"My Dear Fellow, The Case Is Tomorrow! Your Counsel Has Not Read The Brief" - The Story Of Bhulabhai Desai, The Lawyer Who Argued India Her Freedom

Sanjoy Ghose

21 Aug 2020 3:52 AM GMT

  • My Dear Fellow, The Case Is Tomorrow! Your Counsel Has Not Read The Brief - The Story Of Bhulabhai Desai, The Lawyer Who Argued India Her Freedom

    "And it will be a travesty of justice if we were to be told as a result of any decision arrived at here or otherwise, that the Indian may go as a soldier and fight for the freedom of England against Germany, for England against Italy, for England against Japan, and yet a stage may not be reached when a free Indian State may not wish to free itself from any country, including...

    "And it will be a travesty of justice if we were to be told as a result of any decision arrived at here or otherwise, that the Indian may go as a soldier and fight for the freedom of England against Germany, for England against Italy, for England against Japan, and yet a stage may not be reached when a free Indian State may not wish to free itself from any country, including England itself."

    It was a show case trial and the packed room hung on to every word this Gujarati lawyer uttered for from his mouth sprung the defence of an entire nation desperate for freedom and anguished at her heroes being humiliated.

    The lawyer knew it was a lost cause even before he began his ten hour long non-stop arguments. However, he was conscious that his defence of the selected three accused, one from each of the three principal communities, was vital for history.

    Yet when Jivanji Desai, a modest Government pleader from Valsad, Gujarat, was informed on October 13, 1877, that his unschooled wife Ramabai had been blessed with a son, in his wildest of imagination he could not have thought that he had fathered the lawyer who would argue India her freedom.

    Bhulabhai would be the only child, a rarity in those days and thoroughly pampered. It was his maternal uncle who took over the task to school his nephew. Bhulabhai studied at Avabai School in Valsad until he shifted to Bombay. He matriculated in 1895 from Bharada High School standing first.

    It was Elphinstone College that shaped the boy from the hinterland into a fine young man who loved English literature and poetry. Perhaps English was his first love as he secured a Masters in English from the Bombay University and even got himself a professor's job in the Gujarat College, Ahmedabad where he taught English and History.

    Desai would have remained an avuncular teacher hidden away in some college had he not also studied law on the side. He did not forget to marry as he was studying. Sadly, while Ichhhaben gave him a son, Dhirubhai, she could not give him company as cancer took her away in 1923. By this time Desai had already made his mark in the Bombay High Court which in those days had deep distinctions between English and Indian lawyers. Remember, this is the Court which, when it finally opened her doors to Cornelia Sorabjee, suffocated her by denying cases as she was not only Indian but also a woman.

    Desai had better luck. He was enrolled as an advocate in 1905 chucking his teaching job and, in two decades, Bhulabhai had an all India fan following being a much sought after counsel from Calcutta to Lahore. What helped was that at that time Lawrence Jenkins was the Chief Justice of the Court and he had taken steps towards "indianising" the courts. PB Vaccha feels Desai's rise could also be credited to the gradual disappearance of European barristers like Scot, Lowndes and Raikes.[1] In fact, on one occasion, Desai had been briefed in all the 21 Chamber Summonses which constituted the board of the Chamber Judge. Daily Desai would be briefed in 20 to 40 matters.

    He was a member of the quartette which included the fabled Chimanlal Setalvad, Kanga and Taraporwala. In fact, son M C Setalvad would go on to pen a book on Desai. In his book Setalvad recalls that "a remarkable quality which undoubtedly stood him in very good stead at the Bar in latter years was a trained memory which enabled him to conduct even complicated matters in court without a note." It seems this habit Desai picked up when a senior at the bar, on seeing him diligently making notes in the library, took away the notes and tore them up. Young Desai was duly admonished never to get into the habit of making notes. Setalvad's book on Desai is freely downloadable and highly recommended. He cites KM Munshi, MV Desai and HJ Kania as some of the juniors of Desai who would themselves go on to achieve fame and glory!

    In Desai's early days Indian lawyers would wear a turban to court, unlike their European counterparts. Desai wore a flaming red one. Setalvad writes about how once, when the great lawyer had taken off his headgear in the bar room, for a wash during the lunch break, Chimanlal Setalvad pranked him by running away with Desai's turban. Bhulabhai was on his legs before Mr Justice Marten and failing to find his turban, in distress, he rushed to Marten's chambers and apprised him of his calamity. Marten relented and the case was adjourned!

    On one occasion, recalls Vaccha, Desai was irritated with the slow pace of Chief Justice Macleod who was hearing original appeals. Not surprisingly Desai had been briefed in almost all of them, 10 paperbooks having been read overnight, when the Court took up the 11th appeal at 4-30 pm, Bhulabhai finally protested.

    Fali Nariman has an interesting Desai anecdote to share. In a heavy testamentary suit, BP Khaitan had briefed Desai and the client insisted that he accompany him to Bombay for every conference with Desai. Desai was a busy counsel and they had to go a full month in advance. Every day for Desai was able to spare only about 30 minutes for the case and Khaitan found himself having to constantly remind Desai of the facts. On the eve of the hearing, the exasperated Marwari solicitor told his client "My dear fellow, the case is tomorrow! We have done all we can, but fate is against you. Your counsel has not read the brief and all you can do is go to the Mahalaxmi Temple and pray that some miracle happens".

    The next day, Khaitan's jaw dropped when Desai stood up and masterfully argued the case without even touching the 2000 page brief![2]

    It was an era when the stars of the Bar peopled and directed the freedom struggle. Bhulabhai too found himself drawn in by Annie Besant's Home Rule League. Desai even went on to join the Liberal Party.

    It was a satyagraha by the farmers of Gujarat, known as the Bardoli Satyagraha, that brought Desai in contact with another Gujarati. The struggle for "No-Tax" had been led by Sardar Patel with the Mahatma's blessings. In the inquiry that followed Bapu was clear that only the best lawyer should represent the farmers and the natural choice was Desai. Desai's masterful presentation of the farmers' perspective led to the Government to revise the revenue, return the confiscated lands and release the peasants from prison. Desai became a legend.

    Bhulabhai Desai now joined the Congress in 1930. He was so taken in by Gandhiji's swadeshi that the suave advocate formed the Swadeshi Sabha and persuaded 80 textile mills to join in the boycott of British goods. The British resented the Sabha's interventions and Desai was arrested in 1932. From prison he wrote to his son "In the outer world my spirits were maintained high, whereas in prison, there is the stagnant routine and the blank facing of the dead walls." Desai frequently fell ill and was released on health grounds. He had piled up an enviable library in jail.

    Back after recuperating in Europe, at Sardar Patel's insistence, Desai was included in the Congress Working Committee.

    When the 1935 Government of India Act was enacted, Desai advocated Congress' participation. He was even elected to the Central Legislative Assembly from Gujrat.

    When Hitler attacked Poland, Britain was at War. She also wanted to unilaterally declare war on behalf of India. On November 19, 1940, in the Central Assembly, Desai thundered, "unless it is India's war, it is impossible that you will get India's support". Soon enough Desai found himself in Yeravada Jail under the Defence of India Act. However, his release on health grounds in September 1941 is historically significant.

    Remember that the Congress' Quit India Movement, resignation from provincial ministers and obtuse approach to the Imperial Government around this time proved fatal for a united India. The resignation of the Congress Ministries coupled with the Congress left rudderless with key leaders in jail, enabled the Muslim League, which had been battered in the previous elections, to recoup and grow from strength to strength with the Imperial Government's patronage. While his release put Desai in a vital position to negotiate the terms of future co-operation with Liaquat Ali Khan, Quaid-e-azam Jinnah's deputy, it also exposed him to the charge of taking an easy exit out of incarceration while other leaders languished in prison. This charge stuck to Desai as his name did not even make its way to the list of persons nominated by the Congress Party for the Constituent Assembly.[3]

    The Desai-Liaqat Pact, under which Desai and Jinnah would form a coalition government based on Congress-League parity, [4]sadly was stillborn when Jinnah made a public statement disclaiming any knowledge. While there were whispers that Desai had acted with Bapu's tacit blessings, both the Congress and the League competed with each other to disown the efforts. Desai was left out in the cold being accused of "by-passing" and "stabbing in the back" the Congress Working Committee. However, Bhulabhai Desai's tale was not over, he was disappointed and down but not out.

    At the September 1945 session of the All India Congress Committee Nehru, sensing the groundswell of public support for Netaji's INA soldiers who were to be tried for treason by the British Government, announced a Defence Committee headed by Desai.

    Desai, already shaken by the Desai-Liaqat Pact fiasco, was a shaken man and his health was also failing. The Defence Committee appealed the Viceroy for extension of time which was promptly denied.

    On November 5, 1945, inside Delhi's Red Fort, the famous INA trials began. In the dock charged with treason were Shahnawaz Khan, Prem Sahgal and Gurbaksh Dhillon. The three had deserted their uniform and responded to Netaji's call "Dilli Chalo". Now they were in the heart of Delhi, not in the manner Subhash would have wanted them to be. They were prisoners being tried by a military court comprising three senior British Army Officers.

    The only redeeming feature was that their Chief Defence Counsel was Bhulabhai Desai, assisted by Tej Bahadur Sapru, Jawaharlal Nehru and DR KN Katju.

    The entire cross-examination of the witnesses had been undertaken by Desai. Setalvad writes how Desai was most ethical in the manner in which he went about it. He cites the example of Captain Dhargalkar. Someone told Desai that the witness was not on close terms with his father and that a mention of the father would unnerve this witness. "That is not fair", said Bhulabhai, "I will not use this foul trick". The next day he demolished the witness nonetheless with his forensic skills.

    Desai's photographic memory was also in exhibition in this trial. While cross examining a subedar, Desai put to him something which he had said in response to the chief conducted by the Advocate-General. The AG objected to the President contending that this was untrue. "There is something like a record kept in this Court", said a confident Desai, "I suggest we look at the record". Sure enough the record bore Desai out.

    Bhulabhai's health steadily deteriorated during the trial and his doctors one evening observing his swollen legs and fatigue, advised him complete rest. Bhulabhai cited his duty and finally at Katju's instance agreed to a compromise. Katju would conduct the day's proceedings, he would be in the complex ready and available for any emergency.

    Desai would go on to argue for over two days in ten uninterrupted hours, without recourse to any notes or aide, that the Trial could not proceed under British Municipal Law as it had international public law ramifications. Desai would point out that the Indian National Army was a properly constituted, self-governing army with is own code, ranks, uniform and regalia. It was not the Japanese army's fifth column peopled with treasonous deserters from the British Army as the prosecution would like the Court to believe.

    Cleverly spinning the treason charge, Desai metamorphosed three army deserters as the symbols of an enslaved nation fighting a just war of liberation! Effectively he put the whole country on trial and colonialism in the dock. The Masters knew they had been checkmated. Desai reminded the Court of Shah Nawaz Khan's searing testimony on when forced to choose between King and Country, "I decided to be loyal to my country".

    Despite Desai's passionate defence, the court found the three guilty of treason on December 31, 1945. However, the colonial masters had sensed the national mood and the ground swell of popular support for the INA prisoners. Secret reports suggested that an unfavourable punishment would cause people to rise up in revolt and the government would not have any of that. The convicts were spared the gallows but were summarily dismissed from service and ordered to forfeit all their pay and allowances and sentenced to Kalapani (transportation to the Andaman Cellular Jail for life).

    Rinchen Norbu Wangchuk writes, "But what Desai offered was a remarkable defence with forensic precision, which had a profound impact on the sentence and more importantly, the freedom struggle. This trial and the subsequent public outrage was the proverbial straw that broke the camel's back of colonial rule in India. And standing at the forefront was Bhulabhai Desai."[5]

    Desai returned to warmer Bombay to a rockstar's welcome! However, the Man who argued India her Freedom sadly did not live to see a Free India. He died on May, 6, 1946. That very year another son of Bombay would launch his Direct Action Plan that would shatter Desai's India.

    Desai's memory today stands reduced to a road that leads you to the Breach Candy Club or to the Mahalaxmi Temple. Even now some old timers prefer to call it Warden Road. It is time to restore to this forgotten great lawyer and freedom fighter the place he deserves among the pantheon of the other great members of the Bar who won India her freedom! [6]

    Views are personal only.
    (Author is a practising Lawyer at the Supreme Court of India)

    [1] PB Vachha's Famous Judges, Lawyers and Cases of Bombay, Universal Law Publishing Co, 1962.

    [2] Fali Nariman, "Before Memory Fades: An autobiography".

    [3] Syed Saad Ahmed, Gandhi@150:Bhulabhai Desai, Gandhi's Trusted Legal Lieutenant", 7.10.2019, Outlook.

    [4] VP Menon, Transfer of Power.

    [5] Rinchen Norbu Wanhchuk, "Greatest Legal Argument Delivered in India", thebetterindia.com., 30.01.2020.

    [6] Srinath Rao, "Bhulabhai Desai Road: In memory of Congress lawyer who defended the INA's soldiers", 20.08.20, The Indian Express.

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