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Two of my closest friends in the Bar suddenly passed away, one in the early morning of March 20 and the other in the early morning of March 28. They were two of the most illustrious members of the Supreme Court Bar. One was Anil Divan and the other was Tehmtan R. Andhyarujina.
Anil Divan was born in 1930 and was five years younger than me and Tehmtan R. Andhyarujina was born in 1933 and was eight years younger than me. Both were very distinguished and disciplined lawyers, having started in the Bombay High Court and thereafter practised in the Supreme Court. It was certainly an act of indiscipline on their part to jump the queue and get ahead of me by passing away before me.
I came to know Anil Divan in 1975 when I had gone to the Bombay High Court to represent the Bombay Builders in what was known as the Backbay Reclamation case. The hearing commenced on June 14, 1975, when the High Court reopened after the summer vacations, and went on for a couple of months. It was during this period that Mrs. Gandhi declared emergency in the country, on June 25, 1975. This was after she had been denied an absolute stay by the Supreme Court vacation Judge, Justice Krishna Iyer, in her appeal against the judgement of the Allahabad High Court. The High Court had not only set aside her election but had also disqualified her for six years.
As I was Counsel against Mrs. Gandhi not only in the High Court but also in the Supreme Court, everyone apprehended that I would also be detained under the Maintenance of Internal Security Act (‘MISA’). At this point, Anil Divan came to me to get all my personal details to draft a Habeas Corpus petition on my behalf to be filed in the Bombay High Court in the event of my detention. This generous act of his indebted me to him for my life. Since I was not detained, the petition was not filed and I lost the opportunity to become his client.
Anil Divan was a distinguished constitutional lawyer and also a public-spirited person. When he shifted to the Supreme Court these qualities of his were responsible for many benches of judges seeking to appoint him as Amicus in cases involving intricate questions of public importance. The first of such cases was the well-known Jain Hawala case, in which for the first time the Supreme Court laid down the principle of continuing mandamus. It was this principle which enabled the Supreme Court to judicially monitor the investigations in cases against powerful politicians, resulting in many of them being put behind bars.
Anil Divan’s public-spiritedness was evident from his interest in Public Interest Litigation. He was a founder member and president of the Centre for Public Interest Litigation (‘CPIL’). Under his leadership, CPIL pursued the cause of improving the transparency and accountability of institutions that investigate corruption such as the CBI and the CVC (Central Vigilance Commission). In fact, his attention to detail in drafting the CPIL affidavit in the case of a former CBI Director eventually led to the Supreme Court directing the removal of the official.
The honour of becoming the client of Anil Divan came to me many decades later when I had to file a petition in the Supreme Court in my own name challenging the permanent appointment of a notoriously corrupt judge who was an additional judge of the Madras High Court. When I requested Anil Divan to represent me in that case, he gladly acceded to my request and argued it eloquently.
Apart from being a famous constitutional lawyer, Anil Divan was well known for his drafting. He was matchless in this respect. The care with which he chose every single word in a draft, including even punctuation, remains unmatched even today. Whenever a junior went to him for getting a draft settled, he returned from his office highly educated in proper drafting.
Lawyers like Anil Divan are not found in abundance. He had a multifaceted personality and was always willing to lend a helping hand in any good cause. A tall handsome man with a very likeable disposition, he had his last public function on December 10, 2016, at Hyatt hotel where he celebrated the completion of 65 years at the Bar and got the Second Edition of his excellent book On the Front Foot released at that function. He seemed to be in the pink of health and nobody could imagine that his end was so near. We will all remember him for the rest of our lives with great respect and affection.
Anil Divan and Tehmtan Andhyarujina have made immense contributions in the establishment of important doctrines of everlasting value, for which this nation will remain ever grateful to them
Tehmtan R. Andhyarujina and I met for the first time in 1965 when I was appointed the Additional Advocate-General of U.P. by the Chief Minister Smt. Sucheta Kripalani. There was a suit filed against the U.P. government in the Bombay High Court which was coming up for trial before Justice V.M. Tarkunde. I was asked to go to Bombay to represent the U.P. government. Little & Co., who were the solicitors of the Government of U.P., briefed Tehmtan R. Andhyarujina, a young and very bright upcoming lawyer who was a regular junior of the famous Advocate-General H.M. Seervai. It was from Tehmtan that I learnt many things about the Bombay High Court practice. He was an excellent researcher and would immediately look up the comparative English law as well as the Indian law on every question in no time. During the lunch recess, he used to take me to the advocate-general’s room where Seervai would discuss many issues with me for the book that he was writing on the Indian Constitution.
Even in those early days I could see the potential in Tehmtan. He went on to become the Advocate-General of Bombay and, later on, after shifting to the Supreme Court, adorned the high office of Solicitor-General of India with great distinction.
I remember an interesting incident which happened on the first day of the trial before Justice Tarkunde when a lawyer named Servelius Baptista was also appearing with us. He was much older than me and so with respect for his age I addressed him as ‘Mr. Baptista’. To my surprise he took great offence to this and told me that in the Bombay Bar, following English traditions, even a junior of one day’s standing would address even the top-most lawyer with his first name. He therefore told me that I should address him as Servelius. As Tehmtan was also listening to the conversation, I told them that the culture in the Allahabad High Court was very different and I could not even imagine addressing the Advocate-General Pandit Kanhaiya Lal Mishra as ‘Kanhaiya’ Or even ‘Kanhaiya Lal’! We only address him respectfully as Pandit Ji. This story was narrated by Tehmtan to other colleagues in Bombay and some of them huddled together, to discuss how they should address me given the clash of cultures. They arrived at a middle solution and since then all Bombay lawyers practising in the Supreme Court which include Soli Sorabjee, Fali Nariman, Anil Divan, Ashok Desai and Tehmtan R. Andhyarujina addressed me neither as ‘Bhushan’ nor as ‘Shanti’, but as Shanti Ji.
The most important case for which Tehmtan should justly feel proud of is the Kesavananda Bharati case in which he made a huge contribution by effectively assisting H.M. Seervai, who represented one side in that case. This was the case in which the incomparable Nani Palkiwala, who appeared for the petitioners, by his brilliant arguments convinced the majority of the thirteen-judge bench about the soundness of the Basic Feature Principle. The principle was that even a constitutional amendment passed by a two-third majority in each House of Parliament and one which was also ratified by more than half of the State Legislatures in the country could not violate the basic features of the Constitution. The basic features were those features of the Constitution which gave it its special identity. These included features like secularism, democracy, rule of law, and judicial review by courts apart from many others. The establishment of this doctrine has saved the country on many occasions. Tehmtan even wrote a book on the Kesavananda Bharati case, which is an important and valuable addition to our legal literature.
Even till recently, we had been meeting Tehmtan and his gracious wife and it is hard to believe that he suddenly passed away. The entire Bar and Bench will continue to mourn his loss for a long time.
Both Anil Divan and Tehmtan Andhyarujina have made immense contributions in the establishment of important doctrines of everlasting value, for which this nation will remain ever grateful to them.
Let us now not mourn the loss of the flame, let us celebrate how brightly it burned.
Shanti Bhushan
30.3.2017
