Nationalisation of truth is the danger: Senior Advocate Rafique Dada

Senior Advocate Rafique Dada speaks in a low, even tone – Miranda Priestly volume, but calming rather than intimidating.

He carries into conversation the habits of a lifelong teacher: he anticipates questions, weighs his words and leaves little room to be caught off guard. Decades of studying, teaching and reading across legal literature mean he can summon jurists from memory.

Yet, what truly sets him apart at the Bar is the credibility he commands: judges routinely observe that “if Mr Dada is submitting something, it has to be correct.”

Over more than 6 decades in the profession, Dada has travelled from a hesitant commerce student to a gold‑medal law graduate, part‑time professor, senior advocate, the country’s first Additional Solicitor General for the western region, an early champion of mediation and a mentor to a remarkable roster of judges and leading lawyers.

In this interview with Bar & Bench’s Neha Joshi, Dada speaks on finding his way to law, staying apolitical in public office, warning against the ‘nationalisation of truth’, and why he remains convinced there is always room at the top for young lawyers who persist.

Edited excerpts follow.

Neha Joshi (NJ): How did you find your way to law?

Rafique Dada (RD): I took the middle way and chose commerce, only to find myself ridiculed by detractors who said I would end up just ‘writing accounts’ and that if I was so good, I should have become an engineer or doctor. Then at Sydenham College, I discovered a very practical incentive in the monthly merit scholarship for the top 10 students, which I managed to retain all 3 years because I did not want to burden my family.

As a merit scholar, the Principal recommended me for the London School of Economics after graduation. Every year one person was recommended. Many of my friends went there, then on to the World Bank and never came back to India. My scholarship was sanctioned, all arrangements were in place. 

My father discussed this with me and reminded me that ever since I was a young boy I had always said I wanted to be a lawyer. He asked why I wanted to give that up. I told him people laughed at lawyers, and he replied, “Don’t worry. There is always room at the top.” That conversation changed everything. I turned my back on that plan and decided to do law. I enrolled at the Government Law College, Mumbai.

NJ: What were those law college years like?

RD: The Government Law College had some remarkable teachers who made law come alive for me. To mention a few professors: PW Rege, TK Tope , Ranganath Rao, SD Balsara and many others. I was also told that public speaking and debating would help me as a lawyer. Whether that is entirely correct I cannot say, but in my case it became a necessity, because the merit scholarship money had stopped.

I began entering every debate and elocution contest possible. In these competitions, if one came within the first three, a monetary prize was given. I made a little pin money as a speaker. In one competition, a contestant had to pull a topic out of a hat and speak on it. This was a great challenge and a lot of speakers from different colleges participated. Winning a competition in an inter‑college event or even an inter‑university event meant a lot for a young student like me.

NJ: You won the gold medal in law. Did that make starting practice easier?

RD: Winning did not make any difference. I did get a gold medal and the Government Law College Principal, Dr TK Tope was very insistent that I must join the Bar.

Incidentally, when I stepped into practice immediately after completing my LL.B. at around 22, I discovered that the Bar was not waiting for me. I was an outsider, a ‘nobody’. The only thing that saved me was the atmosphere of the Bar library – it was inclusive, kind and encouraging.

Some seniors would ask me to look up points of law; I would gladly do it because it helped me learn. I would stand in court, watch arguments, then rush back to the library to figure out how I would have answered that point.

There was even a joke that “Rafique Dada sits late in the evening and goes home only after he meets the High Court ghost”. I fell in love with the building and with law books.

NJ: You were teaching and practicing simultaneously. How did that shape you?

RD: Tutorials were usually 2-3 times a week and the system was quite demanding. On Monday, you would be told which subject you were required to take that week. This was a great challenge in terms of preparation. One had to face the students who had come to listen to the lecture on that subject in the form of tutorials. That discipline forced me to constantly revisit the law.

Many of those students who attended the tutorials and my lectures later became outstanding lawyers and judges. Teaching helped me to keep in touch with the law and also brought me in touch with some outstanding students.

In the early days at the Bar, I did not have much work. I would research for various lawyers, including the late EG Vahanvati. I must mention that my GLC Principal had recommended me to Mr Vahanvati, who was a very respected senior. I learnt a lot from him. He encouraged me to stay at the Bar. A few years later, his son, Goolam Vahanvati, also joined the chamber. He was an outstanding lawyer and ultimately became the Solicitor General of India and finally ended up as the Attorney General of India.

Between that and teaching, I remained very busy. It gave me the chance to read and study a wide range of subjects. It also helped my morale. In court, nobody cared that I was a gold medalist. I would often return home crestfallen, but in the classroom where I taught, I had students who held me in high regard and that gave me much‑needed encouragement. 

What kept me going was self‑belief and a desire to succeed at the Bar. whatever the odds. In my own mind, I made a promise that if I ever got a matter against any legendary lawyer, I would not be overawed; I would still fight it. At the same time, I had – and still have – deep veneration for my opponents. Whoever appears against me is doing his job; I am doing mine. That attitude has stayed with me.

NJ: You are known for a wide range of practice areas. Was that deliberate?

RD: No. During my LL.M., I had done constitutional law. I had also taught constitutional law as a professor in the University to postgraduate students. In my junior days, I was not considered big enough to appear in big constitutional matters. Some interesting constitutional matters came my way after I became senior counsel.

Taxation matters became inevitable in my practice because I was a teacher of taxation at GLC. As a designated senior, tax work filtered in. SEBI decided to give me a lot of work. From that day, I have never appeared against the institution; I have only appeared for it. This experience brought me into close contact with many scandals in the stock exchange.

I argued a lot of cases in environmental law because some close friends were very committed to the environment. I remember I had gone to the Nagpur Bench of the Bombay High Court to argue a matter for the protection of the Melghat sanctuary.

The issue which we argued in the Nagpur Bench was to prevent the cutting of over thousands of trees in the Melghat sanctuary.

Later, I was appointed amicus in issues concerning the Borivali National Park in Mumbai. I stayed in the sanctum sanctorum of the Park, in a small cottage without electricity. I was informed that there were panthers in the sanctuary and that they sometimes moved around the cottage in which I lived. It was a wonderful experience.

Tax law itself has become one of the most dynamic fields, and I am interested in looking at every facet of tax law. The law is a wide ocean and recently I got a chance to study Portuguese law for a brief time in Goa.

NJ: You were the first Additional Solicitor General for the western region. How did you approach that role?

RD: The then Attorney General, Soli Sorabjee, offered me a post in Delhi. I could not accept it for personal reasons. So he offered me a post in the western region at Mumbai. I accepted it as an opportunity that would open doors for others after me. The earnings were modest, but the work was challenging.

During my tenure, there were stock exchange scandals like the Harshad Mehta scam. There were also important tax matters and other important cases where the Union of India was involved. A band of young government panel lawyers worked with me as juniors. My work extended to Gujarat and even up to the State of Rajasthan. I even appeared in the Supreme Court in matters relating to the western region. Later, similar posts were created in Madras, Calcutta and elsewhere.

I set a standard for myself: I would avoid detention‑type cases that conflicted with my principles. But in those matters – including financial scandals – I would work extremely hard. I was fortunate to have excellent government officers assisting me. One of them once told me that gold smuggling in the western region was curbed because of the cases we fought in court. This made me very happy!

NJ: You served as ASG under multiple governments. What do you think was the reason for your retention?

RD: By convention, a law officer resigns when a new government comes in, because he must enjoy the confidence of the government in power. I worked under several Prime Ministers - Inder Kumar Gujral, Atal Bihari Vajpayee (whose Law Minister, Ram Jethmalani, personally called to say the Prime Minister wanted me to continue), HD Deve Gowda and PV Narasimha Rao.

I believe that I was continued by the four Prime Ministers because I was totally apolitical. I did not espouse the cause of any political party and they did not expect that from me. I was regarded as a lawyer who could be trusted to argue the cases and get them results on merits. Nobody ever interfered in my work, though I argued many sensitive cases.

NJ: Is being apolitical challenging for a law officer?

RD: Yes, because as a law officer, you must be independent and you must also be fair. The government is the biggest litigant. If, in a government case, you see injustice, you should try to correct it or at least soften the blow. In many cases, you are facing an individual fighting for himself against the State and one should not defend the indefensible.

When the late Justice BP Saraf was a High Court Judge, he told me that there were so many tax matters which were already covered by decided cases and were not worth fighting in court. “Please sit and clear them out.” That is how, in 3-4 months, we cleared 500–600 matters that were either covered or decided by an order of the Supreme Court or by a binding precedent of a High Court.

This screening work helped to clear a lot of pendency and has since become a practice followed by many of the judges working in the courts.

NJ: Is it difficult to separate personal convictions from professional duty?

RD: The Bar is a wonderful equaliser. I accepted everyone just as everyone accepted me. That largely kept personal views away from my professional life. The only real conflict came during the Emergency when I was a junior lawyer working in the Central government panel. Some very good friends of mine who held certain political views were detained. This disturbed me deeply.

I told the authorities that I would not appear in any detention case; I would not defend any detention. They informed me that then I would have to leave the panel; I did so. That was the only time when I felt alienated from the administration. Human life, human dignity, liberty is too dear to me and I could not compromise even at the risk of losing some income. Even today, I maintain a wide circle of friends without worrying about who is who.

My advice to juniors has always been that you either do politics or you do law. You have your beliefs and personal views, you exercise your right to vote, but do not pontificate and give lectures on politics. Keep away from it. When it comes to issues of liberty, detention or human values affected by the might of the executive, then you fight to the best of your ability in court and help people.

NJ: Yet. many politicians are or were lawyers. How do you see that overlap?

RD: Actually, some of the best lawyers are politicians! The Father of the Nation was a lawyer. So many outstanding lawyers are in politics even now. Good luck to them!

My own view is that if you are a lawyer and also are in politics, your credibility may be affected when you appear for certain causes in court. People believe you are espousing a particular cause because you are in a political party. Some people cannot help it because politics follows them; they are so outstanding that they do that work also.

But I try to consciously keep away from that. I see myself more as a technician. I have appeared for temples and mosques, the rich and the poor, the middle class and the man on the street.

NJ: You have spoken about the danger of the 'nationalisation of truth'. What do you mean?

RD: The phrase comes from Julius Stone, a great author on jurisprudence. When truth becomes nationalised, an entire society – including judges – begins to believe that whatever the State does is right. We saw that in Nazi Germany, where many felt that even sending Jews to gas chambers was acceptable.

Today, we see thousands killed in conflicts and large populations feel nothing is wrong. This is the danger we must guard against, because lawyers and judges are not immune to such conditioning and may come to hate certain groups.

The antidote lies in respect for human liberty, respect for dissent and respect for the right to say what does not please the establishment. This is essential to democracy, which goes back to the Greek tradition of citizens openly raising their hands for a cause in public interest.

NJ: You were an early champion of mediation. What convinced you?

RD: When I became President of the Bombay Bar Association in the early 2000s, mediation was just appearing on the horizon. Advocate Firdos Karachiwala was strongly advocating it. I felt that instead of merely talking about mediation, we should learn it properly. So I, along with my counterpart in AAWI, took formal training and we became certified as mediators.

The logic was simple. Our courts are choked with commercial disputes, ego‑driven fights, unfair defences and cases where delay itself is a strategy. Litigation of that kind serves very little purpose. Mediation offers a humane and efficient alternative.

The Californian Bar at San Francisco and San Diego heard about our work and invited us. I led a delegation to the USA, where we were warmly received and learned a lot about mediation. In the USA, they did not have the kind of delays we have, so the incentives to settle are different. We visited San Francisco, San Diego and Los Angeles, interacted with judges and lawyers and saw first‑hand how case management and settlement practices worked.

On returning, we sold the idea of mediation. Judges like Justices Ajit Shah and DY Chandrachud (then High Court judges) embraced it and took it to Delhi and Uttar Pradesh and eventually the Supreme Court. I remain convinced that mediation is the way forward because it allows lawyers to fulfil their duty not to foment litigation but to resolve it.

I am still on the Bombay High Court mediation panel and take on matters without charging the prescribed fee, asking that it be donated to charity instead. Some very prominent business and family disputes in Bombay and Goa have been resolved in this way.

NJ: Your chamber has produced a remarkable number of judges and leading lawyers. Did you have a conscious mentoring philosophy?

RD: I never believed that I was “senior” and they were “juniors” in the sense of importance; I never believed I was good and they were not. The idea was always to draw out the best in everyone, and there was strong camaraderie: if X got a brief and Y did not, Y did not mind because it still remained within the chamber. Whenever I saw a junior getting his own brief, I would tell him, “Work very hard on your brief.” Many of my juniors appeared with me in some matters and some appeared entirely on their own arguing the cases.

Over time, several advocates from my chamber went to the Bench: Justice SJ Kathawalla, Justice Suresh Gupte, Justice Anoop Mohta and. most recently, Justice Jitendra Jain, among others.

Purnima Advani, who headed the National Commission for Women before joining the Bar, came to my chamber on a Supreme Court judge’s recommendation and worked incredibly hard on securities law. She read every single judgment on the subject until she became an authority herself. Sadly, she passed away early.

Many others, though not judges, are distinguished lawyers like Senior Advocates Jimmy Pochkhanawala, Rohan Shah, Pradip Jetly, Kirit Modi, Tushad Cooper and many others. My doors remain open; no junior leaves my office disappointed if I can help in any way.

NJ: What is the legacy you wish to leave behind or a message for youngsters?

RD: I do not think I am such a big man that I can pontificate and ask people to follow me. Perhaps I can be a small role model in one sense: a lawyer without much influence who still made it, showing that hard work, goodwill and commitment to justice can carry you through.

If you get even a small, seemingly insignificant brief, you must give it everything; if you harness the power of good, good will come to you and rescue you. If the young are willing to listen, there is much one can share; if not, they may dismiss you as an old fogey who talks too much. I would be content to be remembered as a lawyer wedded to his work and who worked hard as a worker in the temple of justice.