Fali Sam Nariman
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Contents |
A profile
The top jurist, known for his ceaseless campaign against misconduct and corruption in the judiciary, opposed the much-touted Judicial Appointments Commission Bill, which seeks to replace the current system of appointing judges with a commission. He will challenge it in the Supreme Court, he has announced.
He led the committee that drafted the historic guidelines against sexual harassment on the Supreme Court premises, leading to its implementation in the apex court 16 years after it framed sexual harassment rules in the workplace in India. The ace lawyer is known for nurturing a brood of over 40 cats and kittens in his Hauz Khas home.They have their own living quarters and are served sumptuous dishes of meat.
A brief biography
The man and his principles
AmitAnand Choudhary , February 22, 2024: The Times of India
New Delhi: Some soldiers sleep with their boots on. Fali SNariman, you would think, slept with his robes on. The indefatigable jurist was prepping for a submission to be argued before a Constitution bench in what turned out to be the last day of an extraordinary life.
Born in Rangoon in 1929, he landed in Delhi as a refugee in 1942. He started practising law in Mumbai in 1950. The remarkable thing is how his evolution as a jurist over 70 years mirrors India’s jurisprudential journey. Most of the cases that built its social, political and legal landscape had aNariman imprint. Referred to as ‘Bhishma Pitamah’ of Indian judiciary, he was conscience keeper and guiding light for legal fraternity.
Widely considered as one of India’s finest lawyers, Nariman not only guided fellow professionals and judges but for decades was the go-to legal expert Presidents first approached when they sought an opinion on a tricky issue.
Nariman’s principles defined his legal journey
Govts and CJIs offered Fali S Nariman preferments lawyers dream of. He was offered judgeship, first for Bombay high court and later for Supreme Court. He graciously refused both times.
Indira Gandhi had appointed him additional solicitor general. But true to form and character, he resigned a day after Emergency was proclaimed on June 25, 1975. In his autobiography, Before Memory Fades, Nariman said the key lesson from that period was that constitutional functionaries including Supreme Court judges can abdicate their duty to protect the Constitution and fundamental rights. “It was judicial pusillanimity at its worst,” Nariman wrote.
Two PMs offered Nariman the post of attorney general — Deve Gowda in July 1996 and Atal Bihari Vajpayee in March 1998. He politely declined both times. He recalled in his autobiography that “apart from not wanting to be part of a BJP-led govt, the trauma of resigning in protest as a law officer for the second time dissuaded me from saying yes”.
His principles and values defined his legal journey. He was representing Gujarat govt on Narmada rehabilitation, but returned the brief in protest after attacks on Chris- tians in the state. He was part of landmark cases decided in the apex court — Sankari Prasad Singh Deo, Kesavananda Bharati, I C Golaknath, Minerva Mills, TMA Pai, the second judges case in which the collegium system was evolved, Bhopal Gas tragedy case, and NJAC among others.
Interestingly, he regretted winning the second judges case. The collegium system has failed, he thought, and he became the strongest critic of it. “I do not see what is so special about the first five judges of Supreme Court. They are only the first five in seniority of appointment — not necessarily in superiority of wisdom or competence... I would suggest that the closed-circuit network of five judges should be disbanded,” he said.
Nariman said that it was not that good judges were not appointed or are not appointed but sometimes better candidates are overlooked or ignored under the system. A Parsi and therefore a member of a tiny minority community, Nariman used to say for the longest time he never felt he was a minority. But in later years, he felt India was changing. “My greatest regret in a long, happy, interesting life is the intolerance that has crept into our society. For centuries, Hinduism had been the most tolerant of all religions. But over the past few years, I have been a reluctant spectator of a new phenomenon. The Hindu tradition of tolerance is under immense strain — the strain of religious tension fanned by fanaticism. This great orchestra of different languages and praying of different Gods — that we profoundly call India — is now seen and heard playing out of tune,” he had written in his autobiography. Nariman had signed off his autobiography saying, “I have lived and flourished in a secular India. In the fullness of time if God wills, I would like to die in a secular India.”
Nine notable cases
Ajoy Sinha Karpuram, February 22, 2024: The Indian Express
Eminent jurist and Senior Advocate Fali S Nariman’s career as a lawyer spanned over 75 years with the last half-century being spent as a senior advocate of the Supreme Court of India. During this time, he left an imprint on the law and the legal profession in a vast array of landmark cases.
1. The Second Judges Case: Supreme Court Advocates-on-Record Association v. Union of India
In 1981, a five-judge constitution bench of the Supreme Court gave the central government the final say in matters regarding judicial appointments and transfers by allowing the President to refuse recommendations made by the Chief Justice of India (CJI). The court held that the requirement under Article 124 of the Constitution, stating that the CJI must be “consulted”, means that there must be an exchange of views, and there is no necessity for “concurrence” between the CJI and the President.
The Supreme Court Advocates-on-Record Association (SCAORA) challenged this decision in 1987 and was represented by Senior Advocate Fali Nariman among a host of other senior lawyers. Nariman argued that “consultation” in the context of judicial appointments means more than merely seeking advice.
He stated that the advice given through consultation with the CJI must be seen as binding in order to protect the independence of the judiciary, as judges would be in a better position to determine the suitability and competence of candidates.
In 1993, the nine-judge bench agreed with Nariman’s arguments and established the Supreme Court Collegium. It’s a body comprising the senior most Supreme Court judges which is tasked with making binding recommendations for appointment of judges to the apex court and High Courts. This method of appointment has remained in place since this decision.
2. The Third Judges Case: In re: Special Reference 1
The President of India K R Narayanan exercised his power under Article 143 of the Constitution to send a “reference” to the Supreme Court for the latter’s opinion on questions of law that may have public importance, and asked for clarification on the procedure for appointment of judges following the second judges case.
Nariman made submissions to assist the court in this case. The court, answering the reference in 1998, clarified that the CJI must consult other judges of the Supreme Court before making any recommendations for judicial appointments. Further, it expanded the size of the Supreme Court Collegium to five senior most judges from the existing three.
3. National Judicial Appointments Commission case: Supreme Court Advocates-on-Record Association v. Union of India
Nariman would also appear in the latest chapter of the judge appointments dispute following the challenge to the National Judicial Appointment Commission Act, 2014 (NJAC). The NJAC amended the Constitution to insert Article 124A which created a six-person commission for judicial appointments. This commission would comprise the CJI, two other senior SC Judges, the Union Minister of Law and Justice, and two “eminent persons” who would be nominated by a committee comprising the CJI, Prime Minister and Leader of Opposition.
Nariman represented the SCAORA in the case and argued that the NJAC would impinge upon the independence of the judiciary if the central government and the legislature were allowed to participate in the selection and appointment of judges. Four of the five judges on the bench agreed with this view in 2015 and struck down the NJAC, in effect reinstating the collegium system for judge appointments.
4. Parliament cannot curtail fundamental rights: I.C. Golak Nath v. State of Punjab
Two brothers in Punjab challenged the Constitution (Seventeenth) Amendment Act, 1964 as it amended Article 31A of the constitution. This article deals with the acquisition of estates and can be found in the fundamental rights chapter of the constitution. Fali Nariman appeared on behalf of the intervenors in this case who supported the petitioners. They argued that Parliament’s power to amend the constitution under Article 368 did not include articles contained in Part III of the Constitution dealing with fundamental rights. A majority of six judges from the eleven-judge bench agreed with the petitioner’s submissions in 1967, pointing out that Article 13(2) states that Parliament cannot make a law which infringe fundamental rights.
5. Bhopal gas tragedy: Union Carbide Corporation v. Union of India (1989)
In 1984, the Bhopal gas tragedy where 42 tons of toxic chemicals leaked from a pesticide plant owned by Union Carbide India Limited, resulting in thousands of deaths and environmental damage in the following years. The Supreme Court began hearing the case for compensation to the victims in 1988.
Senior Advocate Nariman appeared, representing Union Carbide, and offered to pay a sum of 426 million dollars as compensation to the victims of the tragedy. In 1989, Union Carbide reached a settlement with the central government and agreed to pay 470 million dollars as compensation.
6. Rights of minorities to establish and administer education institutions: TMA Pai Foundation v. State of Karnataka
Nariman argued in the landmark TMA Pai case in support of minority rights to establish and administer educational institutions under Article 30(1) of the Constitution. The court held that linguistic and religious minorities have to be determined on a state-by-state basis and that the government has the power to frame regulations which will apply to minority-run educational institutions. However, the court clarified that these regulations cannot “destroy the minority character of the institution or make the right to establish and administer a mere illusion”.
7. Governor to act only upon the aid and advice of the council of ministers, chief minister: Nabam Rebia, and Bamang Felix v. Deputy Speaker
The Supreme Court in 2016 was tasked with navigating the political crisis in Arunachal Pradesh following the rebellion of 21 Congress MLAs in 2015. Governor Jyoti Prasad Rajkhowa advanced the assembly session so that a floor test could be conducted to determine which party held the majority.
Nariman, on behalf of the house whip Bamang Felix, argued that the governor did not have the power to advance the assembly session as this could only be done upon the aid and advice of the council of ministers and the chief minister, as per the constitution. The court agreed and restored the Congress government, led by chief minister Nabam Tuki.
8. Obtaining bail for former Tamil Nadu Chief Minister Jayalalitha: J. Jayalalithaa v. State of Tamil Nadu
Former Chief Minister Jayalalitha had been accused of misappropriating funds during her tenure between 1991 and 1995. A Sessions Court in Bangalore in September 2014 found that she had acquired property disproportionate to her known income and imposed a Rs 100 crore fine on her. This sentence was upheld by the Karnataka High Court a month later leading to appeal at the Supreme Court.
Nariman appeared on behalf of Jayalalitha in October 2014 and convinced the court to grant bail against executing the fine and suspend the sentence passed by the Sessions judge in Bangalore.
9. Cauvery Water Dispute: State of Karnataka v State of Tamil Nadu
Nariman represented Karnataka for over 30 years in the water-sharing dispute with Tamil Nadu. In 2016, the Supreme Court ordered the Karnataka government to release 6,000 cusecs (cubic feet per second) of water from September 21 to September 27.
The Karnataka legislative assembly, however, passed a resolution stating that they did not have water to spare and chose to defy the courts orders. Due to this non-compliance, Nariman refused to argue the case on behalf of the Karnataka government any further.
In the final judgment passed on February 16, 2018, the court took note of Narimans stand on the issue and observed “We think it necessary to state here that Mr. Nariman had courageously lived upto the highest tradition of the Bar”. The court then proceeded to reduce Karnataka’s annual water releases to 177.25 thousand million cubic feet (TMC) from 192 TMC.
His journey in law
Arghya Sengupta, February 22, 2024: The Times of India
Fali Nariman came of age as an adult in 1947, the year India became independent. Those were heady days – India was ready to take its place on the world stage with promises of liberty, equality and fraternity. It was brimming with idealism on the journey that it was about to undertake. Yet it remained pragmatic about the difficulties that lay ahead and tough decisions that would have to be taken. Nariman reflected these founding sentiments profoundly in the course of his glittering legal career and public life.
IDEALIST
His rise to prominence in the legal profession had been meteoric. But he earned his place in the annals of legal lore not because of any particular case, but rather on account of his resignation as a law officer of govt. When Emergency was proclaimed on June 25, 1975, Nariman was serving as Additional Solicitor General – one of the senior-most law officers of the Union government who would be expected to defend its actions in court. He spent the day mulling things over, and the morning following the proclamation, he handed in his resignation. Not only was this an act of great courage and integrity at a time when the govt had a take-no-prisoners approach to those who did not fall in line, but it also set a high bar of integrity for future law officers. Despite the increasingly partisan nature of the bar in recent years, if a whiff of higher purpose remains, it is the direct legacy of Nariman’s courageous act.
PRAGMATIST
Nariman had the unique ability of tempering such idealism when the situation demanded. When Justice Jasti Chelameswar, a senior Supreme Court judge refused to attend collegium meetings till they became transparent, he resolutely opposed the move to secure transparency. Yet as a parliamentarian, he had earlier sponsored the Judicial Statistics Bill, which would have ensured that judicial functioning and its bottlenecks became transparent to all.
In today’s shrill atmosphere when every action to make the judiciary transparent or hold it accountable is seen as empowering govt, Nariman’s bill may have been perceived as pro-govt too. Maybe Nariman himself might not have sponsored it today, just like when he took a surprisingly strident stance against Chelameswar. He had an uncanny sense of when to be idealistic, and when to be pragmatic.
EGALITARIAN
In someone else, such inconsistencies might have been misunderstood. But so affable was Nariman as an individual, and so unquestioned was his integrity, that one knew there must have been a good reason for every action he took.
Nariman defended the collegium from public attack with an “unsolicited suggestion” that the “citadel never falls except from within”. Too much criticism would weaken the judiciary, in his view. I made my disagreement known with an “unsolicited response”. Nariman took the discussion offline and explained patiently why he had argued the way he had. There was a gulf of over half a century in age, many times that in wisdom, but that conversation was an old-fashioned joust in which, not once did Nariman assert his superiority or pull rank. Without exaggeration, thousands of juniors have similarly benefited from his warmth, largesse and commitment to treating fellow advocates as equals.
NATION - BUILDER
It was this quality that enabled Nariman to appeal to all cross-sections of the Bar and the Bench over the decades to build the foundations of rule of law. Appearing for Indian Express, Nariman defended the freedom of press like few had. As Emergency raged between 1975-77, the govt threatened to forfeit the lease of its headquarters in Delhi for a minor violation of municipal bylaws. Nariman moved SC. Ably assisted by Arun Jaitley, Nariman managed to convince the court that the threat of forfeiting the lease was a mere pretext to muzzle the press and clamp down on critical coverage. The court came down hard on the govt – quashing the notices by the municipal authorities and providing relief to all newspapers.
Notably, while arguing his brief, Nariman did not just preach from the high horse of constitutional theory – he familiarised himself with the nuts and bolts of municipal law and managed to get the notice quashed. That was Nariman’s greatness – he could see the big picture of why a free press was critical for India’s democracy. But equally, there was a case to be won, which couldn’t simply happen by quoting high principle. That required craft.
He was, first and foremost, a fine lawyer, able to dive into the intricacies of arcane legal points, make clever arguments, read judges’ minds like few others could, and adroitly get his clients the relief they sought. A nation needed both its architects and masons – in Nariman, it found both rolled into one.
CONSCIENCE
With his death, the Indian bar has lost its pre-eminent voice of conscience. There are very few public figures who have the stature to call govts out for destroying judicial independence, while also taking issue with judges for cowering before govts. Nariman did both, without any fear, always with a twinkle in his eye. As the nation strides confidently on the global stage today, it will miss having the wisdom, reason and candour of its finest senior counsel. We may not ever have another like him.
