Musings At Law- XVII Narasimhan Vijayaraghavan Art of Advocacy has often been spoken to in glowing terms. Being a lawyer is antithetically different from being an advocate. There is a world of difference. Nani Palkhivala scaled dazzling heights, in the course of his exposition of the Basic Structure doctrine, in the Keshavanand Bharati case
Musings At Law- XVII
Art of Advocacy has often been spoken to in glowing terms. Being a lawyer is antithetically different from being an advocate. There is a world of difference. Nani Palkhivala scaled dazzling heights, in the course of his exposition of the Basic Structure doctrine, in the Keshavanand Bharati case, before 13 Judges of the Supreme Court, the only time 13 of the law lords sat together in our judicial history since 1950. Who does not remember the tribute that Justice H R Khanna paid Nani for his once in a life time oratorical performance? Always remember that it was M K Nambiar, Attorney General K K Venugopal’s jurist father who alluded to this essential feature proposition earlier. After a tete e tete with Soli Sorabjee, on the morning of the day of his ‘extended submissions generously agreed to by the bench, we had just a 15 minute exchange while driving to the Court, from a German precedent, in this regard, and Nani dug a foundation, built the construction and lit the inside and outside of the building, with the eternal flame that has remained lit ever since.”
But he was once in a generation advocate. To think that he was an ‘accidental advocate’, who failed to become an English professor, is mind boggling. It is easy to be dismissive of today as symptomatic of “steep fall in standards in the legal profession-comprising the lawyers and judges- that Eardley Norton talked of in a letter to Dear Sadagopachariar in 1920”. But just once in a while we have had judges who were encouraging of a literary flourish to elevate the hearings. There are instances each one of us may have been associated with, when clever constructs or unique styles have been recognised, regarded and responded to, as deserving of praise.
Come on, I can hear you saying- Stop it – start musing. Here it goes. When I began practice in the High Court, I had a twin advantage. My Senior who was an ‘irresponsible delegator’, as I called him, which suited both him and us, who enjoyed his extraordinary benevolence of convenience. We had a First Bench of the Madras High Court comprising Chief Justice M N Chandurkar and M Srinivasan. A bench imbued with erudition. Never wasted a moment to catch and grasp. So sharp on the uptake that we never had to finish our submissions, before our sentences were completed and carried to the other side for a response. The exchanges took just a few minutes, however nuanced the cause was, and for those of us who refused to beat around the bush or drawl, they were a god sent pair of giants. Alas, they don’t make them like that any more or the likes of them don’t make it there, as you take it.
It was another day at the office. The Court’s Board was full to the brim. The First Court was overflowing. The reverse of social distancing. One by one, the lawyers were trooping in and out. Most, satisfied that they had a fair hearing even if the Bench did not agree with them. In fact, there was so much transparency that within minutes of the start of submissions, any well informed member of the bar, inside the court, could second guess the result. It was so predictable and consistent. But one had to be fully prepared, alive and aware for they were tough customers and never suffered fools. They made it evident. There were butterflies in the stomachs of even the best in the business as if setting out to open the innings on a new pitch, to face a new ball from serious fast bowlers, in the Andy Roberts and Malcolm Marshall mould, and not trundlers like Tom Cartwright and Mohinder Amarnath, from both ends. That made anxiety exciting. Some of us loved it, and to be honest miss such thrilling combats completely today.
On such a business like day, I got up for admission of a Contempt Appeal. Chief Justice was first to come in full blast, within seconds of my taking guard and not yet even completed surveying the field. The two were not only fearsome speedsters but also umpires. That made it an awesome experience, to behold.
CJ: “We do not detect any admissible cause in the appeal.” MSJ: “I think, we can let him settle down a minute, as I can see him nervous and panting for breath”. That was a welcome full toss, I was waiting to hammer to the fence, with all the might at my command. This could be my day. Me: “Mi Lords, all I would urge your Lordhships to have a look is the one page letter in the vernacular which has been completely misread by the learned judge. He has gone on a ….” CJ: “Young man, it is in Tamil. Could you please get it translated? We will hear you tomorrow”. The whole bar in attendance was literally shouting” Dey, Dey, you idiot retire hurt to the pavilion. You survive today and live to fight another day against this pair. Take it. Take it.”
I was not listening. I was in a zone of my own. Me: “I crave your lordship’s indulgence. It is just a page of 18 lines. May I be permitted to read the Tamil version in English. I would rather be heard today, if your Lordhip’s would oblige”. CJ, “What, you would read the vernacular version in English, off the bat. We are curious. That would be some talent. Go ahead. But if you were to make a mistake, you are a goner. No second innings. Agreed.”
I was not even listening to them. I was into my translation take off. It took me less than two minutes to read the vernacular statement on paper in English. I added for emphasis, “If your lordships have any doubt on the authenticity of my translation, Justice Srinivasan may please confirm it. If I were to translate again, which I would not mind, it may have different terminology. That is why”.
CJ was conversing with MSJ. CJ: “My brother Judge has confirmed that your translation was near perfect. That is some talent to exhibit. We don’t know, if you had planned to pull it off or an ex tempore exercise on the spot. Either way, we are admitting the appeal for that exhibition alone. We are not putting you to any further examination and not even worried if you made out a good case for admitting this contempt appeal. You deserve to be rewarded for your performance.” The entire court hall had gone pin drop silent.
He was not finished yet. I was still panting with breath, from the thunderbolt they had hurled, and I had merely eased the delivery to long leg with a subtle deflection. CJ asked me for my name and MSJ provided it, before I could. CJ, “Here is our warning. We were impressed and granted you admission. We appreciated your inclination not to take the adjournment on offer, rarely given by us. But do not assume that the responses would be the same before every other Bench. There are Judges and Judges like lawyers and lawyers. When the Bench is requesting you to provide a translation, they will deem it to be a command. Your offer to read the vernacular in English may be treated as disdainful refusal to oblige. They may not appreciate your talent. They may take it totally differently. Please be aware to indulge in this talent only but rarely. Not try to make it a habit, even if it is commendable. Well done. In your own interest, we would advise you not to follow today’s experience, even before this Bench next time around. Your client may be the loser not you. Good luck.”
What a sane advice! Ever since, I have always followed it. Yes, the stroke I played that day was instinctive and spontaneous. I have always abhorred adjournments. Even today. Already there is a huge pendency. So when the case is listed, my inclination is better to get it done with. It was an inherent faculty, I have always subscribed to, that prompted me to play a shot, so early in the innings, even from such menacing customers. The irrational exuberance of youth, you can put it down to.
For, much later, when I disregarded the teacherly advice of Chief Justice M N Chandurkar, I was visited with utter contempt from the Bench. “Counsel, what are you suggesting? When we are generously giving you time and opportunity to translate the two page document, you want us to translate and read it ourselves. How dare you offer to read in English what is in Tamil? We can dismiss your appeal for this reason itself?” I was no balled while batting. Some decision that. What a fall? I say no more, for I’d rather not be hauled up for whatever.
My opening stints before Chief Justice M N Chandurkar and Justice M Srinivasan, has turned out to be possibly the one and only occasion, I was emboldened to play that crazy shot. In Test Cricket, as an opener, you show a straight bat and let balls pitched outside the off stump go to the keeper. You do not poke at them. And surely do not indulge in the heave ho. That was Test Cricket then, as it used to be played. Now, of course, we live in T-20 days and both bowlers and batsmen have the licence to go bonkers and crazy, from delivery One.
(Author is practising advocate in the Madras High Court)