29 March 2017 5:19 PM GMT
A cliché that is often employed when marking the demise of an eminent personality is that the event represents “the end of an era”. In many cases the use of such language is symptomatic of unimaginative, even lazy, journalism. But there are occasions when the phrase acquires an undeniable aptness and resonance. One such occasion is the passing on, in quick succession, of two of the...
A cliché that is often employed when marking the demise of an eminent personality is that the event represents “the end of an era”. In many cases the use of such language is symptomatic of unimaginative, even lazy, journalism. But there are occasions when the phrase acquires an undeniable aptness and resonance. One such occasion is the passing on, in quick succession, of two of the stalwarts of the Indian Bar, Anil Divan and Tehmtan Andhyarujina on 20 and 28 March respectively. With their departure, the diminishing band of lawyers who had entered the Indian legal profession in the 1950s, when standards of competence and integrity were still very high, has been depleted so decisively that fewer than half a dozen of that generation remain in our midst.
Andhyarujina stood out as an epitome of decency and uprightness. An essentially self-effacing man, he never acquired the popularity – particularly among the chattering classes – that some of his more flashy contemporaries did. He seldom appeared on television or frequented the cocktail circuit. The attractions of sycophantic courtiers that are the status-symbol of many an ‘eminent jurist’ today simply passed him by.
I consider myself extraordinarily fortunate in getting to know this remarkable man at close quarters for over three decades. When I joined his chambers as a novice lawyer in 1981, he had already begun making his mark – albeit in a relatively low-key manner – as a solid exponent of constitutional and administrative law. A protégé of the redoubtable H.M. Seervai, Andhyarujina had had a supporting role in many of the leading constitutional battles of the 1960s and 1970s, including, notably, the Fundamental Rights case (Kesavananda Bharati v. State of Kerala) where he appeared alongside Seervai in a valiant but largely unsuccessful attempt to assert the supremacy of parliament.
His unshakable adherence to the doctrine of parliamentary supremacy – subject to constitutional constraints in the case of India – made him a slightly lonely figure in those times and to stand out from the likes of Nani Palkhivala during the epic constitutional battles of the Indira Gandhi era. It is a testament to Andhyarujina’s sterling personal qualities that, despite the deep polarisation that those skirmishes engendered, he was held in the highest esteem by Palkhivala (whose rather fractious relationship with Seervai became the subject of many stories). In his turn, Andhyarujina bore no ill-will towards those who were passionate in their denunciation of the Seervai line of argument (it is a delicious irony, of course, that, in his later years, Seervai himself underwent a change of heart in relation to many of the issues that he had espoused with fervour up until the late-1970s).
Another issue on which Andhyarujina ploughed a somewhat lonely furrow – at least among many of his peers – was judicial activism. His principled stand against judges straying into territory that did not belong to them did not win him the applause of the liberal elite. Nor did it fetch him any of the glittering prizes that are reserved for those who are in the vanguard of activist politics. His arguments for judicial restraint were made with conviction, courtesy and clarity in the many newspaper articles he wrote over at least the past two decades. Some of those articles – and other writings which, though not marked by literary flourishes, exuded erudition of a high order – are likely to be republished in a book being lovingly put together by a young member of his chambers in Delhi.
It is worth noting that Andhyarujina’s disapproval of judicial activism did not signal an indifference to some of the injustices that were sought to be remedied through this controversial method of grievance redressal. Quite the contrary. As anyone who has known him will testify, Andhyarujina’s deep sense of compassion – and his genuine concern for the underdog – was legendary. It probably arose from his own humble origins – and from the even humbler origins of his parents on whom he doted. Like many people of his generation, he never wore his heart on his sleeve, but those who were at the receiving end of his kindnesses and generosity could not have failed to notice his essential humaneness.
That quality also made him reticent about criticising others. Although he enjoyed his share of gossip – and I plead guilty to being a frequent conduit for tittletattle from various parts of the world which kept both of us amused for hours on end during our frequent meetings – I have seldom seen him excoriating anyone, even where excoriation was called for. This is one of the areas where I sometimes had disagreements with him. An example which comes readily to mind was his response to the fairly serious cloud that fell over the former Attorney-General of India, Goolam Vahanvati, in the aftermath of the revelations of corruption made against him by the Communist Party of India MP, Gurudas Dasgupta, in 2013. Given that the allegations were backed by detailed information that was prima facie plausible, that they were made with due responsibility, and that they elicited no credible rebuttal from Vahanvati (except for a ham-fisted attempt at threatening Dasgupta with a legal notice), I thought that Andhyarujina could have done better than remain silent in the matter, especially in the face of his shining track-record of fighting corruption in public life.
Another instance where I had reservations about his reluctance to cause offence came when he decided, on second thoughts, to pull some of his punches in his illuminating account of the behind-the-scenes manoeuvres in the Fundamental Rights case (The Kesavananda Bharati Case: The Untold Story of Struggle For Supremacy by Supreme Court and Parliament, published in 2011). In particular, he had initially intended to include a piece of information (from his personal knowledge) which would have shown one of the judges involved in the case in bad light; after some agonising, he chose to exclude any reference to the matter on the grounds that publication was likely to offend a living relative of the judge in question. I was not convinced that such deference was justified, and told him so (to his credit, he took my criticism in good grace and never let his friendship with me be affected by such expressions of dissent).
A matter that troubled him quite intensely towards the end of his life was what he perceived to be a precipitous decline in the stature of the Supreme Court of India. There were two broad aspects to his concern: firstly, the falling standards of the Court’s proceedings and output (which also implicates the increasingly poor intellectual quality of its judges) and, secondly, the runaway expansion in the role of the court (from what the founding fathers of the Constitution had envisaged as a constitutional court to an all-purpose court of appeal). For at least five years preceding his demise he lamented these developments with all the vigour he could muster, and it became a constant topic of my discussions with him.
While I could not disagree with his observations, I had some difficulty accepting his analysis of the root causes of the problem. In particular, I thought that, like many others in India whose exposure to the wider legal world had reduced significantly from around the late-1970s, he had not paid sufficient attention to such matters as the parlous state of legal education and vocational training, the absence of adequate quality assurance mechanisms (e.g. a rigorous Bar examination and a system of pupillage), and highly corrupt and weak regulatory processes currently in place. The way I saw it was that, unless a root-and-branch overhaul of the system is undertaken (including a ruthless cull of at least 80 per cent of what passes for the current advocate population), any attempt at superficial reform is foredoomed to failure.
For many years now I had urged Andhyarujina to step back from his practice and to embark on a writing career which would enable him to more constructively channel his ideas for the betterment of India’s sclerotic legal system. While expressing thanks for this piece of gratuitous advice, he would turn the tables back on me, urging me to undertake the task instead. At last, when, sadly, his recent illness compelled him to quit court work, he finally relented and agreed to devote some time to writing, and in one of my last conversations with him, we even spoke about doing some work together in July when I expected to spend a length of time in India. That, alas, will now remain an unfulfilled dream.
The other dream that Andhyarujina could not live to realise was the prospect of his beloved son, Zal, being designated a Senior Advocate. His devotion to Zal – and to other members of his family – was palpable, and it must surely have been a matter of some comfort for Andhyarujina to know, as he bade farewell to this world, that Zal was beginning to make his mark in a profession with which his family has had such intimate connections for at least three generations. The challenge now facing Zal is, of course, to live up to the high standards that his doting father achieved in his lifetime, and to carry the flame lit so luminously by him.
I will miss a dear friend who had stood like an immutable rock for all those years I had known him and to whom I could turn at any time for instruction, amusement or just an invigorating chat of no great importance. Fortuitously or otherwise, I had an opportunity to see him, in fairly good spirits despite the toll that his illness had taken on his body, some ten days before his passing when I made an impromptu decision to divert myself to Bombay en route to an engagement in Australia and spend a few precious moments with him. It is a measure of his kindness that one of the first things he said on seeing me was that Zal had, the previous evening, read out to him my article on Justice Gautam Patel (‘The Perils of Judicial Impulsiveness’, published on this site on 13 March) which he said he had thoroughly enjoyed. Grateful though I was for his compliments (as I am for similar sentiments received from numerous readers within and outside the profession who had accessed the piece in the previous few days), what mattered to me more was Andhyarujina’s reassurance that I had been fair in the way I had put my case.
The coming days and weeks will, I am sure, see numerous tributes flowing in from various corners of the world, and a common thread in all of them will, it is safe to assume, be that Tehmtan was, more than anything else, a very decent human being.
This article is also published in Law And Other Things.
Dr Venkat Iyer is a barrister and legal academic based in Northern Ireland.