SENIOR LAWYER and constitutional expert Anil Divan died on Monday. He was 86. Known for standing up for the independence of judiciary and accountability, Divan was one of India’s leading jurists who appeared in a range of important cases that shaped the history of judicial precedents in the country. He stood for independence of judiciary along with another eminent jurist, Fali S Nariman, when the validity of the government’s move to replace the collegium with National Judicial Appointments Commission (NJAC) was being adjudicated by a Constitution Bench in Supreme Court. The top court, agreeing with their arguments against NJAC, quashed the constitutional amendment that sought to do away with the collegium system.
Nariman fondly remembered Divan as an accomplished advocate of noble lineage whose maternal uncle, M C Setalvad, was the first and longest serving Attorney General for India. Nariman told The Indian Express, “Anil and I, along with Murli Bhandare and Ashok Desai, have been friends and practising for over 50 years (in Mumbai and Delhi), and we were to celebrate this occasion early next month. But now fate has snatched one of the brightest and most astute.”
The senior lawyer underlined that Divan fought not just for clients but for people’s rights and freedoms. “As a comrade-in-arms, I will surely miss him,” Nariman said. “He is gone but I will always remember what his uncle told me when he [Setalvad] suddenly left Delhi for Bombay, where he died a few months later. When I asked him [Setalvad, about moving to Bombay], his answer was: Look here, Nariman. When a man has to go, he has to go!”, said Nariman.
Divan, in various conferences and in articles published in newspapers and law journals, had once said that India’s diversity can be attributed to the judiciary. “Is it then not important that it be kept independent and separate from the executive?” he was quoted as saying in one of his speeches.
Advocating accountability by the collegium in choosing its judges, Divan had written in an article in The Hindu, “The pernicious shortcomings (in the collegium) are ticking time-bombs which can be detonated at any time by a powerful executive having a parliamentary majority in the future – and we are looking at a future which may extend to many years.”
Divan was associated with several organisations and NGOs that worked for public interest and furthered the cause of independence of judiciary. He was president of the Bar Association of India, one of the founder-members of the Centre for Public Interest Litigation , one of the founders of the Peoples Union Of Civil Liberties, and was also a member of the Committee on Judicial Accountability.
He appeared in several important cases. Divan appeared for senior advocate Ram Jethmalani in the ‘Black Money’ case, in which a special investigation team was set up on court orders to monitor investigations into these cases.
He had appeared in the Oleum gas leak case as well as in the Bhopal gas tragedy case in the apex court. He was also the Karnataka government’s counsel in the Cauvery disputes issue, having appeared from 1992 to 2016.
Apart from these cases, Divan also appeared in the challenge to the Prevention of Terrorism Act and in the Rupa Ashok Hurra case, which laid down the law related to curative petitions. More recently, he had replaced Fali Nariman as the amicus curiae in the BCCI case in Supreme Court. His son Shyam Divan is also a senior lawyer practising in Supreme Court.