Fali Nariman: A rare legal luminary passes away

By Professor S N. Misra*

My abiding memory of Fali Nariman, who passed away today, is standing on one side of Nani Palkiwala and with Soli Saurabjee on ther side, arguing against the government’s unlimited power to amend the constitution in the Keshvanand Bharati’s case (1973). Both Nariman and Soli were like legal twins, born the same year, who provided symphony to the ultimate legal maestro of India, Nani Palkiwala, who inked the indelible concept of “Basic Structure”, which no majoritarian government can deface, obliterate or amend. Fali Nariman would be remembered for his iconic book, ‘Before the memory fades’,  where he wrote, “the judiciary is like oxen in the air. It is not enough for the judiciary to be independent of the executives. They must be seen to have noble quality of mind and heart and above all courage”. The CJI DY Chandrachud paying a homage called Fali Nariman, ‘a father figure and a towering intellectual’. By annulling the electoral bond scheme in the ADR verses Union of India, a few days ago, the Supreme Court has in a sense lived up to the two attributes that Fali flagged, courage and independence.

Fali Nariman was born in Burma in 1930, the same year when the family had to trek from Burma after Pearl Harbour bombing by the Japanese and was nearly trampled by an elephant. Fali became a senior advocate in the Supreme Court in 1971 and was possibly the longest serving advocate (63 years) in supreme court. He was appointed as an additional solicitor general in 1972 and resigned in 1975 in protest against the emergency. He has consistently showed this courage in every case that he fought. In Menaka Gandhi case (1978), he argued that the procedure being followed by the government in annulling the passport has to be fair and non-arbitrary. This was accepted by justice P M Bhagwati. Freedom of movement abroad became a second generation right for the Indian citizens. In the S R Bommai case (1994) he argued against the government for imposing president’s rule arbitrarily under article 356.  This has led to the famous floor test which is insisted upon before the governor decides whether the party in power had lost its constitutional mandate or not to run the state. He also was a great advocate of minority rights. In the T M A Pai foundation case (2003), he strongly advocated that the minority rights under article 30 for running the institution as per their discretion must not be circumscribed  by government bringing in reservation of admission under article 29 (2).

In the Narmada Rehabilitation case, when he was fighting for the Gujrat government, he returned the brief as he found that the Christians were getting harassed and bible has been burnt. The government was not keeping its promise to protect the life and property of the minority community. In a recent interview with Karan Thapar, Fali said that the situation in India today is like a veiled emergency with the added mood of anti-Muslim and anti-minority sentiments. Coming from a towering intellectual who never took sides and fought against authoritarianism, his sane voice must be respected by the powers that be.

Apart from his autobiography, ‘Before memory Fades’, Fali has written recently another book, Know your constitution which couldn’t have been more timely. Apart from elucidating the high watermarks of constitutional morality, Fali is anguished that the voice of the opposition is not being cared for by the party in power. While Nehru, was always sensitive to the criticism of the opposition, Fali writes that the tendency to turn a deaf ear to the opposition’s view point started with Ms. Gandhi and the sad legacy has been carried on by the present regime. Harold Laski said, “Responsible dissent is the essence of democracy”, Fali brings up this important facet of tolerance to a dissident opinion and respecting a contrarian voice as a life breath of democracy.

It was Martin Luther King Junior, “ The arc of moral universe is long, but it bends towards  justice”. Fali firmly believed in it. Prashant Bhushan calls Fali Nariman Pitamah Bhishma of legal fraternity. However, unlike Bhishma who didn’t protest when Draupdi was being disrobed, Fali has raised his voice when democracy has been in danger and the minority community has been unfairly victimized by majority community.  He spoke against the judgement in Article 370  as being constitutionally flawed. He also spoke against the NJAC judgement when the collegium system for selecting judges was considered offensive of basic structure. He believed that the structure could have been changed but not the concept of collegium to choose judges.

His legacy was carried forward by his son justice Rohinton Nariman who in the Shreya Singhal case (2015) struck down section 66(a) of IT Act 2000 which was leading to arrest for posting offensive message in the electronic media. This judgement is considered a landmark judgement protecting freedom of speech and expression being trampled upon by arbitrary police action and a victory for the social media. Fali was not only a great lawyer and as Kapil Sibal brings out was one of the finest human beings. Hopefully, the courage of conviction that he showed and the ethical principles that he constantly espoused would be a message for the present generation ‘As Joseph Story, the great jurist wrote, “it depends on the present age whether the national constitution shall descend on its children with its masculine majesty or shorn of its responsibility, it will become an ideal mockery”.  As India passes through an extremely turbulent period of religious fundamentalism and minority bashing, Fali’s legacy would hopefully permeate through the political landscape of India and make us a truly secular, multi-cultural and tolerant country.

The author is Professor Emeritus, KIIT University.

DISCLAIMER: The views expressed in the article are solely those of the author and do not in any way represent the views of Sambad English.