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Fali S. Nariman: A Legacy to Remember Before Memory Fades

Throughout his life, he strived for justice and stood up for minorities and the downtrodden. He wanted a society with peace and tolerance but had to end his biography with fear. He concluded “I must end with a note of apprehension. My greatest regret in a long, happy, interesting life is the intolerance that has crept into our society.”

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“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.”

This is what eminent jurist and senior advocate, Fali S. Nariman, who passed away on February 21st, prayed for in the concluding chapter of his autobiography, “Before Memory Fades.” His commitment was not just limited to prayers rather each time he observed an incident threatening the diversity of India, he took a stand against it, both inside the courtroom and outside. Fali S. Nariman’s father, Sam Nariman, had migrated from Mumbai to Rangoon in 1927 to establish a branch of New India Assurance Co. Ltd. There, he fell in love and entered matrimony. There Fali S. Nariman was born on January 10, 1929, and spent his formative years until 1941. The onset of World War II and safety concerns prompted his family to relocate to India.

Fali S Nariman completed his law degree from Government Law College, Maharashtra, and joined Bombay BAR in the year 1950, the same year when the Indian Constitution was enacted, for him it was a turning point in life. Being a First generation lawyer, the initial days were not easy for him. Remembering that phase he said, “The initial years were tough, although how tough can’t be measured.” Adv. Jamshedi Kanga played a vital role in his professional career, in his chamber he learned the art of advocacy. Adv. Fali after practicing for two decades in Bombay BAR left for Delhi in 1972 where he got to appear in many landmark cases that strengthened the basic of the Indian Constitution to reaffirm the idea of fundamental rights.

The Second Judges Case and the Evolution of the Collegium System

An independent judiciary is the prerequisite for justice but the decision of the Supreme Court in 1981 allowed the central government to take the final decision pertaining to the judicial appointments and transfers. The five-judge constitutional bench held a ‘consultation’ with the Chief Justice of India while judicial appointments and transfers are not binding but rather merely an exchange of views and if there arise any disagreement, the President will have the final say. Apprehending the far-reaching consequences of this decision, The Supreme Court Advocates-on-Record Association (SCAORA) challenged this decision in 1987 and Fali S Nariman representing SAORA argued that the word “consultation” in Article 124 of the constitution regarding judicial appointments should not be interpreted so narrowly rather the consultation of the CJI should be binding. The bold arguments of Adv. Fali S Nariman in this case led to the establishment of a Collegium system in which senior judges of the Supreme Court make decisions pertaining to the judicial appointments. However, Fali S Nariman later on regretted winning this case.

Interestingly the chapter that narrates his experience of this case is titled, “A Case I Won – But I Would Prefer To Have Lost”. According to him, the collegium system has miserably failed. He writes, “I don’t see what is so special about the first five judges of the Supreme Court. They are only the first five in seniority of appointment – not necessarily in superiority of wisdom or competence. I see no reason why all the judges in the highest court should not be consulted when a proposal is made for the appointment of a high court judge (or an eminent advocate) to be a judge of the Supreme Court. I would suggest that the closed-circuit network of five judges should be disbanded.”1

It is pertinent to mention that Fali S Nariman also appeared before the Supreme Court against the National Appointment Judicial Commission Act, 2014 which created a six-person commission for judicial appointments comprising 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.  Adv. Fali while arguing against this Act, apprehended grave compromise on the independence of the judiciary. Supreme Court agreeing with Fali S Nariman, struck down the NJAC, in effect reinstating the collegium system for judge appointments.

In Defense of Fundamental Rights

Adv. Nariman argued in IC Golaknath case with all his zest. It was the time when many constitutional questions were unanswered yet thus leaving enough space for misinterpretation. In IC Golaknath, the Supreme Court while deciding in favor of Adv. Fali held that fundamental rights are beyond the amending powers of the Parliament.2 This was one of the cases that became the base that developed the debate on the basic structure of the Constitution. Later on, this doctrine of basic structure was outlined in the famous Kesavananda Bharti v. State of Kerala3 that was excellently argued by Adv. Nani Palkhivala whom Fali S Nariman assisted. 

Advocating For Minority Rights In The Courtroom and Beyond

Fali S Nariman was very concerned about increasing hate against minority communities in India. He himself belonged to the Parsi community and was vocal about atrocities against all. In the 7th Annual Lecture of the National Commission of Minorities on the topic ‘Minorities at Cross Roads’, Fali S Nariman expressed his anguish over anti-muslim hate and said “We have been hearing on television and reading in newspapers almost on a daily basis a tirade by one or more individuals or groups against one or another section of citizens who belong to a religious minority and the criticism has been that the majority government at the Centre has done nothing to stop this tirade. I agree.”4 He would often compare the change of heart with the time, the spreading intolerance and attacks on religious minorities.

Adv. Fali has also appeared in TMA Pai Foundation vs State of Karnataka,5 an important case related to minority rights to establish and administer their educational institutions. Furthermore, in 1998, he was asked to appear for Gujarat government in a Public Interest Litigation filed by displaced tribals, he agreed. During the same days he came to know about attacks on the Christian community and churches, he requested the then CM of Gujarat to take measures to stop this hate. After realizing the failure of the government to stop aggression against the Christian community, he refused to appear in the PIL for the Gujarat government.

Dissent in Emergency

Fali S Nariman because of his competence received many offers, few he accepted and many refused. He was offered High Court Judgeship at the age of 38 but declined the honour for financial reasons. In 1972 when he was just 46 he became Additional Solicitor General of India but cordial relations with Congress government could not continue for long. He remembered in his autobiography, the days of emergency as an aggression on the fundamental rights of the citizens. Just a day after the emergency by Indira Gandhi, he resigned from his post, being the only public officer in the country to have registered his protest against the violation of rights and civil liberties.

Critical on the Judgment of Article 370 

On 11 December 2023, a five-judge bench of the Supreme Court upheld the Union government’s action to abrogate Article 370, which granted special status to Jammu and Kashmir (J&K). Fali S Nariman expressed it as a matter of regret for not having even a dissent judgment in the verdict. While critically commenting on the judgment he said, “The verdict is, in my view, an incorrect appreciation of the Constitution, which I didn’t expect the court to do.”6

A Timeless Legacy That Will Echo with Grace

Fali S Nariman left at the age of 95 while leaving a graceful legacy behind. He stood for the people of his country and refused chairs and opportunities on moral grounds. In times of challenges, he was a guiding light for the legal fraternity and institutions. Throughout his life, he strived for justice and stood up for minorities and the downtrodden. He wanted a society with peace and tolerance but had to end his biography with fear. He concluded “I must end with a note of apprehension. My greatest regret in a long, happy, interesting life is the intolerance that has crept into our society.”7 All those who cherish his life should work for the society he held dear – a society built on the foundations of peace, justice, and tolerance.

References:

  1. Fali S Nariman, When Memories Fades
  2. Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762),
  3. AIR 1973 SUPREME COURT 1461, 1973 4 SCC 225
  4. Minorities at Cross Roads, South Asia Citizen Wire (http://www.sacw.net/article9565.html)
  5. 1994 AIR 2372, 1994 SCC (2) 734, AIR 1994 SUPREME COURT 2372
  6. https://www.indiatoday.in/law/story/fali-nariman-says-supreme-court-article-370-verdict-incorrect-appreciation-of-constitution-2475250-2023-12-13
  7.  Fali S Nariman, When Memories Fades
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The author is a law graduate from Aligarh Muslim University, currently practicing at Jammu and Kashmir and Ladakh High Court. He could be reached at [email protected]

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