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Remembering Homi Seervai

Harish Khare

A fearless member of the bar, he was the judicial system's conscience keeper.

Photo: V.V. Krishnan.

This portrait of H.M. Seervai was unveiled at the Supreme Court in New Delhi on October 19, 2005, by then Chief Justice of India R.C. Lahoti. The present CJI Y.K. Sabharwal is at extreme left.

DECEMBER 5, 2006, marks the birth centenary of Hormasji `Homi' Maneckji Seervai, one of the greatest legal minds of modern India. Every student of the Indian constitutional system will remember Seervai as the man who wrote the majestic and magisterial treatise, Constitutional Law Of India, hailed in and outside India as a fine work of legal scholarship. Yet Seervai was much more than the author of an authoritative text on the Indian Constitution.

He was, in the words of one of his junior colleagues, T.R. Andhyarujina, "the moral force in the profession for over fifty years." For 17 years he was the Advocate-General of Maharashtra, and could have ended as Chief Justice of India if he had accepted offer(s) of a place on the bench.

Every lawyer has the potential, by words and actions, to become a jurist on daily wages. And if a lawyer happens, like Seervai, to be a man of integrity, competence, moral courage, and fearlessness he becomes a virtual jurist as well. Seervai combined all these virtues so eminently that he became a jurist par excellence, a philosopher of law and legal practices.

To mark his birth centenary, his wife has brought out a compilation of his writings and words about him from a host of grateful admirers. What is remarkable about the collection Evoking H.M. Seervai is that a number of senior lawyers note — with admiration and awe — that Seervai could tell the judges that they were wrong or that under the Constitution they did not have this or that power. In itself, this is an unconscious reflection of the somewhat cosy — and at times quasi-collaborative — relationship that has developed between the bench and the bar in the post-Seervai era. Senior members of the bar are afraid to annoy the bench — an inadvertent acknowledgement that judges and judgments are sometimes, if not always, influenced not by logic and constitutional reasoning but by personal prejudices.

As a former Chief Justice of India, R.S. Pathak, notes: "The lure of high fees and public adulation mattered not to him nor indeed the unpopularity of the cause; excellence in the discharge of professional obligation was his only standard. The Courts came to respect him with a respect give to few."

Seervai believed that lawyers were not there just to make money but that they were as much officers of the law and that they had an obligation to deepen societal respect for the structure of laws. "It is the duty of responsible Counsel not to ask people to embark on a litigation if the law as it stands is against them, and Counsel are of the opinion that the law has been rightly laid down."

For Seervai, honour and autonomy was key to professional integrity. He resigned as the Advocate-General of Maharashtra when small minds in the Congress party found him too autonomous and too independent for their taste. That was in 1974; the first hint that Indira Gandhi's India was becoming impatient in respecting the restraints of constitutional institutions. It has been testified, "He regarded the duty of a Law Officer to represent the public interest and acting independently of the Government. The current practice in India is now more tailored to the practices of what Seervai has referred to as Mr. Wordlywiseman and Mr. Facingbothways."

The same fearlessness that he demonstrated towards political authority Seervai also showed in pointing out corruption in the judiciary. It is part of the legend how he raised a campaign to make Chief Justice Gajendragadkar recuse himself from a case in which he could have had a pecuniary bias. Gajendragadkar was the Chief Justice of India and it would have taken some courage to demand that he opt out of a bench. But for Seervai there was nothing personal. A larger principle was at stake. As he wrote in Constitutional Law Of India, "The Chief Justice thus affirmed in India the principle, well settled in England, that the requirements of natural justice apply to the most exalted judicial officer as they do to the humblest."

Justice Pathak must be quoted again on Seervai: "A courageous knight in shining armour who had dedicated his life to protecting the purity of the administration of justice, to the upholding of its traditional values and to promoting a consistency in the policies and direction of judicial law making."

A jurist is one who can sit in judgment over the judgments of the judges, and occasionally tell them that a particular judgment was "clearly wrong and productive of the greatest public mischief."

Nor was he averse to prescribing standards of behaviour and performance for a judge. "An honest Judge, who lacks wisdom and knowledge, might do the most unjust things, but popular language and opinion calls him an ignorant or incompetent Judge and not an unjust Judge. That term is reserved for a Judge who allows his judgment to be influenced by motives of personal gain either directly, as when he takes bribes, or indirectly, as when he shows favours."

It is almost facile to say that Seervai's wise words remain relevant today. What we do need — and certainly do miss — are one or two later day reincarnations of this fearless man.

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