For Soli Sorabjee, who began his legal practice in 1953, it is no wonder that his professional achievements over the years were a reflection of his contribution to the quality of India’s democratic life, as articulated in its court rooms.
Landmark judgments owe their debt not just to their author judges, but to the countless unsung senior lawyers who argued before them using their skills which they learnt from the profession: perception of legal principles, close train of logic and command over language and eloquence. It is the legal debates in the courtrooms which refine the judges’ thoughts and help in the development of law.
Sorabjee was the Attorney General for India twice – first from 1989 to 1990 and again from 1998 to 2004. But his contribution to the evolution of India’s democracy can be gleaned only from the innumerous judgments which sum up his arguments in cases in which he appeared and argued before the judges.
It is true that all lawyers tend to be client-centric. Soli Sorabjee was no different from others in that he argued what was best for his clients; but the respect which he earned from those who practised the profession, and the litigants stemmed from his legal principles, whether or not they formed the basis of the judgments, which resolved the disputes before the courts.
Take the basic structure doctrine, as evolved by the Supreme Court in the Kesavananda Bharati case. To him, the decision in this case might not be justifiable on sound juristic basis. But Sorabjee was clear that every country has to work out its constitutional salvation taking into account its peculiar problems and specific needs. Therefore, he believed that thanks to the doctrine, no party having absolute majority in either House of Parliament can effect a constitutional amendment which would make India a theocratic State by providing that members of certain communities or religion alone can hold the office of president, vice-president, prime minister and the Chief Justice of India.
He was also categorical that thanks to the doctrine, provisions for free and fair elections cannot be repealed from the constitution, nor can the constitution be amended to the effect that elections would take place if and when parliament determines instead of every five years. To this, he also added that judiciary cannot be deprived of the power of judicial review, nor can the rule of law be abrogated. Sorabjee was of the firm view that federalism cannot be obliterated and states cannot be made vassals of the Centre. “In the Indian context and experience, these are tangible and substantial gains resulting from the basic structure doctrine and a bulwark against further erosion of basic fundamental rights,” Sorabjee said once.
The respect Sorabjee earned for his contribution to the working of Indian constitution also stems from his off-the-court interventions in terms of erudite columns to newspapers. In these, he simplified complex questions concerning constitution and law in layman’s terms. Thus, judicial activism, to him, denotes a judiciary in which judges discharge their functions in a vigorous and decisive manner to achieve an end. This ‘end’, according to him, is dispensing justice with a view to righting wrongs, enlarging and protecting the human rights of our people and fashioning effective remedies. Another instance of judicial activism, he suggested, is the rule about giving reasons for a decision even when the statute does not expressly so provide. This rule, he believed, promotes good governance and fair administration by ensuring transparency and openness in decision-making.
Sorabjee was convinced that Supreme Court can deduce fundamental rights, even if they are not expressly mentioned. Freedom of the press, right to privacy, right to travel abroad, right to education, freedom from cruel and inhuman punishment or treatment are all such rights which enlarge fundamental rights of our people, and a result of activist judicial approach, he once explained.
Sorabjee invited criticism from civil society for advising the Indian government as the AG against seeking the extradition of the former chairman of the Union Carbide Corporation (UCC), the late Warren Anderson, from the United States in connection with his trial in the Bhopal gas leak disaster case. Sorabjee had defended the cause of the gas victims before the 1989 settlement was reached under the Supreme Court’s supervision, clinching the measly $470 million package as compensation.
Later, as AG, he supported a review by the court of the 1989 settlement, and succeeded in persuading it to reinstate the criminal charges against the accused, which included Anderson, and which were sought to be extinguished by the settlement. Sorabjee advised the then Atal Bihari Vajpayee government at the Centre not to pursue the extradition proceedings against Anderson because they were unlikely to succeed. The inordinate delay in seeking Anderson’s extradition, and his advancing age raising a humanitarian concern, were cited as grounds against pursuing extradition by Sorabjee.
Sorabjee also felt that it would be futile to seek someone’s extradition without first obtaining some prima facie evidence that he might be guilty. In an interview to this writer, Sorabjee candidly admitted that his opinion did not prevent the Centre from going ahead with the extradition proceedings, if it wanted to. “Maybe I could have stopped saying that proceedings for his extradition are not likely to succeed. I need not have said that the same may not be pursued. That might have satisfied the victims,” he responded, when I persistently asked him how evidentiary links be furnished unless the Union Carbide Corporation, which Anderson headed, allowed access to its records in the US. That was quintessential Sorabjee: an intellectual giant, and an honest lawyer, deeply sensitive to the concerns of the common man.
Sorabjee’s contribution to Supreme Court’s jurisprudence will long be remembered especially in cases like police reform (Prakash Singh vs Union of India), and imposition of president’s rule (S.R. Bommai vs Union of India), in which he strove to use constitutional principles to resolve contemporary problems of politics and governance.