“Hazaron saal Nargis apni be-noori pe roti hai; Badi mushkil se hota hai chaman mein didawar paida.”
(For thousands of years, the (eye-shaped) Narcissus laments its blindness; With great difficulty, the one with true vision appears in the garden (to praise its charm).
Renowned Urdu poet, Allama Iqbal composed this meaningful couplet in praise of the true visionaries, who are capable of redressing the afflictions suffered by those, who are not cared about. The aphorism fits well to the noble attributes of Fali Sam Nariman, the peerless doyen of legal fraternity.
How shocking and painful was the news of Fali’s sad demise on February 21, 2024. However, Fali was larger than life, as the noble soul transcends from the cage of biological body frame to live eternally in the hearts of the conscience-keepers, who would never let him die. As such, Fali has become immortal emotionally and spiritually. Honestly speaking, Fali is a legal sage.
Fali captioned his autobiography as “Before the Memory Fades”; whereas, the truth lies that his memory will never fade. This narrative is as true as death. The great son of the soil writes, ” 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.”
Fali Sam Nariman was born on January 10, 1929, in Rangoon, (now Yangon, a part of the then British India). His father’s name Sam was adopted from ‘Sam’, a mythical hero of ancient Persia. Fali has a Persian ancestry. His mother’s family (the Burjorjees) hailed from Burma ( now Mynamar). His father Sam Nariman, came to Rangoon from Bombay (now Mumbai), in the year 1927, to establish a branch office of New India Assurance Co. Ltd. Here he met and fell in love with his mother, Banoo Burjorjee (16 years younger than him). They married in 1928, setting up home in Rangoon.
Fali began his legal career by enrolling himself as an advocate of the Bombay high court in November, 1950. In a short span of eleven years, in 1961, he was designated as senior advocate. In 1972, he moved to Delhi, to practice in the Supreme Court of India. Fali remained a conscience- keeper throughout his judicial career that lasted more than seven decades.
Fali besides being a noted legal figure was a prolific author. His notable work includes, ‘Before the Memory Fades’, ‘The State of the Nation’, ‘India’s Legal System: Can it be Saved?’ and ‘God Save the Hon’ble Supreme Court’.
The veteran lawyer held numerous prestigious positions throughout his illuminating legal career. He was President of the Bar Association of India from 1991 to 2010; President of the International Council for Commercial Arbitration; Vice-Chairman of the Internal Court of Arbitration of the International Chamber of Commerce, and Chairman of the International Commission of Jurists in Geneva from 1995 to 1997. He was awarded Padma Bhushan in 1991 and the Padma Vibhushan in 2007. He was the nominated Member of Rajya Sabha from 1999 to 2005.
He appeared in several landmark cases before the Supreme Court, which included Golaknath case (1967), Kesavananda Bharati (1973), Union Carbide in Bhopal Gas Disaster, Minerva Mills, to mention a few. He appeared in Supreme Court Advocates On- Record Association & Anr Vs. Union of India, in which the National Judicial Appointment Commission (NJAC) was struck down and the Collegium system was upheld by a five-judge Constitution Bench.
In Chapter 16 of his book, ‘Before Memory Fades’, captioned, ‘A Case I Won- But Which I Would Prefer to Have Lost’ he mentions, “I don’t see what’s so special about the first five judges of the Supreme Court. They are only the 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 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.”
He further points out, “…..But the extra curricular task imposed upon five senior most judges (by the judgment of the court itself), that of recommending appointment to the highest court has not been conducted with the care and caution that it deserves. There is too much ad hocism, and no consistent and transparent process of selection. As a result, the image of the court has gravely suffered.”
In Fali’s opinion, “Clipping the wings of the judiciary or saying that judges are going too far, dishonour the Constitution.” However, Fali is critical about the growing trend of PILs, where he says, “PILs- with the day-to-day governance of the country, which ordinarily ought to be left to the elected representatives or those administering the laws. It is such PILs that have given our higher judiciary a bad name.”
“If the PILs had retained the character which first prompted the Supreme Court to recognize them, there would have been no problem viz. to afford the poor and indigent a foothold and an audience in courts – that was in fact the original intention. But now some PILs have wormed their corrupted way into all walks of public life.”
Fali has always been true to his conscience. In 1971, he was appointed as Additional Solicitor General by Indra Gandhi government, but resigned as protest from this post in June,1975, soon after the national emergency was declared. He continued in private practice in the Supreme Court.
Fali Nariman writes,”After about eight years (of relinquishing the charge as ASG), Chief Justice Y.V. Chandrachud, (he was chief justice of India from 1978 to 1985) invited me sometime in the early 1980s to be a judge of the Supreme Court- a direct appointment from the Bar. I thanked him but respectfully declined…..He said he was making me the offer not only after consulting all the judges of the Supreme Court but at their instance, and that if I accepted I would in course of time (I was then only 53 year old) surely be chief justice of India for a very long period. Have I any regrets? I don’t think so.” But fairly speaking, a large number of people belonging to the legal fraternity do carry the regret of not accepting the offer of the then Chief Justice of India Y.V. Chandrachud. The gap left by the likes of Justice P.N. Bhagwati, Justice Krishna Iyer and Justice Subba Rao, would have been filled by ( proposed Justice) Fali Sam Nariman.
Fali is the great admirer of Justice Krishna Iyer. In Fali’s written words, “He (Justice Krishna Iyer) was responsible for – and in turn inspired – a new thrust, a new direction, for the Supreme Court. He helped to humanise the legal system – particularly in the field of criminal jurisprudence and jail reform. He extended the frontiers of the accountability of the state and its instrumentalities in their ever expanding operations. He often strayed from the beaten path of the law, spinning his own ‘cocoon of jurisprudence’, inspired obviously by the fact that in dispensing justice, the answer to the question, ‘What result is best for the country?’ is not always consistent with the response obtained by asking, ‘What is the decision according to the law?’
Fali further writes, “(Justice) Krishna Iyer’s concern was broader- for the poor and downtrodden. He carved out a special entrance for the destitude in the somewhat formidable portals of the Supreme Court. Along with (Justice) P.N. Bhagwati, he gave a new dimension to Articles in the fundamental rights chapter, which have hardly received attention from the court. The rights against exploitation in Article 23 were, under his stewardship, enforced and given meaning.”
Fali Nariman was equally an admirer of Justice Subba Rao. I quote his text: “His (Justice Subba Rao) concern for fundamental rights and his distrust of parliamentary majorities led to some controversial decisions. He abhored absolute power-especially the arrogance of absolute power-whether exercised by an executive admininstrative agency, or when exercised through the legislative process. He did not stop short even at questionning the validity of the exercise of constituent power.”
“In the Kharak Singh Vs State of UP (AIR1963 SC 1295), which dealt with a police regulation authorising domiciliary nocturnal visits to the houses of alleged disreputable characters- he showed the way for the first time for a broader interpretation of Article 21 of the Constitution. ‘The petition’, he said, ‘raises a question of far-reaching importance-the right of every citizen of India to lead a free life subject to social control imposed by valid law.’ He was not deflacted (as was the majority) by the fact that the question had been raised at the instance of an alleged disreputable character (Kharak Singh had a long criminal history- sheet). ‘If the police could do what they did to the petitioner’, said Subba Rao, ‘they could also do the same to an honest and law-abiding citizen.’
He held that the expression ‘life’ in Article 21 could not be confirmed only by the prohibition against taking away life. ‘It inhibits to all those limbs and faculties by which life is enjoyed’…..The right to personal liberty is not only a right to be free from restrictions placed on a citizen’s movements, it also encompasses freedom from encroachment on his private life.”
“It was argued for the state that the fundamental right to freedom of movement meant only that a person could move physically from one point to another without any restraint. Justice Subba Rao rejected this as unacceptable in free society: If a man is shadowed, his movements are obviously constricted. He can move physically, but it can be a movement of an automation. How could a movement under the scrutinising gaze of the policemen be described as a free movement? The whole country is his jail.”
How different would Fali have been to his affectionate Judges, Justice Krishan Iyer, Justice P.N. Bhagwati and Justice Subba Rao? Can someone answer?
Fali Nariman had a great respect for the higher judiciary, specially the judges of the Supreme Court. Despite this fact he always responded to his inner voice and openly but respectfully criticized the judgments that appeared to him as impugned. Once again he exhibited his fearlessness when he recently criticised the verdict of the Supreme Court, in which the abrogation of Article 370 was upheld and said it is regrettable that there was no dissenting judgment.
In his recent interview with Lawyers Update, Fali Nariman commenting on Article 370 judgment had said that we have no authority to say whether the judgment is wrong or not wrong but called the verdict as “totally erroneous and bad in law”. He said that the verdict is “politically acceptable, but not constitutionally correct.” Politically, it is a good thing that a temporary provision in India’s Constitution (Article 370) has ceased to be operative. It has facilitated a complete integration of Jammu and Kashmir in to the Union of India, but the verdict lets Centre get away with violating the Constitution and federal principles.
According to him, what could have been done, was to first repeal the provisions to Article 370; thereafter, the Parliament would have complete liberty to revoke the ‘special status’ as by doing so, the requirement of the Constituent/ State Assembly’s recommendation would not be needed procedurally.
Fali admits that judges are neither hermits nor beyond faults. “Judges are human beings, and human beings, like stars in the firmament, have blemishes. Despite such blemishes they shine.” G.K. Chesterton once said, “Angels can fly because they take themselves lightly.” Fali Nariman is the legal angel who believes in the purest of pure justice and he takes himself lightly. He shall remain the lighthouse in the dark ocean of uncertainties and the Pole Star for the entire legal fraternity. Goodbye Fali Sir!