Monday 30 April 2012

good article on legal legend Harish salve

There is a tide in the affairs of men.
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures (Julius Caesar, Shakespeare)

For all tax professionals keenly following the litigation between Vodafone International and the Union of India in the Bombay High Court and then in the Supreme Court, Harish Salve was the face of Vodafone. Even now, when the Government threatens to rob Vodafone of its hard-fought victory through the proposed retrospective amendments, one can sense Harish Salve crouching in the shadows, with bloodshot and impatient eyes, waiting for Parliament to give its nod, so he can attack the Government, go for its jugular and have the amendments declared ultra vires.

So, who or what inspired Harish Salve to attain the heights that he has? The answer, not surprisingly, is Nani Palkhivala. Harish Salve’s grandfather was a very successful criminal lawyer. His father, N. K. P. Salve, was an eminent Chartered Accountant practicing in Nagpur. His mother was also a professional, a doctor. So, Salve was always fascinated by professional qualities & values & how they always fought for principles and issues.

As a young boy, Salve wanted to be an engineer though by the time he was ready for college, he was deeply interested in Chartered Accountancy thanks to his father’s roaring practice. His father, however, had given up accountancy and did only income-tax matters which brought him in close proximity to Nani Palkhivala. Palkhivala used to do a number of matters for N. K. P. Salve and Harish was a part of that environment. Inspired by Palkhivala, Harish Salve discovered that while accountancy was boring, he thoroughly enjoyed income-tax and he decided that if he were to practice income-tax, he might as well do it as a lawyer. The big turning point in Harish Salve’s career came in 1975, when he was still preparing for the CA-Inter exam. On his father’s behest, Harish Salve had prepared a note on some complicated point on the settlement commission’s proceedings which raised some new issues for interpretation. When that note was shown to Nani Palkhivala, he was very impressed and immediately asked Harish Salve “So, when are you joining the profession?”. “The die was cast that day” says Harish Salve with a gentle smile on his face.

This was further cemented a few years later, when Harish Salve, by now working with J. B. Dadachandji & Co, was assigned to assist Nani Palkhivala in the Minerva Mills case. “What an opportunity that was” Harish Salve reminisces.

Nani Palkhivala suggested to Harish Salve that he should join the Chambers of Soli Sorabjee as a junior. After that there was no looking back for Harish Salve. Being a CA and being exposed to commercial matters, Harish Salve had a natural advantage over other lawyers. His own senior, Soli Sorabjee, had a mental block with figures. He was a constitutional lawyer, not at all comfortable with issues like share valuation etc. Harish Salve took full advantage of this situation and conducted a large number of important matters whilst being Soli Sorabjee’s junior.

Harish Salve recollects that the most “telling event’’ was his arguing (with Sorabjee) the famous Bearer Bonds case (R. K. Garg vs. UOI 133 ITR 239) before a five-judge constitution Bench in 1981. “This completely removed all fear from my mind” says Salve and adds that “I am proud that I had a creative hand in the landmark judgment”.

At some stage you start believing that you are indispensable to the World. Your body comes second; everything else comes first. There has to be a change in mindset by your telling your body that you love it the most and give it at least one hour of your time everyday. You must cut down on work if you can’t find the time to give to your body
Harish Salve’s move into the super-big league came in November 1999 when he became Solicitor General. He was only 43 years of age at that time and held office till 2002. As law officer for the Union of India, Harish Salve conducted a large number of important matters like the first anti-dumping case which was argued in the Supreme Court and the first case of privatization of PSUs, the Balco case. Harish Salve was also involved in important non-litigation work such as conducting the WTO negotiations, drafting the electricity reforms and setting up legislation for the competition commission, which gave him a larger perspective to legal matters than that which a litigating lawyer has.

Harish Salve also gained from the fact that there were very few lawyers of stature practicing income-tax law in the Supreme Court. He became the first port-of-call for MNCs troubled with income-tax matters and did full justice to the trust and faith reposed in him. He appeared in a number of landmark matters. In UCO Bank vs. CIT 237 ITR 889 (SC), he persuaded the Court that the earlier ruling in State Bank of Travancore vs. CIT 158 ITR 102 was per incuriam. In CIT vs. Podar Cement 226 ITR 625 (SC), he established that an “owner” was not necessarily only a person in whose favour the sale deed is registered. Azadi Bachao Andolan 263 ITR 706 (SC) was one of his more celebrated cases as were GE India Technology vs. CIT 327 ITR 456 (SC) and Ishikawajima-Harima Heavy Industries vs. DIT 288 ITR 408 (SC). Also, who can forget the RIL-RNRL dispute between Mukesh Ambani and Anil Ambani where Anil Ambani’s hard-won victory before the High Court was torpedoed by Harish Salve.

Its’ no surprise that Harish Salve should have molded himself with Nani Palkhivala as his idol. He paid tribute to Palkhivala by saying “From him I learnt that genius is a lot of hard work. It entails having the capacity to do what people find boring, that is where you hone your attention to detail. Palkhivala taught me to make excellence an end unto itself. He used to say that the measure of how well you’ve argued in court comes not from the decision of the court, but from how you personally feel you’ve performed. He opened up a whole new dimension of the world before me.”

Like Palkhivala, Harish Salve is a staunch believer in the necessity for full research into all case laws. Also, when a case comes up in court, Salve lives and breathes that matter. He gives up all other petitions. “I attend court daily to hear the other side’s arguments. I don’t like to distract myself and prefer to concentrate on the case at hand. You never know when a new idea pops up” said Salve.

Harish Salve made it clear that he only accepted a matter where he was convinced about the merits of the case. “I am a very poor lawyer” he said. “If I am not convinced about a case, I will make a very weak argument in court. Lawyers, like doctors, take the oath that they will represent any case in court, giving everyone a chance for justice. But I am capable of laughing aloud in court if I have to argue for a matter that I think does not hold ground. And I am always aware that as a senior counsel, the court expects that what I say should be worth hearing.”

On the aspect of fees that he charged Vodafone (a topic of interest to all), Harish Salve went on record to say that he did not charge Vodafone the Rs. 1 crore that he was rumored to have charged for each day of hearing but “only a fraction” of that. Sadly, he did not elaborate on what that “fraction” was!

On the personal front, Harish Salve is also inspiring for his outlook on life and his obsession with personal fitness. Harish Salve looks slim and trim and says that he feels “fitter today than he was at 35“. The secret to this is a faithful cardio and weights work-out regime done every morning.

Harish Salve put it very well “At some stage you start believing that you are indispensable to the World. Your body comes second; everything else comes first“. He says that there has to be a change in mindset by your telling your body that you love it the most and give it at least one hour of your time everyday. “At some stage, you must decide what’s important” he says and adds that if the body is healthy, the mind will be sharp and you will be able to accomplish much more in your professional life. “You must cut down on work if you can’t find the time to give to your body” and adds with emphasis that professionals must live a disciplined life in which they sleep early and get up early and do a rigorous work-out.

Harish Salve has a word of advice for all of us fellow professionals. He says that the most important thing that he learnt from Palkhivala is what he (Palkhivala) called “Churchill’s art of persuasion“. “For something to be convincing, it must in the first place be simple“. So, professionals must focus on how they can present complex legal propositions with “clarity and simplicity” so that the judges are able to comprehend and assimilate the arguments that are being made.

Another of Harish Salve’s endearing traits is his modesty especially when it comes to talking about Nani Palkhivala. “Palkhivala was a genius and If on a scale of 1 to 10, I can achieve 3 or 4 of what Palkhivala achieved, I would consider myself hugely successful” Harish Salve said, adding that a picture of Palkhivala would be kept in front of time all through the time he was preparing for the Vodafone matter because Palkhivala is such a great inspirational figure for him.

On failure, Harish Salve was very disarming “I failed my CA exams three times” he said with a wink. “Failure teaches you more in life than success does” and so you should never be afraid of failure. “I have lost a number of important matters in my career” he said with no trace of rancour in his voice.

Harish Salve also says that professionals are all “students of law” and can and are entitled to make mistakes. Mistakes are not important. Dedication and sincerity are the most important attributes that a professional can have, he says.

Harish Salve’s views on his personal wealth are also refreshing. “One thing I’ve learnt is never to be apologetic about success. I have earned it through hard work. I haven’t stood on anybody’s grave to get where I’ve got” he says and adds that one must enjoy the results of the hard work.

So, that’s Harish Salve for you. Simple and modest at heart but a thorough professional as well – the perfect role model.
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