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“We were taught to draft (pauses) very carefully. The great importance of good pleadings was instilled in us.
Bar & Bench’s Anuj A speaks to the Bombay High Court’s senior counsel, Navroz Seervai.
“I am quick tempered, I jump to conclusions faster than I should. I lack patience (pauses) I am irascible at times.”
It is quite a harsh assessment, but senior counsel Navroz Seervai maintains that it is an accurate one. The conversation has meandered to whether the senior counsel was ever asked to join the Bench. He was not, and in his own words, “rightly so”.
It is a rather typical response – as one learns soon enough, Navroz Seervai does not indulge in conversation for conversation’s sake. In many ways, he is a correspondent’s delight – a keen sense of observation, a limitless number of anecdotes, and a razor sharp wit.
There is plenty of evidence of a very strong sense of history; his chamber is adorned with pictures of legal giants, black and white memories of a world not too far away.
It is difficult, if not impossible, not to broach the subject of his father HM Seervai, often regarded as one of the greatest constitutional lawyers (and scholars) of the country.
One would have thought that his father’s presence would be reason enough for Navroz Seervi to join the legal profession. Far from it.
“You could say I joined the legal profession almost as a last resort. I actually was determined not to do law. In fact, my father resisted great pressure from his juniors to persuade me to do law. He felt, as I do, that each person must make up their own mind and do what makes them happy.”
Here marks the first indication that Navroz Seervai can be fiercely independent. It is not the last.
After a degree from Elphinstone College, Navroz Seervai went to Cambridge and then returned to study law in India, completing his law from Hinduja College.
By the time Navroz Seervai joined the Bombay Bar in 1981, his father was handling far fewer matters than before.
Nonetheless, there were advantages in being HM Seervai’s son.
“Of course there were advantages. When I was in 2nd LLB, I joined the chambers of RJ Joshi and Atul Setalvad, both of whom were my father’s juniors. They in turn, by then, had several juniors so it was a large chamber.”
It was an interesting and challenging chamber to work in, not least because of the high standards both Setalvad and Joshi set.
Atul, in particular, had a penchant for extremely brief, crisp drafting. I think, in that sense, he was a bit more old-world than most.”
Although he would eventually move out of the chambers, it was a slow start.
“A lot slower than what it is today though not as slow as we were told for generations earlier. I suppose each generation feels that the next one gets going faster. In fact, [the slow start] was good, it allowed you to work on the briefs for your seniors, prepare chronologies, check the law, thoroughly read the briefs.”
Since his early years Navroz has done, and continues to do, a large amount of pro bono work, both for the Bombay Environmental Action Group, and the Peoples Union of Civil Liberties.
“They were challenging cases and we had setbacks and uphill battles. Initially we had to battle to establish the credentials and bona fides of the organisation, not least Shyam Chainani, who was the life and soul [of BEAG].
This was a man who sacrificed much in his career, and his personal life, for the cause of the environment. We had a wonderful team led by Atul Setalvad.
Zia Sorabjee was very active, and then as the years passed, there was Gautam Patel, Shiraz Rustomjee, Mustafa Doctor, Sharan Jagtiani and others.”
It was a team that did manage a number of landmark decisions, especially when it came to illegal constructions in the city (“it helped that we had some proactive judges”).
Looking ahead though, Navroz is not so optimistic.
“In the recent past we have had several reversals. I think, at least amongst some judges, the concept of development trumping the environment rather than “sustainable development” has been a predominant aspect.”
As his practice grew, there were the inevitable comparisons with his father (“You learnt to live with it and accept it”). Soon enough, Navroz was faced with the decision of applying for becoming a Senior Counsel. It was a choice he was not too keen on making.
“I must tell you that (pauses) I found no need [to apply]. But somewhere down the line, what happened was that people started telling me that I ought to apply. So one day, more to get them off my back than anything else I said at least if I put in the form, the next time they meet me I can at least say that I have applied.”
He smiles as he recounts the story; it is evidently not the complete picture. Yet, the system of designation is not one he is particularly fond of.
“It wasn’t like this when I joined the profession. This feeling that either you have to become a senior or your career has plateaued. Or this mania that you have to have a senior [appear]. It wasn’t like that.
I argued heavy matters, I argued against seniors – I never felt that I wasn’t getting a brief because I wasn’t a senior. Well maybe I wasn’t getting briefs, no one is going to tell you that they would have briefed you if you were a senior.”
Apply he did, and was designated a Senior Advocate by the Bombay High Court. The next question of course, is whether he was ever asked to join the Bench.
“Well actually no. I haven’t been asked and I think correctly. I think my temperament would preclude me from being a good judge. I have marked likes and dislikes. I hold very strong views. I would sometimes get into scraps.”
“I particularly remember the second Koregaon Park matter before a Division Bench of the Bombay High Court. I don’t want to get into the names but there was a counsel that I thought was intent on provoking us. He made an allegation against Shyam, saying that he had manipulated someone in the government to issue certain statutory rules. And I just lost it. Of course we did apologise to each other afterwards.
Of course, experience shows that some people who had a temper as lawyers, changed when they became judges. So yes, it is a toss up, I will never be able to prove it to myself.”
So is he a taskmaster to his juniors?
“Not really. I am open to discussion and to change my mind. I am open to a viewpoint coming from the junior-most junior. And I think I got this from my father. Fali Nariman’s ability to consider an argument even if it came from a young junior, also deeply influenced me.”
One of his former juniors, senior counsel Mustafa Doctor, once said that he was amazed at how Navroz could reel off facts and dates without glancing at his notes.
“Perhaps it is something that I inherited from my father. He had an amazing memory, not just in the law, but in history, literature and poetry as well.”
The talk veers to his practice, or rather the way he structures arguments, and prepares for hearings.
“I mark the brief very heavily. In fact, one day someone said that I am probably doing it in reverse – the few lines on the page that are not marked are actually important! (smiles)
Very rarely do I have a brief with little or no marking. And I always wonder to myself if the solicitor thinks that this is a brief that I have not read.
I don’t make very detailed notes, except in the heaviest of matters. Which is a weakness of mine, because there is only that much you can rely on your memory. It means you will have to read and re-read the brief in case it gets adjourned.”
This is no longer Seervai the lawyer, it is Seervai the teacher.
“Sometimes what happens is that when you put it down on paper, you freeze your mind. However open minded and flexible you are, detailed written notes prepared in advance, tends to then close the mind.
And sometimes things don’t work that way in court. A judge may ask you a question, you answer it and continue. Or you may think that this is a great opportunity to cite a judgment that you were planning to cite later.
But this is my view and I know that I am in the minority. Some of the most formidable lawyers in Bombay regularly make detailed notes, and yet display great flexibility in their arguments.”
He would have made for a great teacher, a vocation that he almost took up. Before he started studying law, he went to his alma mater, the Bombay International School, asking for a teaching position.
“I said I want to teach the higher classes not because I think it is better but because I still have a temper.” His teacher, by now the Vice-Principal, smiled and said “We know”. “I felt that if something did happen and I shouted, a fourteen or fifteen year old would be better able to take it then a seven or eight year old child.
Just as a junior lawyer’s career can be shattered by one incident of a judge shouting at him. I could not have that on my conscience. But they could not offer me two of the higher classes. They offered me one senior and one junior class. Reluctantly I declined.”
Strangely enough, his father had found himself veering towards the teaching profession.
“My father almost became a professor of English literature at the Elphinstone College at a time when he was going through a particularly tough time at the Bar. He just had no practice in the first ten years, and would sit in the library all day.
I think at some stage he did waver. He loved literature, he loved Elphinstone college, he had taught for a short time there when doing his M.A. degree. But then father and his mother discussed it and he decided to stick it out – at the Bar.”
The conversation moves on to lawyers associations and lawyers’ strikes. It is a topic that he has some strong views on, both when it comes to the Bar and the Bench.
“I think it is just partly mindless and partly irresponsible behaviour by people who are adults. Unfortunately, courts deliver judgments that are difficult, not impossible, but difficult to enforce. By just saying [strikes] are illegal, ban them and then not being able to enforce the ban – that in turn breeds disrespect for the law.”
So is he optimistic about the future?
“I think it is often cyclical. You have moments when you think things are going from bad to worse, and then you see a bunch of young lawyers who have actually made the sacrifice and become judges. And you suddenly feel upbeat.”
“Of course, at one level, the question is meaningless and I will tell you why. The system is going to carry on: you will have judges, lawyers, litigants and laws.
From another angle, I think it is pretty grim. Because you are not appointing enough judges, the number of cases are spiralling and of course that opens up a whole Pandora’s box. I don’t think there are any easy solutions to this.
If the government dealt with citizens fairly, there would be no cause for litigation. When you say the government is the largest litigant, the government is rarely the plaintiff or the petitioner. It means they have done something or not done something which drives you to court. If they had done the right thing there would be no litigation.”
So what does the Senior Counsel think of the legal profession?
“It is an exciting profession, it certainly is an intellectually stimulating one. It exposes you to subjects other than the law.
If you are on the litigating side, there is a certain intellectual excitement in the thrust and parry of arguing in court, of doing a good job, and perhaps succeeding in what was a difficult matter.
You need to think on your feet when either the other side or the judge puts a point which, despite all the work you have done, has eluded you. And I think that is a great intellectual challenge – the ability to think with a certain degree of speed.”
And yet, despite this, he is quite happy about the fact that neither of his children are lawyers.
“And I must tell you that I am very happy that neither of my two children are doing law. I am much happier in a family where people are doing different things. I often think that I would go mad if I lived in a family where the husband, wife and children all did law.”
Part of the reason why none of his children are lawyers is because he and his wife ensured that they had the freedom to choose their own path, a freedom which in turn, his father and mother gave him.
“I think it is horribly unfortunate that we live in a society where many children’s minds are made up for them. Either by just being bludgeoned, or due to this false notion that you can’t disobey your parents. Or, which is even worse, by the subtle manipulation of a child’s mind and emotions.
Perhaps this is catering to a society that accepts that young children’s minds have been made up for them. It is an awful thing to say but it’s true.”