no question of his leaving the chambers. Later Seervai opposed the Bar giving a felicitation and farewell to that judge on his elevation to the Supreme Court. He exemplified the dictum that toleration is the virtue of those who have no convictions.

    Seervai was by nature studious and was a voracious reader. He was conspicuous in the Bar Library confidently making statements and giving his views on cases as well as on other contemporary issues. When Seervai began his career there was hardly any litigation in constitutional law and like others in the city of Bombay he was in commercial law litigation. In 1950 the Bombay Prohibition Act came under attack and the case was before a formidable Full Bench presided over by Chief Justice Chagla. Seervai was engaged as a junior counsel by the Government with the then Advocate General C.K. Daphtary leading. Defending such a cause came naturally to Seervai, a lifelong and committed teetotaller. It fell to his lot to give the final reply. He did it with great vigour and conspicuous success persuading a hostile Court to hold in the Government's favour, at least on some points and it went further in favour of the Government in the Supreme Court –F.N.Balsara's case (AIR 1951 Bom 210 and AIR 1951 SC 318). He was thereafter much sought in Government cases. Again Seervai was briefed by the State Government to defend its decision to ban prize competitions. Having lost before the single judge and the appellate court, he single-handedly fought in the Supreme Court and won for the Government its case to ban prize competitions/lotteries- RMDC case (AIR 1957 SC 699).

    Like his senior, Sir Jamshedji Kanga, law was the element of his life. He was known for his single-minded devotion to a case and his painstaking industry. Whatever he did, he had total dedication- be it a case in court, the writing of his book or the advocacy of a cause he believed in. His exposition of the legal principles was authoritative and his advocacy fearless. He was a perfectionist. The lure of high fees and public adulation did not matter to him or the unpopularity of the cause. Excellence in the discharge of his professional obligation was all that counted and that was his only standard. He laid great emphasis on counsel's primary duty to assist in the administration of justice and equally on the values of intellectual honesty, impartiality and independence in a judge. There could be no compromises in all this.

    In 1957 Seervai, "who led the Bar in integrity and intellect," to use Palkhivala's words, was appointed Advocate General, "the high office he so well deservedly obtained.'' He held that office for 17 years with great brilliance, distinction and dedication. He devoted himself whole- heartedly and exclusively to Government work. There was no bar to his doing private work, but he hardly took up any. The fees he received were modest. This was perhaps the most prominent and glorious period of his professional career which spanned over six decades. He was able to maintain the high stature of his constitutional office and his own position by reason of his being apolitical as much as by his learning and values and the sheer force of his personality. His opinion was sought by the Government in several matters, often times difficult and delicate, and it was accepted without demur. In the matter of Government accepting a Court decision or preferring an appeal therefrom, Seervai as the Advocate General had the last word. It is said that appearing for the State as Advocate General in the land acquisition references he would not yield a rupee more than what the evidence justified, but if he found that the opposite party-claimant was poorly represented he would go out of the way to suggest enhancement of compensation if he felt it was just and proper to do so. Such was his sense of propriety and fairness.

    He was a true and undoubted leader of the Bar. He epitomized what an Advocate General should be. He was accessible to all and always kind to whoever came for conference with him. Everyone was put at ease and the conference proceeded at a leisurely pace. He was extremely thorough and painstaking and patient too. He was never derisory of anyone, or of any view or argument, whatever its source and it was always patiently examined, discussed and reasoned. Listening to his arguments and exposition of law was a great learning. He had deep insight into law and its history and he traced its evolution with a historic perspective. His preparation was always a complete and in-depth study. No case, however small or unimportant, was dealt with without the facts being wholly mastered and the law fully investigated. Seervai was generous with his time and was always ready to help and advise colleagues and heartily did so and sometimes even without such help being sought. He did not accept conflicting assignments and not more than one brief at a time. Once he took up a case he was fully into it; and when a case was argued he would be present in court throughout. His ability was matched by his courage. His resignation from the post of Advocate General in 1974 was on a principle. He would never compromise the position of the Advocate General and the respect due to it.

    Seervai's eminence as a counsel and his fearless advocacy led to his being briefed by other States and parties, apart from Bombay/ Maharashtra whose Advocate General he was. 'Where he was not constrained by his personal convictions of inequity, no more redoubtable defender of the Government's power and privileges could be found than in Seervai.' He vigorously defended the Government's privilege of not disclosing documents on the ground of it being injurious to the State's interest - State of Punjab vs. Sukh Dev Singh Sodhi (AIR 1961 SC 493). In the well known case of K.M.Nanvati vs. State of Bombay (AIR 1961 SC 112) Seervai as Advocate General successfully defended before a Special Bench of the High Court the Governor's exercise of power of pardon to suspend the sentence of life imprisonment, pending the appeal in the Supreme Court. This was however reversed by the Supreme Court by a majority with Justice Kapur dissenting. It is this that paved the way for Seervai's classic work on Constitutional Law.

    Seervai's finest hour was his appearance for the U.P. Assembly in the Presidential Reference re: legislative privileges (AIR 1965 SC 745). The Speaker was advised that only an eminent English counsel with a sound knowledge of the law and custom of Parliament could effectively defend the privileges of the Assembly. The Speaker having heard of Seervai went to Bombay for consultations with him and entrusted him the Assembly's brief. Seervai gave up all other work for the preparation of this case. He would not flinch from advancing any argument to defend the Assembly's privileges, however unpopular it may seem to the Court. At the very outset he told the Court that by his appearing for the Assembly, the Assembly was not submitting to the jurisdiction of the Court to have its privileges examined but was present only to assist the Court and apprise it of the correct legal position. The high point perhaps was a question from Justice J.C. Shah as to what would be the position if the Court quashed the Legislature's warrant and ordered release of the person arrested for its alleged contempt. Seervai boldly responded that as the Court's order was a nullity it would have to be ignored! It was a rare display of forensic courage and fearless advocacy born out of knowledge and conviction.

    Seervai was sharply critical of the Supreme Court majority judgments in Golaknath and Kesavananda Bharati. In the latter case he appeared for the State of Kerala and led on behalf of the respondents. But he changed his view about the basic structure doctrine in the light of experiences of the Emergency. During the Emergency when sixteen High Court Judges were punitively transferred Seervai took up their cause and argued the writ petition in the Gujarat High Court. He appeared in I Judges case {S.P. Gupta -AIR 1982 SC 149} - challenging the transfer of High Court Judges.

    Seervai was always candid and forthright in court. Once in the Supreme Court he was arguing cases of preventive detention. After Seervai elaborated the distinction between punitive and preventive detention, Justice Beg made a rather unguarded remark that after all detention was detention and he did not quite understand the difference between the two. Seervai then lowered his voice and chided the judge: "My Lord, there is a clear difference between preventive detention and punitive detention even though it may not be always apparent. For instance, there is a time when it is day and there is a time when it is night. In between there is dawn and, later, dusk when it is difficult to insist at a particular point whether it is day or night, but only a strange mind would discern no difference between day and night." There was silence in the court room.

    On another occasion when Seervai was in full flow of argument before a Bench presided over by Justice Tarkunde and one of the issues that arose was about the earning of lawyers as compared to judges, Tarkunde casually remarked whether he-the Advocate General did not think that judges would have earned much more if they continued at the Bar. The response was so characteristic of the man. Seervai paused, lowered his head and brought the tips of his fingers together and apparently took a count. After a few minutes he raised his head and said; "My Lords, I have reflected on the subject. While some of Your Lordships would have earned more, many would not." The poor judges were left to speculate to which category they belonged.

    Seervai had a large opinion practice. This is an area where clients want to be advised the correct legal position and expect the lawyer to study the problem from all angles and give the correct, honest opinion. While arguing in Court counsel submits a statable point, in giving an opinion the lawyer expresses what he believes the law to be. There is no doubt that Seervai with his knowledge of the law, willingness and aptitude to put in long hours of work and very high standard of integrity made an outstanding opinion lawyer too.

    He was a brilliant speaker. His address to the 5th Commonwealth Law Conference in Edinburgh in July 1977 on 'The Place of Law Officers and the Ministers of Justice' is regarded as a masterpiece. He was also a prolific and elegant writer. His reading and love of literature encompassed a wide range. His mind was well stocked with Literature and Philosophy apart from law. He practised law in the grand style and with his knowledge of history and literature, he was an architect. He was basically simple and unostentatious, but like a true Aristotelian, he took pride in his abilities and his work and in being a virtuous man.

    His standards of probity were astounding. He practised what he preached. When he went to Delhi to the Ashoka Hotel, he would insist on staying in a room which had no balcony because a room with balcony would cost fractionally a little more. Even though appearing for a Five-Star client, he would not stay in a Five Star hotel. In the Judges' case, the Bombay Bar had requested him and other colleagues to appear for them. Seervai was the leader of the team and he had made it clear that since the Bar was paying for the lawyers and sending them to Delhi, no lawyer should send his clothes to the hotel laundry or telephone from Delhi. When any guests joined Seervai for dinner at the hotel when he was out of Bombay, Seervai asked for two separate bills, signed his own bill and paid cash for the guests, even if the guest was his son.

    When a young colleague asked as to what was wrong in charging high fees when clients were willing to pay, his answer unhesitatingly was: "If a man is willing to be robbed, would you be a thief?" It is said that a Bombay Solicitor went to Seervai for an opinion in a complicated case. Seervai held long conferences and called the Solicitor and the client about 6 or 7 times. After the opinion was delivered, when Seervai's bill was given to the Solicitor, the Solicitor expressed shock at the paltry amount that he had charged. He went straight to Seervai and told him to increase the amount charged, as what was charged would not reflect the amount of work Seervai had put in. Seervai's answer was remarkable. He told the Solicitor that the client had come for his opinion on the assumption that Seervai knew the law. It took Seervai 6 or 7 long conferences and a lot of reading by himself in between those conferences, to best acquaint himself with the law. It was, Seervai said, for Seervai's knowledge of the law and not for his ignorance of it that the client had come to him. Therefore the fees charged, (which were abysmally low), were fully justified on this count. He brought to bear to a practical and highly mercenary, and at times unprincipled, legal profession a moral eminence.

    It is universally recognized and Seervai also believed that his most abiding and enduring contribution to law was his work, 'The Constitutional Law of India' which "has an assured place among the great legal treatises of the world," to quote Lord Bingham. Seervai started writing his critical commentary in 1961. It took him six years to publish the first edition in 1967 and he relentlessly worked on it for 35 years to produce four editions. It is a work from a historic perspective tracing the evolution of various concepts and principles; the analysis is deep and the criticism of views which did not win his approval, is biting. The criticism is sometimes too harsh and personal, a blemish in an otherwise monumental achievement. But perhaps, as Lord Keynes said: "Words have sometimes to be harsh since they represent an assault on the thoughts of the unthinking."

    He was essentially a family man who deeply loved his home and family. In his own words, his heart and treasure were in his home. He was invited to be a judge of the Bombay High Court; then offered a Supreme Court judgeship in 1956 (which if taken would have given him a 15 year tenure-5½ as Chief Justice) and the office of the Attorney General for India in 1971. He declined all these as it would disrupt his family life and he would have to move out to Delhi and for reasons that had to do with his book.

    He wrote other works also. But to this book he devoted all his energy, time and talent. His letter to the Law Minister declining the offer of Attorney General-ship brings out his commitment to expounding the law: "It seems to me that my best contribution to Constitutional and Administrative law in our country does not lie in my arguing Constitutional cases before the Supreme Court and before various High Courts-exciting and financially remunerative as such arguments can be. The best contribution that I can make is to embody in the successive editions of my book the result of much reflection and careful and patient analysis of judicial interpretation of the Constitution."

    Despite his high profile in the legal profession and his great achievements he was a very private person. He was not inclined to befriend people merely because they were influential or important but he was deeply loyal and devoted to his old friends regardless of their condition or status in life. While he appeared somewhat forbidding in manner and stern in looks, behind the austere exterior was a very human person, sociable and kind, ready and keen to help someone in need. He had a genuine feeling and concern for others. He was never aloof, he always greeted you with a disarming smile and made you feel at ease. It is said that if you were next to him at any function he would make conversation with you. He could talk on many themes and one would be struck by the breadth of his knowledge. He would say that in the legal profession one had to know something about a variety of subjects.

    His generosity was great. Remembering that money was not aplenty when he was growing up, he would help others, particularly students, in need. The employees in his chamber would borrow money which more often ended as gifts. Even if they had borrowed money and asked for further loans, while he would initially refuse, he would then write a cheque. He held strong and definite views on many subjects and never hesitated to express them. He was a strict teetotaller. He was particularly hostile to liquor. He viewed others taking liquor with obvious disapproval but restrained tolerance. Restraint and control were major elements of his character and he was never known to lose his temper or self control.

    Seervai was an extremely methodical and disciplined person, very particular about punctuality and meticulous in all that he did. There was a time for everything. He had an eye for detail and paid attention even to little things like how to prepare tea- his favourite drink or the best buttered toast which was again his favourite. He was generous to all especially his juniors to whom he gave credit and encouragement. He was a formidable advocate and a truly outstanding lawyer, not necessarily a fashionable one, who could face any situation in Court and cope with any question from the Bench. Though sometimes he was irritated, he was never ruffled in Court nor did he lose his temper.

    He was generally confident and optimistic in his outlook. When people complained or grumbled about the present day state of affairs he would ask them to pause and read out a piece bemoaning the decline of civilization, the laxity of society, the wildness of the young who no longer respected their elders and so on. He would remark, "Well, it is from Thucydides, around 400 BC and here we are, so things can't be all that bad." He always faced a situation, however bleak, with fortitude and optimism, looking for and often finding, some positive aspect or some way of relieving it.

    All his life Homi Seervai retained a temperament which turned him from bawdy stories, borderline jokes and banal gossip. Euphemisms were lost on him. Speaking of what goodness really meant to him Seervai said: "In practice, if we want to ascertain what actions are good we must appeal to the "man of practical wisdom", that is, a man who has shown by his own actions that he is a good man. We think of him as a man of broad sympathies and a sound intuitive judgement as regards problems of conduct. He is a self controlled or temperate man and it will be found that he lays burdens upon himself which he does not expect others likewise to bear, for he makes allowance for human frailty. And, speaking for myself, I should like to think of him as a kind man, for I doubt whether a man can be really good if he does not love his fellow men." He lived up to it!

    It was my privilege and good fortune to receive Seervai's affection and guidance. I had never known him. The contact began with a letter which I wrote in 1982 while studying law and which was under some misapprehension wrongly addressed. It reached him and he hastened to reply. His letters then contain some sound practical advice for law students and upcoming lawyers. He emphasised the need to be a sound, competent and not necessarily a fashionable lawyer.

    Seervai passed away in his 90th year on 26 January 1996. It may be said that his dedication to his book was so complete that he compelled even Death to wait until he fully completed the last edition on 25 January, the next day he was no more. That work is indeed his monument. He departed on Republic Day, the day when the Constitution came into force. His reverence for the Constitution and endeavours in cultivating the spirit and culture of constitutionalism and educating the people in that behalf have been splendid and inspiring and have placed us under an irredeemable debt of gratitude to him. His life is an inspiration, his memory a benediction. We have to record our gratitude for a life to which we owe so much. The love and respect with which we light his memory is a measure of his greatness both as a lawyer and a man. When comes such another!

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