India has been blessed with several distinguished constitutional lawyers who are also globally highly respected. One of my abiding memories, while doing my graduation was to hear Nani Palkhiwala arguing before a forbidding full bench of Supreme Court judges in the iconic Keshavananda Bharati Case (1973). The moot issue was, can the Parliament amend, or obliterate any provision of the Constitution? Nani argued that the Parliament cannot amend, emasculate, or do away with the basic structure of the Constitution; facets like Democracy, Republic, Secularism, federalism, separation of powers, rule of law, and most importantly judicial review. Flanked on either side of the legal maestro were two fledgling legal eagles, Fali Nariman and Soli Sorabjee, who subsequently carried on the luminescent torch that Nani lit in the 70s. The three Parsees, Nani, Fali, and Soli, were like a Zubin Mehta symphony in the arcane field of law. The last of the trinity, Fali passed away at 95, after a highly satisfactory innings as a lawyer, writer, and sensible commentator of our times.
Like MC Chagla’s superb autobiography “Roses in December’, Fali leaves behind a highly enjoyable autobiography “Before Memory Fades”, uncluttered by legal verbiage. He not only recounts his journey as a lawyer and Additional solicitor general, he also makes a candid assessment of the Supreme Court judges he has come across. Without being unnecessarily laudatory or panegyric, he picks CJI K Subbarao as the best he has seen in terms of balance, acuity, and logic. In these turbulent times, when the judges are often perceived either as pro-government or dilatory Fali Nariman writes, “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 paid an homage calling Fali Nariman, a father figure and a towering intellectual. By annulling the electoral bond scheme in the ADR Vs Union of India, a few days ago, the Supreme Court has in a sense lived up to the two attributes that Fali flagged for a judge, courage and independence
Fali Nariman was born in Burma in 1929the same year when the family had to trek from Burma after the Pearl Harbour bombing by the Japanese and was nearly trampled upon by a wild elephant. He earned his law degree in 1950 with the Kinlock Forbes Medal. His father wanted him to join the ICS, but Fali chose to become a lawyer. The loss of bureaucracy was a gain for the legal fraternity and he became a senior advocate in the Supreme Court in 1971 and was possibly the longest-serving senior advocate (63 years) in the Supreme Court. He was appointed as an Additional Solicitor General in 1972 but resigned in 1975 in protest against the emergency. He was offered judgeship several times, but the lure of Bombay and the financial bonanza of a successful practice deterred him, as it has many brilliant practicing lawyers
The Golaknath Case (1967) was his first landmark case, where he strongly argued in favor of safeguarding fundamental rights like the right to property being purloined by a predatory government. In the Keshavananda Bharati Case (1973) he assisted Nani Palkhiwala to establish the basic structure doctrine, which has stood the test of time. In the Menka Gandhi case (1978), when the Janata Party government denied Maneka Gandhi to travel abroad, he argued that the procedure being followed by the government in impounding the passport was unfair and arbitrary. This was accepted by Justice P M Bhagwati. Freedom of movement abroad became a second-generation right for Indian citizens.
In the Bhopal Gas Tragedy Case (1984) he appeared for the Union Carbide. Though he played a key role in finalizing the out-of-court settlement between the gas disaster victims and the company, he later regretted his decision to represent Union Carbide. In the S R Bommai case (1994) he argued against the government for imposing the president’s rule arbitrarily under article 356 . This has led to the famous floor test requirement set by the Supreme Court, as per which the majority is decided in the floor of the assembly. He also was a great advocate of the autonomy of private educational institutions under Article 19(1)(g). In the T M A Pai Foundation case (2003), thanks to his brilliant argument, the Court allowed private educational institutions to operate without excessive interference from the government.
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 bibles had 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’.
Fali has written recently another book, Know Your Constitution, which couldn’t have been more timely. Apart from elucidating the high watermarks of constitutional nuances and 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 viewpoint started with Ms. Gandhi and the sad legacy has been carried on by the present regime. Harold Laski wrote: “Responsible dissent is the essence of democracy”, Fali strongly believed that tolerance of a dissident opinion and respecting a contrarian voice are life breaths of democracy.
Martin Luther King Jr said, “The arc of the moral universe is long, but it bends towards justice”. Fali firmly believed in this and expected the Supreme Court to foster and uphold the process of justice. Prashant Bhushan calls Fali Nariman Pitamah Bhishma of the legal fraternity. However, unlike Bhishma who didn’t protest when Draupadi was being disrobed, Fali has raised his voice when democracy has been in danger and the minority community has been unfairly victimized by the majority community. He spoke against the judgment in Article 370 as being constitutionally flawed. He also spoke against the NJAC judgment when the committee system for selecting judges was struck down by the Supreme Court. He believed that the committee structure could have been changed and it was unfair to perpetuate the collegium system, where judges select 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 the IT Act 2000 which led to his arrest for posting offensive messages in the electronic media. Justice Nariman considered the provision to be’ vague’ and would have a ’chilling effect on free speech’ This judgment is considered a landmark judgment for protecting freedom of speech in electronic media. Fali received Padma Vibhushan in 2007. He was not only a great lawyer but ‘one of the finest human beings’. As India passes through an extremely turbulent period of Hindu fundamentalism Fali’s clarion call for a fearless, independent judiciary, upholding constitutional morality, and respecting a contrarian opinion resonates.