Soli Sorabjee Was Attorney General For The Country & Not The Govt, He Could Tell Union What Was Wrong : Justice KV Viswanathan

The OP Jindal Law School today organized the Soli J Sorabjee Memorial Lecture at Jindal Global University, featuring Justice KV Vishwanathan judge of the Supreme Courtm, as the main speaker. The event paid tribute to the memory of the eminent legal luminary, Soli J Sorabjee, and was attended by a distinguished gathering of judges, lawyers, and legal scholars.

In his opening remarks, Justice KV Vishwanathan expressed his deep honor at being invited to speak at the event and acknowledged the enduring contributions of Soli Sorabjee to the legal and constitutional realm.

Justice Vishwanathan recounted his first encounter with Soli Sorabjee during a televised panel discussion, highlighting Sorabjee's affinity for engaging in television debates

He said “I first saw Soli on a TV panel discussion. I had just come back from college in Coimbatore at 6:30 pm in the evening there was a panel discussion of 3 eminent lawyers with Soli anchoring it with Dr. Singhvi to the right. The topic was about the then-raging episode over the President dithering on signing one of the bills. The issue was the role of the president under the Indian constitution.”

It was during this discussion that Sorabjee famously summarized his views with the phrase, "The President has to sign or resign," encapsulating the essence of the President's role under the Indian Constitution.

Justice Vishwanathan praised Sorabjee's ability to simplify complex constitutional concepts, making them accessible to a broader audience. He said “Soli had the knack for simplifying hardcore, abstract, constitutional concepts and that still has stuck in my mind.”

Justice Vishwanathan emphasized that fairness was a fundamental tenet underlying Sorabjee's approach to law and advocacy. Sorabjee consistently evaluated his actions, arguments, and statements in the light of fairness, even if success in a case was not guaranteed. This commitment to fairness was a hallmark of his legal career.

He said “Soli tested his actions, arguments, and statements on the anvil of fairness and if it passed that muster then he would advance. So much so that even if it was not to succeed for the case, it did not matter to him.

In his lecture, Justice Vishwanathan acknowledged consulting works by prominent legal experts, including Senior Lawyer Sudish Pai, Abhinav Chandrachud's biography of Soli Sorabjee, and "Confederation of Indian Bar" for insights into Sorabjee's life and legal legacy

Justice Vishwanathan highlighted how Soli saw the profession as a great calling.

He said, “Soli Sorabjee viewed the legal profession as a noble calling and often cited Roscoe Pound's three ideas historically associated with a profession: organization, learning, and a spirit of public service. The remaining idea of gaining livelihood is incidental. That is how Soli practiced it, he preached and that was the underlying basis of how he conducted himself.”

Justice Vishwanathan emphasized that Sorabjee possessed inherent constitutional values. Even without a written constitution, Sorabjee would have remained a constitutionalist

He said, “He was a defender of human liberties, a votary for basic structure, a champion of federalism, a defender of minority rights, was a strong advocate for free and fair election.

He was a die-hard enemy of arbitrariness, a leader of the bar who fought for the independence of the judiciary, a constitutional scholar who wore the rule of law as a badge of honor and above all a constitutional moralist to the core."

Justice Vishwanathan highlighted Sorabjee's passionate advocacy for free speech. He likened Sorabjee to a guardian of Article 19 and praised his fervent support for Voltaire's famous quote: "I may not agree with what I have to say but will defend to death your right to say.”

He said “He was obsessively possessed about free speech. When you watch him in the Bandit Queen case you get a feeling that if Art. 19 was in a cubicle, the only other person who could be there was Sorabjee."

It was the independent court of law that prevented the rule of law from being supplanted by the Rule of Lathi: Soli J. Sorabjee

To illustrate Sorabjee's tireless championing of free speech, Justice Vishwanathan referenced Abhinav Chandrachud's work and an article written by Sorabjee just two days before the judgment in the landmark "Freedom's First Journal" case

He quoted his article written on 8th Feb 1976- “Doctors capriciously refused passports, petty traders illegally deprived of a license, government servants wrongfully removed, innocent persons illegally detained, and countless victims of discrimination, all of them he wrote beholden to fearless judges. It was the independent court of law that prevented the rule of law from being supplanted by the rule of lathi.”

He went on to narrate that the Bombay HC in appeal held that- “though Fundamental right to free speech has been suspended during the emergency. He was still entitled to challenge the censorship of newspapers because none of the articles were prejudicial to the internal security of India. Though India is in a state of emergency, the rule of law continues to prevail and allowed him to all except 2 of the 11 articles.”

Justice Vishwanathan pointed to the case of "Ramesh v. Union of India," emphasizing the need for a test applied from the standpoint of a strong-minded, firm, and courageous individual rather than from the perspective of the weak. He also referred to Sorabjee's influence in the "Bandit Queen" case, where it was established that censorship should not exist to protect perverts or appease the oversensitive, but rather to be evaluated from the viewpoint of a reasonable person. These cases, Justice Vishwanathan noted, reflected Sorabjee's arguments and principles

He also recalled “Equally in Jagjivan Ram case-he argued that court should not be concerned with correctness of view, expression. The court cannot limit expression on any general issue even if it is controversial. Soli was also of course part of Shreya Singhal's case.”

Wild and vituperative speech not just incites violence, they are violence per se

Furthermore, Justice Vishwanathan highlighted Sorabjee's condemnation of what has now become known as hate speech. He pointed out that Sorabjee would have rejected vituperative and wild speech, making a case that such speech amounts to violence in itself.

He said “Soli as a judge, if he were one, would be receptive to an argument that wild and vituperative speech not just incites violence, they are violence per se. “

Referencing the great saint poet Tiruvalluvar, Justice Vishwanathan said, "The wound burned with fire may heal, but a wound inflicted by the tongue will never heal."

He added “The intangible violence may not be unknown to Constitution. Even the great Bhagvatgita said, “While the funeral fire burns only the dead body, the mental fire burns the living one.”

Hate Speech strikes at the root of fraternity

Justice Vishwanathan also touched upon the importance of fraternity, a value enshrined at the outset of the Preamble to the Indian Constitution.

He said, “Hate speech strikes at the root of fraternity. Fraternity is the most significant value set out at the outset of the Preamble. Our great country has been witness to examples of fraternity in the 75 years that we have been a republic with an independent constitution. There have been several instances but never has fraternity been in its full blossom during the pandemic. That is one value that Soli cherished and we should all cherish.”

Rule of law is not merely a legalistic slogan but a way of life

Thereafter, Justice Vishwanathan began by reflecting on how Soli Sorabjee perceived the Rule of Law, quoting Sorabjee's statement during the KT Desai Memorial lecture, where he said, "Rule of law is not merely a legalistic slogan. It's a way of life commitment to certain principles and values." He also said “This concept of Soli, is also the concept that Justice Mathew said in Indira Gandhi- I cannot conceive rule of law as a twinkling star up above the constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the 4 corners of the constitution.”

He remarked, for Soli, it was a philosophy ingrained within the human body, which he practiced.

The lecture highlighted Sorabjee's dedication to upholding the Rule of Law, as demonstrated in the "Satwant Singh Sani case."

He said “Sorabjee argued that liberty under Art. 21 included the right to obtain a passport and the right to travel abroad. Executive action must be free from arbitrariness and the rule of law requires that any executive action which prejudicially affects the rights of a citizen must be pursuant to law. The Supreme Court accepted it by a majority. Equally so, in Maneka Gandhi later on.

Weeping is not a weakness, weeping for the right cause can be a sign of strength which Soli displayed

Justice Vishwanathan recalled an emotional moment when the ADM Jabalpur verdict was announced, and Sorabjee, along with Nani Palkhivala, wept upon hearing the judgment. This vulnerability revealed Sorabjee's deep commitment to justice, echoing the sentiment expressed by Justice J. Krishna Iyer that a good judge must have the capacity to weep when confronted with injustice.

He said “This is what brings out the constitutional moralist in the individual. What you inherently feel about it. Once the injustice is manifested and you want to set it right, sometimes we feel helpless. This weeping is not a weakness, weeping for the right cause can be a sign of strength, and that I think Soli displayed.”

A STRONG ADVOCATE FOR FEDERALISM- Mr. 356

Justice Vishwanathan then expounded on Soli Sorabjee's legacy which also extended to his strong advocacy for federalism, which earned him the nickname "Mr. 356" after the landmark SR Bommai's case. Dr. Jahangir Sorabjee, recalling the case, noted that Soli's constitutional philosophy and the principles he advocated saved the federal structure of the Indian Constitution and curbed the common practice of dismissing state governments.

He recalled Mr Venugopal’s tribute quoting- “decisions like Bommai where Soli’s constitutional philosophy moved the court stand testament to his greatness. The principles that he was able to persuade the court saved the federal architecture of the constitution and to stop the unfortunate abuse of power to dismiss state government which was still then almost common place.”

Soli as Midwife for the birth of public law in India

Justice Vishwanathan drew a parallel between Soli Sorabjee and the renowned Lord Reid, quoting the tribute paid by Great Lord Cook to Lord Reid as the "midwife for the birth of administrative law in the 60s."

Similarly, Soli Sorabjee played a pivotal role in the birth and growth of public law between the mid-60s and the early part of the present century. He was a strong proponent of the theory of natural justice and left an indelible mark on its development.

He recalled that Soli had appeared in SL Kapoor v. Jagmohan(famous NDMC case) where he argued “Merely because facts are admitted it does not follow that natural justice need not be observed.

He said “He was interested in the laying down of the law, to use one of his phrases “One-way rail tickets.”

No better role model and no higher tradition of professionalism displayed by him

Justice Vishwanathan recounted an incident narrated by Sudhish Pai, where Soli Sorabjee, arguing before a bench presided over by J. Subba Rao, knew that there was a recent judgment against his case. However, Sorabjee tried to distinguish the case but did not succeed, ultimately leading to a verdict against his client. This episode exemplified Sorabjee's commitment to professionalism and ethics, serving as an exceptional role model for legal practitioners

Justice Vishwanathan also read out a tribute by CJ Venkatchalliah where he said “Soli was in a league by himself, a true legal philosopher playing his part quite remarkably trying to infuse into public power a constitutional culture.”

He mentioned an instance where Chief Justice DY Chandrachud briefed Sorabjee in the "DC Wadhwa case. In his words- “I had the privilege while researching into Soli’s preparation was brief and incisive, yet when it came to a crucial constitutional case he spent hours pouring over the right formulation of constitutional values.”

The Stature Soli had- he could tell the Union this is right and this is wrong

He said Soli Sorabjee's tenure as a law officer was marked by his fierce independence. He said “After his appointment, Soli said he was the Attorney General for the country and not the government.”

Justice Vishwanathan read out a letter from Nani Palkhivala in which he wrote- “I meant to write to you for an appointment as Attorney General but after reading your public statement, I would like to congratulate India on having you as the highest law officer of the government.”

This independence was evident when he acted as Solicitor General in 1979 in the case of CB Muthamma, the first female member of the Indian Foreign Service, in a writ claiming denial of promotion due to discrimination based on her gender. Sorabjee's representation led to a commitment from the respondent to review the petitioner's seniority, demonstrating his dedication to fairness and justice

Justice Vishwanathan also reflected on Sorabjee's stature, which allowed him to assert what was right and wrong to the Union and even to the private employers later on.

On Secularism: I take my juniors on merit and not on their faith

Sorabjee's views on secularism were touched upon by Justice Vishwanathan. He quoted Iqbal Chagla’s piece- “His chamber was crowded with lawyers from every conceivable community.

He referred to one illustration- “Once a senior Parsi solicitor complained to Soli that he should prefer Parsi juniors over others. To which Soli replied- I take my juniors on merit and not on the faith they espouse.”

Soli looked in terms of ethical corporate governance even then in early 60s

Justice Vishwanathan shared an illustrative incident from the early 1960s when a poor stenographer was dismissed by a publication house. The foreign publication was represented by Soli Sorabjee, who asked them to reconsider the decision humanely, ultimately leading to the stenographer's reinstatement. Sorabjee's actions underscored his commitment to ethical corporate governance even then.

He said that Soli was an embodiment of what Ambedkar had said in his Constitutional Assembly debate- “however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The Constitution can provide only the organs of the State such as the Legislature, the Executive, and the Judiciary. The factors on which the working of those organs of the State depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”

Soli Sorabjee's embodiment of constitutional values was a central theme of the lecture.

Justice Vishwanathan concluded by citing CS Vaidyanathan- “Soli was a liberal, an artist, a public intellectual, he was also a lawyer. To confine Soli to law will indeed be doing injustice to his holistic personality.”

The lecture can be watched here