Anil Divan Foundation

Host: In the summer of 1958, a young lawyer called Ashok Desai introduced his younger sister, Smita to a colleague at the Bar. His name was Anil Divan. Smita Desai had just returned from a holiday in the Soviet Union. And the two made polite conversation about her trip. Her single takeaway from that meeting was not very favourable. In her words, the imposing 28-year-old Divan came off as “snooty”. Despite the awkward first encounter, the two became friends. A year of watching movies and dinner dates in Bombay followed. Then, one day, sitting in a blue Pontiac, Divan proposed to Smita. Wrapped up in the proposal was a pragmatic warning.

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Smita Divan: And when he said, Smita, would you like to have a longer relationship? I can only promise you one thing that you will always be comfortable but you will never be rich. And I said, Anil, I've heard that you have very good practice. So what does it mean that you will give money out in charity? Or you will not charge people? No, you will know only when you get to live with me. And I think what he meant was that he is going to pay his tax fully. He believes in certain morality, which he is going to keep to and that really touched me. And two days before the marriage, we had a registered marriage; we were a little odd couple. We didn't want a ceremony at all. And Anil just told me something very interesting. I said I have no issue at all with the registered or vedic vidhi but why are you so particular about a registered (marriage)? So he says something very interesting, it will give you equal rights as me in everything. So I mean, and I know to think on those lines for (19)58-59 is I think something unusual.

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Host: In perhaps the most romantic moment of his life, Divan might have sounded matter-of-fact. But more than that, he had shown fairness and honesty; traits that would be the defining characteristics of his personal and professional life in the years to come. I am your host Rajiv Chandran. I met Anil Divan when he and his wife Smita  moved into the house across our street in Gulmohar Park in south Delhi. Over the years, Anil and I became good friends. Now  it is my greatest pleasure to take you through this last and final episode where we speak to his family, colleagues and friends to piece together a portrait of the man. How did a commercial lawyer develop an enviable record and become, as Shanti Bhushan once said, the conscience of the bar? And I would add, the conscience keeper of the constitution.

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Host: Anil Divan was born on May 15, 1930 to a Gujarati couple in Bombay. His family tree reads like a who’s who of legal luminaries. His maternal grandfather Sir Chimanlal Setalvad, was an eminent lawyer at the Bombay High Court in the 20th Century. Chimanlal’s son and Divan’s uncle was Motilal Setalvad, India’s first Attorney General. Divan’s paternal uncle BJ Divan was Chief Justice of the Gujarat high court. But in his early years, Divan had no particular interest in the law. His wife, Smita, reflects: 

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Smita Divan: I think Anil's first choice would have been to join the army. But Anil had a little health problem, he was a very keen sportsperson. So he started with badminton, he became the western India teenage champion for badminton and then when he went to college, he took to tennis. So his second choice was law because there was too much law in the family.

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Host: In 1951 Divan finished his law degree from Asia’s oldest law college, the Government Law College, in Bombay where he bagged two gold medals. In the early years following Independence, the Bombay high court was perhaps the best place to be a practising lawyer. Divan first worked as a junior under ML Maneksha, a veteran Parsi lawyer with a strict professional ethic and a knack for cross-examination. Even as a young lawyer, Divan gained a reputation for his argumentation and preparation in court. During these years, Sujata Manohar, had just joined the bar. Justice Sujata Manohar, as she later became, was among a handful of women lawyers in Bombay in the 1950s. She went on to become the first woman Chief Justice of the Bombay high court and the second woman to become a judge of the Supreme Court. She tells us about her memories of Divan in his early days:

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Manohar: Anil had, of course, a formidable reputation, even in those days, as a very good junior, who was extremely upright, not willing to compromise on principles, and a very good advocate also. So we would go and as juniors, we would go to the court to listen to good advocates so that we could learn something, and we would go and listen to him argue in court. And then I joined the lunch table, where he used to sit, it just so happened that way.

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Host: That lunch table even had a name. 

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Manohar: So it came to be known at the bar as number 10 Downing Street…

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Host: That table, where lunch and gossip were shared every afternoon, featured some of the Bombay bar’s brightest stars: senior advocates like Mukund Modi, future judges like JM Gandhi as well as rising stars like Khatu Cooper, Sohini Nanavati, Kusum Haryadi and of course Anil Divan. After ML Maneksha’s death, Divan inherited much of his vibrant practice as a commercial lawyer. The nitty gritties of numbers, taxes and trade excited Divan, as his long-time junior Ranvir Singh tells us:

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Ranvir Singh: I remember there was a partner in JBD and company, Ravinder Narain. Ravinder Narain and Anil Divan would sit together and would talk endlessly about interpretation of a particular entry. In those days it used to be an HSN entry in the excise law, which used to classify some particular product as A or B. So, on classification, there used to be a lot of dispute. So, endlessly Divan would discuss that. And I could see the pleasure that he would derive, the intellectual pleasure that he would derive from discussing something as dull and drab as the Excise Act. So he obviously, liked doing commercial matters. I remember when the new Arbitration Act came, few people sought opinion from him and he loved giving his opinion on the new Arbitration Act. So the commercial side was something which he really liked and, of course, constitutional law had become his forte. 

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Host: In 1972, Divan was designated as a senior advocate by the Bombay High Court. His designation came just as the Supreme Court was on the cusp of creating history. Right after Independence, the government and the courts had been entangled in a battle over who could amend the Constitution, how, and how much. All of this came to a head in the Kesavananda Bharati case in which hearings began in 1972. Nani Palkhivala led the petitioners in arguing the case, pushing back against the Indira Gandhi government’s brazen meddling with the Constitution. Divan worked alongside Palkhivala, and other eminent lawyers in the groundbreaking case which is sometimes referred to as the “mini constitution.” 

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If that was the turning point towards Divan’s deepening interest in constitutional law, he never spelt it out. But three years later, in 1975, when the Emergency was declared his commitment to law and constitutionality would be further strengthened. Divan and other Bombay lawyers were alarmed by the string of preventive detentions and the shrinking of freedoms under the Indira Gandhi government. During this dark period, Divan defended political prisoners in court, and was vocal in his commitment to democracy. Did the Emergency have a deep impact on his outlook, and the work that followed? Vivek Divan, the youngest of his three children, weighs in:

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Vivek Divan: I think during those days, it was the freedoms that were being compromised. I mean, you know, basically, democracy was at stake fundamentally. Linked to that all was the compromise of the judiciary, everyone kowtowing to this one Prime Minister and all that kind of stuff. So that was not the world in which he came to become a lawyer. The Constitution had a very different vision of all of this, there was a separation of powers and an independence of judiciary, etc. So I think the judiciary for him was hallowed ground, which should be so. You know, a lot of his litigation in the future also was related to judicial independence, accountability and all kinds of things.

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Host: Vivek referred to his father as a “child of the Constitution”. Divan entered the legal profession in 1951, just as the Constitution came into being. This meant that it was up to him and his generation of legal professionals to uphold the values enshrined in the nation’s founding document. Soon after the Emergency was lifted, the Bombay bar grew agitated over a new issue. This time it was about certain judicial appointments in the top court. Should the two Supreme Court judges who sided with the government’s crackdown during the Emergency be elevated as Chief Justices? On January 7, 1978, several lawyers and activists signed a memorandum opposing the elevation of Justices YV Chandrachud and Justice PN Bhagwati. The strongly-worded letter outlined how the two judges had ruled against civil liberties and supported a harsh regime. Divan was among the 52 signatories to the letter published in the Times of India. Prominent lawyers including Ram Jethmalani, Iqbal Chagla, Atul Setalvad, Khatu Cooper and AG Noorani also signed it. But not everyone wanted to publicly speak out against powerful judges. Smita and Vivek Divan recall what happened:

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Smita Divan: And there were a lot of other senior lawyers who refused to sign it, they all criticised it. And they not only refused to sign but they influenced other editors, journalists, not to sign - that don't do that...

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Vivek Divan: I think the point being made is that they want to practise before these judges who they are saying should not be commended. So there's going to be a direct influence on one's own career. And still, there were a few people who signed and I think that again, talks about a certain integrity and a certain, you know, value of the profession. What does the profession mean? What is the role you play in society as a lawyer? I think these are questions which he might not have verbalised in so many words, but I think this is what was, for me, that's my interpretation of this. He was thinking, what are our roles as lawyers? What is democracy? I think that that whole period of time, certainly ingrained in many lawyers and those like him who were involved in some way or the other with what was going on with the manipulation of the courts, and with other political structure and political structures, rather, that, that that these are very, these are things which should be treasured… 

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Host: One way to preserve the values of the founding document was by influencing how courts decide on constitutional matters. And where better to do this than the Supreme Court? Beginning in the mid-1970s, Divan gradually shifted base to Delhi. Justice Manohar said the move surprised Divan’s colleagues in Bombay. She tells us why:

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Manohar: We were a bit surprised at the time, but actually looking back on it, I think it was probably the correct thing to do. Because, of course, commercial litigation was very much the main kind of litigation in Bombay. But that was the start of constitutional law. And the right place where this was going to develop was Delhi. So he, he must have taken, he must have taken his chance that he would start practising in Delhi, most people from Bombay, some of the senior lawyers who shifted to Delhi did so because they got some kind of a government office. And they shifted, but Anil decided that he would go there, because I think that was the right place where he would get challenging work.

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Host: Through the seventies he moved mainly between the two cities taking the Indian Airlines flight back and forth each week. In 1979, he moved to Delhi for good, and spent the next 10 years living out of a room at the India International Centre. Smita Divan and his three young children remained in Bombay. Committed to the public good, Anil Divan was one of the founding members of the Centre for Public Interest Litigation in the late 1980s. CPIL went on to become the country’s leading organisation providing legal representation for public causes. By the 1990s, Divan had become one of the leaders of the Supreme Court Bar. He had also become one of the most sought-after counsels for final arguments in the Supreme Court. The current Chief Justice of the Patna High Court, Justice Sanjay Karol, who was then a young lawyer practising in Delhi’s courts recalls the image Divan had during those years:

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Karol: Especially during final hearings, he was one of the most favoured counsels at that point in time. So because the judges knew that in final hearings, or everyone knew that, as far as final hearings are concerned, unlike the miscellaneous hearings, you have to be very, very thorough both not only on facts but also law. And when I say law means not only the statute and its interpretation, but also the several opinions, which have been delivered on the issue, or which would have been delivered on the issue worldwide, not only by the Supreme Court of India, but also different courts of the country and also abroad. So, therefore, he was a very, very sought after counsel. And he was not afraid of calling a spade a spade.

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Host: Divan feared no one, not even the most powerful political clients he sometimes represented. He was famous for refusing to pay visits to ministers or politicians, insisting instead that they meet him on his terms and his turf. Smita Divan tells us how he even stood up to the son of a Prime Minister, who he was defending in a case.

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Smita Divan: So the thing started, then Morarjibhai's son thought that he is even higher than Morarji bhai his name was Kanti Morarji. So every second day, he would telephone Divan, and he said Divan let me tell you these things. Please don't miss these facts. So Divan heard him once Divan heard him twice. And then he said I don't take instructions from my client, I take it through my solicitor. So please go to the solicitor and tell him what you want me to argue. Because then I'll decide whether it's worth arguing these points… He said I can't take this anymore because I don't want interference from my client, what I argue is my decision. He had that kind of value system that I will not take instructions or no means no.

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Host: It soon became well-known that Divan was impossible to be swayed by political influence. This trait made him a coveted lawyer to present petitions against the who’s who of government and politics. Divan’s most notable takedown of the establishment came in the form of the Jain Hawala case, which as we saw in the series, was one of the first PILs to deal with corruption. Divan was appointed as amicus curiae or friend of the court to help in monitoring the sensitive political investigation. It proved to be his most challenging, and his most rewarding brief. During that time, he even met Archibald Cox, the legendary American special prosecutor in the Watergate scandal. The Jain Hawala case launched Divan’s lifelong commitment to ending systemic corruption. Sometimes, he even set aside more lucrative briefs to fight this pro-bono case. Ranvir Singh, Divan’s former junior, tells us more.

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Ranvir Singh: On several occasions, he would take up a pro bono matter that would be listed in the Supreme Court, and a commercial matter would simultaneously be listed in some other court. And they would come in conflict with each other. And it had never happened that he would give up his commitment to a pro bono case to earn money through the commercial cases. So I remember once he was sitting in Chief Justice's court, and in the third round of the single directive case, and there was another matter in which he was briefed, that also came up and this was on the date that came up as if it was going to be called out. So I went and told him that let's go and do that first. And then we'll come and do this. So he said, Ranvir, that case can be handled by someone else, this is far more important. And he gave up a large fee to attend a pro bono matter. And this was not one off instance, on several occasions, he would give up a professional assignment as in, a paid assignment for a pro bono, because he said that if I do a pro bono work, I should give 110% to that, so that no one should turn around, say that, Oh, he's not charging any fees.

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Host: The Jain Hawala case cemented Divan’s reputation as a staunchly apolitical lawyer. But he faced tremendous pressure during the years he appeared in the case. The family suspected that their phones were being tapped and their home was being spied on. But through it all, Divan was unfazed. Following that case, Divan became more and more sought after to appear for public causes. From the 2000s, Divan cemented his commitment to causes like the RTI, minimum wages, judicial accountability and of course, his pet cause, corruption. Aruna Roy, a social activist and founder-member of the NGO Mazdoor Kisan Shakti Sangathan collaborated with Divan on several occasions. She tells us about Divan’s relationship with civil society:

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Aruna Roy: I think what made my relationship and association with Mr. Divan so special was the fact that he rose above these smaller categories of affiliations and he was a human being. And I think at the bottom of it all, he was a compassionate person… We had a common understanding of the kind of democratic constraints that exist in India. How important it is for constitutional equality to be established, how important it is to understand the Constitution and how our collective education has kept us all away from understanding constitutional norms to understand the Constitution… So he broke away from the narrow confines of being an advocate, Senior Advocate jurist, understood jurisprudence, and beyond that, to understand democracy and the need for equality to be equality to be an ideal towards which we all worked. And there I think we struck a chord, which made us understand each other and I think that took us a long way.

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Host: Roy’s colleague Nikhil Dey, who is also a founder-member of MKSS tells us more:

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Dey: I think it's not just pro bono, it was proactive. Because it was not just free of cost. It was, I mean, its contributions in money in time and in terms of effort in terms of willing to be anywhere. So it's far beyond pro bono. And it's far beyond that. Okay, I'll stand in court and intervene, which some lawyers do, which is also very valuable. He is much more well, he was much more valuable because he was willing to stand by his values anywhere. And in that sense, be a part of the activist effort. 

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Host: All this while, Divan’s commercial law practice continued to flourish. On the face of it, commercial law which deals with things like taxation, corporate contracts, bankruptcy and insurance may not seem like the most obvious arena for upholding the principles of rule of law. But Divan’s approach showed that the two may be more closely linked than would appear, as Justice Karol tell us:

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Karol: See, they are linked. In fact, he, he did not specifically say so, but I realised that this was his thought process, that commercial law was close to his heart one, two he thought that the commercial courts where decision expeditious disposal disposal of the cases, meet at the stage interim stage or be at the final stage was necessary for not only upholding the rule of law, but ensuring national growth and rather than having the growth retarded, so he would make sure that whenever a matter would come to the court, he would apply the law with promptitude and not take any unnecessary adjournment be fully prepared and have the matter decided at the earliest. So that is how he applied. 

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Host: Those like Justice Karol, who spent time at the bar and the bench had a two-faceted appreciation for Divan. Former Chief Justice of the Punjab and Haryana high court Shiavax Vazifdar, who watched Divan as a young lawyer in Bombay, told us that he realised the value of Divan’s meticulous preparation even more when he became a judge. He explains why: 

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Vazifdar: He is what I would call a court or a judge’s luxury… you really appreciate a person like him more, once you become a judge. Because when you're a lawyer, you appreciate it only in that particular matter where you're working with him. A judge doesn't have two and three and four and five matters a day, he has a whole lot of matters every day. And if the level of assistance in all the matters was at the same level that Mr. Divan rendered in court, it would make such a big difference. He literally, I would say exuded reliability. And I would say that reliability and thoroughness were his hallmark. I don't think I've ever appeared with him when he was not fully prepared. 

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Host: Divan was not only thoroughly prepared but also painstakingly honest. At times, he even spoke up to his own client’s detriment. Justice Vazifdar recalls an incident from the 1980s in the Bombay high court:

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Vazifdar: Now, I think there was an incident where the court, it seems, asked a question. The attorneys were responding to it… because in the old days the attorneys and some of the juniors when there was no space sat on a bench that faced the counsel with their backs to the bench.  So when the court called him around, he overheard what was being said. And it seems he turned around and said, I don't think they're saying the right thing. I'm going to tell the court what I think is the correct position. And that was to his detriment, but he was an officer of the court first. So if he had to disagree with his own team, he disagreed. On facts, I think everybody relied on him not to make, even the opposite side, would never worry about Anil bhai saying anything incorrect. They may not agree with his interpretation or analysis, but never feared that he would pull a fast one or make a wrong statement.

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Host: Lawyers like Kamini Jaiswal told us that they viewed Divan as a permanent friend of the court, meaning that they approached him whenever there was a case related to corruption or unethical behaviour in public office. It helped that Divan was scrupulously apolitical—he never sided with one political party or another, but strictly stayed true to principles. He guarded both his independence and his clients’ confidentiality. And in his social life he actively avoided glibly boasting about his roster of clients. Smita Divan again: 

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Smita Divan: and I will go to these parties and everyone said oh, just now the Citibank people had come and just now this Hindustan Lever had come. It would come up. And I was like this man of mine didn't even open his mouth. I mean, if somebody will think that he is totally brief-less. Anil said I don't want to. I don't have to talk about it. 

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Host: These steadfast rules of conduct extended to judges too. Even though all judges were lawyers once, and have friends at the bar, professional conduct dictates that they cannot fraternise with lawyers. However, not everyone follows this so carefully, and lawyers are keen to boast of their connections on the bench. For Divan however, this separation was sacred, even if those at the bench had once been colleagues and friends. Ranvir Singh tells us how: 

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Ranvir Singh: His rule was that he would always call judges for dinner after they have retired. So, no sitting judges would ever have the pleasure of dining with Divan at his house and you could dine with him only after he retired. So that no one would turn around and say that oh, Divan is socialising and trying to get favours from a particular judge and trying to, you know, influence a judge. 

Host: At work, Divan was an exacting, often impatient boss. To his children, he was as Vivek said, a “weekend father” in the early Delhi years. But he was there when it mattered. In 1995, Vivek Divan told his father that he was gay. Vivek reflects: 

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Vivek Divan: It's important now to think about the fact that he was born in 1930. It's a different generation. And he was very upset with me, very, very upset. And actually, he was very hurt. That he was not told with everyone else in the family. Five years before, when I told my mother and siblings, he was told after everyone else. And my hesitation was, I wanted to be sure that he’d receive it well. And I think he was hurt, particularly because of all the people in the family, I should have figured that he would receive it well, because he was always very, very progressive about matters of sexuality, always. He's argued in the case, at some point, he has you know signed public letters, famous personalities, saying 377 needs to go. So he's been very, very amazing about it. I think part of it is also that we come from an atheist/agnostic background. 

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Host: Divan mellowed over the years. He grew more approachable, more amenable to young lawyers, more public-facing. But his commitment was unshaken when it came to corruption, the independence of the judiciary, privacy and personal liberties. He was also interested in legal discourse and the profession outside the courtroom. He served as the president of  LawAsia from 1991 to 1993 and of the Bar Association of India from 2010 to 2014. Divan remained staunchly at work, right until he died at the age of 87, from a heart attack in late March 2017. In February, barely a month before he passed away, Divan was busy with the Cauvery river water dispute. He was the main lawyer for Karnataka, and the matter was still pending in the Supreme Court. Ranvir, his junior, tells us more:

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Ranvir Singh: See, if there was one case, that was really challenging, and he used to spend a lot of time in fact, ironically, on the last day, when he passed away, a day before that, he had called me up and he had said that he would like to work on Cauvery appeals.

He was coming from Bombay. So he called me up and he said, `Ranvir, I'm coming today evening, I'm landing and tomorrow is Sunday. Please do not take up any work. I would like to work for about three, four hours on Cauvery brief. So keep yourself free because I was assisting him in the Cauvery matter. So he had asked me to come and brief him.

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Host: The bar, the legal profession and indeed the country lost many things when Divan passed away. His son Vivek, distils his essence: 

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Vivek Divan: I think the profession has lost a lot of its sheen in terms of the ways in which law is practised. I think there's a certain ethic to the practice, which is lost not just in terms of hard work, but in terms of his genuine integrity. I think he was a pillar of that. It was so obvious in just his funeral, and at the cremation. And it was just so obvious that, you know, because he was not a he was just, he had no political benefactors. He had nothing. He was himself. And despite that incredible, incredible kind of outpouring of just respect, it boggled our minds…. I think there's a certain, how do I say this, it's not integrity, it's a certain independence of spirit. He just was his own man… He wasn't, you know, playing anyone else's tune, he was doing his thing. And there are lesser and lesser of those. I miss him….Because when we finally were decriminalised in 2018, with 377 going, I wish I really, really, really wished he was there, because he was a champion. And he had put his heart and soul into all kinds of good stuff. Not just on that, but on other stuff. So that would have been awesome. But you know, it is what it is.

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Host: Anil Divan, truly a shining Indian. We end this episode with a few parting words from the man himself.

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Anil Divan: But today friends, we face perilous times, with galloping inflation, financial scams and increasing violence undermining good governance and the rule of law. I will share with you what Nani Palkhivala stated in 1984 in We, the People “the picture that emerges is of a great country in a state of moral decay. The lifestyle of too many politicians and businessmen bears eloquent testimony to the truth of the dictum that single-minded pursuit of money impoverishes the mind, shrivels the imagination and dessicates the heart. The tricolour fluttering all over the country is black, red and scarlett: Black money, red tape and scarlett corruption.” But in the end Nani Palkhivala strikes an optimistic note when he writes “In the affairs of nations as in the business of elements, winds shift, tides ebb and flow, the boat rocks, luckily, we have let the anchor hold. We have survived as a united democracy, a historic achievement.” The anchor in my view has been our Constitution and constitutional values.