Remembering Seervai: a constitutional giant

By Yasser Latif Hamdani

Hormansji Seervai, Advocate Indian Supreme Court as well as Advocate General Maharashtra, was one of the finest jurists and constitutional experts produced by South Asia. Those who are familiar with the legal profession know that his 4 volume work on Constitutional Law is the finest work on the subject and if an Indian advocate is well versed in it, he is automatically considered worthy of respect. Seervai was a man above all dedicated to truth and justice. This is precisely why he earned the respect of his colleagues, clients and readers alike.

I had initially become aware of Mr. Seervai’s immense scholarly integrity with his book “Partition of India: Legend and Reality”. It is a painstakingly accurate exercise of sifting through the Transfer of Power Papers, after which like a true jurist, Mr. Seervai has given his verdict and it is an interesting verdict but also a journey towards truth for Mr. Seervai who finished this book at the twilight of his own life. The journey, Mr. Seervai says, started with Rajmohan Gandhi’s fascinating inquiry into the life of Mr. Mahomed Ali Jinnah in which the author did not shy away from criticizing his famous grandfather Mohandas Gandhi for introducing religion into politics and refusing to accommodate the Muslims to share power. Rajmohan Gandhi’s analysis was a starting point for Mr. Seervai, who by sheer judicious and industrious labor produced a classic.

If Ayesha Jalal had razed to the ground conventional views of history with her analysis in 1985, it was this remarkable lawyer who built up a new building based entirely on the foundations of fact. He thrashed the existing notions about partition and clarified the complex set of calculations and power plays that led to it. In this book Jinnah emerges as an ardent nationalist and secularist who is committed to Indian unity till the bitter end. The discussion invariably leads to Cabinet Mission Plan, which is perhaps the most spoken about and yet the least studied of all plans. It is quite clear that the Cabinet Mission Plan did not include in its scheme all that it is accused of. It did not give Muslims parity nor did it give Muslims any veto beyond their own affairs as is alleged by those who haven’t bothered to read. It must be remembered, as Seervai points out, that Jinnah’s demands came at the end of long years of efforts aimed at bringing about Hindu-Muslim unity, which adds more than anything else a credibility that is unimpeachable.

Seervai faced off critics like a man of unassailable honesty. His opponents were unreasonable. They didn’t question the facts but instead argued for the illusion to continue, something which Seervai was unwilling to do. Coming as it did from the hands of one of India’s senior most lawyers and constitutional experts, the substance of his theory has stood the test of time and if anything proved by more research into the matter. He cautioned his detractors against defending illusions and made a fervent appeal for them to base their ideas and history on truth and nothing but the truth. It is not that he was anti-national or had something against the founding fathers of the Indian Republic. Quite the contrary he shows great respect for them and their sacrifices for freedom, but this endeavor is his attempt to learn the truth about the Hindu-Muslim discord. 

To be like Seervai doesn’t mean that you can’t have emotions or biases, but that you have to rise above them- perhaps the hardest thing to do in this world. Seervai, blessed with long life and incredible sense of fairness, was able to do just that, not just by this book or his exposition on the constitution but also by leaving behind a scent of fairness in legal practice, where he played an important role in defining Indian democracy.

His most famous case, Swami Keshavananda Bharati vs the State of Kerala AIR 1973, perhaps is a case the full repercussions of which have not yet completely been understood but which stands as the defining and distinguishing part of democracy under the written constitution vs. the British model of an unwritten constitution. In this it is as relevant in Pakistan as it is in India. The decision in this matter established that a legislature, elected for the legislative process, does not have the ability to amend the basic structure of the constitution.  This is what is known as the basic structure theory.

This in of itself indicates a departure from the British Westminster democracy, where the unwritten constitution can be amended at will by the British parliament, which is the ultimate sovereign. Indian Parliament however cannot change the basic structure of the Indian constitution and the same principle is championed by the lawyer fraternity in Pakistan. Seervai’s impact thus on defining the limits of parliamentary sovereignty and in placing constitution supreme has been great for the entire subcontinent and today it has become an accepted principle, upheld by the Supreme Court of Pakistan as well. Unlike in India, in Pakistan this is also a constant source of tension between those who wield power, elected or unelected, and the courts. Supremacy of the constitution means subordination of the parliament, which is the only effective safeguard against the tyranny of the majority and the guarantee of true democracy.

In his life Seervai was offered many positions from judgeships of High Court and Supreme Court, but he turned them down choosing instead to stay outside as a critic. He did contribute like a true jurist both in the field of constitutional law and political history of his country and beyond. I am sure when he passed away in 1996 he must have died a satisfied man, for even if he has not been given his due, the future generations will look at his achievements and conclude that he was responsible for some landmark and groundbreaking research in the field of law and history that will help define the future not just of India but all of South Asia.

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