H.M.

SEERVAI - HIS LIFE, BOOK & LEGACY

Michael Kirbylt
LIFE
The common law system, followed in most countries that at one stage
in their history were part of the British Empire, is as dependent for its success
upon leading advocates and fine scholars as it is on great judges. In India,
one such advocate and scholar, of world renown, was Hormasji Maneckji
Seervai, born in Bombay on 5 December 1906.
Seetvai, as every Indian lawyer knows, was the author of the great
commentary, Constitutional Law of India. But first and foremost, he was a
brilliant advocate who won spectacular success before the Supreme Court of
India and other courts.
It is a privilege for me to offer these reflections on Seervai, whose
centenary was celebrated in 2006. My remarks are based on a lecture that I
delivered at the Bombay High Court in January 2007, the penultimate year
of my judiCial service in Australia, as a member of the High Court of Australia,
the nation's apex court.
I approach my task with a great love of India, a respect for its Bench
and Bar and an admiration for my subject. I spoke of Seervai, of his life, of
his work and of his legacy.
Most advocates and judges, however great, walk for but a short hour
on the stage of the law. They play their parts. Their voices are raised and the
pages of the books are filled with their learning. But then they depart. They
are remembered by their loved ones and a few friends or grateful litigants.
But soon they are forgotten.
Not so with Seervai. He was the advocate's advocate. He lived in
tumultuous times for India. He was an example and an inspiration for lawyers
and law students in India, and thus for all of us in the company of the
common law scattered in every comer of the globe. Seervai was not without
faults, as I shall show - for all human beings are flawed. But he was a mighty
advocate and a fine scholar. He was an example of courage at the Bar without

* AC CMG, fonnerly Justice of the High Court of Australia (1996-2009). The author acknowledges the
assistance of Mr. Adam Sharpe, legal research officer in the Library of the High Court of Australia,
in assembling materials upon which this article was based. The article derives from the H.M.
Seervai memorial Lecture which was delivered at the Bench and Bar of the Bombay High Court
in Mumbai on 9 January 2007. In its original form, the lecture was first published in (2007) 27 Legal
Studies 361.
2 Indian J. Const. L.

which the common law's peculiar system of law and justice does not work.
Lawyers of the next generation strengthen themselves by rekindling the
memories of Seervai's life and by refleCting on the lessons that we must
learn from the existence of this creative spirit of our discipline.
By family tradition, the name Seervai derives from Persian words
meaning "like a lion". Lion-like he was to become an advocate - although
Fall Nariman in his essay, "Last of the SeIjeants", likened him dUring his
seventeen years of service as Advocate-General for the Government of
Maharashtra to a "bull-dog" - "guarding [the law] with erudition, fine advocacy
and high integrity". 1 His faithful diSCiple, Tehmtan R. Andhyarujina, reminds
us that the great warrior was once a little boy growing up in the faith of his
Zoroastrian religion not far from the Bombay High Court, learning the tenets
of "Humata, hokhta, hvarshta": Good thoughts, good words and good deeds.
His family, middle-class Parsis, saw to his education with meticulous care.
Although his father died when he was still a boy, he matriculated from
Bhada New High School and entered the famous Elphinstone College in
1922. Four years later he graduated with a First Class degree in Philosophy,
a student, as his wife Feroza was later to be, of the illustrious teacher of lOgiC
and philosophy, Professor J.C.P. D'Andrade.
Seervai studied law in the Government Law College. In 1932 at the
age of 26, he joined the Chambers of SirJamshedji Kanga, also later to serve
as Advocate-General of Bombay.
Although Seervai's family had no connections with the law and
although he spent many years - amazing to think of it - as a semi-briefless
barrister, he never doubted his own capacity or calling. 2 He had an effortless
command of the English language and its classics. He was quick, lOgical and
incisive. He hated superfiCiality. Gossip, which is often the cement that binds
together close professions working in fraught circumstances, was not his
interest. He lived at home with his widowed mother until he was nearly
forty. She inspired him in a respect for the ability and equality of women - a
lesson reinforced when he married Feroza, mother to their three children,
Meher, Shirin and Navroz. They became helpers in his scholarly output
and fierce guardians of his memory and legacy.
As Seervai's legal practice grew, he was conspicuous in the Bar library.
His pronouncements on cases and on the issues of the day were confident

1. Fall Nariman, "Last of the SeIjeants" in Feroza Seervai (ed.), Evoking H M. Seervai - Jurist and
Authority on the Indian Constitution (Universal, New Delhi, 2(05) (hereafter" Evoking"), 48 at 50.
2. T.R. Andhyarujina in Evoking, 20 at 23.
H.M. Seervai - His Life, Book & Legacy 3

and ever emphatic. His self-assurance and conviction in his own judgment
were "remarkable". In short, he had courage "like a lion", and the fearlessness
that one would hope for in a leading surgeon, a brave soldier or a senior
advocate. Reportedly, he was not at first interested in constitutional law.
Doubtless in his early years, in the tunnoil of the slow death in India of the
British Raj, that field of law must have seemed unstable, unsure, unpromising
to a lawyer who liked to see things clearly. But it was his fate to live through,
and to chronicle, the extraordinary events that, just over sixty years ago,
brought freedom and independence to the teeming millions of this Indian
subcontinent. Moreover, by the hand of fate, he was to play an important
part in the elucidation of the Constitution that the newly founded nation of
India gave to itself for its governance. In court, and in the pages of his writings,
he was to help clarify the meaning of the Constitution; to contribute to what
he saw as its orthodox interpretation; and to extirpate any deviation from
what he regarded as true constitutional doctrine.
After years in private practice, Seervai, briefless no more, was by the
early 1950s, much in demand for briefs junior to the then Advocate-General
for the Government of Bombay. His moment was soon to arrive when it fell
to him to defend the Bombay Prohibition Act, 1949.3 It was a cause he could
embrace with neutrality. Although he was not a moralist or a fanatical believer
in alcoholic prohibition, his only encounter with alcohol was for rare
medicinal purposes. His closing speech in defence of the law earned the
admiration of the government.
His first chance in the Supreme Court of India arose in a defence of
the Government of Bombay's decision to ban prize competitions, in the
nature oflotteries. 4 Seervai's argument was rewarded with spectacular success.
The judgments and orders of the Bombay courts were unanimously set aside
with costs. A year later, Seervai began his service of seventeen years as
Advocate-General. In such a post, coming from such a Bar, he was assured
of involvement in many of the leading trials and appeals of the State and the
Indian nation.
Seervai was to prove fearless and independent in the advice he
tendered, relatively indifferent to the income and opportunities which the
post offered and detached from the politicians and the government of the
day, carrying on in this country the traditional role of the best of the counsellors
of the Crown - fearless, honest and politically neutral. This is a great tradition.
3. State of Bombay v. F.N. Balsara, AIR 1951 SC 318.
4. Supra n. 1 at 24 referring to State of Bombay v. R.M.D. Chamarbaugwala, (1957) SCR 930; AIR 1957
SC 699.
4 Indian J. Const. L.

As lawyers in India, and in Australia, get further away from that tradition in
time and memory, it is essential that we keep it alive, for it is most beneficial
to effective and honest government, conforming to law.
The memories of Homi SeelVai, recorded by members of his family
in the two books that have been published in his honour since his deathS are
moving and tender, as one would expect of family recollections of a loving
husband, father and grandfather. They tell of his brilliant recall of the poets
and historians from Thucydides to those great Imperialists, Winston Churchill
and Rudyard Kipling. His laughter, kindness, family-centred life and
comparative indifference to worldly things, like fine clothes and food, strike
a chord with all of us who have known the upper echelon of A-type
personalities - obsessive, fastidious, punctilious, yet often with warm
personalities struggling occasionally to shine upon the world.
Those who work in the busy professions of life know and respect such
personalities with their little obsessions (Romi, for example, would tell cricket
scores from ages past out of his memory) 6. His letters of love and postcards
and notes, recorded in the texts, remind us that behind the public man was
a living, breathing human being, with a private zone that was closed and
guarded and into which few could enter. Every human being of great
achievements needs such a zone. Blessed is the achiever who can come
home to candid criticism and loving support when things get rocky.
Yet it is in the memories of prominent, and not so famous, lawyers
that we get clues about SeelVai, the public man and the motive forces that
lay behind his public life. We also get insights into what Seervai's
contemporaries at the Bench and Bar saw as his essential characteristics,
worthy of encouraging in new generations, so that they might emulate the
best of the traditions of the past, cutting away those that are no longer relevant
for the present and the future.
In the early 1950s, SeelVai was faced with a move to abolish the dual
system of solicitor and counsel that had been inherited from England - a
system that survives in many countries to this day, including Australia, but
was then under threat in Bombay. According to another great advocate,
Ani! Divan:

5. Feroza Seervai (ed.), Evoking H M. Seervai (2005); V. Iyer (ed.), Constitutional Perspectives· Essays in
Honour and Memory of H. M. Seervai, (Universal, New Delhi, 2(01).
6. Feroza Seervai in Evoking; 95 at 101.
H.M. Seervai - His Life, Book & Legacy 5

"Seervai and K. T. Desai at great personal cost in terms of time,

energy and work, went from table to table in the Bar Library
persuading young counsel like me that the dual system had
great virtues. They also worked out a scheme by which advocates
in good practice would voluntarily designate themselves as
seniors and would desist from accepting a brief unless briefed
with junior counsel... As a result the resolution moved to
recommend abolition of the dual system in the Bar Association
was defeated and the dual system remained current for many
years. Many of us were beneficiaries of that continuation. One
does not know who would have made good or even continued
at the Bar if the dual system had been abolished."7
In Australia, and doubtless elsewhere, the strictness of the dual system
has changed. But, from my own life as a young solicitor, I know that in most
cases the gruelling work of the advocate can only be done to the best
advantage by someone who is freed from the time consuming tasks of issuing
subpoenas, tracking down witnesses, chasing for costs and with the other
essential responsibilities from which leading advocates need to be protected
so they can concentrate on what they do best: persuading.
Justice R. S. Pathak saw in Seervai a man "extremely jealous of
protecting [the courts'] public reputation, anxious to see that the stream of
justice flowed unpolluted, and ensured that no deviation which came to his
knowledge, remained uncorrected".8 Justice Sujata Manohar, one of the
first women Justices of the Supreme Court of India, spoke of Seervai's
resignation as Advocate-General of Maharashtra in 1974 when the Law
Minister appointed two advocates whom Seervai described as "party lawyers"
to advise him - a move he interpreted as undermining his independent
authority.9 His true friend, Tehmtan Andhyarujina, in his youth a junior to
the great man, describes his "commitment in life" and "total sincerity, honesty
and devotion" which was his "great strength as a lawyer".l0 Laced with his
ebullience and confidence, this was a concoction of a personality that was to
be a potent contribution, spiced with courage. 11 Atul Setalvad concluded
that, whilst there were others who as advocates were superior, "what made
Seervai unique was his profound knowledge of the law ... [for] he was an
expert in almost all branches of civil law". 12
7. Anil Divan, "H M Seervai: Random Memories and Recollections" in Evoking, 53 at 58.
8. Justice R.S. Pathak in Evoking, 14 at 15.
9. Justice S. Manohar in Evoking, 17 at 19.
10. T. R Andhyarujina, in Evoking, 20 at 21.
11. Id. at 29.
12. Atul Setalvad, "H. M. Seervai" in Evoking 41 at 43.
6 Indian J. Const. L.

Soli Sorabjee, another doyen of this Bar, later Solicitor-General and

Attorney-General of India, recalls how kind Seervai was to juniors who
opposed him in Court and how he gave them generous guidance and
encouragement. 13 But he acknowledges that "Seervai had strong likes and
dislikes".14 Occasionally, one suspects, he allowed his commitment to his
case to colour his view of the judges who reached a different conclusion.15
Fali Nariman, another supreme example of the Bombay Bar, confessed to
having been the beneficiary of Seervai's criticism of Supreme Court judges
when, once, Seervai devoted many closely printed pages of his third edition
to a biting critique of the Escorts Case that Fali Nariman had lost in the
Supreme Court. His castigation was a kind of vindication for the smarting
advocate - confirming once again that there is an appellate court over even
the House of Lords, called the Law Quarterly Review.
In a wise and measured comment, Fall Nariman remarks:
"Do harsh words about judges and their judgments have to be
used? Well, not always - perhaps only occasionally: because of
what that great economist Lord Keynes used to say: 'Words
have sometimes to be harsh since they represent an assault on
the thoughts of the unthinking'. It shakes people up - and it is
good for the soul to shake up some people some of the time!"16
Seervai himself admitted that he sometimes exceeded prudence in
his criticisms of the judiciary. But he would not compromise on what he saw
as truth or on courage. And with such a man, even allowing for the hurt,
you had to take the bitter with the sweet.
Iqbal Chagla, another great advocate and son of a great judge,
acknowledged that Seervai "set for himself the highest standards of moral
integrity and in that he was totally inflexible and uncompromising, at times
unreally SO".17 It made him sui generis, unique, but sometimes hard to stand
with.
Ashok Desai, also a former Attorney-General of India, observed how,
sometimes, Seervai made submissions "which were too detailed for the
case".18 But that was just the high standard he always set for his advocacy.
13. Soli Sorabjee, "Homi SeeIVai - A Personal Tribute" in Evoking, 45 at 45.
14. Id. at 46.
15. Id. at 46. His views onJustice P. N. Bhagwati were a case in point.
16. Fali Nariman, "Last of the SeIjeants" in Evoking, 48 at 52.
17. Iqbal Chagla, "Full Court Reference" (Address as President of the Bombay Bar Association) in
Evoking, 7 at 8.
18. Ashok Desai, "Some Reminiscences" in Evoking, 64 at 66.
H.M. Seervai - His Life, Book & Legacy 7

He was single-minded and blessed with unwavering concentration and the

sharpest of focus. He was prudent and modest (even frugal) in the spending
of public money. He always wanted to give his all.
Whereas the verbal flights of most advocates disappear into the ether
of the courtroom unless they find their mark in the mind and pen of an
attentive judge, it was Seervai's decision to write his monumental text
Constitutional Law of India that put him on the map so far as the judges and
lawyers of India and of other lands are concerned. This work passed through
four editions. The last, a Silver jubilee Edition in three mighty volumes, was
completed just hours before Seervai died in Mumbai on 26January 1996. It
was as if the analysis and' dedication and passion of the book had kept him
alive, with the loyal support of his wife Feroza and the encouragement of his
publishers, until the last word on the last page of the final volume was penned.
Seervai wrote other texts, including his Partition of India: Legend and
Reality19 and The Position of the judiciary Under the Constitution of India. 20 But
it was his text on constitutional law that was his masterpiece. For it, the
British Academy in 1981 honoured him by electing him a Fellow. Lord
Mackay of Clashfern rightly observed: "It is 'a permanent memorial to his
massive erudition'. It is not a 'mere commentary of the usual kind"'. 21
The book is a "searching, appreciative but at times scathing, analysis
of what went into the judicial dicta" about the precious constitutional text
that Seervai regarded as being held in special trust. As the author of the best
known, most widely used and prize-winning book on the Constitution of his
country, Seervai felt it his duty to speak out, with sharpness ·and candour,
even with personal criticism, of those judges who strayed from what he saw
as the straight and narrow path of the constitutional doctrine.
It is a blessing of my life that a full set of these precious volumes was
sent to me soon after my appointment to the High Court of Australia. There
are differences, and similarities, between the Constitutions of Australia and
India. I have described them earlier. 22 The commonalities of the legal
tradition, the selected similarities of the constitutional text and the mutual
19. H. M. SeeIVai, Partition of India: Legend and Reality (Oxford University Press, 1989).
20. H. M. SeeIVai, The Position of the judiciary Under the Constitution of India (University of Bombay,
1970).
21. Lord Mackay, "Memories of H M SeeIVai" in Evoking, 16 at 17.
22. Michael Kirby, "Constitutional Law: Indian and Australian Analogues" in V. Iyer (ed.), Essays in
Honour and Memory of H M. Seervai (Universal, New Delhi, 2001), 166; Michael Kirby, "To Midday's
Children in India - The Bright Tomorrow" in Soli Sorabjee (ed.), Law and justice, Vol 4 (1997),
Supreme Court Golden Jubilee Issue 79; Michael Kirby, "A Neglected Transnational Legal
Relationship: A Plan of Action for Australia" [1997] Australian International Law Journal 17.
8 Indian J. Const. L.

respect that existed between Seervai and the first comprehensive chronicler
of the Australian Constitution, Dr. Anstey Wynes,23 often make it useful for
me to plunge into Seervai's book. In several of my judicial reasons, I have
referred to it as the source and inspiration for my ideas. 24 And I was not
alone in my Court. 25 As it is said so often, the book is not an . ordinary text
on constitutional law. Here one will not find merely the Constitution's words,
a cold analysis of the judicial elaboration and presentation of the winding
course of authority as if it were the inevitable, consistent out-growth of the
text. Instead, leaping from every page is an opinionative, engaging,
controversial, often upsetting collection of opinions, praise and castigation
of a type· that makes Seervai's book entirely special.
BOOK
Seervai explains in the Preface to the first edition, how the writing of
the book began with a link to Australia. In February 1967, he confessed: 26
"In the manner of speaking, this book has got itself written. It
all began fifteen years ago when I read with admiration and
delight Dr. Wynes' critical commentary on the Australian
Constitution. As I laid down his book I could not help expressing
to myself a wish that someone would try to do for the
Constitution of India what Dr. Wynes had done so well for the
Constitution of Australia, and I believed then that one at least
of the eminent lawyers who had helped to fashion our
Constitution would undertake the task."
The powerful dissent of Justice Kapur in the Nanavati Case 27 in
September 1960 convinced Seervai that the time had come to embark on
the project himself. The first edition kept him engaged for over six years and
every day of the remainder of his life was devoted to the task. The lawyers of
India, Australia and all the lands of the common law, are the beneficiaries.
The size of the work and the intensity of the treatment of the subject,
speak for themselves. Who else, well into his eighties, would have devoted
23. William Anstey Wynes, Legislative, Executive and Judicial Powers in Australia (Lawbook Co., Sydney,
1976).
24. Newcrest Mining (WA) Ltd v. Commonwealth of Australia (1996) 190 CLR 513 at 659 (fn 510); Pearce v
The Queen (1998) 194 CLR 610 at 644 [106] (fn 173); Egan v. Willis (1998) 195 CLR 424 at 493 [133] (fn
355).
25. Thus Murphy J quoted from it in The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983)
158 CLR 1 at 165.
26. Preface to the First Edition, republished in H. M. Seervai, Constitutional Law of India (Universal,
New Delhi, 2(05), xxiii· (hereafter "Seervai, Constitutional Law").
27. K M Nanavati v. State of Maharastra, (1961) 1 SCR 497.
H.M. Seervai - His Life, Book & Legacy 9

such loving care to the decisions of the judges and fitting those decisions, as
they emerged from the courts, into the mosaic of the constitutional doctrine?
Who else at such an age could have produced a three-volume work running
to more than 3,250 pages? Little wonder that successive volumes of the work
were honoured in India and far away as examples of scholarship and learning
that require a special kind of brain to comprehend, digest and put on paper.
Professor Sir David Williams, later Vice-Chancellor of Cambridge
University, wrote of the third edition that it was a "massive undertaking",
demonstrating care and detail, which the subject matter deserved. He
acknowledged that the trenchant criticisms were not typical of British law
journals, in their commentary on judges. Perhaps this was because the British
still muddle along without a comprehensive written Constitution and look
with wonder at countries of the new world, like India and Australia, that
have enshrined great political questions in a legal text, the enforcement of
which is entrusted to advocates-tumedjudges in deciding constitutional cases.
Professor Williams explains Seervai's trenchant criticisms as the inevitable
product of his desire to delve deeply into constitutional questions and to
wrestle with the constitutional quandaries of a great democratic country.
And yet he comes out at the other end usually with optimism, tinged with
reality.28
There are many excellent reviews of Seervai's Constitutional Law of
India in its successive editions, some of them recorded on the fly-leaf in the
distinctive, vivid, familiar colours of navy blue, white and green. 29 The British,
who must now witness their judges performing openly the work of human
rights law in the wake of the Human Rights Act, 1998 (UK), may gradually
move to a more robust and candid assessment of judicial labour. But for
those of us who have lived with written national constitutions, as in the
United States, Canada, Australia and South Africa, the sharp-tongued critic
is a feature of legal life that we know in our hearts often helps to dispel the
illusions of grandeur and the delusions of infallibility that those elevated to
the Bench can fall victim to in our tradition - often encouraged by the leaders
of the Bar, who may see themselves as the Bench-in-waiting. Seervai would
have none of this. Plain-speaking was his forte.
Seervai reportedly rejected judicial preferment, both in the Bombay
High Court and even (so it is said) in the Supreme Court of India. Reasons
are suggested: his dislike of travel, his love of his family and his preference
28. Sir David Williams's review appears in [1985] Cambridge Law Journal 149.
29. See eg Geoffrey Wilson [1967] Cambridge Law Journal 258; Alan Gledhill [1968] 84 Law Quarterly
Review 279.
10 Indian J. Const. L.

for living in Mumbai. But if it is true that he rejected the Bench, perhaps the
reason lay in his growing realisation of the fallibility of all judges, even those
whom he liked, admired and loved the most. Perhaps, doubting that he
could reach his own exacting standards, he preferred to exercise his influence
by advocacy and by the pages of his text. His influence, in all probability,
exceeded that of most judges, including those in the Supreme Court.
Advocate and judge, scholar and student alike leapt at a ne,'\' edition to see
what the author had Inade of the controversial decisions of the past decade.
In a sense, the book became the last word on many topics.
John Keats, a poet whom Seervai loved, drew inspiration from a first
look into Chapman's Homer. So what does one see today, in the twenty-first
century, more than ten years after his death, on looking into Seervai's
Constitutional Law?
First, there is the uniquely opinionative character of this text. This is
not accidental. Seervai claims a desire to be constructive whilst taking care
to "separate the statement of the law and my submissions on it". 30 He accepts
that sometimes his criticisms "may be mistaken". But he is unrepentant and
states that:
"The cause I serve is that of a correct and coherent interpretation
of our Constitution. If any of my criticisms are found to be
correct, the cause is served; and if any are found to be incorrect
the very process of finding out my mistakes may lead to the
discovery of the right reasons, or better reasons, than I have
been able to give, and the cause is served just as well".31
Of course, today there would be many who admit to a doubt that any
written text yields but a single interpretation. It is of the nature of words,
and particularly words in the English language with its dual linguistic streams,
that they are often ambiguous. 32 Values will help the reader to reach the
construction that seems apt to the text and the context. Perhaps we are more
aware of these features of interpretation today than we were when Seervai
learnt the law and wrote the successive editions of his great book. Perhaps
the judges whom he criticised were sometimes those who tried to search
behind the words and, disdaining original intent, sought to give those words

30. Seervai, Constitutional Law, Preface to the First Edition, xxiv.

31. Id. Preface to the First Edition, xxiv.
32. News Limited v. South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 at 580 [42]
per McHugh J.
H.M Seervai - His Life, Book & Legacy 11

meaning so as to fulfil the functional purposes of such a precious document

as a nation's Constitution: intended to operate indefinitely for the good
governance of a great country.33
Secondly, Seervai's prose is not only opinionative. Often, it is brutal
to the point of administering a deliberate personal sting. Rarely does one
see, in other books on constitutional law, commentaries such as those of
Seervai. What a great judge like Justice Khanna might call an "odd" result,
Seervai describes as "startling". The exclamation marks and the denunciation
of decisions as "a travesty of justice" single his text out amongst the respected
books of law tradition. Indeed, it is a source of regret that Seervai did not
live to \'\-itness the recent language written by.Justice Scalia in the Supreme
Court of the United States which, when speaking of his colleagues, sometimes
reminds me of Seervai's prose, although usually at its most understated. 34
Thirdly, there are many instances where Seervai. tackles controversy
that others might have been inclined to allow to pass. Thus, in the preface to
his fourth edition, there is a prolonged coda on the attempted impeachment
of Justice V. Ramaswami, a judge of the Supreme Court. 35 For four closely
printed pages, the author cannot let it rest. The affront to his sensibilities is
plain. Occasionally a reader, trained in our tradition, thirsts for the expression
of the contrary view. Ever the advocate, Seervai. states his own view, bluntly.
Fourthly, it is clear that, to the end, Seervai was greatly influenced by
traditions of the law in the India in which he grew up. These left him with a
profound respect for English law, English literature, English history and the
high professionalism of the British courts. To the very end, he was closely
watching the Spycatcher litigation ill the United Kingdom36 and the leading
cases of the House of Lords, such as Pepper v. Hart. 37 He respected the stability
of the Privy Council as a judicial tribunal and what he saw as "the
predictability of its decisions". 38
As growing decades separate Indian a.TJ.d Australian lawyers from the
formal links to that distinguished imperial tribunal, it is well to be reminded
of its strengths, so long as we do not forget its weaknesses. Seervai condemns
the "desire for justice in individual cases which converts the judicial process
into a gamble".39 He thirsts for unbending adherence to the law, though the

33. Lawrence v. Texas 539 US 558 at 578-579 (2003).

34, Id. at 598.
35. Seervai, Constitutional Law, Preface to the Fourth Edition, xvii.
36. Id. Preface to the Fourth Edition, p xxi.
37. [1993] AC 593; see Seervai, Constitutional Law, 'lol 2, live
38. Seervai, Constitutional Law, Preface to the First Edition, xxv.
39. Preface to the First Edition, xxvi.
12 Indian J. Const. L.

heavens may fall. Yet allowance must always be made for the oath that
judges take to do right to all kinds of people. The underlying principle of
our tradition is justice under law. We should never forget the '~ustice" part
of that equation. Clearly, Seervai was sensitive to the justice of legal
expectations. He was affronted whenever, in controversial cases, the court
strayed from what he saw as their duty to the letter and tradition of the law.
This led to his spirited attacks on the Supreme Court for its rulings in, amongst
other cases, R. C. Cooper v. Union of India (the Bank Nationalisation Case)40
and Golak Nath v. State of Punjah. 41 And even those who disagreed with his
"truly remarkable capacity for incisive analysis" acknowledged the force and
persuasiveness of his positions. 42
Seervai's work is sprinkled with references to the great English lawyers
of his age. He Singles out his special hero Lord Reid and that other great
judicial craftsman, Lord Denning. Professor Sir William Wade and the other
respected writers on public law are repeatedly cited. He was not a narrow
Indian nationalist in legal doctrine. In constitutional law, especially, it is
important for all of us to keep in touch with the great movements that are
happening in other jurisdictions similar to our own.
Fifthly, Seervai repeatedly demonstrated his love of history, and respect
for it, as the necessary setting for constitutional elaboration. The fourth edition
of his text contains a most fascinating review, extending over 170 pages, of
the history behind the mighty struggle for national independence in India.
Of the fitful steps towards devolution of British power to a United India. Of
the fateful manoeuvres that led to the partition of India. Of the blood spilt
and the energy devoted to the creation of the new nation's Constitution,
written in sacrifice but with optimism for the future.
It is clear in the preface to the First Edition, and made clearer in his
later writings, that Seervai saw the division of India as an unnecessary result
of uncompromising egos amongst all the participating parties. The one
participant who emerges unscathed from his history is Lord Wavell, elevated
in wartime from Commander-in-Chief to Viceroy. One learns from Seervai's
legal text, why he warmed to this "rugged, straight-forward soldier void of
verbiage and direct both in approach and statement". 43 Here was the kind of
man, rather like himself: "Not devious like a politician but [who] came straight
to the point".

40. (1970) 3 SCR 530.

41. (1967) 2 SCR 762.
42. V. Iyer, "My Recollections of Homi Seervai" in Evoking, 68 at 68.
43. Azad, cited in Seervai, Constitutional Law of India, Fourth Edition 115.
HM. Seervai - His Life, Book & Legacy 13

Not everyone has the stomach for such directness of approach. To

many, both of the Indian and English cultural traditions, it is a confronting
one. It sometimes leaves little space for accommodation, compromise and
adjustment for conflicting viewpoints. It is like a purgative for the body politic
- surely good for overall health, but sometimes be painful when administered.
Sixthly, and this is clear from Seervai's family reminiscences, he reflects
a narrower view than would often now be held concerning the importation
of political, economic and social concepts into the task of constitutional
interpretation. In the preface to his first edition, he cited at length Chief
Justice Latham of Australia in the Communist Party Case as rejecting such
imputations: 44
"It is sometimes said that legal questions before the High Court
should be determined upon sociological grounds - political,
economic. or social. I can understand Courts being directed (as
in Russia and in Germany in recent years) to determine questions
in accordance with the interests of a particular political party.
There the Court is provided with at least a political standard.
But such a proposition as, for example, that the recent Banking
Case 45 should have been determined upon political grounds
and that the Court was wrong in adopting an attitude of
detachment from all political considerations appears to me
merely to ask the Court to vote again upon an issue upon which
Parliament has already voted or could be asked to vote, and to
determine whether nationalisation of banks would be a good
thing or a bad thing for the community. In my opinion the
Court has no concern whatever with any such questions. In the
present case the decision of the Court should be the same
whether the members of the Court believe in communism or
do not believe in communism."46
Whilst there is obviously great truth in the need for judicial detachment
- and overall it has been a precious hallmark of our shared legal and judicial
traditions - the notion of ignoring values, broadly described as 'political' or
'social' or 'economic', is not now one that is universally espoused. A
Constitution is a political document. Decisions about it are always, in a
broad sense, political. IgnOring the way the polity should work under the

44. (1951) 83 CLR 1 at 148-149.

45. (1948) 76 CLR 1.
46. (1951) 83 CLR 1 at 148-149.
14 Indian J. Canst. L.

Constitution, can lead to rigidity that, fortunately, the majority in the High
Court of Australia avoided in the Communist Party Case. In that decision,
Chief Justice Latham was in sole dissent. All the other participating Justices
agreed that the federal legislation in question there, designed to ban the
communist party and to deprive communists of civil liberties, was
constitutionally invalid. Justice Dixon extracted from the Australian
Constitution an implication, deep and powerful, of adherence to the rule of
law, always binding on Parliament and the Executive Government. 47 In
fact, in many of his comments on Indian cases, SeeIVai shows a Dixon-like
commitment to limited governmental power rather than a Latham-like
acceptance of the fiction that regular visits of citizens to the ballot box jUstify
everything thereafter that a government does within its teIm of office.
Let us have no more talk in India or Australia of the "sovereignty of
Parliament" .48 This is a notion, right enough perhaps in England in the
nineteenth century, but totally out of keeping for a government of limited
powers, which the Indian and Australian written constitutions apply in both
our countries. For us, sovereignty belongs only to the people. All government
is limited and subject to law.
Seventhly, SeeIVai recognised the necessary limitations of conventional
textbooks and casebooks. He was no mere reporter and did not want to be.
Re knew that citation of foreign authority had to be discelning because, in
his day, access to foreign casebooks and texts was strictly limited in India,
like everywhere else. 49 Now, through the Internet, lawyers and judges can
search and discover great riches in the leading courts of our tradition
everywhere. SeeIVai's fascination with foreign analogues was correct,. but
ahead of its time. Technology no\,\' opens up the learning of the Supreme
and High Courts of India to judges and advocates everywhere. With that
learning comes SeeIVai's analysis, criticisms and opinions.
Eighthly, throughout his analysis, one can see Seervai's deep
commibnent to the secular prinCiple that is stated in the added language of
the 42nd Amendment to the Indian Constitution in 1976. 50 It is secularism
that leads Seervai to criticise all the leaders of the Independence movement
47. (1951) 83 CLR 1 at 193; Plaintiff S157/2002 v. The Commonwealth (2003) 211 CLR 476 at 513-514
[103]-[104].
48. Granville Austin, J1l orking a Democratic Constitution: the Indian Experience (Oxford University Press,
1999), 498. "Parliamentary supremacy" is a more accurate expression; but even then Parliament is
supreme, subject to the law as declared by the courts.
49. Preface to the First Edition republished in Fourth Edition, Vol 1, xxiii.
50. The words "Socialist" and "Secular" were inserted by the 42nd Amendment to the Constitution of
India (1976), S.2.
H.M. Seervai - His Life, Book & Legacy 15

- not just Jinnah (another leading Bombay barrister) but also Gandhi and
Nehru - for what he describes as the "crime to mix up religion and politics".
Seervai declares "there is a price to pay, and in India we paid it in full with
the partition of India".51 He is sharp and unforgiving in his judgment on this
point. His introductory historical essay, and the Appendix to volume 1 of
the fourth edition stand as monuments to what might have been, if only the
times had been a little different and the players had exhibited greater
detachment and willingness to compromise. Of course, there are many views
about these issues. Seervai states his opinions with force and persuasiveness.
Ninthly, despite the sharp words, sometimes directed at greatly
respected judges and even his friends,52 the predominant mood of Seervai's
book is one of optimism. 53 He was, after all, operating in a free country,
sustained by the very Constitution over which differences could be held and
strongly expressed. He was not liable to be dragged away at midnight to
answer to a government or religious or party official angry with his criticism.
Nor was there any real chance that he would be punished for contempt of
court. Nor was it ever likely that he would be arrested by the opinionated
military or security police.
Seervai was foremost in his condemnation of the weakness of the courts
in responding to Mrs. Indira Gandhi's Emergency. He was the first to recognise
the critical importance of responding to ovelWeening governmental power. 54
In doing so, he drew, as usual, on the earlier failings of the House of Lords
in England in the wartime decision in Liversidge v. Anderson. 55 In the current
age, his exercise of the freedom to criticise serious error bears lessons for us
all as anti-terrorism measures sometimes press up against the constitutional
limits.
Tenthly, Seervai was not totally inflexible, unbending or incapable
of changing his mind. Even in fl..mdamental matters, Seervai could be shifted,
could alter his opinions. Thus, he came around from his earlier strong
inclination against the Basic Structure doctrine to see how important that
constitutional implication would be for the defence of the foundations of
government and the protection of the rights of all people in India - a country
51. Seervai, Constitutional Law, Fourth Edition, Vol 1, 951.
52. His comment in Vol 1, 610 (par 9.2.79) on Justice Krishna Iyer's reasons in Akhil Bharatiya Soshit
Karmachari Sangh v. Union of India (1981) 2 SCR 185 are an example. See also his comment on
Justice P N Bhagwati, in Vol 1, 2240; see SJ. Sorabjee in Evoking, 45 at 46.
53. As Sir David Williams concluded [1985] Cambridge Law journal, 149.
54. See Seervai, Constitutional Law, Appendix to Vol 2 in Fourth Edition, p 2235; cf Granville Austin,
Working a Democratic Constitution: The Indian Experience, (Oxford University Press, 1999), 293.
55. [1942] AC 206, in Seervai, id., 2230.
16 Indian J. Const. L.

where it was much easier than in most to change the constitutional text. 56
He thus had strong opinions, strongly expressed. But he was not a lifeless
rock. He was, instead, a sensible, practical, highly experienced lawyer. He
could see that, from time to time, doctrine needed to shift with the needs
and operation of the Constitution as a living instrument of government.
Never has this idea been better expressed, in my view, than by Justice
Anthony Kennedy, writing for the majority of the Supreme Court of the
United States in Lawrence v. Texas,57 when striking down, as unconstitutional,
the anti-homosexual criminal provisions of the law of Texas, similar to s 377
of the Indian Penal Code:
"Had those who drew and ratified the Due Process Clauses of
the Fifth Amendment or the Fourteenth Amendment known
the components of liberty and its manifold possibilities, they
might have been more specific. They did not presume to have
this insight. They knew times can blind us to certain truths and
later generations can see that laws once thought necessary and
proper in fact serve only to oppress. As the Constitution endures,
persons in every generation can invoke its principles in their
own search for greater freedom."58
Although Seervai never quite embraced this functional concept of
constitutional interpretation, he did acknowledge (as the cases say) that the
Constitution of India is to be given a liberal interpretation. 59 He accepted
the principle obliging a harmonious construction of the whole text. 60 Times
change. Constitutional needs change. Though faithful to his view about basic
doctrine, Seervai, ever the lawyer, saw great changes happen in independent
India. Like everyone else, his mind was carried along with the largest changes,
for every lawyer knows that the Constitution must endure and serve the
peace, order and good government of successive generations of the people.
LEGACY
In his will, it is said, Seervai forbade other authors (even some whom
I could name who shared his basic philosophy of law) to update and revise
his great text. Yet, a perfunctory glance at the reports of the Supreme Court
56. T.R. Andhyarujina in Evoking, 20 at 27.
57. 539 US 558 (2003).
58 Id. at 578-579.
59. Seervai, Constitutional Law of India (Fourth Edition), Vol 3, 2306, 2312, applying observations of the
Judicial Committee of the Privy Council in James v. The Commonwealth [1936] AC 578; cf Gwyer CJ
in Central Provinces Case [1939] FCR 18 at 37.
60. Seervai, Constitutional Law, Fourth Edition, Vol 3, 2318 applying Madras v. Boddu Paidanna [1942]
FCR 90 at 105 per Gwyer C).
H.Al. Seervai - His Life, Book & Legacy 17

of India will show, that it continues to be held in the highest esteem and to
be cited repeatedly as an authoritative source of legal principle and analysis.
Thus in Chairman, Railway Board v. Chandrima Das,61 Justice Saghir
Ahmad refers to a criticism of the earlier decision in Kasturi Lal's Case62 "by
Mr Seervai in his prestigious book". He concludes in consequence that the
"efficacy of this decision as a binding precedent has been eroded".
In State of Karnataka v. State of Andhra Pradesh,63 Justice Pattanaik
reviews counsel's argument with its reliance on Seervai's book concerning
the power of courts to resolve the entire dispute between the parties - a
beneficial and necessary power in a land of over-burdened court lists.
In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology,64 Justice
Ruma Pal quotes Seervai's book at length to teach the lesson that "the
governing power, wherever located, must be subjected to fundamental
constitutional limitations".
In Harish Uppal v. Union of India,65 Justice Variava quotes the words
of Mr Seervai, described there as "a distinguished jurist" to support the
proposition that the courts will "not tolerate any interference from any body
or authority in the daily administration of justice".
In NTR University of Health Sciences, Vijaywada v. G Bahu Rajendra
Prasad,66 Justice S. B. Sinha cites at length Seervai's "classic treatise" to teach
the lesson that "in India there are castes. But castes are anti-national".
Moreover, they are alien to the constitutional commitment to fraternity,
equality and liberty.
In State of West Bengal v. Kesoram Industries Ltd,67 Justice R. C. Lahoti,
giving the reasons of the Supreme Court, quotes at length from Seervai's
text and specifically his treatment of the legislative power to tax. The book
has become the touchstone for the opinion of the Court, such is the respect
in which it is held.
In Commissioner of Police v. Acharyajagadishwaranda Avadhuta,68 Justice
A. R. Lakshmanan, in the course of his analysis uses one of Seervai's criticisms

61. [2000] 1 SCR 480.

62. [1965] 1 SCR 375; AIR (1965) SC 1039.
63. AIR 2001 SC 1560.
64. [2002] 3 SCR 100.
65. [2002] Supp 5 SCR 186 at 208.
66. [2003] 2 SCR 781 at 796-797.
67. [2004] 1 SCR 564 at 642, 657, 689, 664.
68. [2004] 2 SCR 1019 at 1052D.
18 Indian J. Const. L.

of earlier decisions of the Supreme Court as obiter and contrary to mainstream

reasoning.
In Chain Singh v. Mata Vaishno Devi Shrine Board,69 Justice B. N.
Srikrishna cites at length from Seervai's treatment of governmental
acquisitions and the relevance of the amendment of the Constitution to the
change ·of the pre-existing law. .
In Godfrey Phillips India Ltd v. State of Uttar Pradesh,7° Justice Ruma
Pal cites Seervai as teaching the uniqueness of the Indian Constitution and
the care that must ·be observed in invoking judicial authorities from other
federations such as the United States, Canada and Australia. It is an intellectual
comment, not a xenophobic one. It is based on textual differences not on
any sense of local superiority.
In Yashpal v. i.~tate of Chattisgarh,71 Justice G. P. Mathur commences
his interpretatioll \vith a reminder of some basic prinCiples derived from
Seervai's book. More recently in Bal Patil v. Union of India/ 2 Justice
Dharmadhikari quotes large parts of Seervai's book to emphasise, in the
context of that case, the non-theocratic and secular character of the Union of
India and the importance of protecting, within it, Muslims and Christians as
"children of its soil".
In Rameshwar Prasad v. Union of India,73 ChiefJustice Y. K. Sabharwal
expressed himself in support of Seervai's view on the general legal immunities
of a State Governor. In Ashok Lenka v. Rishi Dikshit,74 Justice S. B'. Sinha
invokes Seervai's text in his consideration of aspects of the law on intoxicating
liquor restrictions.
In State of Rajasthan v. Rajasthan Chemist Association,75 Justice Arijit
Pasayat resolves the issue of tax law before him by refening to a prinCiple
"succinctly stated" in Seervai's book. In Surendra Prasad Tewari v. Uttar Pradesh
Rajya Krishi Utpadan Mandi Parishad,76 the Justices constituting the Supreme
Court Bench invoke Seervai "in his celebrated book" to emphasise the
importance of the prinCiple of recruitment by open competition which, "was
first applied in India and then applied in England".

69. (2004) 12 sec 634 at [22].

70. AIR 2005 se 1103 at 1115-1116 [40].
71. AIR 2005 SC 2026 at 2035 [11].
72. AIR 2005 SC 3172 at 3177 [22].
73. AIR 2006 SC 9oo.at 1035-1036 [168].
74. AIR 2006 se 2382 at 2390 [26].
75. 2006 (7) SCALE 330 at 3314 [21].
76. 2006 (9) SCALE 101 [753].
H.M. Seervai - His Life, Book & Legacy 19

In M. Nagaraj v. Union of India,77 Justice S.H. Kapadia, resolves the

issue under Article 14 of the Constitution before the Court by reference to
Seervai's instruction 78 that the equality principle, enshrined in that
constitutional provision, is not violated by mere conferment of a discretionary
power. It is the arbitrary exercise of such a power that may attract constitutional
intervention.
I have cited these cases at some length to demonstrate what is, in any
case, well-known and abundantly clear. Seervai's text is still a living document.
It continues to be in daily use in courtrooms throughout India and beyond.
An intellectual monument for a life in the law is splendid; but not enough.
Prizes and honours are fine, but the greatest prize for a scholar and practitioner
like Seervai, is the continuing use of his work. I have demonstrated that it is
a work still frequently cited by the Supreme Court, with obvious respect,
celebration and appreciation. For it also' is in the High Courts of India and
indeed at every level of the judicial hierarcllY. Yet for all this it is inevitable
that, with the passing of time, new decisions and fresh insights will render
the book out of date. So it was in Australia with Dr. Wynes' book on the
Australian Constitution. So it will be in India, unless Seervai's book is brought
up to date.
No author, even one so great as Seervai, is entitled to speak beyond
the grave and to forbid a new edition to a \vork so important, basic and
instrumental in the life of Indian democracy. If I can use an analogy that
would have been understood by Seervai: no Parliament can pass a law that
purports forever to bind its successors who, in their wisdom and need, decide
to· strike out on a different course. 79
There are many precedents for this course in great legal publications.
In 1888, the famed historian of English constitutional law, Professor F. W.
Maitland completed a course of lectures on constitutional history. He asked
himself the question "Do I publish it?", to which he gave the public answer
"No".80 Yet in 1908, in consultation with many great scholars including A.V.
Dicey, Professor H.A.L. Fisher overruled Maitland's wishes, the latter having
since died. The text was published to universal acclaim. It continues to be
77. (2006) 8 SCC 212.
78. Seervai, Constitutional Law, Fourth Edition, 546.
79. British Coal Corporation v. The King [1935] AC 500 at 520 (PC); A. V. Dicey, The Law of the Constitution
(10th ed. 1959), 88. Introduction by E. C. S. Wade, xlix.
80. F. W. Maitland quoted in "Preface" to F. W. Maitland The Constitutional History ofEngland, Cambridge,
1950, v (First Edition, 1909).
20 Indian J. Const. L.

used and treasured as a work "fully worthy of the author and the subject".81
So it should be with Seervai's text.
In Australia, the last edition of Dr. Wynes' book was the fifth edition
published posthumously. Dr. Wynes died inJuly 1975. like Seervai, Wynes
had completed the revision of all the galley proofs of his text just before his
death. 82 For thirty years, the book remained a kind of time capsule· of the
thinking and understanding of the Australian Constitution. This is a sad fate
for such an influential work. Now it is rarely cited. The greatest monument
that we. could leave to Seervai's life in the law of India is a living one; one
that is constantly renewed.
No doubt, in a newly edited fifth edition, some of the opinions would
lack the sparkle, sharpness and combativeness of Seervai's opinions. On the
other hand, it should surely not be beyond the accumulated brilliance of the
Bar of India, to establish a committee of advocates and scholars who are in
general harmony with Seervai's dedication to the Constitution of India to
share the faithful obligation to update and annotate his text so that it continues
to live and breathe. Although this proposal did not find immediate favour
with his family who naturally desire to observe Seervai's express wishes, it is
my hope that Mrs Seervai and tlle family come round to agreeing to this
course, even allowing that it would change somewhat the contents and unique
character of the work.
There can be no doubt that there are critical issues of constitutional
doctrine that need to be considered and updated a~ we embark on a fresh
century, in India and in Australia, of democratic constitutional governance.
As I read once again the precious pages of Seervai's book, I could see how
many of the cases and .commentaries are relevant to the issues with which
we in Australia have struggled with in recent times.
In the last years of my judicial service the High Court of Australia
delivered a number of very important decisions - several amongst the most
important - in the century-long history of the Court. New South Wales v. The
Commonwealth of Australia (The Work Choices Case? is a good example. The

81. H.A.L. Fisher, "Preface" in F W Maitland, ihid, v at vii. There .are many other instances. When in
2003 Professor Sir John Smith CBE QC died, there was a danger that his classic text on English
Criminal Law (then in its 10th edition) would be the last. However, Professor David Ormerod of
the University of Leeds has taken on the role of editor and produced an eleventh edition in 2007
aspiring "to remain true to Sir John Smith's ideals". The new edition has been acclaimed.
82. William Anstey Wynes, Legislative, Executive and judicial Powers in Australia (Lawbook Co., Sydney,
1976). Publishers note, vii.
83. (2006) 81 ALJR 34; 231 ALR 1.
H.M. Seervai - His Life, Book & Legacy 21

case concerned the power of the Federal Parliament to enact laws, which
grant the power to make laws with respect of trading and financial
corporations. The laws in question, on one view, were also laws on industrial
disputes - a subject of law-making until now substantially regarded as governed
only by the qualified conciliation and arbitration power and shared with the
States. As I read Seervai's analysis, commanding a liberal construction of
legislative heads of federal power, but one that gives meaning to every part
of the constitutional document, I could see displayed many of the issues
which we tackled in our Court and which are inevitably faced by every
federal constitutional court - even one, as in India, with a different division
of powers and less rigid federal structure. 84
Likewise, we saw in Australia an important challenge was brought to
the growing practice of appointing temporary or acting judges to State courts
- it cannot be done in federal courts. This practice, which began as an
emergency expedient for ad hoc and very special needs, has grown quite
rapidly into a new institutional arrangement by which a Significant cohort of
State judges, including in the highest State court, hold their appointment
from year to year, dependent on confirmation by the Executive Government
as was observed in Forge v. AS/C.8s
The majority of the High Court of Australia saw no offence to the
Constitution in these arrangements. But I dissented. Re-reading Seervai's
treatment. of the dramas that surrounded the Indian experience during the
Emergency, and the way acting judges in India were treated at that time,
confirmed me in the correctness of my dissent. 86
A truly independent and uncorrupted judiciary is a most precious
governmental resource belonging to the people. Its neutrality and manifest
integrity is the coinage in which its reputation is purchased every day. Many
lands, perhaps most, have judiciaries ~at do not enjoy the reputation of
independence of the courts of India and Australia. We must guard that
independence with the utmost of our power. If ever it is lost, it is difficult,
anel may for a long time be impossible, to win back the faith of the people. 87
84. Ian Copland and John Rickard (eds.), Federalism: Comparative Perspectives From India and Australia
(Manohar Publishers, New Delhi, 1999). See in particular the articles by H. P. Lee ("Emergency
Powers in Australian and Indian Federalism"); J. A. Thomson ("Australian and Indian State
Constitutional Law: Some Comparative Perspectives"); and G. Parthasarathy ("Federalism and
Constitutional Processes").
85. Forge v Australian Securities and Investments Commission (2006) 229 ALR 223 at 257ff [127].
86. Seervai, Constitutional Law, Appendix, Vol 2, 2235 ff; Vol 3, 2717-2719, 2761.
87. See also Preface to the Second Edition, p vii in Vol 1, Fourth Edition; M. V. Chandramathi,
"Overview of Appointment of Judges" in G. Manoher Rao, Constitutional Development Through
Judicial Process (Asia Law House, Hyderabad, 2006) 228.
22 Indian J. Const. L.

Seervai knew this instinctively and never failed to make the point. Other
branches of government are sometimes very jealous of the high reputation
and respect which the judiciary generally enjoys amongst the people. We
cannot always count on the Legislature or the Executive, least of all the
media, to safeguard these precious virtues. The Bench and Bar themselves
must ever be vigilant, as Seervai was, to do so.
In both India and Australia, our courts are increasingly looking to
international law, which is the context in which national constitutions are
read today. The willingness of the Supreme Court of India to tackle
constitutional doctrine with this new insight bears lessons for us in Australia
where unfamiliarity with, and even hostility to, international law are part of
the general legal culture. 88
As a servant of the provisions of the Indian Constitution upholding
fundamental rights, Seervai was not antipathetic to the use of such sources.
With such universal ideas in the Indian Constitution, it is inevitable that the
writings of other courts and by other scholars on the meaning of common
phrases should be, and become, part of the staple content of international
law, especially because of the terms of Article 51 (c) of the Indian Constitution.
The adjustment of our municipal Constitutions to the new reality of
international law is a great challenge before all lawyers of the common law
world today.89 This is a further reason for proceeding to a new edition of
Seervai's text so that the new generations of Indian judges, advocates and
students can continue to read its pages with timely instruction and be brought
up to date with great new movements that stimulate and influence
contemporary public law throughout the world. The advocates and scholars
of India should urge it. The law students of India should demand it.
I am sure that if Seervai were here to read this article he would strongly
disagree with many things I have said. He would not hesitate to say so. He
would fix me with his eye, and tell me where I had got it wrong.
I know this because, as a young lawyer and judge, in 1977, I travelled
to Edinburgh. I sat in the austere Scottish hall at the plenary of 'the
Commonwealth Law' Conference. I saw Seervai mount the platform to
remind his listeners from all parts of the Commonwealth of Nations the
importance of the law officers and of their need for independence, integrity

88. See eg AI-Kateb v. Godwin (2004) 219 CLR 562 at 589 [62]; cf 617 [152]; QAAH v. Minister for
Immigration and Multicultural and Ethnic Affairs (2006) 231 ALR 340.
89. Michael Kirby, "International Law - The Impact on National Constitutions" (Grotius Lecture),
[2006] (21) American University International Law Review 327.
H.M. Seervai - His Life, Book & Legacy 23

and candour as a vital supplement to the essential qualities of the Bench and
Bar. I remember being transfixed with the capacity of this man, speaking
without notes, talking from prinCiple, examples, anecdotes and poetry in a
way that very few could do. His strong opinions came through. But so also
did his strong prinCiples.
I have been brave enough to \'\Trite in honour of one of the foremost
servants of the law of India - a fearless upholder of tlle common law tradition.
Whether I would have been so brave if Seervai had been around, I can only
leave it to the readers to imagine. Brave as a lion was Seervai. His legacy
lives on to strengthen and nurture the traditions of one of the great Benches
and Bars of the world.