27 July 2010

That Oceanic Feeling: Atul M Setalvad

(25 October 1933--22 July 2010)

by

Gautam Patel

 

Early that July morning, as the dawn broke over a tumultuous sea, a life faded as it had lived: without complaint or fuss, with quiet dignity. For the many of us who were privileged to be of his world, Atul Setalvad's passing is a loss as immeasurable as the ocean, and as profound.

* * *

Of course he was an extraordinary lawyer. He was, after all, born to the law, the third in direct succession of a line of great lawyers. But in a field crowded with exceptional legal minds, what is it that made him stand out? The answers are so many that even those who knew him for a very long time would have great difficulty in pointing to any one thing. Some might tell of his exceptional drafting, others about the speed and accuracy of his reading and analysis, someone else about his unflinching commitment to a cause, his unassuming and self-deprecating manner, the excruciatingly high ethical standards he set for himself. All of these are true and still the man was greater than their sum.

Take his drafting. Junior lawyers today would be forever indebted to anyone who puts together a compilation of Atul's drafts. Those who have seen plaints or petitions he drafted -- and even more so those who, years later, have had the privilege of arguing them -- say they are models to emulate. The writing is spare, with not a surplus word. There is no prolixity. It is entirely precise, without embellishment or flourish. The language never intrudes. This is drafting in the classical mould, lean, tough and uncompromising -- what drafting should be, but seldom is. Above all, there is complete clarity. A discerning lawyer reads the draft wistfully and sends up a prayer: please, let me be able to draft like this.

The best drafting often comes from the best readers, and Atul was no exception. The clarity of his drafting reflected both his mind and his reading. He read at terrifying speed. Given a complex judgement or section, something that had taken hours to dissect and he read it in a few minutes. That's impossible, you said to yourself. Nobody can read that fast. And yet, he had. He had read it, absorbed it and had it all laid out in his mind with the greatest precision.

Years ago, I walked into his chambers at Pherozshah Mehta Road one morning. I'd just dropped in for a chat -- he seemed to enjoy that kind of thing -- to ask if he'd found anything of interest recently at Strand Book Stall. He was hunched over, his face very close to the desk, peering through his pebble-thick glasses at a bare act. At last he sighed and looked up, sat back in his wooden chair.

"Income tax," he said. "I'm a complete stranger to this part of it."

I knew this to be entirely untrue.

"It's very complicated," I said helpfully.

"Rubbish," he snapped. "On the contrary. It's relentlessly logical. Read this."

He spun the bare act around at me. It was some four-digit, five-alphabet brinjal of a section cross-linked to a dozen others, stuffed with provisos. I went glassy eyed in seconds.

"It's really so simple," he said. "Look, follow this."

In the next few minutes he explained it with the assured ease and effortlessness of someone who'd been reading it all his life. And it was something he hadn't read ever till just a few minutes earlier.

* * *

He was, almost to the end and till his mind and body kept him away, that finest of readers: fast, attentive, discerning and catholic. He didn't so much seem to read books as to inhale them. His reading was well beyond the law, though there was plenty of that. He preferred non-fiction, devouring biographies and thick tomes on contemporary history -- David Remnick's new biography of Obama was on his desk just a couple of months ago. He also loved a certain type of thriller or detective novel, and had an unlikely partiality to the horse racing novels by Dick Francis (no doubt he'd have said "they're not horse racing; they're about steeple chasing"). He was delighted to find that I shared his fondness for these novels. For many years we each tried to outdo the other in seeing who could get the latest Dick Francis -- he published one a year, usually around September or October -- and we'd always buy two copies: one for ourselves and one for the other. He was quicker on the draw than I: our head-to-head record is roughly 7 to 2, in his favour.

* * *

Professions are most vicious to their own, and ours is no exception. There are many who will speak only of his legendary temper; yes, he sometimes showed a jagged side. But those who recall only this of him never knew or saw or understood -- or perhaps did not want to -- that this was a man utterly without malice and possessed of an uncommonly large heart. In some ways his world was unreasonably black or white. If you were on the wrong side, you were merely part of the furniture. On his right side was another world, of easy communication, ready assistance, much joking and self-deprecating humour, a world of grace and graciousness. He handwrote a note to me years ago after I once reviewed a book of his for the Bar Association website. He thanked me and, typically, said it was undeserved praise. He had no reason to write that note, nor did I expect it, but the fact that he took the trouble to write it at all said everything.

The attorneys who briefed him regularly were devoted to him. They simply refused to look elsewhere, at least for a certain type of case. He challenged them intellectually and enjoyed the collisions of thought and analysis. Conferences were a dream. Where others might deride or be condescending, he treated even a rank junior as a peer, listening with respect, never criticising or talking down. He expected you to be prepared, and wouldn't waste a minute if he detected you weren't; but if you'd worked your brief, you left the conference brimming with confidence.

* * *

Rare among busy lawyers, he was also a scholar. Few knew of his academic accomplishments which alone mark him out. He was a Bar-at-Law, and also had an Ll.M; but he also had a Ph.D. in, of all things, airspace law, a subject which, if it is rare today, was probably even more uncommon then. He edited Mulla's commentaries on the Stamp Act and the Transfer of Property Act. He wore his successes lightly and treated them with something approaching disdain: no "Dr" appeared on his letterhead, ever.

More recently, he returned to scholarship with something approaching a fever. In less than three years, he produced four or five separate commentaries and books on topics as diverse as a general "Introduction to Law" for students (something to be recommended to every intern and freshly minted graduate); a book on Conflict of Laws; another on Trusts and Charities (the introduction to which alone is a masterpiece); and, most lately, one on Sales Tax and VAT. In addition he contributed wrote the volume on Contract for Halsbury's Laws of India. He had no use for praise for his work, but was delighted if someone caught a mistake in a book, and he shared our horror of publishers who decide that an index is too much trouble and so deal with it by eliminating it altogether. He wouldn't have that, and sedulously prepared an index himself when he could.

* * *

His advocacy was like his drafting. He hated repetition and could not abide long-winded circumlocutions. He would develop his argument and state his point and leave it at that, assuming -- often justifiably, sometimes markedly less so -- that the judge was bright enough to follow his thread.

He had an enormous practice in the constitutional courts, in indirect tax matters, before tribunals and in arbitration. As juniors to HM Seervai, for over ten years he and Tehmtan Andhyarujina represented the State Government. Years later, caught in a crisis, the Government turned to him again, first to lead the team for the Appropriate Authority under the Income Tax Act in their battle to break the black-money real-estate cartels and, later, as lead counsel for the Custodian in the Special Court trying the securities scam matter.

But there was another area of practice, too, one I believe he valued above all else. He was, arguably, the first senior to commit himself consistently to a cause, to PIL work; not the stray brief every now and then, but on an ongoing basis; and to do so at the cost of other paid work -- not just refusing a conflicting brief, but actually refusing a brief that conflicted with the cause he had chosen to represent.

Some time in late 1984 or early 1985, Shyam Chainani and the Bombay Environmental Action Group filed several public interest litigations in Bombay. These were directed against a raft of illegal constructions coming up in south Bombay, where the permissible FSI was being fudged. A series of articles in the Indian Express exposed the scam. The petitions were based on those articles. They were drafted by Navroz Seervai and settled by Atul. The Solicitor on record was Dharmasukh Nanavati, with whom I was then working while still in law college. Dharmasukh's instructions to me were simple: "You handle it."

A great learning experience to be sure, but really scary stuff for someone who had no idea what a Prothonotary looked like and had yet to figure out that a praecipe has nothing to do with dinner. Week after week I sloped off to Atul's chambers in the High Court Annexe. At one desk to the left was Raman Joshi, stooped over his papers. To the right of the door was C. J. Shah's desk and, along the far wall, sat Mohan Korde and Firdauz Talyerkhan.

Atul's desk was right opposite the door. We clustered around it: Navroz, perhaps Rajni, and I a little further back and to one side. And, of course, Shyam Chainani with his tattered cloth jhola stuffed with files, a lined writing pad on an ancient clipboard, carbon paper so that he had two copies of all his notes, a brace of cheap blue ballpoint pens, a schoolboy's water bottle that he hooked over the back of his chair and, incredibly, a toothbrush in his breast pocket.

Atul glared at aforesaid toothbrush, harrumphed loudly and then began stuffing tobacco from a grubby pouch into his battered pipe. Firing it up with a match, he puffed a bit to get it going and, once it was billowing clouds of smoke to his satisfaction, set to work. His broad-nib pen poised over a crisp sheet, he said something like, "All right, Navroz, three authorities on locus please." Navroz would scratch his beard (fortunately a thing of the past) and then rattle off cases with complete citations. Being Navroz, he also launched into a discussion of each, but Atul wasn't having any of that. "Yes, yes, we know all that," he'd snap (though all of us clearly did not). "Come on, next point."

He led the charge in every one of those matters, appearing free but also ensuring that they had the highest priority above all other work. Navroz Seervai, Rajni Iyer, Zia Mody, Shyam Divan and, a few years later, Shiraz Rustomjee and I were all privileged to be part of that team. In matter after matter, he got interim orders and, years later, final orders that everyone said were impossible. Buildings were actually brought down.

His commitment to the BEAG continued down the years. Whenever we needed an opinion or a conference on an interpretation, help with strategy or preparing a draft of a notification for submission to government, Atul was our port of call. His commitment was fierce and uncompromising, but it was not indiscriminate. Where he saw the things that most mattered to him -- integrity, personal and professional, fidelity to the cause and courage -- there Atul stepped up to the plate. In Chainani and the BEAG, he had all these in ample measure, and never thought twice.

* * *

Atul and Chainani are also responsible for my first solo appearance in the Supreme Court in a final hearing. He and I were in Delhi for the BEAG on the Dahanu BSES (now Reliance) thermal power plant. Raian Karanjawala was our Advocate on Record. We waited a day; the matter reached just before four and the judges said they would hear it the next day. Atul abruptly announced he had to return to Bombay that evening. "You argue it," he said, and that was that.

I was terrified. Raian did what he does best, and like no one else, somehow kept the ship afloat. But for me it was a very, very long and very, very sleepless night.

Early the next morning, the day of the matter, I telephoned Atul at home. I was groggy and, I suspect, babbling incoherently. Before I could get very far, he said, "Don't worry. Just make your points. You know the material. Just make the point and sit down. It's a court, and it will hear you. And you'll be looked after. Ashok and Tehmtan are there."

"But they're for the other side!" I said.

"No they are not," he said. "They may be appearing for the respondents but they are from our side, Bombay, the Original Side. Don't forget that. They'll protect you."

"Why would they do that?"

"Because, dear boy, that's what seniors do."

He was right. In court, Gopal Subramaniam led for a linked petition, and then just when it was my turn, and as I fought back that sickening feeling of terror and tried to stop my legs from trembling, Ashokbhai on the other side leaned across and said, "Go on. Do your best and don't worry. Tehmtan and I are here. Atul must have told you that." And, being Ashokbhai, a man soaked in philosophical wisdom, added enigmatically, "Remember, everything happens for a reason."

To this day, I do not know why Atul left Delhi the day before the matter. He hadn't said he had another matter; he just said he had to go. I once made the mistake of gently asking him. He shrugged, visibly embarrassed. I said it was a great opportunity.

"We got an order, didn't we?" he said and then, to my great delight, added, "now stop being stupid and wasting my time." Knowing Atul, that waspishness was a charade; beneath it lay real affection.

* * *

That largeness of spirit, breadth of mind and boundless kindness were heaped on all of whom he was fond, whether or not from his Chambers. His juniors were always his friends and equals. The chambers revelled in irreverence. For someone new to this world, this was often disconcerting; it seemed to border on rank insolence. The Setalvad chamber called it "democracy". Far from being offended, Atul seemed to enjoy it and encouraged it. The banter was incessant, always very clever and witty and, like him, without malice. Juniors teased him constantly. He was unassuming and self-deprecating to a fault; he swatted aside any compliments or praise as idle prattle -- which did not, of course, in the least perturb his juniors who cheerfully announced that he was entitled to his opinion however wrong, and so what if he was a senior.

This indelible memory: one afternoon I walk into his chambers for a conference. There's a full-blown typhoon going, with Farhad, Gaurav and Shiraz all picking mercilessly on Atul. A few minutes in, I figure it's over something completely trivial but which, at that moment, has assumed mammoth proportions. Darius Shroff and Atul Rajadhyaksha helpfully contribute to the general mayhem. Finally, Atul turns to the lean, elegant and preternaturally quiet Mohan Korde for a decision. Mohan looks up slowly, breaks into his small smile, his eyes sparkling and, to everybody's unbridled glee, softly weighs in with the juniors against his senior. Atul pretends to grumble, says we are all idiots and starts stoking up his pipe. Everybody is laughing by now, and Atul can't help but join in, his shoulders heaving.

* * *

There was another side to him, one that was never trundled into view but one that most set him apart. Justice, democracy, freedom and secularism were, for Atul, not just cold words in the Constitution. They were not even mere concepts or ideas. For a man singularly without religion, these were matters of faith. He never voiced it, but at his core was an unshakeable certainty that these are essential matters, which it is our duty to fight for, protect and defend with every breath; for if we do not, then, as a country and as a people, we are lost. This is his legacy: the vision of a truly just and humane society, one based on tolerance, understanding, learning and kindness to fellow beings, of moral and ethical social order.

To the many who combat communalism, to those who fight against corruption, injustice and the constant intrusion of the state into personal liberties, to those who take up for the helpless, to those who stood up for justice, equality and liberty, Atul provide anchorage. He advised, he guided, he supported, he lent his formidable skills. For over 15 years, Atul's daughter, Teesta, has faced the most terrible odds in her fight against communalism. She has many supporters and friends in her battles but none has ever been a greater source of strength and inspiration than her father. Everyone who has ever appeared for Teesta, whether in Gujarat or in Delhi, will attest to this: that in every single matter, Atul's hand was on our shoulders. Atul had many children; Teesta and her sister Amu are just the two luckiest.

* * *

He was happiest surrounded by his books, his juniors, his family and friends, gurgling with pleasure at the good-natured teasing, quietly exulting in the many successes of his juniors. This was a life lived quietly, in thoughtful and reflective shade, a life of law, learning and justice, an unassuming life with no place for the pomp and ostentation that so many today mistake for achievement. He enjoyed travelling on work but did so without ostentation or frippery. In his shirtsleeves, he'd amble into his preferred hotel in Delhi, the Oberoi. It was, he explained, the only sensible hotel with a desk in the room at which he could work (the others caught on only much later) and he appreciated its high standards of maintenance and efficiency and, above all, the way the staff left you alone till you needed them. That was the kind of thing that appealed to him: sensible things, and being left alone.

He never preached his standards, nor sought to impose them on others. He merely held himself to them with rigid inflexibility, never mind that they were dauntingly high. His fees, for instance, were not just modest. They were absurdly low. Juniors were known to whine. "You mark what you like," he'd say. "I mark what I'm comfortable marking."

If a testimonial to Atul as a senior is needed, then perhaps it is this: today, of all the chambers in Bombay, his Chamber is the one with the most designated seniors -- as many as four of his juniors are on the senior list, and two more should join those ranks very soon. No senior could ask for more. To those of us who knew him, at every level, he was a mentor, a guide, a steadying hand; all those things and something more besides: a friend like no other.

Our grief in not having him among us is boundless. But so too is our joy in having known this rarest of men, one who demanded nothing but gave without measure. To know him was to experience the sensation of an indissoluble bond, an enveloping wholeness; that feeling of immersion that can only be called oceanic.

His passing is not just one life's end. It is the end of an epoch.

* * *

I visited him a few weeks ago one weekday morning. The house at Juhu was very quiet. Set between the greenery of an exuberant garden on one side and the steady sea on the other, it is a marvellous space, as close as it is possible in this city to be united with the elements. The house is simple, without ostentation. To one side of the entrance hallway is his study, a wonderful light and book-filled room overlooking the seashore. There is calmness in that space, something pure and unsullied and uncorrupted. It is a place for study and thought and reflection, a place to write and to think, a place for discussion, a room of warmth and friendship. His study table was covered with books and papers. That morning, it was silent and empty, as if the life had been sucked out of it.

I went in to the bedroom at the far end to see him. He lay on a high hospital bed against the far wall by the window. He seemed very tired, very small, not at all like the favourite gruff uncle of memory. But the smile was still there, and there was affection in his eyes, and his fingers tightened when I took his hand in mine. He nodded once. He didn't speak. I didn't want him to. I didn't know what to say or how to say it. Words seem cold and shallow and nothing seems quite sufficient when what you really want to say is thank you for letting me into your life.

I do not want to bid him farewell. I cannot; and I am but one of many. There are words we should have said when we had the time, words that remained in unvoiced thought. So no, this is no adieu. This is merely a poor thanksgiving, till we meet again.

* * *

For Atul Setalvad

From "The Passionate Man's Pilgrimage"
by Sir Walter Raleigh

Give me my scallop-shell of quiet,
My staff of faith to walk upon
My scrip of joy, immortal diet,
My bottle of salvation,
My gown of glory, hope's true gauge
And thus I'll take my pilgrimage.

...

From thence to heaven's bribeless hall,
Where no corrupted voices brawl,
No conscience molten into gold,
Nor forged accusers bought and sold,
No cause deferred, nor vain-spent journey,
For there he is the King's attorney,
Who pleads for all without degrees
And he hath angels, but no fees.

...

Be thou my speaker, taintless pleader,
Unblotted lawyer, true proceeder;
Thou movest salvation even for alms,
Not with a bribed lawyer's palms.

 


Raising the Bar

Atul M. Setalvad was a lawyer's lawyer, committed and zealous

by Shyam Divan

(This tribute appeared in the Indian Express on 27 July 2010)

When Atul Setalvad passed away last week, the legal fraternity, particularly the Bombay High Court Bar, lost a giant whose contribution to the law was immense. An extraordinarily industrious worker, Setalvad contributed to the profession in manifold ways, spurning the limelight and fanfare that today appear an essential part of a successful litigator's accoutrements.

Setalvad built on a matchless legal pedigree and enriched the traditions of the bar as a top-flight lawyer, a concise advocate and a contributor to legal scholarship that few of his peers were able to match. The path he trod and the example he set, harked back to an earlier time when his grandfather Chimanlal Setalvad and his father Motilal ploughed their own deep furrows on the landscape of the law.

Drawing on a rich vein of traditions imbibed from the chambers of Homi Seervai, the constitutional expert, Atul Setalvad rose to become, in the early '80s, the most sought after senior advocate in the fields of administrative law, indirect taxation and wherever government action required checking by recourse to the writ jurisdiction of our high courts.

Long before environmental litigation was fashionable, Setalvad led a band of energetic young lawyers who rendered free services to the Bombay Environmental Action Group in the formative years of public interest litigation. He helped set essential benchmarks for the healthy growth of PILs: a case was never accepted unless both the cause and the person espousing it were genuine; no fees were ever charged in a PIL; once accepted, the PIL brief was invariably given a higher priority than paid briefs, lest it be said that the pro bono work suffered at the hands of a commercial assignment. Happily, many of the junior lawyers raised in the Setalvad stable and who worked with him continue this tradition in a metropolis that has few friends willing to strike a blow for orderly development.

For a lawyer who battled mostly against government, he rendered great service to the state as well. He was the lead lawyer for the custodian in the wake of the Harshad Mehta scam and built a formidable team of counsel that matched in skill and tenacity their better rewarded counterparts who appeared for an assortment of scam-tainted individuals, corporates and banks. Earlier, he led a team of advocates for the appropriate authority under the Income Tax Act and helped diminish the massive black money component that had long sullied property deals in Mumbai.

For a junior lawyer, assisting Setalvad was a delight. He treated you as an equal, acknowledging graciously the contribution made, cleaning up with his fountain pen the clutter in a verbose draft and finally projecting the client's case in court with dazzling precision. His economy of words and refusal to repeat an argument were premised on a rare regard for the ability of the judge.

Recently, Atul Setalvad revived his interest in legal writing. Early in his career, after earning a doctorate that never prefixed his name, he edited Mulla's Stamp Act and Mulla's other classic on the transfer of property. In the past decade, Setalvad wrote with characteristic polish an elegant introduction to law and textbooks on conflict of laws and the sale of goods. He wrote the authoritative volume on contract law in the Halsbury's Laws of India series. The sheer breadth of Setalvad's scholarship and his contribution to legal literature put him in a select league of practitioner-scholars who excelled at both pursuits. Reading these texts, in their fluent style, is like sitting across the table and conversing with the master.

Atul Setalvad was a lawyer's lawyer, pursuing his craft with an exemplary commitment to ethical values and showing by example that success in the field of law can be attained without compromise.

 

Gautam Patel

For the Bombay Bar Association
room no 57, 3rd floor
bombay high court
m kane marg
bombay 400032

www.bombaybar.com

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