“I Have Lived and flourished in a Secular India. In the fullness of time, if God wills, I would also like to die in a secular India." - Fali S. Nariman, Before Memory Fades: An AutobiographyFali Sam Nariman, an eminent jurist of unparalleled distinction, has left an indelible mark on the landscape of Indian law with his exceptional legal acumen and unwavering commitment to justice. Born...
“I Have Lived and flourished in a Secular India. In the fullness of time, if God wills, I would also like to die in a secular India." - Fali S. Nariman, Before Memory Fades: An Autobiography
Fali Sam Nariman, an eminent jurist of unparalleled distinction, has left an indelible mark on the landscape of Indian law with his exceptional legal acumen and unwavering commitment to justice. Born on January 10, 1929, in Rangoon (now Yangon), Myanmar, Nariman embarked on a remarkable legal career that spans over six decades, shaping the course of constitutional jurisprudence in India.
His towering intellect, profound understanding of legal intricacies, and unwavering dedication to upholding the principles of justice have earned him widespread acclaim and recognition both nationally and internationally. As a seasoned advocate and a respected authority on constitutional matters, Fali Sam Nariman had not only excelled in the courtroom but had also contributed significantly to legal scholarship, leaving an enduring legacy for generations to come.
In his book, 'Before Memory Fades: An Autobiography', the eminent jurist recalls his experiences while dealing with the landmark cases in the making. The many important cases that he was part of, included Sankari Prasad Singh Deo v. Union of India; Kesavananda Bharati v. State of Kerala; I.C. Golaknath v. State of Punjab ; Minerva Mills v. Union of India and TMA Pai v. State of Karnataka
Here is a brief recall of the legendary journey that the Jurist paved for many others to aspire.
Nariman's Unwavering Faith In The Indian Judiciary - Basic Structure Doctrine Here To Stay, Jurist Reassured
In his speech delivered last year at the Ram Jethmalani Memorial Lecture, the Jurist spoke extensively on the significance of the basic structure doctrine within India's constitutional framework. He was of the firm belief that the basic structure doctrine has not only gained enduring constitutional recognition in India but has also been acknowledged and embraced by six other nations worldwide. These countries have recognized the principle of imposing limitations on the legislative authority regarding constitutional amendments.
He urged the public to retain faith in the Judiciary when faced with occasional concerns about case-specific judgment.
" Individual members of the public may from time to time get worried, as I sometimes am, with orders and decisions given by individual judges of the Supreme Court. But please never lose faith in the higher Judiciary as an institution, as one of the three constitutional organs of good governance.”
Mr Nariman stressed how the basic structure doctrine, which placed restraints on Article 368 of the Constitution – the sole article dealing with substantive constitutional amendments – was intrinsically tied to an effort by courts worldwide to safeguard democratic institutions and 'serve the nation well'.
He elucidated the Supreme Court's power to do complete justice under Article 142 as India's 'Hercules technique' which can be used as a shield to prevent Parliamentary excesses.
On the Second Judges Case - “A Case I Won, But Would Have Prefer To Have Lost”
Nariman lamented his victory in the landmark case of SCAORA v. Union of India (II) also known as the Second Judges Case where the court divested the absolute executive control over the appointment of judges in the Higher Judiciary. In doing so the Court laid down the collegium structure where the first 5 senior judges of the Supreme Court would recommend the appointments to the Supreme Court and High Courts.
The jurist opined that it would have been better had he lost the case, being considerably unsatisfied with the reasoning of the court to have only 5 judges in the collegium. In his autobiography, he expressed, that “the closed-circuit network of five judges should be disbanded”. According to him, there was nothing extra-ordinary about being among the first 5 senior judges in the Supreme Court. He believed that all judges of the Supreme Court should be consulted for deciding to appoint future Supreme Court Judges.
Mr.Nariman had also appeared in the NJAC case arguing against the 99th Constitutional Amendment.
Homelessness Was Better Than Spinelessness: When Nariman Resigned In Protest Against Imposing Emergency
In 1975 when the National Emergency was imposed under the Indira Gandhi Regime, Mr Nariman was the Additional Solicitor General (ASG). However, just a day after the imposition of the Emergency, he resigned from the position in protest against the draconian measures taken by the Government. In the aftermath, he struggled to find a stable accommodation in Delhi. There was an air of fear amongst the public to allow him shelter as he had challenged the Indira Regime.
Mr Nariman also lauded the brave dissent of Justice HR Khanna in the case of ADM Jabalpur v. Shivkant Shukla. The jurist in his book recalled that Justice Khanna while dissenting was aware that he had let go of his future Chief Justiceship. According to Nariman, Justice Khanna had resigned “In a blaze of glory”, on seeing Justice Beg supersede him. Mr Nariman explained in his book that Justice Khann's chivalry was the reason why his portrait still hangs in Court Room No.2 where he used to run his court.
First A Humanitarian Then A Lawyer - On Nariman's Refusal To Represent State Of Gujarat
In 1998, during the Narmada Dam Project, a PIL was filed by displaced tribals and Mr Nariman was asked to represent the State of Gujarat in the matter. Amidst the pendency of the PIL, Mr Nariman came across news articles mentioning instances of aggression against the Christian community in the state. Concerned about the same, Mr Nariman who had invited the then CM of Gujarat Mr Keshubhai Patel requested the latter to take measures to stop such violence.
However, as recalled in his book, the situation in the aftermath only worsened. In light of the same, Mr Nariman returned the case brief of the State of Gujarat.
Nariman's Role In Decisions Influencing Minority Rights In India - TMA Pai Foundation v. State of Karnataka
The 2002 decision of the Constitutional Bench in TMA Pai v. State of Karnataka in which Mr Nariman led the matter, primarily dealt with the issue of the government's control and regulations over private unaided Minority educational institutions, particularly in the context of admissions and reservations.
Mr Nariman argued that the petitioners, who were a Konkani-speaking private education institution be given a minority status under Article 30 of the Constitution as Konkani was a minority language in Karnataka and that the Karnataka Educational Institutions Act 1984 was breaching the fundamentals under Article 30.
The issues dealt with by the Court were whether (1) religious or linguistic minorities be decided on a state-level basis or country-level basis; (2) The Act of 1984 violates Article 30 and (3)
The Supreme Court, in its decision, upheld the autonomy of minority unaided institutions in matters of administration, including the right to determine admission policies and procedures. The judgment emphasized the significance of autonomy in educational institutions for maintaining high academic standards and promoting excellence.
The court observed that 'minority' has to be determined on a state-wise basis and not country-wise, thus giving impetus to local diversity and case-specific definition of minority. it further held that fees charged by minority institutions cannot be regulated by the government but should not be higher than the government-approved norms.
Controversial Stand In Union Carbide Case
In defending the Union Carbide Corporation responsible for the infamous Bhopal Gas Tragedy, Mr Nariman faced criticism from the legal fraternity and the media alike. In an article published in the news severely criticising his decision to defend the Corporation, Mr Nariman responded that to suggest human rights lawyers should not accept briefs of those who “Violate the human rights of Others' was a narrow understanding of rights.
He wrote a letter in response to the said article expressing that encouraging such a suggestion would have grave consequences on the legal system and the lawyers would be necessitated to act in the shoes of the judge while taking up cases of alleged wrongdoers and accused. It would burden the lawyers of “pre-judging guilt”, which is the task of the Judiciary. More importantly, he pressed that even thinking of the same would go against the fundamentality of the rights of the accused.
An Ardent Supporter Of The Rule Of Law: Being Vocal About The Article 370 Decision
Mr.Nariman remained an important public voice of conscience, speaking his mind about judicial developments. He never hesitated to call a spade and spade and voice critical opinions, wherever required. Recently, in public platforms, Nariman shared his critical views about the Article 370 judgment. He also said that the lack of a dissenting view in the judgment was worrying.
Mr. Nariman opined the judgment to be politically welcomed as it ensured bridging the gap between Jammu and Kashmir and the rest of the nation. The removal of the special status as historically conferred upon the former princely state, in the political sense upholds the principle of national unity. However, in terms of legal correctness, he expressed:
“Welcome only as so far it has facilitated a complete integration of Jammu and Kashmir into the union of India which is really a union of the federation of states, which is a good thing. But is constitutionally flawed because in my personal view what has been done by the Hon'ble Court is not in accordance with the provisions of the Constitution.”
The jurist also asserted that without intending any disrespect to the Hon'ble Court, he thinks the judgment to be “Totally erroneous and Bad in Law”
Mentoring Young Minds - Tips From The Legend To Become A Good Lawyer
In 2021, Mr Nariman gave an online lecture on " Becoming A Lawyer", in which the legal luminary shared his rich experience with a young audience on polishing oneself to become a good lawyer. the 10 noteworthy tips from the giant of law are as follows :
1. Once a student of law, always a student of law.
2. Proficiency in English is vital, important constitutional concepts are in English.
3. The worst enemy of hard work is a fixed monetary reward.
4. Important to look up even law having 'a remote connection with facts in light of Section 165 of the Indian Evidence Act.
5. The advocate's duty to bring to the Court's attention cases previously decided on a point of law even if unfavorable.
6. To lose your temper at a judge is to lose half the battle in Court.
7. Express displeasure against an unfavourable ruling only in the Court of Appeal/ open Court.
8. Exercise caution when speaking to media, unfair to judge who cannot retaliate.
9. The time limit for arguments is important considering the huge backlog of cases.
10. Advocacy plays a vital role, cases are not won merely on the basis of the strength of evidence
Forever An Officer Of The Court - The Bar & Bench Reminisce
On learning about the sudden demise of the legal luminary, Chief Justice of India DY Chandrachud today (February 21), mourned the death of Senior Advocate Fali S Nariman.
"Mr Attorney, we really mourn the sad demise of Fali Nariman. He was a great giant of law and an intellectual. It's very sad," CJI Chandrachud said, addressing the Attorney General for India, as soon as he sat.
AG Venkataramani stated how until yesterday Mr Nariman and himself were preparing in depth for the reference related to the Arbitration law. AG said that yesterday forenoon, he and Nariman had agreed to make a joint mention before the CJI regarding the Constitution Bench reference.
The CJI added how he was informed that Mr Nariman even at such a feeble age was working till late at night to fine-tune the submissions on the Constitution Bench Reference.