Soli Jehangir Sorabjee — Sentinel of the Constitution

A first-generation lawyer, Soli Jehangir Sorabjee, who became the nation’s Solicitor General and Attorney General, died at 91 last month. Sorabjee had many passions in life and in the law. Principal among them were the Constitution and the Supreme Court whose founding he bore witness to and whose evolution paralleled his own professional career of seventy years.

 

Sorabjee’s interest in the Constitution began as a law student in Bombay. India had just been declared a Republic, and Sorabjee had a ringside view of the early cases in which citizens, their counsel, and the courts invoked the new people’s constitution1. Bunking class, Sorabjee went to see Fram Balsara’s challenge to prohibition in the Bombay High Court. Recounting the proceedings, Sorabjee credits Noshirwan Engineer, Balsara’s lawyer, for that memorable, but misattributed, sentence:“a republic without a pub is a relic”. Sorabjee was also captivated by H.M. Seervai’s brilliant closing arguments for the State before a hostile Bench.

 

In June 1953, Sorabjee joined Jamshedji Kanga’s chamber working under Kharshedji Bhabha2. He handled a wide range of constitutional, civil, and tax cases. Impressed by Sorabjee’s acumen, Chief Justice M.C. Chagla made him an amicus overlooking his relative inexperience.3 As Sorabjee later put it, he had no “Godfather in the profession.” So, he understood first-hand the importance of mentoring4 juniors and encouraging younger lawyers. As his reputation soared, Sorabjee was offered a High Court appointment. He turned it down for personal reasons5, but continued to handle heavy matters in Bombay and increasingly in Delhi.

 

The first reported case involving Sorabjee in the Supreme Court was Ranchhoddas Atmarain v. Union of India6, a sea customs matter. In 1964, Sorabjee played a starring role in State of Maharashtra v. Mayer Hans George7 representing a Swissair transit passenger detained with thirty-four kilos of gold. Sorabjee was unsuccessful in overturning the conviction. But he managed to secure Subba Rao, J.’s dissent. Two years later, in Satwant Singh case8, Sorabjee appeared for an automobile parts dealer, who had been denied a passport. The Court held the Constitution protected a person’s right to travel abroad for which a passport is necessary. Looking back, Sorabjee considered the judgment to be a feather in his cap.

 

Sorabjee’s reputation as a top-notch constitutional and appellate lawyer was cemented in the early 1970s. In 1972, he joined Nani Palkhivala to successfully challenge restrictions on newspapers in Bennett Coleman9, Sorabjee also worked closely with Palkhivala in Kesavananda case10 concerning Parliament’s power to amend the Constitution. Sorabjee would later recall how both men worked long hours in pyjamas11 and that he urged Palkhivala to argue that there were inherent limitations on the amending power. When his turn came to speak, Sorabjee argued that blind faith in Parliament’s ability to act responsibly with respect to amendments was antithetical to limited government. By a narrow majority, the Court held that Parliament could not amend the Constitution’s basic features. Some months later, Sorabjee, a proud alumna12 of St. Xavier’s College, Bombay, appeared for its sister institution in Ahmedabad to challenge restrictions on its functioning. He persuaded the Court to affirm the autonomy of minority institutions.13

 

During the Emergency, Sorabjee courageously14 represented the detenus ignoring the prospect that he could himself be arrested. In Habeas Corpus case15, he emphatically argued that the executive could not interfere with an individual’s liberty unless it could defend the legality of its actions. A consistent opponent of censorship, Sorabjee published an authoritative treatise on the subject. And in The Emergency, Censorship and the Press in India, 1975-197716 he exposed publishers who curried favour with the Government rather than supporting their editors and reporters.

 

In 1977, Sorabjee was appointed Additional Solicitor General. It fell to him17 to defend the dismissal of nine State Governments after the elections.18 Sorabjee argued that the case involved a non-justiciable political dispute, and, as he admitted to Granville Austin, the Court accepted his contention “in the prevailing circumstances”. Sorabjee also participated in Maneka Gandhi case19. Like Satwant Singh8, the case involved the denial of a passport. This time, however, Sorabjee represented the Government, and not the petitioner.

 

Promoted to Solicitor General in 1979, Sorabjee defended the Union in Muthamma case.20 In his ruling, Krishna Iyer, J. declared gender discrimination in diplomatic appointments unconstitutional. But he complimented Sorabjee for his “characteristic fairness” in handling the matter. Krishna Iyer was even more effusive in Sunil Batra21 in which he hailed the Solicitor General’s “erudite passion for affirmative court action” regarding prisoners’ rights. The irony that Sorabjee had organised protests against Krishna Iyer’s elevation to the Court was not lost on the Judge. Yet, both men began to trust each other in the courtroom and eventually developed a strong bond based on mutual respect and affection.

 

Resuming private practice in 1980, Sorabjee accepted several important constitutional and tax briefs. In S.P. Gupta22, Sorabjee forcefully championed judicial independence and challenged the Government’s privilege claims regarding judicial appointments and transfers. He worked closely in this case with Seervai, who called him “Sorab” for some reason. After long conferences, the two would listen to L.P. recitations of prose and poetry.23 And in Rangarajan24, Sorabjee had the Court reverse a decision denying his client a film certificate. He insisted that the State could not censor a movie merely because it was controversial. In cases like Rangarajan23, Judges relied on Sorabjee’s arguments and authorities in their judgments and reasoning for which Sorabjee graciously claimed no credit.25

 

Between 1989 and 1990, Sorabjee served as Attorney General for India. He insisted that his loyalty was to the Constitution and not the Government of the day. In his memoirs, President Venkataraman, who frequently consulted Sorabjee, praised him for engaging opposing viewpoints.26 During his tenure, Sorabjee was also involved in defending the Government’s decision to implement the Mandal recommendations.

 

Between October and December 1993, Sorabjee joined a battery of other lawyers in arguing Bommai case27 involving the imposition of President’s rule under Article 356 of the Constitution. He convinced the Court that presidential proclamations of Central rule were justiciable. In his arguments, he cited several foreign precedents, including some from Pakistan, drawing on his extensive reading in comparative constitutional law.28 He later wrote a very insightful review29 of the decision for the SCC Journal.

 

Sorabjee’s unrelenting defence of human rights gained him international recognition. UN Secretary General Boutros-Ghali nominated Sorabjee to be Chief Prosecutor of the Yugoslavia War Crimes Tribunal. But this nomination was not ultimately approved by the Security Council. In 1997, Sorabjee was appointed by the UN Chief Prosecutor Commission on Human Rights as its Special Rapporteur for Nigeria. At first, the Government resisted his attempts to visit the country. It eventually relented and let Sorabjee and his team in. They submitted a detailed report30 with recommendations on civil liberties, gender equality, and judicial independence.

 

Sorabjee was reappointed Attorney General in 1998. He insisted on his institutional independence even as he grappled with several political and legal controversies. In T.M.A. Pai case31, which dealt with minority rights under the Constitution, Sorabjee presented the Court with “every side” of the question rather than just the Government’s position. He also persuaded32 the Court to review its controversial settlement in the Bhopal gas leak disaster. Finally, Sorabjee prevailed before the International Court of Justice in the aerial incident case33 involving Pakistan.

 

Sorabjee was involved in other significant cases, such as Coelho34, which are too numerous to efficiently summarise here. In all of them, Sorabjee stood out as an incandescent cheerleader for the Constitution’s founding principles and the rule of law. Outside the courtroom, he was a prolific columnist and commentator on diverse topics such as equality, the rule of law, the judiciary, corruption, and federalism. He typically expressed himself carefully and objectively although he recently erred, in too readily dismissing serious allegations against a sitting Judge.

 

Beyond the law, Sorabjee had diverse intellectual tastes evident in his much-envied library35. But he was no bookish recluse. He was a jazz afficionado36 who loved attending and organising concerts. Indeed, there are two musical tributes to his honour on YouTube37. Sorabjee’s one unfulfilled ambition, however, was to play the clarinet as well as the artist, Benny Goodman38.

 

A bon vivant39, Sorabjee was a great mimic, gregarious entertainer40, and a generous host. In his diary, Austin describes a typical gathering at his friend’s home:

 

26-8-1990. Just back from dinner at Sorabjee’s. There were : a potbellied, interesting lawyer I met before there; Shankar Ghose and wife; Ranjit Singh and wife (he : former Pusa Institution of Agricultural Research, born Lyallpur, and a classical musician); and Rajmohan Gandhi. Also, Maja Daruwala. Discussed corruption in public life and Soli much worried. But has no sense of why this goes on.

Like many others, Austin met Sorabjee at the India International Centre whose genteel, old-school settings the latter preferred to fancier dining destinations. In fact, undeterred by the pandemic, Sorabjee attended an event there in his honour41 just days before he took ill. Although he had slowed down, he never really retired from legal practice or gave up his other interests. As Fali Nariman poignantly put it42, despite some nudging to step aside, nonagenarians like Sorabjee and himself were determined never to hang up their boots.

———

The passing away of Mr Soli Sorabjee is a personal loss to SCC and the EBC family. Mr Sorabjee was associated for many years, till his passing away, as a member of the Editorial Board of Supreme Court Cases (SCC). He always had a good word for the work that was being done by SCC and had a long association with Mr Surendra Malik, the Chief Editor.

The SCC Journal Section had a special place in his heart and we were fortunate to have published many of his illuminating articles.

We will miss his encouragement and good wishes. Our deepest condolences to his family, especially his wife Zena Sorabjee, daughter Zia Mody and two sons Hormazd Sorabjee and Jehangir S. Sorabjee.

— Editors


The author is a lead counsel at an international organisation. He thanks Gopal Sankaranarayan, B. Suchindran, and Sanjay Hegde for their comments.

1 <https://www.press.princeton.edu/books/hardcover/9780691174433/ a-peoples-constitution>.

2 <http://www.bombaybar.com/in-memoriam/659a4ed2hu6jyudd95flve55cbjnqu>.

3 Kamala Nair Bombay v. Narayana Pillai Kumaran Nair, 1957 SCC OnLine Bom 50 : AIR 1958 Bom 12.

4 <https://www.youtube.com/watch?v=ZOK3-RDTyAc>.

5 <https://www.indianexpress.com/ article/opinion/columns/soli-sorabjee-former-attorney-general -of-india-dead-7300828/>.

6 (1961) 3 SCR 718 : AIR 1961 SC 935.

7 (1965) 1 SCR 123 : AIR 1965 SC 722.

8 Satwant Singh Sawhney v. D. Ramarathnam, (1967) 3 SCR 525 : AIR 1967 SC 1836.

9 Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788.

10 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

11 Soli Sorabjee, “Palkhivala and the Constitution of India”, (2003) 4 SCC J-33

12 <https://www.alumni.xaviers.edu/news/22866>.

13 Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717.

14 <https://www.indianexpress.com/article/ india/soli-sorabjee-dies-former-attorney-general-covid-death-7297377/>.

15 ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

16 Soli J. Sorabjee, The Emergency, Censorship and the Press in India, 1975-77, Writers and Scholars Educational Trust (1977).

17 See Here .

18 State of Rajasthan v. Union of India, (1977) 3 SCC 592.

19 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

8 Satwant Singh Sawhney v. D. Ramarathnam, (1967) 3 SCR 525 : AIR 1967 SC 1836.

20 C.B. Muthamma v. Union of India, (1979) 4 SCC 260.

21 Sunil Batra (2) v. Delhi Admn., (1980) 3 SCC 488.

22 S.P. Gupta v. Union of India, 1981 Supp SCC 87.

23 Sorabjee, “Homi Seervai — A Personal Tribute” in Evoking H.M. Seervai [Feroza Seervai (Ed.) 2005] p. 45.

24 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.

25 Soli Sorabjee, “Freedom of Expression and Censorship”, Northern Ireland Legal Quarterly, Winter 1994, p. 327.

26 Ramaswami Venkataraman, My Presidential Years (Harper Collins Publishers India, 1994) pp. 336-37.

27 S.R. Bommai v. Union of India, (1994) 3 SCC 1.

28 Sorabjee, Equality in the United States and India in Constitutionalism and Rights [Louis Henkin and Albert Rosenthal (Eds.), 1990] p. 94.

29 Soli J. Sorabjee, “S.R. Bommai v. Union of India : A Critique”, (1994) 3 SCC J-1.

30 Soli Jehangir Sorabjee, Situation of Human Rights in Nigeria, Report submitted by the Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1997/53, E/CN.4/1999/36 dated 14-01-1999, available at <https://digitallibrary.un.org/record/1487620? ln=en>.

31 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.

32 <https://www.sthewire.in/law/soli-sorabjee-former-attorney-general-india-democracy-constitution>.

33 Aerial Incident of 10-8-1999 (Pakistan v. India), 2000 ICJ Reports 12.

34 I.R. Coelho v. State of T.N., (2007) 2 SCC 1.

35 SEE Here .

36 See HERE .

37 See HERE.

38 See HERE.

39 See HERE.

40 See HERE .

41 See HERE.

42 See HERE.

One comment

  • No doubt his wisdom in arguments and case presentations. He is a live in Lawman forever.

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