A regular client once called me to handle a Special Leave Petition (SLP) from a Kerala High Court decision in a long-pending litigation. We were for the respondent and it was an admission hearing. This is the most pressure-free hearing one can ever hope for. The client asked me to brief Fali Nariman. Although the advocate-on-record (AOR) and I did not believe the hearing even needed a senior advocate, we didn’t want to pass up the opportunity to brief Mr Nariman. So, we agreed.
The matter was about purchase tax on rubber, turning on, like these cases tend to, a fine distinction between a “compound of rubber” and “compounded rubber”. Mr Nariman had been involved in this litigation from the Sales Tax Appellate Tribunal stage in the mid-90s (at which time I was still in Class 5). He had appeared, along with my senior Arvind Datar, in one round before the Kerala High Court, then the Supreme Court, and then in the Kerala High Court again.
I prepared for the briefing like one would do for a respondent’s brief in an SLP admission – I read the impugned order and skimmed through a couple of important papers. I was sure that was more than enough. But I didn’t account for Mr Nariman.
When we reached Mr Nariman’s office, we were told that the previous meeting would take a lot longer than expected. We waited on his lawns on what I remember was a rather pleasant early winter evening. One hour later, I saw Prannoy Roy walk down the stairs – NDTV had been handed a punishment of a one-day blackout. I didn’t feel so bad about the long wait – that was more important than “compounded rubber”.
We were asked to enter. Mr Nariman’s briefing room on the first floor of his office was like a Jackson Pollock painting. Pollock walked around his canvas throwing paint all over it; Mr Nariman seemed to have left books, case files, and assorted papers all over the room. Volumes and volumes of American Jurisprudence shared space with copies of a book he had written. There was a red plastic table lamp somewhere. There were case bundles that looked like they hadn’t been touched in years.
We were led to a circular table close to the door. Mr Nariman sat with all of us – me, the AOR, advocates from Kerala, and people from the client’s side – peering sternly at the papers through his glasses. The first thing he said when we started briefing him was, “There was this fat man in your company. This entire interpretation was his bright idea.” The case was so old that no one at the table knew who the “fat man” was.
I started with the impugned order. He stopped me and took me back to the first notice from 1994. He made us read and re-read every single notice, reply, and order. He had questions and questions for us, he made us dig out all kinds of details (a lot of which I was reading for the first time). He snapped at us often. “Quick, quick. What’s taking you so long?” “You don’t have a judgement on this point?” “Why don’t you open a book and read?” “Where does the order say that? Come on!” But his questions were sharp, his memory for things he had last probably read a decade ago was astonishing. He would make us read out the provision of law again and again until he was convinced there was no other way to read it. And, of course, every now and then, he would come back to that “fat man” whose idea it was to interpret the law this way.
At the end of the briefing, we were spent. I didn’t expect this briefing to go on for more than 15 minutes; I mean, almost no senior counsel briefing, especially for a respondent brief in an admission hearing, would take even that much time. But this went on for four hours. And he wanted us to come back to him the next evening with some answers.
The next evening’s meeting was shorter – around 45 minutes. Finally, he was satisfied and we were ready for the hearing.
The bench was headed by Justice Sikri. We were serial number 3. Mr Nariman took a seat in the front row even before the bench sat. The AOR and I stood behind him, making sure we had all the printouts he had asked us and arranging papers in a way that we could immediately hand over whatever he asked for. He turned to us and said, “Good morning,” and then turned to an advocate sitting next to him and carried on a merry conversation.
The bench sat at 10.30 am and our case came up in about two minutes. Justice Sikri looked at the case brief for a second, then looked up at the counsel for the State of Kerala and said, “Sorry. We are dismissing this.” The bundle fell with a thud, and the bench clerk called out the next case.
Mr Nariman got up from his chair and started walking out when Justice Sikri asked him, “Mr Nariman?” He turned around and bowed to the bench with a smile, and walked out.
***
The State of Kerala didn’t stop there. They went back to the High Court and filed a review petition; the judgement in Kunhayammed technically allowed them to do that, but the grounds for review are so narrow that these applications usually never work. The High Court bench threw out the review.
The State filed another SLP against the dismissal of the review.
Again, my client asked me to brief Mr Nariman. This time, the AOR and I said that it was absolutely not necessary for anyone to appear at the admission, let alone Mr Nariman. This kind of SLP would get thrown out, we tried reasoning. The client would have none of it; the amount involved was huge.
And so, there we were, back at the circular table at the centre of the Jackson Pollock painting.
This time, Mr Nariman had a smile on his face. “Why is the State filing these kinds of matters?” We thought the briefing would end in five minutes. But then he got a doubt, “Is there something so wrong in the order that they are filing challenge after challenge?” And then we were back at 1994. The first notice, the first order, the appeal that he appeared in sometime in 1995. The first round in the Kerala High Court, the first round order of the Supreme Court, the remand, the second round order of the Kerala High Court…
“You must be quick with your answers!” “Where is that notice?” “I remember a document you had prepared last time…” And of course, he said, “That fat man in your company – this whole thing was his idea.” When we got into reading Kunhayammed in detail on the effect of SLP dismissals, Mr Nariman recalled two decisions that he wanted to read immediately. Those decisions seemed to rely on some other decisions, and soon we were down some rabbit hole of Supreme Court decisions on Supreme Court procedure.
At one point, I said, “I remember reading a judgement on this question…” And pat came the reply, “Pull it out, then! What are you doing sitting here? Laying eggs?” He let us go after three gruelling hours. We had some homework to do, some judgements to print, some tables to prepare. I told the AOR I will meet him at 8 the following morning to get everything ready.
The next morning, I got a call at 6.30 from the AOR. “Come by 7.30 to Mr Nariman’s office. He has some points to discuss with us.”
He had some more doubts, some more citations to discuss, and some more documents to re-read. We barely had time to get everything together and reach the court on time.
This time, it was the first case for the day. Again, Mr Nariman was sitting in the front row, chatting with a rather famous senior advocate sitting next to him. The bench assembled, the matter was called out. Justice Sikri, again, looked at the bundle and laughed, “What is this?” The bundle fell with a thud, “Dismissed.” Again, Mr Nariman got up, bowed, and walked out. This time, on the way out, he looked at me and the AOR and said, “Well done.”
Swaroop Mami is a musician and lawyer practising in the Madras High Court.
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