The delightful Mr Daphtary: A wizard of wit

Daphtary’s unshakeable integrity was also an integral part of his personality.

Once Fali Nariman came from Bombay to appear for an appellant before the top court. Daphtary represented one of the respondents. From the trial court, the matter came on appeal before the High Court. The respondent had not pursued the appeal. In the Supreme Court, Daphtary appeared for the respondent. Nariman objected. Daphtary softly quipped: “Justice is like the slow train. You get off at one station. Then run and catch it at the next one.” The court dissolved in approving laughter. The objection was rejected. Daphtary was allowed to present his case.

In another complicated case before the Supreme Court, the judge asked, “Mr Daphtary, are you not aware of the case which is covered by a decision of this court.” Daphtary responded, “The trouble is that it has been uncovered by another decision.” How comfortably he clinched the matter.

In 1968, Daphtary resumed his private practice. Daphtary and Nariman, both went to Bombay High Court to appear against each other in a particular case. Nariman finished his arguments. Daphtary, the great dramatist rose to argue. He spluttered, my learned friend. He then cleared his throat. Again, he said, my learned friend. He again cleared his throat. The judge said, “Mr. Daphtary, why don’t you sit down. A sip of water. “ Daphtary said, “No my lord. It is not my throat. It is the arguments of my learned friend, I simply cannot swallow them.”

Justice Y V Chandrachud, former CJI records in his tributes to Daphtary. He argued a matter in the Bombay High court under the war time Act 1944. Making bricks without a license was declared an offence. Daphtary was arguing on behalf of the person who was convicted under the order. He said there was a difference between caking, baking and making the bricks. His client was caking and baking. Not making. Making bricks was the result of caking and then baking them. What play of words!

The Central government set up a commission in the mid-1950s. It consisted of Justice S R Tendulkar and two other members. The notification had been issued under the Commission of Inquiry Act against the Dalmias. It was challenged in the Bombay High court. The ground was, why the Dalmias had been singled out? The notification was said to be in violation of Article 14. G S Pathak and H M Seervai argued on behalf of the Dalmias. When they concluded, the bench of CJ M C Chagla and Justice S T Desai was completely with them and against the government. Daphtary, represented the Central government. Daphtary gave the example of a person who had been given the responsibility of cleaning the dirty pond. He decided to pick out the largest frog first. Daphtary argued that this was precisely what had been done with the Dalmias. After that, his oratory did the magic.

There is a second version of this interesting case. Daphtary heard the strong observations of M C Chagla. Then Daphtary made the remarkable statement: “My Lords, several cases have been cited by my learned friends on Article 14. I will deal with them, all of them. But there is one underlying principle. Article 14 is not infringed if the people are not of the same kidney. Dalmias and others are not of the same kidney.” Chagla smiled and said, “You mean the kidneys of Dalmias are worse than those of others.” No, my Lord, Daphtary responded. “It is not a question of better or worse. They are not the same. “ Justice S T Desai said, “If kidneys are different, does it mean that Article 14 is not applicable” ‘Precisely’, was the response of Daphtary. Daphtary succeeded in getting the Dalmia case dismissed.

The best take from this book is how comfortably wit can help in court. Daphtary was waiting for his case before an English Judge who passed an adverse order against a young advocate in another case. The young advocate told the judge that he was surprised at the order. The judge got angry and said this remark amounted to contempt of court. The judge sought the opinion of Daphtary. Daphtary smiled and said, if the young lawyer had been at the Bar as long as he had been, he would not at all be surprised at anything his lordship does. The judge had a hearty laugh. The lawyer was spared.

I would sincerely urge every lawyer and judge to read this book. This is the best gift that one can give. This book will nurture the coparcenary of happy minds.

(Balram K Gupta is Professor Emeritus, Sr Advocate and Former Director, National Judicial Academy, India)