Nani Palkhivala, JB Kanga and the copyright suit from the South

On January 16, 1920, Ardeshir and Sheroo Palkhivala were blessed with a child they named Nanabhoy Palkhivala. In the words of Dharmendra Bhandari, Nani was God’s gift to India. It has been 101 years since the birth Nani Palkhivala, and till today, we haven’t found a match for his courtroom genius.

We all know how he appeared in some of the most significant cases that eventually shaped the Constitution of India. From the Basic structure doctrine to minority rights in the Xavier’s case, he stood up as a ‘Constitutional crusader’. More than a lawyer, Nani was a courtroom storyteller who had the best story. As Justice HR Khanna once remarked:

“The presiding judges would take a week to come out of the spell Palkhivala would cast with the power of his words...”

The Smell of Piracy From Madras

In the Sampath Iyengar copyright case, he had to defend himself. Iyengar sued Palkhivala and Sir JB Kanga for copyright infringement, when the first edition of their commentary on Income Tax was released. It is pertinent to note that MC Setalvad, then the Attorney-General of India, and HM Seervai appeared for Kanga and Palkhivala. In his book, Nani Palkhivala -The Courtroom Genius, Arvind Datar mentions that Setalvad appeared for Kanga, because of the enormous amount of respect he had for him.

Initially, Nani was not inclined towards Income Tax cases, but when he joined the chamber of Kanga, most of his appearances were placed before the Income Tax Appellate Tribunal. After spending the initial years of his career at the chamber, Nani proposed the idea of co-authoring a commentary on Income Tax (Kanga and Palkhivala’s: The law and Practice of Income Tax).

After the first edition was published, it was sold out in a jiffy. But who knew that on November 22, 1951, someone from 1,000 km southwards would sue Palkhivala for piracy and copyright infringement. It was AC Sampath Iyengar, an advocate from Madras High Court, who had already published a commentary on the Income Tax Act, 1922.

“On a reading of the book, Iyengar felt that several portions of his book had been pirated and asked his solicitors to serve/issue a legal notice to Nani and Kanga. As Kanga was then in England, a detailed reply was sent on September, 12 191 denying the charges of infringement and refuting the claim for compensation.” (The Court Room Genius, P Datar & S Sorabjee, P. 21)

[WATCH TRAILER] Making of Kanga & Palkhivala:

Arvind Datar and Fali Nariman speak on the 11th Edition of the book and working in the chambers of Jamshedji Kanga

The Suit

The case in question was Sampath Iyengar v. Sir Jamshedji B. Kanga (CS No 350 of 1951), heard and decide by Justice Panchapakesa Ayyar of the Madras High Court. The suit was filed by Iyengar, against Palkhivala, Kanga and NM Tripathi (the bookseller). Iyengar contended that most of the passages were copied from his book and no acknowledgement has been given to the original author. The question on jurisdiction was never dealt with because Palkhivala had submitted to the jurisdiction of the court and no contentions were raised accordingly.

There were two questions before the Bench - firstly, whether the defendants have infringed the plaintiff’s copyright. And secondly, whether the similarities, if any, resulted from the use and employment of common sources and of expressions and ideas familiar in Income-Tax laws.

The Court exhaustively analyzed each portion of the book and both the parties were examined accordingly. It is important to note that at that time, the Indian Copyright Act of 1914 was totally based on British law and the Court took into consideration Halsbury’s Laws to determine the infringement.

The question before the Court was whether re-structuring certain portions amounts to piracy or not. Reliance was placed on various international decisions like GA Cramp & Sons Limited v. Frank Smythson Ltd, where the House of Lords observed that copying commonplace tables from pocket diaries would not amount to an infringement of copyright where no special labour or skill has been used.

Palkhivala and the cross-examination

The cross-examination of Nani was one of the significant moments of the case, as he destroyed the contentions raised by the plaintiff on ‘piracy’ and ‘copyright breach’. The Court noted,

“The examination of P.W. 1 (A.C. Iyengar) and D.W.1 (Nani Palkhivala) was detailed and Nani fared better in cross-examination than Iyengar. He stood a detailed and skilful cross-examination exceedingly well, was not not materially shaken on any point, and struck me as a competent and alert lawyer, who was thoroughly conversant with the Income Tax Act and law and was very well informed.”

This portion from the order itself speaks volumes of the confidence of Nani, because from the first minute, he was sure that there is no case of copyright infringement. The Court noted Nani's sharp memory, observing,

“Iyengar was not able to stand the cross-examination so well because of his emotion and often gave answers which cannot be said to be satisfactory. He was not able in some refer to other portions of his book...as Nani.”

Both the defendants, Nani and Kanga, significantly rebutted each and every claim which was brought forward by the plaintiff. During the course of proceedings, Nani relied on a proposition from Kartar Singh v. Ladha Singh:

“If any part of a work complained of is a transcript of another work, or with colorable additions and variations prepared without any real independent literary labour, such portion of the work is piratical. It is impossible to establish a charge of piracy when it is necessary to track some passages and lines through hundreds of pages or when the authors of a work challenged as piratical honestly applied their labour to various sources of information.”

Indians have a great fascination with zeros and italics

Another interesting observation was made by Justice Ayyar was regarding common italics and how Nani-Kanga had highlighted the same paragraphs while using italic font repeatedly.

Justice Ayyar, while concluding the order observed:

“Indians, as a race, are very fond of italicizing things, one well-known Indian statesman read a book three times, underlining one-third of the book each time and at the end, found the whole book underlined. Indians have a great fascination for ‘zeros’ and ‘nils’ and even call God ‘Pujya’ (The Supreme Zero).”

While rejecting the contentions raised by Iyengar, Justice Ayyar held:

“The remaining italics might have been done by the second defendant by accident, or might have been done by an unconscious impulse generated by his unconscious memory, by having read Ex. P-1 or any other commentary, containing the same italicised words, during his practice. But we will be simply involving ourselves in the realm of conjecture if we go further.”

No case for copyright infringement

The Court, after hearing both the parties at length, ultimately held that there is no scope of piracy and Nani-Kanga had only used their labour & skill to re-trace the concerned paragraphs from the original judgments/reports which the plaintiff contended were pirated. The Court held that there is "no proof that any portion of the Plaintiff’s book has been really copied or pirated by the defendants."

Coming back to the questions which were proposed before the Court, it finally observed that no portion except two and a half pages ‘might’ have been restructured by Nani during the period when he was referring to various commentaries. It was observed by the Court:

” I am not satisfied that the plaintiff was moved by desire for self in issuing the notice, and , of course, he has lost some money by launching this ill-advised litigation in which he has not succeeded.”

On the question of piracy, it observed:

”The plaintiff was sincere in believing that a portion of this book had pirated, through, of course, he was quite wrong in his thinking so and has indulged in some untenable and extreme statements.”

It is noteworthy to refer that no costs were pressed by Kanga and Nani, Interestingly, it has been reported that Nani took one rupee as a token from Iyengar to press-off the suit.

Note: The judgment of the Madras High Court has been traced from 'Nani Palkhivala - the Courtroom Genius'.