BOMBAY BAR ASSOCIATION From a Sapling to a Giant Tree1

The history of modern judiciary in Bombay dates back to the establishment of the Law Courts in 1670, followed by the Mayor’s Court in 1726 and the Recorder’s Court in 1798. The Supreme Court of Bombay was set up on 8th May 1824, which functioned till 1862, when the Bombay High Court was established under Letters Patent issued by the Queen under the authorisation issued by the British Parliament under the Indian High Courts Act 1861.

SOWING THE SEED A Bar of practising barristers started evolving with the establishment of the Recorder’s Court in 1798. The first Advocate General was appointed in 1807. The Supreme Court of Bombay was inaugurated on 8th May 1824 (Saturday), with the swearing in of the Chief Justice and one Puisne Judge. Four barristers and the Advocate General were sworn in as practitioners of the new court on 10th May 1824 (Monday). On the issue of the right of preferential audience to the Advocate General, arguments were heard by the Supreme Court and it ruled in favour of the Advocate General as the leader of the Bar. Thus, the Bombay Bar started functioning with five members including the Advocate General, who presided over the Bar.2 The practice of the Advocate General being the President of the Bombay Bar Association continued until 1973. The Bar at the Supreme Court of Bombay came to be referred to as the ‘Bombay Bar’. It eventually came to be called as the ‘Bombay Bar Association’ (BBA) in or around 1920—an association of lawyers practising at the Supreme Court of Bombay and later on the Original Side of the Bombay High Court—since, by then, the Pleaders’/Vakils’ Association had started functioning on the Appellate Side. The phrase ‘Bombay Bar’ was virtually synonymous with the Bar at the Supreme Court of Bombay and the Original Side of the Bombay High Court. The members were also referred as belonging to Bombay Bar not only in law reports but also in club memberships, newspapers, passenger manifest of arriving and departing ships, etc. The BBA was to become synonymous with the evolution of the law in this country, both ordinary as well as Constitutional. The inextricable intertwining of the institution’s history with that of the administration of justice in the country makes BBA an integral part of the nation’s history. Since BBA records are available from 22nd January 1866, this year commemorates 150 years of the Association’s recorded history. The BBA originally held its meetings at a place called the Clerk of Crown’s Room in the High Court.3 The members present for the meeting on 22nd January 1866 included the President Taylor, then Advocate General L H Bayley4, and thirteen barristers. Between 1862 and 1878, the Original Side of the High Court was located at the Great Western Hotel (earlier, Hornby House) at Apollo Street, from where the BBA functioned. It moved to the Bombay High Court building, after this building was inaugurated in 1878. BBA had several rooms in the courts as barristers’ rooms. Room No. 70 was later allotted as Common Room and BBA shifted to present premises (Room No. 57) in or around 1943.

BRANCHING OUT The members of BBA have always been known for industry, hard work, thoroughness, meticulous research, and complete professionalism. During the span of sixty seven years that the Supreme Court of India has functioned, eight BBA members have become Chief Justices of India, nineteen have become Supreme Court Judges, seven have been Attorneys General for India, and 8 have become Solicitors General of India—no other Bar Association in the legal history of the world can, with pride, claim such huge achievements. The timespan, during which the Chief Justices and the Law Officers adorned those offices, will clearly demonstrate the

enormity of the impact these persons have had on the functioning of the Supreme Court. This credit can be legitimately claimed by the BBA. As far as the Bombay High Court is concerned, the BBA has provided over hundred Judges, since the beginning, and seven Chief Justices from 1947 onwards. BBA has also provided the first six Chief Justices of the Gujarat High Court, along with several judges and, of course, the first Advocate General of Gujarat who held that office for a record of forty years, from 1960 onwards. Dorabji Nusserwanji Bahadurji was the first Indian Advocate General, although he was only an Acting Advocate General. The first Indian to get permanent appointment as Advocate General was Sir Jamshedji B Kanga in 1923. BBA members have uninterruptedly been Advocates General ever since beginning of the High Court till 1973 or rather Advocates General were the President of BBA. The BBA has produced distinguished legal luminaries who have held historic positions: • First Chief Justice of Supreme Court of India – Harilal Kania • First Indian Chief Justice of Bombay High Court – M C Chagla • First Attorney General for India – M C Setalvad • First Solicitor General of India – C K Daphtary • First Advocate General of Province of Bombay in Bombay High Court (1862) – Sir M Westropp • First Indian Advocate General of Bombay – Sir Jamshedji Kanga • First Advocate General of State of Bombay (post-Independence) – C K Daphtary • First Advocate General of State of Maharashtra – H M Seervai (13 Years) • First Lady Lawyer of Bombay High Court – Cornelia Sorabji • First Lady Barrister – Mithan Tata (Lam) • First Lady Judge and Chief Justice of Bombay High Court –Sujata Manohar • First Lady Law-officer of India – Indira Jaising (Additional Solicitor General) • First Lady Senior Advocate – Sohini Nanavati • First Advocate General of State of Gujarat – J M Thakore • First Chief Justice of Gujarat High Court – Sunderlal Trikamlal Desai The first lady advocate in India, Cornelia Sorabji, had graduated from Bombay University in 1893, but she was not allowed to practise initially, and she took up employment. Subsequently, she joined Lincoln’s Inn, became a barrister in 1923, and came to practise at the Bombay High Court. She was admitted by the Chief Justice Sir Norman C Macleod and was sworn in before Justice Dinshah F Mulla on Friday, 25th January 1924.5 The first Indian lady barrister Mithan Ardeshir Bejonji Tata was the first and, for a long time, the only lady advocate practising in Bombay. The entry of the first lady lawyer at the Bar was a momentous occasion. The Times of India hailed the event and said it was quite appropriate that the first lady lawyer of India should be a Parsi lady of Bombay, since Bombay was “urbs prima in India” and the Parsis claimed to be “communitas prima in India”.6 The legal luminaries who have been BBA members, in addition to their positions at the High-Court level, have also made a significant impact at the national level. While this list is too enormous to be compiled, a few names must be mentioned: • • •

A A Peerbhoy A S R Chari Atul Setalvad

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

• • • • •

Bhulabhai Desai C J Shah C K Daphtary Dileep Dalal Dr B R Ambedkar Farokh N Kaka F D Damania F J Taleyarkhan Freny H Ponda G A Thakker G N Joshi G S Jetley H D Banaji Hemendra Shah H M Seervai Hotchand Advani J C Bhatt J I Mehta K A Somjee Karl Khandalavala Kharshedji Bhabha K K Singhvi K M Desai K S Cooper K S Shavaksha Kusum Hariani Lalit Chari Mahatma Gandhi Mahendra H Shah Manek Jhaveri M B Kadam Motilal Setalvad M P Amin M P Laud Muhammad Ali Jinnah Marzban Mistree Navnit A Shah Nani Palkhivala P B Vachha Pherozeshah Mehta Porus Mehta P P Khambatta Purshottam Trikamdas Rajni Patel Reginald Mathalone R J Joshi Rustom Kolah Sardar Vallabhbhai Patel7 Servilus Baptista S H Doctor Shankarbhai Thakore Sir Chimanlal Setalvad Sir D F Mulla

• • • • • • •

•

Sir Jamshedji Kanga Sir Nusserwanji Engineer Sohini Nanavati S P Mehta S V Gupte Tehemtan N Daruwalla Vithalbhai Patel7 Y B Rege

This list is not exhaustive and, of course, does not include the living legends of the Bar who are practising. BBA members have also made a mark in political, social, and cultural spheres. B G Kher, the solicitor, became the Chief Minister of Bombay. Bhulabhai Desai, one of the prominent freedom fighters involved in India’s struggle for Independence, defended Netaji Subhash Chandra Bose and others in the Indian National Army trial in Delhi. He was assisted by Pandit Jawaharlal Nehru and Asaf Ali among others. Before he delved into active politics, he had the largest practice (1905 onwards). An advocate on the Original Side at the Bombay Bar, he was one of the four very successful Indian lawyers amongst the English barristers. He worked as an Advocate General for a short time in 1926. Dhirajlal Bhulabhai Desai served as the Minister of State (Ambassador) to Switzerland and Austria. Dr B R Ambedkar, the architect of the Indian Constitution, after completing his Bar-at-Law, practised at the Bombay Bar of the High Court for a few years. He later dedicated himself fully to legal education, social service, and politics. Dr K M Munshi, a great philosopher and thinker, was also the founder of the renowned institution, Bharatiya Vidya Bhavan. He was the Home Minister of Bombay from 1937 to 1940. While in practice, he was an active member of the Bar and took keen interest in the activities of the Bar Association, particularly those relating to law reforms. Mahommedali Currim Chagla (1947–1958) was the High Commissioner of India at UK and later Ambassador to USA. He was also the Union Education Minister. A barrister from the Inner Temple, he joined the Bombay Bar in 1922 and chambered with M A Jinnah for some time. He was an active member of the Bar and served as the Honorary Secretary of the Bombay Bar Council for eight years as well. He became a judge of the Bombay High Court at the young age of 41 and Chief Justice at the age of 47—the first Indian Chief Justice of the Bombay High Court, having been appointed so at the stroke of midnight on 14th August 1947. He held this office till 1958. Mangaldas M Pakvasa was appointed as the Governor of the Central Provinces after Independence. Marzban Patrawalla and B A Desai were both members of the Legislative Assembly and the Maharashtra State Cabinet. Mohandas Karamchand Gandhi (later popularly called Mahatma Gandhi and referred to as the ‘Father of the Nation’) came to Bombay after completing his Bar-at-Law and joined the Bombay Bar. He, however, did not practise in India for long. On his demise, glowing tributes were paid by the Bombay Bar at a condolence meeting held. Muhammad Ali Jinnah, one of the tallest legal practitioners Bombay Bar has ever seen, amassed a huge practice in over thirty years. Chief Justice M C Chagla chambered with him. Jinnah had defended Lokmanya

Tilak in his second trial. Before the issue of a separate ballot on a religious basis came up, he was reckoned to be one of the independent, secular, and objective political leaders. Nani Palkhivala, one of the most impressive Constitutional lawyers this country has seen, comes from a humble background. Having begun his practice in taxation and later Constitutional law, he rose to become one of the stalwarts in Constitutional jurisprudence. In the annals of Constitutional history, he is reckoned as the person who saved Indian democracy and the Constitution from the onslaught of non-democratic forces. His arguments in the Kesavananda Bharati case evolved the doctrine of ‘basic structure’, which he successfully reiterated and reargued in the Minerva Mills case. His budget speeches for over 36 years have become legendary, so much so that a unique tribute referred to him as “the ablest Finance Minister which India never had”. He was India’s Ambassador to USA (1977–79). Pherozeshah Merwanjee Mehta was the founder member of the Indian National Congress (1885) in Bombay. As a practitioner at the Bombay Bar, he had a large commercial practice. He is also regarded as the ‘Father of the Municipal Corporation of Greater Mumbai’ for having been instrumental in the framing of the Bombay Municipal Corporation Act 1888. Rajni Patel, a Bombay Bar practitioner, was an active member of the All India Congress and a Parliamentarian too. Sardar Vallabhbhai Patel returned to India after becoming a barrister. Although he joined the Bombay Bar, he did not practise for long. He plunged into active politics after the Bardoli agitation and went on to be reckoned as the ‘Iron Man of India’. The credit for the inauguration of the Indian States truly goes to Sardar Patel. Shantilal Shah, the Bombay solicitor, held ministerial offices in the Bombay Government. S R Tendolkar, an active member of the Bombay Bar, was at the forefront of all the activities of the Bar Association, particularly those concerning the Draft Bills that came to the Association for discussion. He became a judge at the Bombay High Court in early 1940. Anecdotes of the Bench of Chagla and Tendolkar, relating to commercial and tax matters, are recounted till date. Vithalbhai Patel, like his famous brother, also returned to India after becoming a barrister and joined the Bombay Bar. Apart from practising law, he was also involved in social work and politics in Bombay. The BBA management also, on occasions, has virtually been made up of the who’s who of the Bar and Bench of the future. The Standing Committee for the year 1974 included Mahendra H Shah, Ashok Desai, Sujata Manohar, B R Zaiwalla, I M Chagla, K S Cooper, A B Divan, J I Mehta, Ashok Mody, G A Thakker, S P Bharucha, R L Dalal, S D Parekh, Hemendra Shah, S H Doctor, and R A Kapadia. This is in addition to the Advocate General being its ex officio President till 1973 since beginning.

DEEPENING ROOTS The history of the BBA, has not always been hunky-dory. But, its members have always stood rock solid behind the judiciary during turmoil both within the judiciary in particular and in society and politics in general. In 1975, during the proclamation of Emergency, BBA and its members stood firmly behind the political detenus to fight habeas corpus petitions, not only in this court, but other High Courts as well as in the Supreme Court of India. The members of BBA were in the frontline for the defence of detenus, despite being under a threat of their own detention. BBA has also been at the forefront, protecting freedom of speech and expression and freedom to assemble peaceably without arms. BBA, during the Emergency (21st January 1976) and thereafter, strongly protested against the punitive transfer of judges. One of the judges transferred during emergency was Justice J R Vimadalal. BBA also protested against the supersession of Supreme Court judges.

In 1980, there was a serious attack on the independence of judiciary. A circular was issued requiring the judges of the High Courts to give an undertaking that they would agree to be transferred to any other High Court in the country and unless the undertakings were given, judges were not made permanent. A writ petition under Article 32 of the Constitution was filed by BBA member Iqbal Chagla in the Supreme Court, challenging the action of the Government of India, which eventually resulted in what is popularly known as the First Judges’ case.8 BBA also stood firm during some turmoil relating to judicial aberrations. They were actively and effectively dealt with. There were issues relating to the lack of integrity amongst the judges of this court. A strong resolution was passed in early 1990 against four judges of the Bombay High Court, requesting the then Honorable Chief Justice not to assign any judicial work to those four judges and resolving to abstain from those court proceedings presided over by them. This resolution was effectively implemented and an operation of weeding out corruption in the judiciary was successfully completed. A similar resolution was passed on 1st March 1995 against was passed on 1st March 1995 against a Chief Justice of the Bombay High Court, who had been transferred from outside the State and against whom a majority of 185 out of 207 permanent members had made serious allegations of lack of integrity and demanded his resignation. The Bar Association played a pivotal role in enforcing the said resolution, which resulted in the resignation of the concerned Chief Justice.

GROWING TALL The BBA’s well-preserved records, including the minutes of the Standing Committee and Annual General meetings, are a wealth of history, information, and interesting anecdotes. On 10th January 1946, the Committee resolved to combine the felicitation dinner of Bhulabhai Desai with the annual dinner, so as to comply with the rationing order. In 1987, an Act was passed by the State Legislature9 for the transfer of the Original Jurisdiction of this Court as well as the abolition of letters patent appeals. Thereafter, a proposal for increasing the pecuniary jurisdiction of the City Civil Court was worked out. The City Civil Court Act was again amended by Maharashtra Act No. XXV of 2012 called The Bombay City Civil Court (Amendment) Act 2012 and except suits of claims above Rs 1 crore, Intellectual Property rights suits, Parsi matrimonial cases, testamentary proceedings, etc., all other Original Civil Suits were transferred to the City Civil Courts.

BEARING FRUIT Bombay is the commercial capital of India. The commerce and industry in this metropolis is enormous and its problems are complicated and unique. The nature of commercial transactions does need special attention, which is provided by the Ordinary Original Civil Jurisdiction of this court. It is indeed an appropriate acknowledgement of the importance of Original Side and BBA, which has now been received in this 150th year in the nature of an Act passed by the Parliament known as “The Commercial Courts, Commercial Division, and Commercial Appellate Division of High Court Act 2015”. This is a tribute to the Original Side of the Bombay High Court and the BBA. Glowing tributes were paid to the Bombay Bar by the then Chief Justice C K Thakkar10 in the following words in 2003, when the book The Bombay High Court: The Story of the Building – 1878–2003 was released. “As much as the judges, it is the Bombay Bar that has given the Bombay High Court its unique culture and reputation. This is a Bar that is fiercely—even frighteningly—independent. It is unforgiving of moral and legal transgression amongst itself and its judges and yet, strangely is a gentle Bar that adopts as its own every judge who sits here. It can be disconcertingly informal, yet is unfailingly courteous. There is much laughter and enjoyment of work and life in these walls (even engraved on its walls), and an astonishing spirit of camaraderie prevails in its precincts: judges, lawyers, and administrative staff, all work together with enormous goodwill.”

We are ready to face challenges arising out of mounting arrears,the lack of infrastructure, globalisation, and all other issues. In this special year, we are rededicating ourselves to the cause of the administration of justice and maintaining the Rule of Law, and for providing effective, speedy, and affordable justice to litigants. We look forward to undertaking a large number of activities for enhancing the functioning of this court that will eventually make the Bombay High Court a role model institution and attain its objective for which it is established—dispensing justice for a commoner. That is our goal.

REFERENCES 1. By Dr Milind Sathe, President – Bombay Bar Association, (based on the address given at the inaugural function on 22nd January 2016). 2. The Asiatic Journal and Monthly Miscellany – Vol. 18, July to December 1824. 3. Forty Years Reminiscences of the High Court of Judicature at Bombay by Ardeshir Jamshedji Chanji Mistry; page 56. 4. The Story of the High Court of Judicature at Bombay – B N Gokhale (1963); page 5. 5. Forty Years Reminiscences of the High Court of Judicature at Bombay by Ardeshir Jamshedji Chanji Mistry; page 44. 6. Famous Judges – P B Vachha. 7. Bombay Law Reporter – Vol 64, page 56. 8. SP Gupta v. Union of India, AIR 1982 SC 149/1981 Supp. SCC 87. 9. The Bombay City Civil Court and Bombay Court of Small Causes (Enhancement of Preliminary Jurisdiction and Amendment) Act 1986 (Maharashtra Act No. 15 of 1987) and received assent of the President on 04.05.1987. 10. The Bombay High Court: The Story of the Building 1878–2003; page 6.