HM Seervai: Jurist par excellence

“Most advocates and judges, however great, walk for but a short hour on the stage of the law. They play their parts. Their voices are raised and the pages of the books are filled with their learning. But then they depart. They are remembered by their loved ones and a few friends or grateful litigants. But soon they are forgotten. Not so with HM Seervai. He was the advocate's advocate. He lived in tumultuous times for India. He was an example and an inspiration for lawyers in this country, and thus for all of us in the company of the common law scattered to every corner of the globe.”

These words by Justice Michael Kirby of the High Court Of Australia perfectly define the life and legacy of Hormasji Maneckji Seervai, India’s most outstanding lawyer, jurist, and scholar in constitutional law.

Seervai was born on December 5, 1906 in Bombay to a middle-class Parsi family. He matriculated from Bhada New High School, and then joined Elphinstone College in 1922, from where he graduated with a first-class degree in Philosophy. He went on to study law at the Government Law College, Mumbai. He was called to the Bar in 1929. In 1932, he joined the Chambers of Sir Jamshedji Behramji Kanga, who was then the doyen of the Bombay Bar.

From his earliest days in the profession, Seervai was not only known for his legal acumen, but also his work ethic and professionalism. He believed that lawyers ought to be industrious and honest. He refused to take up cases if he was already engaged in other matters. He always stayed in a hotel room without a balcony because a room with a balcony would cost fractionally a little more. And he did not want the client to pay unnecessarily for this. To him, the work mattered more than money or luxury.

There was an instance where Seervai was once approached by a solicitor for an opinion. Seervai held about six or seven long conferences to discuss the case. After Seervai shared his opinion, the solicitor was shocked by the paltry amount of fees mentioned in Seervai's bill. The solicitor went to Seervai ask him to increase his fee, as it did not reflect the amount of work put in by him. He was speechless after hearing Seervai’s answer - that the client had come for his opinion on the assumption that Seervai knew the law. It took Seervai long conferences and a lot of reading by himself to best acquaint himself with the law. It was, said Seervai, for his knowledge of the law and not for his ignorance that the client had come to him. Therefore, the abysmally low fee was fully justified. When a young colleague asked as to what was wrong in charging high fees when clients were willing to pay, Seervai answered unhesitatingly,

“If a man was willing to be robbed, would you be a thief?”

By the early 1950s, Seervai was in demand at the Bar. His moment arrived when it fell upon him to defend the Bombay Prohibition Act. His closing speech in defence of the law was truly outstanding, and therefore earned him the admiration of the government. His first appearance before the Supreme Court of India arose in a defence of the Government of Bombay's decision to ban prize competitions, in the nature of lotteries. Seervai's arguments were well received. The judgments and orders of the Bombay courts were unanimously set aside with costs by the top court.

A year later, Seervai began his service of seventeen years as Advocate General. Holding that office, he was destined to argue many of the leading trials and appeals of the State and the nation. Seervai served as Advocate General of Bombay from 1957 to 1960 and Maharashtra from 1960 until his resignation in 1974.

Seervai was not only a brilliant lawyer, but also a courageous advocate. He was fearless and did not hesitate to lock horns with a judge who he thought was partial or unethical. This fearlessness was seen in his performance in the Parliamentary Privileges Case in the Supreme Court in 1964. It is believed that he was specifically selected to argue on behalf of the Uttar Pradesh Vidhan Sabha, in a contest between the Legislature and the Judiciary, because only a man of his courage would be able to tell the judges that they did not have powers over the privileges of the Legislatures. True to his reputation, he did so without hesitation.

Perhaps the most important case in Seervai’s life was the case of Keshavananda Bharati v. the State of Kerala. The government chose Seervai as the leading counsel over the Attorney General for India to defend Parliament’s power to amend the Constitution. On the other side was Nani Palkhivala, another legendary lawyer from Jamshedji Kanga’s Chambers. The Court ruled 7:6 in favor of Palkhivala’s arguments.

The misuse of the amending power during the Emergency in 1975 by the ruling party made Seervai change his view of the law expounded by him in Court and he later stated that there had to be limitations on the Parliament’s power to control the Constitution. Seervai had the intellectual courage to change his view.

Seervai’s genius was well recognized. He was conferred the Padma Vibhushan in 1972. In 1981, the British Academy elected Seervai its Corresponding Fellow, a distinction reserved for scholars of the highest academic distinction. That same year, he was awarded the Dadabhai Naoroji Prize. The International Bar Association awarded Seervai an award of Living Legend of Law. He was offered judgeship of the Supreme Court not once, but twice. Each time he declined it.

In 1971, the Government of India offered to appoint him Attorney General. Seervai refused as he felt that the best contribution that he could make to the law was not to appear in Court, but to "embody in successive editions of his book the correct judicial interpretation of the Constitution.”

Seervai’s greatest legacy is Constitutional Law of India, a three-volume commentary on Indian Constitutional Law. In his tribute to Seervai, Shanti Swarup Bhatnagar, former Advocate General of Uttar Pradesh remarked,

“There is no doubt that Seervai's Constitutional Law of India is a monumental classical work on Indian Constitution. No other writing on Constitutional Law whether by distinguished judges namely, DD Basu or Chief Justice Hidayatullah, nor scholars of the level of Dr. Tripathi come near even for comparison with Seervai's work. His Constitutional Law of India ranks in the superior company of all quality writing on the topic of Constitutional Law and certainly excels all others on Indian Constitution.”

Seervai’s commentary has not only educated, but has also inspired an entire generation of young lawyers. His writings today remain relevant as ever.

On January 26, 1996, HM Seervai died at the age of 89. With his death, India lost one of its greatest jurists. It is often said that Seervai the man was greater than Seervai the lawyer. But the two characters were inextricably mixed, making him the most respected person in law and giving him that indefinable eminence over several lawyers of his day who were reputed to be clever and more astute than he was. And perhaps that is the greatest legacy that a person can leave behind; for Seervai is not only remembered for the work he did, but also for who he was.

The author is an aspiring litigator, researcher, and writer from Mumbai. He is currently pursuing his LL.B. at Kishinchand Chellaram Law College, Mumbai. You can follow him on Twitter @hamzamlakdawala