Fali Sam Nariman
This is a collection of articles archived for the excellence of their content. |
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.”
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.
