Fali S. Nariman, the doyen of the profession, recently completed 56 years of practice.

 

Nariman started his practice in 1953 as the first junior of Kharshedji Bhabha. He left Bombay in May 1972 to practise at the Supreme Court.

 

Nariman credits his success to Bhabha. “If I am a good lawyer, it is because I was so moulded, devilling with KH Bhabha.” He said in a memorial address at the Bombay Bar Association. He also credits Bhabha for his sense of humour. “It was not law alone that I leant from Kharshedji but conviviality as well”.

 

Nariman was Additional Solicitor General of India from May 1972 to 25 June 1975, resigning from that post upon the Declaration of Emergency on 26 June 1975. Fali Nariman was the recipient of the Padma Vibhushan in 2007 and the Padma Bhushan in 1991 for his contribution to jurisprudence and public affairs.

 

Nariman was a President-appointee member of the Rajya Sabha between 1999 and 2005. He has held several other important positions, details of which can be had here.

 

The respect that Nariman commands comes from his deep understanding of the law and his fearlessness in expressing it. One example of this is the talk he gave on ‘Substantive and Procedural Reforms in the Supreme Court’. He touched a variety of issues and was openly critical of both the Bench and the Bar. He advised the Bar to “speak less and only after intense preparation”. He advised the judges to “write less after carefully pondering over what is drafted/or dictated — conscious of the mandate of the Constitution that whatever a Judge of the Supreme Court says is regarded by one and all as the law of the land”.

 

He was also critical of the present selection of High Court and Supreme Court Judges exclusively by a Collegiate of five of the seniormost Judges of the Supreme Court. He called the collegiate a “coterie” and a “closed-club selection”.

 

He also termed recent contenpt proceedings taken by the Court as “ill-advised”. He said “Judges whether of this Court or of High Courts are not fragile flowers that wilt either in the heat of argument or in the heat of criticism, howsoever trenchant and caustic. The contempt power should not be used to discipline either the lawyer, or the press or the public.”

 

Nariman’s magic – as is that of the other legends – is that he is an original thinker. Never willing to give up, always optimistic. Always thinking of how a point can make all the difference to the matter. Even at the final stage in the Supreme Court, does not stop thinking of how a new approach or a new angle can make the difference. He can turn a point around on its head and discover an angle missed by others. That quality is what makes the difference.

 

Apart from that, the old – fashioned hard work. He works on a case thoroughly. Knows all the facts, studies all the case laws and knows how to present the case in the simplest manner. Nariman would probably testify to the correctness of the old saying: Success is 99% perspiration and 1% inspiration.

 

To write about a personality like Mr. R. J. Kolah in whose chamber I cut my teeth at the bar is difficult because so many memories and thoughts come flashing back. I first saw Mr. Kolah in 1957. On a visit to Delhi for an all-India debating competition, we decided to visit the Supreme Court which was then in Parliament Building. The Court was hearing a challenge to the constitutional vires of the Bombay Labour Welfare Fund Act. We heard a most persuasive argument from a man of medium height and spare build who was later identified as Mr. Kolah. The judges heard him with rapt attention, a phenomenon I witnessed repeatedly thereafter.

 

After I passed the examination for “the office of an Advocate of the High Court at Bombay”, as the qualifying examination was then known, I had to decide on the “line” to pursue and the chambers to join. Having been (now, as it happens, very fortunately) turned down by one chamber, my father and I approached Mr. Manek (Botty) Mistry of Messrs. Kalyaniwalla & Mistry who was a great friend of Mr. Kolah. He immediately rang up “Rustom” and I could hear the voice at the other end say that he should ask the “boy” to see him the next day at 9.45. Kolah (at Bar, the juniormost advocate is supposed to refer to the seniormost by his surname) had a place in the chambers of Sir Jamshedji Kanga, which chambers were then located on the ground floor of the High Court on the left hand side as one entered the High Court from the gate near the University. The interview was brief. He accepted me saying how could he turn down a request from “Botty”. He later confided to me that I could have come through my father because he remembered him from his days with Payne and Co. in the late 1920s, when he used to visit the liquidators’ office and my father was there as an auditor. When I recounted this to my father he was surprised that Mr. Kolah still recalled those few meetings. He told me that Kolah used to come from Payne & Co. always wearing a “Parsi cap.” This was but one illustration of Kolah’s phenomenal memory – for cases, facts and faces. Whatever be the size of the brief and howsoever complicated the facts, he never made detailed notes and sometimes just jotted down a few dates. He said that one should not become “notes bound” because one then tends to get tied down to the “plan” and one does not “go” with the judge as one always must. This was in marked contrast to a neighbour, when we were in chamber No. 2 in the High Court, who used to mark his briefs at the first reading in pencil, then in blue, black and red ink. There was a problem when the matter was adjourned for the fourth time!

 

Kolah was a man of principle and believed that the law and rules must be obeyed in letter and spirit. He did not apply to be enrolled as a Senior Advocate because under the Bar Association rules a Senior Advocate cannot draft pleadings or appear before a Court or an Authority without a junior advocate. He felt (much to the chagrin of juniors in his chamber!) that the latter condition would impose an unnecessary financial burden on the client.

 

In so far as juniors were concerned, his principle was that he should not “recommend” those in his chamber because this may deprive another advocate in another chamber of a brief as it was possible that the instructing solicitor/chartered accountant may have wanted to brief someone else. Nevertheless, when occasion demanded he would praise the junior in conference for the work he had done in the matter and leave it at that.

 

There were several companies who wanted him to become a director. He generally turned down these requests as he felt that the same may compromise his independence as a professional. This is a view which is now fully supported by the rules of conduct framed by the Bar Council of India according to which an advocate should not appear in Court or before an Authority for a company client if he is a director of the company as that would create a conflict between his duty to his client and to the Court. This salutary principle is not always observed by professionals. He was very meticulous in his interaction with judges. Though he looked upon them with great respect, he did not believe in socialising with them or hosting personal parties or dinners in their honour. He was averse to advocates identifying themselves with business houses as he felt that this impaired their sense of judgment if legal issues cropped up which also affected that industrial house.

 

Being personally so principled he always had the interest and welfare of the client uppermost in his mind. It is this which gave the impression that he was brusque in conference. If he felt that the instructing person had done a shoddy job, he would not hesitate to express his displeasure in the conference. Predictably this made him “unpopular” with certain persons who would rather brief somebody who did not express his views so forthrightly. Not only in conferences but even in Court, Kolah never hesitated to purforth the client’s point of view forcefully and without mincing words. He once recounted to me how when he as a junior, an English judge was rather rude with him. Sir Jamshedji Kanga who was in the Court, waiting for his matter to be called out, stood up and put the matter in proper perspective. It was to the credit of the judge that he realised he was wrong in the view he took and perceptibly changed his manner. This is an example which seniors should today follow and judges should also take such a submission in their stride and not get unduly touchy. Those who judge must realise that they can also be judged and that none is so foolish or arrogant as the one who believes himself to be above committing an error.

 

Some advocates give preference to appearing in the Tribunal over the High Court as the possibility of a disposal of the case on the listed day is more likely and he can perhaps dispose of more than one case in a day. Kolah however, felt that one should always give priority to the High Court as there, one is a part of the formation or making of the law.

 

Kolah was a stickler for attending the Court punctually. Even if his matter was “low down” he believed in being at the Court well in advance. He felt this to be important particularly in a “new Court” as it gave him the feel of how the judge reacted to different situations. He believed that if he accepted a brief it was his duty to see it through from start to finish. He did not subscribe to the view that it was sufficient if he was present when his turn came as the appellant or the respondent, as was the practice with certain seniors. To a junior this was most comforting. Often a senior in his opening can sway the court to his way of thinking. Thereafter the other side’s Counsel may perform the same trick. If the senior is not there to rejoin and the case is lost, the client is likely to attribute it to the junior’s inability to perform, overlooking that in an opening address, before the other side has had an opportunity to put forward its case, it is comparatively easy to make the judge “swim with you.”

 

A remarkable aspect of his life was that whilst he was fully conscious of his own dignity and had respect for himself, he was a great believer in propriety and etiquette. If he had a personal matter to be attended to by a brother in the profession, he would go to his office/chamber, even to a comparative junior in the profession, because he felt that he was then in the position of client.

 

At heart Kolah was “soft.” It was unbelievable that a man of such legal acumen and experience of the world could get fooled or conned so easily. Several people came to him with schemes which he “fell for” but he never complained and took the experience as a learning process. Many people managed to take loans from him which were never returned.

 

Kolah was a man of wide and varied interests. He tried his hand at alchemy. At one stage he with his caring and charming wife, Lorna, embarked on a venture of perfume making. He was a keen photographer and was an avid photo-painter. He was fond of music — Indian and Western — and in his later days used to spend time in the afternoon listening to music on his walkman. He was passionate about horses and horse racing. His knowledge of the sport was unmatched. He was unsparing in finding time to discharge his duties as a Steward of the Royal Western India Turf Club for over 25 years, for 7 of which he was the Chairman. The institution of the R. J. Kolah cup was a small tribute by a grateful club.

 

Countless were the number of times he would fly back from a part-heard matter in a High Court or the Supreme Court on a Friday night, attend the races on Sunday and then take back the early morning flight on Monday. In those days it seemed to us in the chamber, to be fantastic for a person just to fly down and back for a race meeting! This, of course, entailed considerable inconvenience because apart from the fact that he had to leave early on Monday morning the departure time from his house would be even earlier because he believed that one should go to the airport in the Indian Airlines bus which then used to leave from the Army and Navy Building. He felt that if he went to the airport by taxi there was the possibility of a breakdown and he may not be able to be there on time. This belief originated from the fact that a friend of his did have such an experience. This also meant that on the few occasions I went out of Bombay with him, I too had to sacrifice an hour’s sleep!

 

At that time Kolah had a great deal of work out of Bombay and used to travel much. He enjoyed such visits. He was a regular at the Hotel Imperial (in Delhi) which was then managed by the Oberois. His idea of relaxation when he was out of Bombay was to take a walk in the town centre. He enjoyed seeing and meeting people. For him to be with people was more relaxing than being in the hills or sitting by the riverside. Till his marriage (on 5th January, 1959, if I remember correctly) he was not a great “holiday goer” unlike his senior, Sir Jamshedji Kanga who used to go religiously to London during the court’s summer vacation and often beyond. After marriage Kolah also used to take a holiday for 4 weeks primarily to London where he got interested in dog racing apart from his abiding interest in horse racing. Indeed for some time he worked on a project to introduce dog racing at the Brabourne Stadium. One of his prized possessions from his English sojourns was his photograph at Ascot (top hat et al) with Mrs. Kolah in equal finery. It commanded a special place in Chamber No. 2 at the High Court.

 

It was a wrench for all of us when we had to leave those chambers in May 1987 because the High Court wanted the premises. Kolah was visibly upset when the then Chief Justice communicated his decision in this behalf. But an old warrior always returns home and Kolah spent the last 5 years of his professional life at a room in the office of M/s. Payne & Co., the place from where be began his illustrious law career.

 

In the 1960s, the Board used to publish in the newspapers a list of the highest tax payers — an item which set many a junior dreaming! Kolah’s name invariably found a place. Yet he did not amass a fortune compared to some of the present day lawyers because despite his high earnings, the tax had taken a considerable portion thereof. Those who cavil at today’s tax rates should remember that during Kolah’s earning days, the income-tax rate touched 92.5% and for a few years it was 97.5%. In addition, there was the wealth tax and for some years the available liquidity was further reduced by having to make first a compulsory deposit and then the annuity deposit.

 

He had rubbed shoulders professionally with several leading businessmen and industrialists. He nevertheless was fully conscious that those who look up to you professionally are not necessarily personal friends who will abide with you through thick and thin. This fact came home to him brutally when he was defeated in the RWITC elections when the club started getting dominated by businessmen and industrialists. The promised help was not forthcoming and Kolah did not believe in canvassing support by entertainment and other means.

 

He took success and failure in his stride. Only once did I see him tremendously upset at a decision rendered in a matter he had argued. This was the decision of the Supreme Court in Homi Jehangir Gheesta vs. CIT 41 ITR 135. He was convinced that the assessee’s version of events was true and he was upset that the Supreme Court did not accept the same. He was otherwise not very concerned about the result of the litigation he had participated in. He looked upon success and failure with the same sense of equanimity.

 

It would be trite to say that Kolah had an extremely busy schedule. After his marriage he relaxed a little and would normally leave the chamber by 6.46 p.m. and arrive at 10.00 a.m. — 45 minutes later than the previous regimen. In the morning his faithful part-time steno (Mr. Gulwadi from Payne & Co.) would be waiting for him. Despite his ‘tight’ schedule if a person who was not to be a paying client wanted an appointment Kolah would go out of his way to accommodate him. As is not unusual with busy Counsel, his own personal affairs often got neglected. We juniors used to joke that it would be interesting to see what would happen if he were to auction the right hand top drawer of his desk. The successful bidder was likely to find several undeposited dividend/interest warrants and cheques!

 

Today people tend to brand lawyers as “a tax advocate” or “a labour man” or “a trademark specialist” etc. When I joined Kolah’s chambers, Kolah’s practice was mainly in the tax, labour and constitutional fields. However, the first half of Kolah’s sixty years period of practice tax litigation was not so rampant as today, a fact which would be visibly established by a glance at the size of the one-volume-a-year Income-tax Reports till 1952 and thereafter of two volumes a year till 1959. During this period Kolah had a very wide civil practice and was an expert in railway rate matters when the Indian Railways scene was dominated by the Great Indian Peninsular Railway (GIP) and the Bombay Baroda and Central India Railway (BB and CI). When Sir Jamshedji Kanga was the Advocate-General, Kolah had taken part in several criminal trials which, at that time were conducted in the Central Court (or the 2nd floor of the High Court).

 

At a personal level, Kolah had some strange characteristics. He had several friends and visitors to his chamber who were quite unlike him in character and integrity. He still maintained relations with them at a very friendly level without in any way compromising his own integrity. It only goes to show that though you can judge a word by the company it keeps (ejusdem generis) one cannot always judge a human being by those who keep him company. He had his own principles and rules for the chamber. He did not relish juniors holding conferences in the chamber but this was not a great problem as one had the facility of the bar library and the bar room for holding conferences. He was a little hyper about the security of the chamber and, therefore, did not share the chamber keys with others (except with Shantaram, the peon) and often switched off the airconditioning as he left the chamber but this in no way lessened the respect and affection the juniors had for him because they realised here was a man with really a heart of gold and like all human beings had, what the juniors felt were, minor foibles.

 

It is to the credit of Kolah that he inculcated a spirit of co-operation amongst all the juniors in his chamber. The rivalry which disturbs the peace in some chamber was totally absent. I recall several occasions on which Dilip Dwarkadas, who most unfortunately passed away in 1995 when away in Patna on professional work, very often guided me in my early days on how work should be done to meet Kolah’s requirements.

 

The Labour Law Journals, the Bombay Law Reporter, the Income-tax Reports and the several Supreme Court reports etc. bear adequate testimony to the large number of important cases he appeared in and how he participated in the shaping of the tax and labour laws of the country. He was the principal advocate in the case of The Associated Cement Companies concerning the payment of bonus before the advent of the Payment of Bonus Act.

 

One could justifiably claim that Kolah was a pioneer in the field of direct tax laws in India. Pursuant to section 5A of the Indian Income-tax Act, 1922, which section was inserted by the 1939 Amendment Act, the Income-tax Appellate Tribunal was constituted on 25th January, 1941. Prior to that references to the High Court were made by the Commissioner of Income-tax.

 

Kolah appeared in several of such references by the Commissioner as would be evident from a perusal of the cases reported from Volume XI of the Income-tax Reports (going back to 1942). The diligent researcher will find that Income-tax Reports from Volume XIII onwards are replete with cases where references were made by the Tribunal in which Kolah had appeared. Kolah was perhaps the only advocate in practice till the late 1980s who has appeared both in the Federal Court (A. H. Wadia vs. CIT 17 ITR 63) and in the Supreme Court of India starting with Executives of the Estate of J. K. Dubash vs. CIT 19 ITR 182 (a judgement pronounced in the very year in which the Supreme Court was established). Two of the several path breaking decisions in which Kolah appeared were E. D. Sasoon & Company Ltd. vs. CIT 26 ITR 27 and Dhun Kapadia vs. CIT 63 ITR 651.

 

The Government of India Act, 1935 (the predecessor to our constitution) was a monumental piece of legislation and Kolah appeared in leading cases concerning the interpretation of its provisions. He appeared in several litigations under the Abkari Act as also when the constitutional validity of the Bombay Prohibition Act, 1949 was tested in the celebrated case of the State of Bombay vs. F. N. Balsara AIR 1957 SC 316. He himself was a confirmed feetotaller and non-smoker!

 

Rome was full of monuments to its illustrious sons. There was, however, none for Cicero. It is said that when a friend of his was asked why this was so, he replied, if you desire to see a monument for Cicero just look around you. If one wants to know why Kolah is indeed called a stalwart of the bar — and not only the tax bar — one could say “just look into the tax reports.” According to the dictionary, “stalwart” means, steady, robust, resolute, unbending, determined, a strong and valiant man. Indeed all these do describe the man Rustom Jehangirji Kolah.

 

Apart from his professional life, Kolah had a most rewarding personal family relationship. He looked after and guided a large number of relatives, nieces and nephews and was a devoted son. He lived in a joint family in which his wife blended splendidly.

 

On a personal note, I would like to refer to two incidents which stand out. When I was about 3 years at the Bar and barely earning about Rs. 350 per month (which was of course a great improvement from the Rs. 30 I had notched up in the first year of practice) I was offered a job in a leading industrial house at Rs. 2,000 per month. I thought it was a fantastic offer. When I mentioned it to Kolah his reaction was “gadhero chhe ke?” He followed it up by saying that as a professional person I should not sacrifice my independence for what I thought was monetary gain. Also the most delicious Chinese dinner I ever had was thanks to him when we were invited to the Chinese New Year at the Nanking which was then, fortunately, in full bloom. Mr. Ling was Kolah’s personal friend and somehow my name also got smuggled into the list of invitees.

 

So much for Kolah the person, now to the mundane. He was born on January 28, 1904. He did his schooling in the Master Tutorial High School. Thereafter, he joined the St. Xavier’s College and, subsequently, the Government Law College. He was called to the Bar in 1926 and passed his Advocate (O.S.) Examination in 1928. He passed away on Sunday, February 2, 1992. If he had been alive and well on that day he would certainly have been at Mahalaxmi to watch the 50th Indian Derby. It was perhaps in the fitness of things that a thoroughbred like him departed this earthly scheme and went to the far beyond as a new winner was being crowned at Mahalaxmi!

 

Reproduced with permission from the article by Sohrab E. Dastur in the book “A Tribute to the stalwarts of the Tax Bar ” published by AIFTP.

To most practitioners of income-tax law, N. A. Palkhivala is best known as the author of the treatise “The law and practice of income-tax” which he wrote in collaboration with Jamshedji Kanga (“Kanga & Palkhivala”). A crisp commentary on the complicated subject, giving you almost predictively, a judgement on the very point you were looking for.

 

The treatise was written when Palkhivala was only 30 years old. That gives you an idea as to the genius of the man.

 

Another introduction to Palkhivala is through the judgements. Almost every important judgement on income-tax where the core principles have been laid has been argued by Nani Palhkivala. But it would be a mistake to think that his contribution was confined to income-tax law. His contribution to the development of constitutional law is also incredible with landmark cases like that of Bank Nationalization, Privy Purses, Golak Nath, Keshavanand Bharathi and Minerva Mills.

 

Palkhivala’s magic is best understood by looking at him from the perspective of other legends.

 

Iqbal Chagla says that to call Nani Palkhivala “a tax lawyer” was to miss the essence of this man. “He made the world his stage and he strode upon it like some great Colossus”.

 

Chagla explains that it is given to few to be considered a legend in their lifetime: Nani was one such. Palkhivala was a legend not only because he rose from the humblest beginnings to become one of the greatest lawyers in the country but most importantly, because he was so uniquely himself: a man of genius who never lost the virtue of humility; a man of singular simplicity graced with unbounded warmth and kindness; a man of letters as much as of the law.

 

Chagla calls Nani “unquestionably the greatest advocate that I have had the privilege of having heard, of having appeared with and, on occasion, having had the chastening experience of having appeared against.”

 

“Nani’s greatness as an advocate can be attributed to an incredibly analytical mind, a prodigious memory and a lucidity that made the most complex argument simple to the meanest intelligence. Add to this a felicity of expression that elevated that argument to something that resembled an essay in classical prose and you have Nani Palkhivala.”

 

Bansi S. Mehta explains two remarkable qualities of Nani Palkhivala. The first quality is of Analysis and assimilation: “One meets many outstanding lawyers, who can analyse a given provision or situation in threadbare detail. Nani, of course, could always do that. But, more importantly, Nani was a rare lawyer, who after a detailed analysis, could assimilate all aspects to fit into a whole picture and the remarkable part of this is that he could do it in just a few minutes. He had the knack of providing his assimilation to the judiciary by resorting to reductio ad absurdum, in which one shows that any other contrary conclusion would be not merely not justified, but plainly laughable”.

 

Nani’s second quality is of civility. Bansi Mehta says that “Nani’s civility knew no bounds. He made no distinction between seniors and juniors or members of judiciary, who struggled to understand the issue and those who had already grasped the issue. Every time in my early thirties I had gone to his residence for a conference, Nani unfailingly came out of his home and saw me up to the lift. I remember that in 1965 when there was a curfew order following the Indo-Pak war, I had to meet him for something urgent at his residence and since the usual queue of persons waiting to meet him was not there, after we finished our work, he asked me whether he can offer me any soft drink. Not merely that, he got up and fetched the soft drink himself and poured it in glasses. If only one were to compare his civility with the bluff and bluster that we see in some of our public personalities, we can hardly believe that such a person like Nani ever existed.”

 

Soli Sorabjee adds: “There have been lawyers who matched Palkhivala in erudition and legal knowledge. But for sheer advocacy Palkhivala was unsurpassable. Clarity of thought coupled with precision and elegance of expression, impassioned plea for the cause he espoused in the case, excellent court craft and an extraordinary ability to think on his legs rendered him an irresistible force and made him sui generis.”

 

Justice Sujata Manohar, who retired as Judge of the Supreme Court and has a number of landmark income-tax judgements to her credit remembers Nani Palkhivala as a great orator, an outstanding scholar and a humanist par excellence,. She says “I had the privilege of hearing Palkhivala in a few tax matters. His clarity, precision and at the same time, eloquent advocacy produced many remarkable arguments in court. His inspired advocacy on constitutional issues in the Supreme Court created history. He persuaded the court to accept the basic structure doctrine and rescued the constitutional values for posterity — a service one cannot afford to forget. His annual lectures on the budget ultimately came to be held on the CCI Lawns which alone could accommodate crowds that came to hear him. He could address a gathering for hours, citing complicated figures without a single note in his hand”.

 

For more: See My tryst with the legendary N. A. Palkhivala by H. S. Serna, IRS

 

All quotes are reproduced with permission from the book “A Tribute to the stalwarts of the Tax Bar” published by AIFTP.